author: SMITH, Justice.

text:
    STATE BOARD OF EDUCATION et al. v. Angela M. MULLINS et al.
    1080007.
    Supreme Court of Alabama.
    Sept. 4, 2009.
    David M. O’Brien and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellants.

      Gregory B. Stein of Stein, Brewster & Pilcher, LLC, Mobile; James H. Anderson and William F. Patty of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; and Candis A. McGowan of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for appellees.
   SMITH, Justice.

Angela M. Mullins, Gloria Watkins, Annette Rea, and Dawn Thorn (hereinafter collectively referred to as “the employees”) filed the underlying action in the Montgomery Circuit Court, naming as defendants the State Board of Education (“the Board”); Governor Bob Riley, in his official capacity as president of the Board; the individual members of the Board in their official capacities; Bishop State Community College; Bevill State Community College; Southern Union State Community College; and Bradley Byrne, in his official capacity as then chancellor of the Alabama Department of Postsecondary Education. The defendants appeal from the trial court’s entry of a preliminary injunction against them. See Rule 4(a)(1)(A), Ala. R.App. P. We reverse in part, dismiss the appeal in part, and remand.

Facts and Procedural History

This appeal is closely related to events in the underlying action described in South Alabama Skills Training Consortium v. Ford, 997 So.2d 309 (Ala.Civ.App.2008). Ford involved certain State employees— including the four named plaintiffs in the present case — who worked with the North Alabama Skills Training Consortium (“the NASTC”), the Central Alabama Skills Training Consortium (“the CASTC”), and the South Alabama Skills Training Consortium (“the SASTC”) (hereinafter the NASTC, the CASTC, and the SASTC are referred to collectively as “the Consortia”).

The Consortia were a result of the Workforce Investment Act of 1998 (“WIA”), 29 U.S.C. § 2801 et seq„ which superseded the Job Training Partnership Act, 29 U.S.C. § 1501 et seq. As the Court of Civil Appeals explained in Ford:

“The WIA provides federal funding for eligible state programs that deliver workforce education and skills training to qualifying adults and at-risk youth. For administrative purposes, the WIA system divides Alabama into three local service areas; each local service area is governed by a local workforce-investment-area board. According to the record, federal funding under the WIA flows from the United States government to the governor, then to the Alabama Department of Economic and Community Affairs (‘ADECA’), then to the local workforce-investment-area boards, and finally to workforce-training service providers within what is known under the WIA as the ‘one-stop delivery system.’ The record shows that the one-stop delivery system is a network of service providers, designated by either ADECA or the local workforce-investment-area board, that cooperate within a local workforce-investment area.
“Before the enactment of the WIA, entities known respectively as the North Alabama Skills Center, the Central Alabama Skills Center, and the South Alabama Skills Center (collectively ‘the Skills Centers’) provided workforce education and skills training under the federal Job Training Partnership Act. Certain services provided by the Skills Centers were offered through a program known as ‘CareerLink.’ ... After the WIA was enacted, several programs offered by the Skills Centers were discontinued; however, the CareerLink program was continued under the authority of the Consortia.”

997 So.2d at 315-16.

Under an agreement between the Department of Postsecondary Education (“the DPE”) and the Alabama Department of Economic and Community Affairs (“ADECA”), the Consortia were created to deliver WIA-approved training programs. 997 So.2d at 317. According to a 2001 memo from the chancellor of the DPE, each of the Consortia was “operated by” a community college: the NASTC by Bevill State Community College, the CASTC by Southern Union State Community College, and the SASTC by Bishop State Community College. 997 So.2d at 317.

Employees who worked with the Consortia generally were employed under annual contracts. In 2005, the employees’ contracts expired and were not renewed. 997 So.2d at 321. To challenge the nonre-newal of their contracts, the employees

“filed direct appeals with the attorney general’s office, purportedly pursuant to the Fair Dismissal Act (‘FDA’), § 36-26-100 et seq., Ala.Code 1975. See § 36-26-115, Ala.Code 1975. The employees alleged that their respective employers had violated the FDA, specifically §§ 36-26-102 through -104, Ala.Code 1975, by terminating their employment without notice and a hearing.”

997 So.2d at 312. The employees’ appeals were consolidated and assigned to an administrative law judge (“ALJ”). The Consortia moved to dismiss the appeals on the basis that, they contended, the employees were not governed by the Fair Dismissal Act (“FDA”), § 36-26-100 et seq., Ala. Code 1975. 997 So.2d at 312.

Ultimately, the ALJ

“issued a 43-page report and recommendation in which he found that the Consortia were departments within the colleges, that the employees were employed by the colleges, and that the colleges operated ‘under the control, authority, and auspices of the Alabama College System.’ The ALJ concluded that the FDA applied to the employees and that the employees had been wrongfully denied notice and hearings as to the discontinuation of their employment. The ALJ ordered as follows:
“ ‘2.... [T]he actions of the two-year colleges are hereby rescinded, and the [employees] are entitled to:
“ ‘a. The rights and privileges of the FDA, including their right to a hearing prior to their termination.
“ ‘b. Proper notice per the FDA.
“ ‘c. Reinstatement and back pay.
“ ‘3. The [colleges] are hereby placed on notice that any further employment action on their part must be in full compliance with the FDA.’ ”

997 So.2d at 313.

The Consortia filed in the Montgomery Circuit Court petitions for a writ of certio-rari seeking review of the ALJ’s order; the circuit court denied the petitions, and the Consortia appealed. 997 So.2d at 313— 14. The Court of Civil Appeals, in a thorough analysis, held that the employees were employees of the respective community colleges and, under the particular circumstances of the case, were entitled to the protections — specifically, the notice and hearing provisions — applicable to non-probationary employees under the FDA. 997 So.2d at 325-29.

The Court of Civil Appeals decided Ford on June 6, 2008. While the Ford case was pending, Governor Riley issued Executive Order No. 36 on October 5, 2007, which created the Governor’s Office of Workforce Development in an effort to “consolidat[e] ... the administration of federal and state workforce development activities.” Exec. Order No. 36 (Oct. 5, 2007). The order also created the State Workforce Planning Council (“the Planning Council”) to “develop, administer, and coordinate the implementation of a comprehensive State Plan for Workforce Development to be approved by the Governor with input from the State Workforce Investment Act (WIA) Board,” and it consolidated in the Office of Workforce Development all “powers, duties, rights and responsibilities” relating to workforce development and training under the WIA and otherwise. Id.

Executive Order No. 36 directs the Office of Workforce Development to cooperate fully with the DPE. The DPE, according to the evidence in the present case, “hosts” the Office of Workforce Development and staffs it with DPE employees.

In attempting to fulfill the directives of Executive Order No. 36, the Planning Council, among other things, commissioned the Center for Government at Auburn University at Montgomery (“AUM”) to conduct a series of studies regarding the workforce-development system as it then existed in Alabama. The first phase of the AUM study analyzed the fiscal resources of the workforce-development system.

The AUM study resulted in three recommendations to the Planning Council in March 2008: (1) centralization of the financial management of the workforce-development system; (2) better coordination of resources and the streamlining of access to services; and (3) better use of funding by directing funding based on “strategic needs.” The report resulting from the study estimated that if the recommendations of the study were followed, a savings of $750,000 could be realized in the first year. The Planning Council adopted the recommendations of the study, and the Office of Workforce Development began planning to implement those recommendations.

In May 2008, it was decided that the SASTC and the NASTC would be consolidated with the CASTC at Southern Union State Community College. However, after the Ford decision, the consolidation plan was halted, and, according to the defendants,

“it was decided to extend the current arrangement — the WIA CareerLink services being provided by the SASTC, the NASTC, and the CASTC- — until October 1, 2008, at which time [the] DPE would be ready in an accelerated fashion to assume the fiscal responsibilities and management and operation of the one-stop centers to be centralized within the Governor’s Office of Workforce Development using DPE employees to provide the services. In furtherance of the new consolidation plan, each of the employees of the CASTC, NASTC, and SASTC were offered new positions with the DPE at the same salary, with essentially the same benefits, performing the same job functions at the same locations. The only significant distinction between employment with [the] DPE and employment at one of the host community colleges is that the majority of [the] employees of [the] DPE are not covered by the Alabama Fair Dismissal Act. In order to accept employment at [the] DPE, the named plaintiffs and the putative class would have had to resign their new positions with [the community colleges].”

(Defendants’ brief, p. 11.)

Ultimately, a letter was mailed to the employees. The letter informed the employees that the DPE would be taking over the operations of the Consortia and offered the employees “an opportunity to become an employee of the [DPE] effective October 1, 2008.” The letter stated that “[a]cceptance of this appointment necessitates your resignation as an employee of’ the community college. The letter also informed the employees that if they chose to remain employed by the community colleges, their “continued employment with the College, as with all College employees, [would] be contingent upon available funding and positions.”

A form was also distributed to the employees; it formally offered them employment with the DPE and had a space at the bottom where the employee could sign and thereby accept the offer of employment with the DPE. The form stated that “your employment in such position will be continued at the pleasure of the Chancellor.” Finally, the form stated that the employee’s acceptance of a position at the DPE indicated that the employee was “voluntarily resigning] as an employee” of the employee’s respective community college.

The employees filed the underlying action in the present case on August 4, 2008, on behalf of a putative class of certain employees of Bishop State, Bevill State, and Southern Union. The employees sought a declaratory judgment and injunc-tive relief, both preliminary and permanent. Specifically, count I of the complaint alleged that the DPE’s announced plan to move the employees from employment with the community colleges to employment with DPE was an unlawful attempt to require the employees “to waive the employment rights accorded them by the Fair Dismissal Act.” Count II alleged that the plan to move the employees from employment with the community colleges to employment with the DPE would involve the DPE’s attempting to provide “educational services to the public.” Count II further alleged that the DPE and the chancellor “do not have legislative authorization to act as an education institution in their own right, providing educational services to the public.”

The trial court conducted a hearing on the motion for a preliminary injunction; the parties presented documentary evidence at the hearing as well as live testimony and testimony by affidavit. After the hearing, the trial court entered an order granting the employees’ request for a preliminary injunction. The defendants appeal from the order granting the preliminary injunction. See Rule 4(a)(1)(A), Ala. RApp. P.

Standard of Revieiu

“A preliminary injunction should be issued only when the party seeking an injunction demonstrates:

“ ‘ “(1) that without the injunction the [party] would suffer irreparable injury; (2) that the [party] has no adequate remedy at law; (3) that the [party] has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the [party opposing the preliminary injunction] by the injunction would not unreasonably outweigh the benefit accruing to the [party seeking the injunction].” ’
“Ormco Corp. v. Johns, 869 So.2d 1109, 1113 (Ala.2003) (quoting Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994)).”

Holiday Isle, LLC v. Adkins, 12 So.3d 1173, 1176 (Ala.2008). “To the extent that the trial court’s issuance of a preliminary injunction is grounded only in questions of law based on undisputed facts,” our review is de novo. 12 So.3d at 1176.

Discussion

I.

As a threshold matter, we note that in addition to the individually named defendants sued in their official capacities, the plaintiffs sued the Board itself, as well as Bishop State Community College, Bevill State Community College, and Southern Union State Community College. The Board and the colleges are agencies of the State. Ex parte Board of Educ., 810 So.2d 773, 776 (Ala.2001); Ex parte Craft, 727 So.2d 55, 58 (Ala.1999). This Court recently held in Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 841 (Ala.2008), that “only State officers named in their official capacity — and not State agencies — may be defendants in [declaratory-judgment] proceedings.”

In Alabama Department of Corrections v. Montgomery County Commission, 11 So.3d 189, 191-92 (Ala.2008), this Court stated:

“Section 14, Ala. Const. 1901, provides: ‘[T]he State of Alabama shall never be made a defendant in any court of law or equity.’ (Emphasis added.) ‘The wall of immunity erected by § 14 is nearly impregnable.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). Indeed, as regards the State of Alabama and its agencies, the wall is absolutely impregnable. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (‘Section 14 affords absolute immunity to both the State and State agencies.’); Ex parte Jackson County Bd. of Educ., 4 So.Sd 1099, 1102 (Ala.2008) (same); Atkinson v. State, 986 So.2d 408, 410-11 (Ala.2007) (same); [Ex parte Alabama Department of Transportation (In re Good Hope Contracting Co. v. Alabama Department of Transportation), 978 So.2d 17 (Ala.2007)] (same); Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1268 (Ala.2000) (same); Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992) (same). ‘Absolute immunity’ means just that — the State and its agencies are not subject to suit under any theory.
“ ‘This immunity may not be waived.’ Patterson, 835 So.2d at 142. Sovereign immunity is, therefore, not an affirmative defense, but a ‘jurisdictional bar.’ Ex parte Alabama Dep’t of Transp., 985 So.2d 892, 894 (Ala.2007). The jurisdictional bar of § 14 simply ‘precludes] a court from exercising subject-matter jurisdiction’ over the State or a State agency. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003).”

Consequently, the Board and colleges in the present case are absolutely immune from suit under § 14, Ala. Const. 1901. Harbert, 990 So.2d at 841. Thus, the trial court was without jurisdiction over the Board and the colleges, and the Board and the colleges are due to be dismissed as parties. Furthermore, as to the Board and the colleges, the appeal is dismissed.

II.

In its order preliminarily enjoining the defendants, the trial court stated:

“Plaintiffs are employees of three Alabama community colleges (Bishop State Community College, Southern Union [State] Community College, and Bevill State Community College) employed through a ‘Skills Training Consortium’ operated by each of the Colleges. In May 2008, defendants announced that the three consortia programs would become consolidated into a single program operated by Southern Union [State] Community College. Then, on June 6, 2008, the Alabama Court of Civil Appeals issued a decision in a long-standing action, South Alabama Skills Training Consortium v. Ford, 997 So.2d 309 (Ala.Civ.App.2008). The Court of [CM] Appeals held that the employees of the three consortia were in fact employees of their hosting community colleges and were covered by and entitled to the protections of the Fair Dismissal Act, including ‘non-probationary status’ or tenure.
“After the Court of Civil Appeals issued its decision in Ford, defendants changed their plans. Instead of consolidating the three programs under Southern Union [State] Community College, as previously planned, defendants announced that the programs would be consolidated under the [DPE], The Court finds that the primary purpose of the ‘consolidation’ was to emasculate the protections presented to the employees under the Fair Dismissal Act.”

The trial court’s order further states that the DPE “and the Chancellor are unlawfully trying to expand their own authority — to expand it from the lawfully granted authority to supervise those who provide certain services to the public, to the not-granted authority to provide those services itself.” The trial court’s order notes:

“Defendants argue that the issue is not ripe because none of the affected employees have disciplinary actions pending or contemplated against them. Thus, the employees have suffered no injury. This is akin to contending that taking away an employee’s insurance is of no consequence unless the employee is ill when the insurance is taken away.”

The trial court enjoined the defendants from:

“a. Denying or abridging plaintiffs’ and the putative class members’ rights under the Alabama Fair Dismissal Act, Alabama Code [1975,] Section 36-26-100, et seq.;
“b. Requiring or attempting to require plaintiffs and the putative class members to waive their rights under the Fair Dismissal Act, Alabama Code [1975,] Section 36-26-100, et seq.;
“c. Ceasing, altering, or interfering with the salaries of and the employment benefits of, plaintiffs, and the putative class members; ...
“d. Failing or refusing to recognize and acknowledge the continued employment of plaintiffs and the putative class members as employees of their respective community colleges, with full rights accorded them by the Fair Dismissal Act, Alabama Code [1975,] Section 36-26-100, et seq.[; and]
“e. Enforcing or acting upon any letter of resignation submitted by a plaintiff or putative class member pursuant to defendants’ demand that employees resign their employment with their respective colleges to accept employment with the Department of Postsecondary Education.”

In its order, the trial court recited the four requirements for the issuance of a preliminary injunction as outlined in Holiday Isle, supra, and declared that the employees had established each of the requirements. The trial court did not elaborate, however, as to how the employees had demonstrated each requirement.

The defendants contend that the trial court exceeded its discretion in concluding that the employees established the first and second requirements for the issuance of a preliminary injunction: “that without the injunction [they] would suffer immediate and irreparable injury” and that they have “no adequate remedy at law.” In support of their position, the defendants cite Woodward v. Roberson, 789 So.2d 853 (Ala.2001).

In Woodward, the newly elected sheriff of Jefferson County, Woodward, terminated the employment of two deputies, Farley and Roberson. 789 So.2d at 855.

“The Jefferson County Personnel Board ordered Woodward to reinstate Farley and Roberson to their previous positions; Woodward refused. Farley and Roberson sued Woodward and the Personnel Board in an effort to enforce the Personnel Board’s order. In their initial complaint, Farley and Roberson sought declaratory and injunctive relief grounded upon allegations that they had been dismissed or demoted without due process of law; they based their claim upon rights derived from the enabling legislation creating the Personnel Board and from the Alabama Constitution of 1901. They also sought money damages for lost earnings and benefits and for mental anguish.”

789 So.2d at 855. The trial court granted the deputies’ motion for a preliminary injunction ordering the sheriff to reinstate them to their positions. This Court reversed the trial court’s order.

After reciting the above-quoted requirements for the issuance of a preliminary injunction, this Court stated:

“Farley and Roberson did not demonstrate an immediate and irreparable injury for which their remedy at law would be inadequate. This is an action against Woodward individually and as sheriff, brought by Farley and Roberson, as individuals, for 1) permanent in-junctive relief reinstating them in their positions and 2) money damages. Their motion for a preliminary injunction avers that they would ‘suffer economic hardship if relief is delayed.’ Woodward calls out' attention to Perley [v. Tapscan, Inc., 646 So.2d 585 (Ala.1994)], in which this Court affirmed an order denying a preliminary injunction in an employment case. This Court stated in Perley that ‘ “irreparable injury” is an injury that is not redressable in a court of law through an award of money damages.’ 646 So.2d at 587 (citing Triple J Cattle, Inc. v. Chambers, 551 So.2d 280 (Ala.1989)). Woodward also refers us to Van Arsdel v. Texas A & M University, 628 F.2d 344, 346 (5th Cir.1980) (reversing an order granting a preliminary injunction and holding that reinstatement after trial, coupled with an award of backpay, should suffice to redress the alleged wrong). Neither Farley and Roberson nor the Personnel Board has furnished any contrary authority in the employment context.
“Clearly, an award of money damages provides an adequate remedy for a loss of earnings or for mental anguish. If Farley and Roberson prevail on a final hearing and Woodward, in his official capacity, is ordered to reinstate them with backpay, or if Woodward loses on his defenses of immunity from personal liability, they will have an adequate remedy at law.”

789 So.2d at 856.

The employees argue that without the preliminary injunction, they will be “strip[ped] of the protections of the [FDA],” including the nonprobationary status afforded certain employees under § 36-26-101, Ala.Code 1975. The employees contend that without the injunction, they will become at-will employees, that they will lose the protections of the FDA, and that, in the event their employment is terminated, they will have no remedy at law. However, the employees also argue to this Court, as they do in count I of their complaint, that they cannot be forced to “voluntarily resign” from their employment at the community colleges — i.e., the employees contend that even if they signed the forms provided to them by the DPE with statements to the effect that the employees agreed to “voluntarily” resign their positions with the community colleges to become at-will employees of the DPE, the protections of the FDA would nonetheless apply to them.

The defendants argue that

“[i]f the ... decision in Ford is instructive on any issue, it is that [the employees] have an adequate remedy at law to redress any rights they may have under the Fair Dismissal Act. Clearly, should [the employees] prevail on the merits of their claim, they have an adequate remedy in the form of having their rights under the Fair Dismissal Act restored retroactively, or, in the event of a possible disciplinary action against [the employees], they would have the remedies outlined in Ford: a rescission of the termination and the provision of back pay. As such, [the employees] cannot establish the existence of an immediate and irreparable injury or that they lack an adequate remedy at law.”

(Defendants’ brief, pp. 20-21 (emphasis added).) Citing Woodward, supra, the defendants contend that, if reinstatement and backpay were sufficient relief for the deputies in Woodward whose employment had been terminated, the remedies available under the FDA, assuming it applies to the employees, are sufficient relief for the employees in the present case if the employees eventually face the termination of their employment. We agree.

For all that appears in the record, none of the employees in the present case has been terminated or suffered any actual deprivation of any rights he or she may have under the FDA. However, assuming the employment of the employees is terminated at some point in the future and assuming the employees are correct in their assertion that the FDA applies to them, nothing indicates that the remedies available to the employees under the FDA will be inadequate. Alternatively, nothing indicates that the remedies available to them will be inadequate if the employees ultimately prevail in their contention, as alleged in count II of their complaint, that the DPE and the chancellor “do not have legislative authorization” to proceed with their plans.

Accordingly, the employees have not demonstrated that without the preliminary injunction they would suffer irreparable injury for which there is no adequate remedy at law. See generally Woodward, supra; see also Ormco Corp. v. Johns, 869 So.2d 1109, 1113-14 (Ala.2003):

“ ‘ “Irreparable injury” is an injury that is not redressable in a court of law through an award of money damages.’ [Perley v. Tapscan, Inc.,] 646 So.2d [585,] 587 [(Ala.1994)] (citing Triple J Cattle, Inc. v. Chambers, 551 So.2d 280 (Ala.1989)). However, ‘courts will not use the extraordinary power of injunc-tive relief merely to allay an apprehension of a possible injury; the injury must be imminent and irreparable in a court at law.’ Martin v. City of Linden, 667 So.2d 732, 736 (Ala.1995); see also Borey v. National Union Fire Ins. Co. of Pittsburgh, 934 F.2d 30, 34 (2d Cir.1991) (stating that ‘a mere possibility of irreparable harm is insufficient to justify the drastic remedy of a preliminary injunction’).”

Thus, the trial court erred in issuing the preliminary injunction.

Conclusion

Because they are absolutely immune from suit, the Board and the colleges are due to be dismissed as parties, and, as to the Board and the colleges, the appeal is dismissed. As to the remaining defendants, the trial court’s order issuing the preliminary injunction is reversed, and the cause is remanded for further proceedings.

REVERSED IN PART; APPEAL DISMISSED IN PART; AND REMANDED.

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

      . The opinion in Ford includes an extensive description of the creation, practices, and procedures of the Consortia and their predecessor organizations. 997 So.2d at 315-24.

      . The Court of Civil Appeals also held (1) that review by common-law certiorari of the ALJ's decision under § 36-26-115, Ala.Code 1975, was appropriate, 997 So.2d at 329-33; and (2) that, in purporting to apply his order to all similarly situated employees of the colleges, the ALJ had exceeded his discretion because, the Court held, the FDA does not authorize an ALJ to offer relief on a class-wide basis or to apply an order to parties not before the ALJ, 997 So.2d at 333-34.

      . According to Executive Order No. 36,
      "lt]he [Planning] Council shall be composed of the following members or their respective designees:
      "the Director of the Office of Workforce Development;
      "the Chancellor of the Alabama College System;
      “the Director of the Alabama Department of Economic and Community Affairs;
      “the Director of the Department of Industrial Relations;
      "the Director of the Alabama Development Office;
      "the Commissioner of the Department of Human Resources;
      "the Executive Director of the Department of Senior Services;
      "the Director of the Alabama Industrial Training Institute; and
      "the State Superintendent of Education.”
      In addition to those members, the Governor appoints three at-large members to the Planning Council, including one "president of an Alabama public two-year college” and "two representing Alabama business and industry.” Id.

      . The defendants assert that after the consolidation, the CASTC would be operated and managed by the Office of Workforce Development and that Southern Union State Community College was to serve as the fiscal agent for the CASTC. The defendants further contend that the original plan was for the DPE to serve as the fiscal agent but that in May 2008 it was determined that the DPE would not be ready to assume those responsibilities by July 1, 2008, the beginning of the next program year for the WIA system. Thus, the defendants contend that they intended for Southern Union State Community College to serve as the fiscal agent for the CASTC only until July 1, 2009, at which time the DPE would assume the fiscal-agent responsibilities.
      The employees dispute the defendants' assertion that the original planned consolidation at Southern Union was intended to be for only a year until DPE would be ready to assume the fiscal-agent responsibilities. Rather, the employees assert that
      "all of the documents created by [the] DPE and all of the statements made by [the] DPE employees stated flatly that the consolidation was to be under Southern Union State Community College and do not say or imply that there was to be any temporal limitation to that consolidation.”
      (Employees' brief, p. 17.) Even if the employees’ assertion is correct, however, it would have no effect on the outcome of this appeal; therefore, this factual dispute is of no consequence for purposes of this appeal.

      . The DPE also provided the employees with a "Personnel Procedures Handbook” for DPE employees. It included the following provisions:
      "All personnel serve at the pleasure of the Chancellor.

      "The Chancellor may terminate any employee at-will.

      "The [DPE] staff serves at the pleasure of the Chancellor. Therefore he has the absolute authority to hire and discharge at will without notice."

      . The employees cite to this Court, as they did to the trial court, authority that, the employees contend, stands for the “proposition that a public employer cannot require its employees to waive or forego their rights under the Teacher Tenure Law or Fair Dismissal Act.” (Employees' brief, p. 34.) See, e.g., Clayton v. Board of School Comm'rs of Mobile County, 552 So.2d 145, 149 (Ala.Civ.App.1988), rev’d on other grounds, Ex parte Clayton, 552 So.2d 152, 155 (Ala.1989), in which the Court of Civil Appeals held:
      "[T]he employees here were working pursuant to a three-month contract, and the school therefore contends that they were not covered under the Act as their contracts had expired. It appears to this court that to allow such action would emasculate the intent of the Act. By deliberately designing and requiring short, three-month contracts of employment, the school could effectively modify and evade the requirements of the Act. See Haas v. Madison County Board of Education, 380 So.2d 873 (Ala.Civ.App.1980), cert. denied, 380 So.2d 877 (Ala.1980). Therefore, we hold that these employees, even though employed pursuant to a three-month contract, do come within the provision of § 36-26-104 and are entitled to all the protection of the Act.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America v. Jimmie David PARVIN.
    1071495.
    Supreme Court of Alabama.
    Sept. 4, 2009.
    Alice H. Martin, United States atty., Northern District of Alabama, and Michael B. Billingsley, asst. United States atty., Birmingham, for plaintiff.
    Bruce A. Gardner, Huntsville, for defendant.
   PER CURIAM.

This case is before us on certified questions from the United States District Court for the Northern District of Alabama. Pursuant to federal law, the United States Attorney’s Office for the Northern District of Alabama charged Jimmie David Parvin with indecent exposure on federal public land under § 13A-6-68, Ala.Code 1975, which states, in pertinent part:

“(a) A person commits the crime of indecent exposure if, with intent to arouse or gratify sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm in any public place or on the private premises of another or so near thereto as to be seen from such private premises.”

Pursuant to Rule 18, Ala. R.App. P., the federal disteict court has certified the following two questions to this Court:

“1. Must the government allege the element of lack of consent when charging the crime of indecent exposure under Ala. Code [1975,] § 13A-6-68, if the offense occurs in a public place?
“2. If so, who is the victim for purposes of establishing nonconsent?”

I. Facts and Procedural History

In its certification to this Court, the district court set forth the following facts:

“On July 21, 2006, Defendant Parvin visited the Wheeler National Wildlife Refuge and went to the Beaver dam Boardwalk. Parvin testified at trial that he knew of Wheeler’s status as a public park, and was therefore aware that other members of the general public used the Refuge. After arriving at Wheeler that day, Parvin walked to the area known as Beaverdam Boardwalk where he discovered Officer Blanks posing as an average citizen. After a brief introduction, Parvin asked Officer Blanks, ‘do you think this place is safe, because I’ve heard of people being arrested out here?’ Officer Blanks responded with, T guess it is safe. It’s my first time here.’ Parvin then proceeded to expose his penis and masturbate in front of Officer Blanks. Thereafter, Officer Blanks removed his concealed law enforcement credentials and informed Par-vin that he was a federal officer.”

The Secretary of the Interior (“the Secretary”) is given the power to administer and to manage the National Wildlife Refuge System. See 16 U.S.C. § 668dd (1998). The Secretary is empowered to adopt regulations governing the use of national wildlife refuges. One of the regulations promulgated by the Secretary is 50 C.F.R. § 27.83, which provides that “[a]ny act of indecency or disorderly conduct as defined by State or local laws is prohibited on any national wildlife refuge.” See also 16 U.S.C. § 668dd(f).

Parvin was charged with indecent exposure under § 13A-6-68, Ala.Code 1975, and with public lewdness under § 13A-12-130, Ala.Code 1975. With regard to the indecent-exposure charge, the federal information specifically charged that Parvin,

“while on land acquired for the use of the United States and under the concurrent jurisdiction thereof, that is, the Wheeler National Wildlife Refuge, did knowingly commit the crime of indecent exposure, in that the defendant, with the intent to arouse and gratify sexual desires of himself and of a person other than his spouse,[] did expose his genitals under circumstances in which he knew his conduct was likely to cause affront, and alarm in a public place .... ”

Parvin elected to be tried by a jury presided over by a United States magistrate judge. At the close of the government’s case, and again at the close of all the evidence, Parvin made motions for judgments of acquittal; the trial court denied both motions. Parvin was convicted by the jury on both counts. He was sentenced to serve 90 days on each count, with the sentences to run concurrently. Parvin appealed his convictions to the United States District Court. The district court has certified the above two questions to this Court.

II. Discussion and Analysis

A. Question 1

As a threshold matter, we note that the first question posed by the federal district court appears to presume that lack of consent is an element of the crime of indecent exposure under § 13A-6-68: “Must the government allege the element of lack of consent ... ?” In this presumption, the question accurately reflects Alabama law.

The question as framed, however, is whether lack of consent must be “alleged” specifically in a charging instrument. The United States Attorney contends that a charging instrument that tracks the language of § 13A-6-68(a) is sufficient because, according to the United States Attorney, the terminology of the statute necessarily reflects a lack of consent. We presume that whether a charging instrument merely tracking the statutory language would be sufficient under this State’s jurisprudence to charge in an Alabama court the offense of indecent exposure is a different question than whether a charging instrument of such a nature would be sufficient under federal jurisprudence to charge in a federal court the offense of indecent exposure. We further presume that the federal court did not intend to ask the former question; we decline to address the latter question.

B. Question 2

Although we decline to answer the first question, the second question is still relevant. Given that lack of consent is an element of indecent exposure under § 13A-6-68, Ala.Code 1975, the second question posed is who is the victim of the crime for purposes of establishing noncon-sent where the offense occurs in a public place. The Commentary to § 13A-6-68 answers this question. The Commentary states that the section has “regard for the effect of the act upon the victim, rather than the effort to regulate and protect the morals of society generally” and that, “[a]l-though technical definitions and reported examples of ‘affront and alarm’ are not available, the words as used in this section suggest a subjective test of what would likely cause one of those reactions in the observer of the exposure ...Thus, the victim or victims for purposes of establishing lack of consent are the person or persons who actually observed the defendant’s conduct.

QUESTION 1 DECLINED; QUESTION 2 ANSWERED.

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

      . No question is before us concerning the public-lewdness charge.

      . The federal information apparently did not track with precision the language of § 13A-6-68 as to the first element of the offense. The statute states the first element in the disjunctive, i.e., "with intent to arouse or gratify sexual desire of himself or of any person other than his spouse." No question is presented as to this difference.

      . Section 13A-6-68 is contained in Article 4 of the Alabama Criminal Code, Ala.Code 1975, § 13A-1-1 et seq., which covers "Sexual Offenses." Other offenses contained in Article 4 include rape (§ 13A-6-61 and § 13A-6-62), sodomy (§ 13A-6-63 and § 13A-6-64), sexual misconduct (§ 13A-6-65), sexual torture (§ 13A-6-65.1), and sexual abuse (§ 13A-6-66 and § 13A-6-67). Article 4 concludes with § 13A-6-70, which states, in part:
      "(a) Whether or not specifically stated, it is an element of every offense defined in [Article 4], with the exception of subdivision (a)(3) of Section 13A-6-65, that the sexual act was committed without consent of the victim.”

      (Emphasis added.) See also United States v. Burnett, 545 F.Supp.2d 1207, 1212 (N.D.Ala.2008) (reasoning that the issue whether lack of consent is an element of the crime of indecent exposure under Alabama law is "put to rest by the plain and unambiguous meaning of the governing statute [§ 13A-6-70(a), Ala.Code 1975]”).

      . "While the Assimilative Crimes Act assimilates state ‘substantive law pertaining to the elements of an offense and its punishment ... [i]t does not generally adopt state procedures or rules of evidence.' (emphasis supplied). United States v. Price, 812 F.2d 174, 175 (4th Cir.1987); Kay v. United States, 255 F.2d 476, 479 (4th Cir.), cert. denied, 358 U.S. 825 (1958). In United States v. Fesler, 781 F.2d 384, 392 (5th Cir.), rehearing denied 783 F.2d 1063 (5th Cir.), cert. denied 476 U.S. 1118 (1986), the court stated that '[federal law, not state law, determines the sufficiency of an indictment under the ... [Assimilative Crimes Act].'"

        United States v. Williams, 946 F.2d 888 (table) (opinion not published in Federal Reporter) (No. 90-5731, Oct. 8, 1991) (4th Cir.1991).

      . The facts provided by the federal district court reflect that Officer Blanks was in the Wildlife Refuge posing as "an average citizen” and that Parvin inquired of Officer Blanks whether he thought the Refuge was "safe,” in light of reports of arrests in the Refuge. After receiving Officer Blanks’s response that he ”guess[ed] it [was] safe,” Par-vin proceeded to expose his genitals and mas-túrbate in Officer Blanks's presence, hardly something an average citizen might expect. We note, however, that we have not been presented with the particulars of the proof that the federal government offered at trial. It is thus unclear whether the government attempted to present evidence on the issue of Officer Blanks's lack of consent, or whether some other victim might have been involved.


author: PARKER, Justice.

text:
    Ex parte MOVIE GALLERY, INC.; Movie Gallery US LLC; Movie Gallery Services, Inc.; and M.G.A., Inc. (In re William Nixon v. Movie Gallery, Inc.; Movie Gallery US LLC; Movie Gallery Services, Inc.; and M.G.A., Inc.)
    1061723.
    Supreme Court of Alabama.
    Sept. 4, 2009.

      Todd Derrick of Cobb, Derrick, Boyd & White, Dothan, for petitioners.
    Ernestine S. Sapp of Gray, Langford, Sapp, McGowan, Gray, Gray & Nathanson, Tuskegee, for respondent.
   PARKER, Justice.

Movie Gallery, Inc., Movie Gallery US LLC, Movie Gallery Services, Inc., and M.G.A., Inc. (hereinafter referred to collectively as “Movie Gallery”), petition for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying Movie Gallery’s motion to transfer the underlying case to Houston County and to transfer the case. We grant the petition and issue the writ.

Background

The complaint alleges that the plaintiff, William Nixon, was sent by his employer, Facility Master, an organization defined in the complaint only as “a Florida company,” to install equipment in Movie Gallery stores in Illinois. Nixon worked in nine stores in Illinois on October 30, 2004. While he was at work in the ninth store, the district manager for Movie Gallery telephoned Nixon to question the authorization for the work Nixon had performed. For reasons not explained, the district manager then telephoned the local police and reported that Nixon was at the Movie Gallery store and that he was intoxicated. The police responded and determined that Nixon was not intoxicated; they told Nixon that he was free to leave the store.

The complaint further alleges that either the district manager or another manager for Movie Gallery then telephoned Facility Master and advised Facility Master that the police had had to remove Nixon from the Movie Gallery store because he was intoxicated while he was on the job. Facility Master terminated Nixon’s employment on October 31, 2004.

Alleging that the Movie Gallery entities are Alabama corporations doing business in Montgomery County, Nixon, a resident of North Carolina, sued Movie Gallery in the Montgomery Circuit Court on October 27, 2006. Nixon’s complaint alleged that Movie Gallery had slandered him and had intentionally interfered with his business relationship with Facility Master. The parties agreed to an extension of time for Movie Gallery to file its answer, and Movie Gallery answered on December 22, 2006. In its answer, Movie Gallery pleaded, among other defenses, “improper venue.” On February 15, 2007, Movie Gallery filed a motion for a change of venue. Nixon filed his response on March 15, 2007, and the trial court heard arguments on the motion on April 30, 2007.

In its motion for a change of venue, Movie Gallery argued that venue in Montgomery County is improper under § 6-3-7(a), Ala.Code 1975, because none of the alleged acts complained of took place in Alabama, because Nixon does not reside in a county in Alabama, and because the principal office of the Movie Gallery entities is in Houston County. These facts, Movie Gallery argues, mandate that the proper venue for the action is Houston County, not Montgomery County.

In his response to the motion for a change of venue, Nixon argued that the statement in the motion — “[Movie Gallery] plead[s] improper venue” — was not sufficient to invoke Rule 12(b)(3), Ala R. Civ. P., and plead the defense of improper venue because, he says, Movie Gallery “failed to even cite Rule 12(b)(3) and failed to plead any factual basis for its assertion of improper venue.” Nixon further asserted that Movie Gallery’s motion was untimely filed and that it should be denied on the basis that the issue of improper venue was waived. In the alternative, Nixon argued that, even if the motion was timely filed and the defense not waived, Movie Gallery had failed to meet its burden of proof to establish improper venue.

At the April 30, 2007, hearing, the trial court heard argument on the issue whether Movie Gallery had waived the defense of improper venue. Nixon argued that “while an extension was agreed upon by the parties for the filing of an answer, the defense of improper venue was waived as a result of the extension of time .... ” Because Movie Gallery disagreed with the assertion that it had waived the defense of improper venue, the trial court requested that the parties brief the issue.

In its brief in response to the trial court’s request, Movie Gallery addressed issues Nixon apparently raised in the hearing. Movie Gallery again presented its argument that venue in Montgomery County is improper under § 6-3-7(a), Ala. Code 1975. It then addressed the issue whether an agreement for an extension of time in which to file an answer waives Rule 12, Ala R. Civ. P., defenses. Quoting from this Court’s decision in Rivers v. Stihl, Inc., 434 So.2d 766, 771 (Ala.1983), Movie Gallery argued that “ ‘[a] motion containing a request for extension of time does not cause a waiver of Rule 12 defenses unless some additional language in the motion would constitute a waiver.’ ” Rivers was concerned with a Rule 12(b)(4) defense — insufficiency of service — as opposed to Movie Gallery’s Rule 12(b)(3) defense — improper venue — but Movie Gallery argued that because the defense in Rivers and the defense it asserts are both treated alike in Rule 12 and are both specifically addressed together in Rule 12(h)(1), the holding in Rivers that an extension of time in which to file an answer does not, without more, constitute a waiver of Rule 12 defenses applies to the defense of improper venue as well as to the defense of insufficiency of service.

Movie Gallery presented a second argument addressing waiver, based on Rule 12(h)(1), Ala. R. Civ. P., saying that a defense of improper venue is waived if it is “ ‘neither made by motion ... nor included in a responsive pleading or an amendment thereof as permitted by Rule 15(a) .... ’ ([e]mphasis added).” Movie Gallery stated that it asserted the defense of improper venue in the first responsive pleading filed in the case.

As a third argument, Movie Gallery cited Rule 8(b), Ala. R. Civ. P., which states that in setting forth a defense in a responsive pleading “ ‘a party shall state in short and plain terms the party’s defenses to each claim asserted ....’” (Emphasis added.) Movie Gallery then concluded that an agreement to extend the time for filing an answer is, in fact, an agreement to allow the party additional time to state “in short and plain terms the party’s defense” and that there was no evidence indicating that the agreement to extend the time in which to file an answer constituted a waiver.

In its final argument in its supplemental brief to the trial court, Movie Gallery rebutted Nixon’s assertion made at the hearing that Ex parte Air Control Products, Inc., 271 Ala. 646, 126 So.2d 480 (1961), held that a defendant’s voluntary act in having a case continued constituted a waiver of the right to transfer the case based on improper venue. The argument was repeated in Nixon’s response to the trial court’s order for briefs on the waiver issue. In rebuttal, Movie Gallery argued that Air Control Products was decided before Alabama adopted the Alabama Rules of Civil Procedure, that the Court in Air Control Products had found that there was no waiver in that case, and that although the case contained the statement that “[a] plea to the venue may be waived,” 271 Ala. at 648, 126 So.2d at 482-83, that principle is not in question in this case. What is in question is whether the defense was waived in the present case.

Nixon, in his supplemental brief to the trial court, argued that Movie Gallery’s request for “a continuance to answer the complaint” constituted a waiver of its right to “file a [Rule] 12(b)(3) objection to venue” under the rule of Air Control Products. He cited Ex parte Associates Financial Services of Alabama, Inc., 705 So.2d 836 (Ala.1997), as holding that the defendant in that case had waived the right to question whether venue was proper under § 6-3-7, Ala.Code 1975, and Ex parte Till, 595 So.2d 871 (Ala.1992), for the proposition that a defendant who answers a complaint but fails to raise a Rule 12(b)(3) objection in his answer waives the objection and has “waived the right to question whether venue was proper under § 6-3-7, Ala.Code 1975.” Ex parte Associates Fin. Servs., 705 So.2d at 838. He then directed the trial court’s attention to “Ex Parte AAMCO Transmissions, Inc., 897 So.2d 285[, 288] ([Ala.] 2004), which holds that ‘If a party fails to raise a Rule 12(b)(3) objection in the first responsive pleading or in a motion filed before that first responsive pleading, the objection is waived.’ ” Nixon concluded that because Movie Gallery’s motion for a change of venue was filed on February 15, 2007, after its answer was filed on December 22, 2006, it is untimely and should be denied.

Nixon then advised the trial court that, if it determined that Movie Gallery had not waived the defense of improper venue, the burden was on Movie Gallery to show that venue in Montgomery County was improper and that the trial court should give deference to the plaintiffs choice of a proper forum.

On July 27, 2007, the trial court, stating no reasons for its action, denied Movie Gallery’s motion for a change of venue. Movie Gallery then filed in this Court its petition for a writ of mandamus directing the trial court to vacate its order denying Movie Gallery’s motion for a change of venue and to transfer the action to the Houston Circuit Court.

Analysis

‘“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.’ Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). ‘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). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).
“ ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Con)., 507 So.2d 458, 460 (Ala.1987). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002).

As the movant, Movie Gallery had the burden of proving that venue in Montgomery County was improper. Once Movie Gallery made a prima facie showing that the venue in Montgomery County was improper, the burden then shifted to Nixon to rebut the prima facie showing. See Ex parte Pike Fabrication, 859 So.2d at 1092.

Movie Gallery’s primary argument relies on the plain wording of § 6-3-7(a), Ala.Code 1975. The statute provides that an action against a corporation may properly be brought in any county in which a substantial part of the events or omissions giving rise to the claim occurred, or in which the corporation’s principal office in this state is located, or in which the plaintiff resides, if the plaintiff is an individual, or, if none of the foregoing apply, then in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action. Nixon is not a resident of Alabama, and the acts complained of did not take place in Alabama; thus, the first and third options in § 6-3-7(a) will not apply. The Movie Gallery entities do have their principal office in Houston County. Unless an argument presented to the trial court would justify the denial, the motion to transfer the case to the Houston Circuit Court should have been granted, and the denial of the motion would indicate error on the part of the trial court.

The Alabama Rules of Civil Procedure provide two ways in which the venue chosen by the plaintiff may be challenged as of the commencement of the action: Rule 12(b)(3) provides for the challenge of venue within 30 days, either in the responsive pleading, i.e., the answer, or by a motion made before the responsive pleading. Rule 82(d)(1) provides for the transfer of the action by timely motion of the defendant when venue has been laid in the wrong county.

In his brief in opposition to Movie Gallery’s petition for a writ of mandamus, Nixon argues that Movie Gallery’s motion for a change of venue filed on February 15, 2007, was untimely because the complaint was filed on October 27, 2006, which Nixon implies is the date of the triggering event. He argues that Rule 82(d) (2) (C) (iii), Ala. R. Civ. P., provides that “[a] defense of improper venue under this rule is waived if a motion to transfer is not served within the time limits of subsection (d)(2)(C)(i)-(ii) of this rule.” The referenced subsections each require that such a motion be filed within 30 days after a triggering event, which, under both (i) and (ii) is the dismissal from an action of a defendant whose presence made venue proper. Neither subsection (i) nor (ii) apply to a motion for a change of venue at the commencement of the action, as is the case here. Rule 82(d)(1), Ala. R. Civ. P., addresses that eventuality:

“When an action is commenced laying venue in the wrong county, the court, on timely motion of any defendant, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

(Emphasis added.) In this case, the motion for a change of venue was filed on February 15, 2007, less than two months after the answer, which presented the defense of “improper venue,” was filed on December 22, 2006.

Movie Gallery directs our attention to Ex parte Sutton, 508 So.2d 681 (Ala.1986), to establish that its filing of the motion for a change of venue was timely. In Ex parte Sutton, the defendant raised the issue of improper venue in an answer filed in the district court on July 29, 1985. After a trial in the district court, he filed a notice of appeal to the circuit court on November 26, 1985. On February 13, 1986, he filed in the circuit court a motion to transfer the case. This Court held that the motion to transfer was timely filed, pointing out that the defendant’s first filing in the circuit court was the motion to transfer. In this case, Movie Gallery raised the issue of improper venue in its answer, as Nixon admits, stating that “[t]heir answer did include at Paragraph # 26 the defense of ‘improper venue.’ ” Nixon’s brief, at 2.

Nixon argues in this Court that the “[defendants did not file [a Rule 12(b)(3) motion] prior to the answer or within their answer,” and “[n]owhere in the Defendants’ Answer do they make a Rule 12(b)(3) objection or request a change of venue.” Nixon’s brief, at 3, 7. Nixon’s argument implies that a valid assertion of the affirmative defense of improper venue in an answer must include a motion for a change of venue under Rule 12(b)(3). However, Nixon does not provide any legal argument or authority indicating that the improper-venue defense asserted in the answer is insufficient. “We have stated that it is not the function of this court to do a party’s legal research. Similarly, we cannot create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.” Spradlin v. Spradlin, 601 So.2d 76, 78-79 (Ala.1992). The assertion of the Rule 12(b)(3) affirmative defense of improper venue in Movie Gallery’s answer was sufficiently clear to raise that defense.

Nixon next argues that Movie Gallery waived its right to move for a change of venue. The argument centers on whether Movie Gallery waived its right to assert improper venue by virtue of the agreement to extend the time for filing an answer. The only evidence concerning the agreement presented is a letter from Movie Gallery’s counsel thanking Nixon’s counsel “for agreeing to grant an extension of time in which to file an Answer on behalf of [Movie Gallery].” Nixon has presented no evidence of an explicit waiver by Movie Gallery. Thus, there is a showing that an extension of time to submit its answer was afforded Movie Gallery, and “[o]f course, any effective extension of the period in which to serve a responsive pleading preserves the right to make a motion under Rule 12(b) during the enlarged time period.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1361 at 97 (3d ed.2004). Cf. Rivers v. Stihl, Inc., 434 So.2d at 771 (“A motion containing a request for extension of time does not cause a waiver of Rule 12[, Ala. R. Civ. P.,] defenses unless some additional language in the motion would constitute waiver. Such was not the case here.”).

Contrary to Nixon’s assertion that Movie Gallery waived its right to challenge Nixon’s venue selection, Movie Gallery, by asserting its defense of improper venue in its answer, preserved its right to file a timely motion for a change of venue under Rule 82(d)(1), which provides:

“When an action is commenced laying venue in the wrong county, the court, on timely motion of any defendant, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

Here Movie Gallery filed its motion for a change of venue 81 days after its answer would have been due, absent the agreement, and 55 days after its answer was filed pursuant to the agreement. Under the facts as presented to this Court, the motion was not untimely.

We hold that the motion for a change of venue was not untimely, and the trial court erred to the extent, if any, that it relied on the untimeliness argument to formulate its decision to deny Movie Gallery’s motion for a change of venue.

Nixon next argues that Movie Gallery failed to carry its burden of proving that venue was proper in Houston County. Nixon challenges the affidavit of Ashton Ott, “the Director of General Litigation and Associate Counsel for Movie Gallery US, LLC, Movie Gallery Canada and Hollywood Entertainment Corporation,” attached to Movie Gallery’s February 15, 2007, motion. Ott testified that Movie Gallery, Inc., was a Delaware corporation and that the Movie Gallery entities’ principal office was in Houston County, Alabama. Nixon argues that the affidavit did not state that each Movie Gallery entity “did not have its principal place of business in Montgomery County at the time the lawsuit accrued (October 30, 2004) or at the time it was filed (October 27, 2007 [sic — - 2006]).” Nixon’s brief, at 9. He further asserts that, although Ott testified that the Movie Gallery entities had their principal place of business in Houston County on February 15, 2007, “the operative date is the date the lawsuit accrued (October 30, 2004).”

Movie Gallery notes:

“[T]he Alabama Code § 6-3-7(a)(2) does not require a statement of the corporate history with respect to the date of accrual of a cause of action. It is noteworthy that Alabama Code §§ 6-3-7(a)(3) and 6-3-7(a)(4) do reference accrual of the cause of action.
“The legislature put language regarding the accrual of the cause of action in §§ 6-3-7(a)(3) and 6-3-7(a)(4), but it is not in § 6-3-7(a)(2). ‘In any case involving statutory construction, [this Court’s] inquiry begins with the language of the statute, and if the meaning of the statutory language is plain, [this Court’s] analysis ends there.’ Ex parte McCormick, 932 So.2d 124, 132 (Ala.2005) [(quoting Ex paHe Moore, 880 So.2d 1131, 1140 (Ala.2003)) ].
“The language of [§ ]6-3-7 is plain.”

Movie Gallery’s reply brief, at 7-8. We agree; Nixon’s argument has no merit.

Nixon also argues that Ott’s affidavit does not allege “that Movie Gallery US LLC became the successor in interest to-Movie Gallery Services, Inc., prior to the accrual of this lawsuit (October 30, 2004) or prior to its filing (October 27, 2007 [sic — 2006]).” Nixon’s brief, at 9. We note that both Movie Gallery US LLC and Movie Gallery Services, Inc., are named defendants in the complaint and that Nixon provides no legal argument regarding the alleged omission. “We have unequivocally stated that it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)(citing Spradlin v. Spradlin, 601 So.2d at 78-79).

The evidence before us in the pleadings presented by Movie Gallery, as the petitioner, and Nixon, as the respondent, show that Movie Gallery carried its burden of showing that venue is proper in Houston County. Nixon did not rebut Movie Gallery’s prima facie case showing that venue in Montgomery County was improper under § 6-3-7, Ala.Code 1975. To the extent, if any, that the trial court relied on the alleged failure of Movie Gallery to carry its burden, it erred. The language of Rule 82(d)(1), Ala. R. Civ. P., makes transfer of an action that is commenced in the wrong county incumbent on the trial court on timely motion by the defendant. The transfer of the action is mandatory. Ex parte Tidwell Indus., Inc., 480 So.2d 1201, 1202 (Ala.1985).

Conclusion

The arguments presented by Nixon in opposition to Movie Gallery’s motion for a change of venue to Houston County, where the Movie Gallery entities have their principal place of business, did not provide either a legal or evidentiary basis for the denial of the motion. Movie Gallery did not waive its right to assert the Rule 12(b)(3) defense of improper venue merely because it negotiated an extension of time to submit its answer to Nixon’s complaint. Movie Gallery asserted the defense in its first responsive pleading to Nixon’s complaint. Its motion for a change of venue was then timely submitted under Rule 82(d)(1), Ala. R. Civ. P. Rule 82(d)(2)(C)(i)-(iii), by its wording, does not apply to improper venue as of the commencement of the action, as claimed here. Accordingly, the trial court erred in denying Movie Gallery’s motion for a change of venue, Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002), and we issue the writ directing the Montgomery Circuit Court to vacate its July 27, 2007, order denying the motion for a change of venue and to transfer the case to Houston County.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and WOODALL, SMITH, and SHAW, JJ., concur.

      . Movie Gallery, Inc., is the owner and parent company of Movie Gallery US LLC, which, in turn, is the successor in interest to Movie Gallery Services, Inc., and M.G.A., Inc.

      . Section 6-3-7(a), Ala.Code 1975, provides:
      "All civil actions against corporations may be brought in any of the following counties:
      "(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
      "(2) In the county of the corporation's principal office in this state; or
      "(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence; or
      "(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

      . The parties have not provided a record of the proceedings of the April 30, 2007, hearing.

      . The extension of time here was by agreement of counsel, rather than by order of the court under Rule 6(b), Ala. R. Civ. P. The legal effect of such an agreement is not at issue here.


author: BOLIN, Justice. LYONS, Justice

text:
    Ex parte M.A.R. (In re M.A.R. v. State of Alabama).
    1070980.
    Supreme Court of Alabama.
    Sept. 4, 2009.
    William H. Mills of Redden, Mills & Clark, Birmingham; and John D. Coggin of Coggin & Stallings, Centre, for petitioner.
    Troy King, atty. gen., and Mark A. Star-rett, asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   BOLIN, Justice.

WRIT QUASHED. NO OPINION.

STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., and LYONS and WOODALL, JJ., dissent.

SHAW, J., recuses himself.

LYONS, Justice

(dissenting).

M.A.R. was indicted for two counts of first-degree sexual abuse in violation of § 13A-6-66(a)(3), Ala.Code 1975, and three counts of first-degree sodomy in violation of § 13A-6-63(a)(3), Ala.Code 1975. At trial, R.M.K. and R.K., who are both stepdaughters of M.A.R., testified about several alleged incidents of sexual abuse by M.A.R. The only issue before this Court concerns M.A.R.’s conviction resulting from an incident involving R.K.

R.K., who was 19 years old at the time of the trial, testified that one night when she was 11 years old she woke up and found M.A.R. rubbing his penis against her cheek. R.K. testified that as M.A.R. was rubbing his penis on her cheek, M.A.R. said, “You like that, don’t you?” R.K. testified that she swung her arm at M.A.R., told him to stop, and moved to the far corner of the bed. R.K. further testified that after this incident occurred, M.A.R. came into her room on other nights and stood in her room naked, holding his penis in his hands and staring at her. R.K. did not report any of these incidents to anyone until April 2006. R.K. also testified that she disliked M.A.R., that she was suspicious of him, and that they frequently argued with one another. M.A.R. testified on his own behalf and denied committing the crimes for which he was charged.

M.A.R. was convicted of one count of first-degree sexual abuse and one count of first-degree sodomy for his actions toward R.K. The trial court sentenced M.A.R. to 10 years’ imprisonment on the first-degree-sexual-abuse conviction and to 15 years’ imprisonment on the first-degree-sodomy conviction, the sentences to be served concurrently. The trial court, however, split those sentences and ordered M.A.R. to serve 30 months in prison and to serve the remainder of the sentence on probation. The Court of Criminal Appeals affirmed M.A.R.’s convictions and sentences by unpublished memorandum. M.A.R. v. State (No. CR-06-1823, March 21, 2008), 21 So.3d 801 (Ala.Crim.App.2008) (table). M.A.R. then petitioned this Court for certiorari review.

M.A.R. presented three issues on certio-rari review, but this Court granted the petition only as to M.A.R.’s contention that the question of the Court of Criminal Appeals’ interpretation of “sexual contact” as that term is defined by § 13A-6-60(3), Ala. Code 1975, which is a required element of the offense of first-degree sexual abuse, presents a material question of first impression requiring decision by this Court. M.A.R. argues that he was improperly convicted of first-degree sexual abuse as to. R.K. because, he says, the State was unable to prove the sexual-contact element of that offense. He contends that he did not have sexual contact with R.K. because he did not touch R.K.’s sexual or other intimate parts; rather, he says, R.K. came into contact with M.A.R.’s genitalia when he rubbed his penis against her cheek. M.A.R. argues that, under a literal reading of § 13A-6-60(3), this conduct is not the “sexual contact” required for the offense of first-degree sexual abuse.

M.A.R. raised this argument before the Court of Criminal Appeals, and the Court of Criminal Appeals rejected it. The Court of Criminal Appeals relied on Ray v. State, [Ms. CR-05-0912, April 27, 2007] — So.3d - (Ala.Crim.App.2007), rev’d on other grounds, Ex parte Ray, [Ms. 1061459, May 29, 2009] — So.3d - (Ala.2009), in which that court rejected the argument that M.A.R. now raises. Ray was charged with first-degree sexual abuse after the victim alleged that Ray made her rub lotion on his “private parts” on two occasions. Ray, — So.3d at -. The Court of Criminal Appeals acknowledged that penal statutes are to be “strictly construed,” but it rejected Ray’s argument that there was no sexual contact between him and the victim, noting that “‘courts are not required to abandon common sense.’ ” — So.3d at - (quoting Musgrove v. State, 519 So.2d 565, 582 (Ala.Crim.App.1986)). The Court of Criminal Appeals concluded that there was sufficient evidence of sexual contact between Ray and the victim because “Ray’s actions alone ... caused [the victim] to touch his ‘private parts.’ ” Ray, — So.3d at -.

M.A.R. argues that the Court of Criminal Appeals has adopted “a liberal construction” of § 13A-6-60(3), Ala.Code 1975, that is contrary to the fundamental rule that “criminal statutes are [to be] construed strictly against the State.” Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000). M.A.R. also argues that the Court of Criminal Appeals’ interpretation of § 13A-6-60(3) is contrary to the plain language of the statute.

The plain language of § 13A-6-60(3) provides that sexual contact occurs only when the accused touches the “sexual or other intimate parts of a person,” the victim, who is not married to the accused. This language does not appear to be broad enough to apply to the situation in this case, where it is the accused, M.A.R., who touched the cheek of one of the victims, R.K., with his genitalia.

The former version of § 13-6-66(a) criminalized the conduct of a person 16 years of age or older if the person “sub-jeet[ed] another person to sexual contact.” (Emphasis added.) The definition of sexual contact in § 13A-6-60(3), Ala.Code 1975, refers to “[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.” (Emphasis added.) The only reasonable construction of these statutes, consistent with this Court’s obligation to construe penal statutes strictly against the State, is that the person 16 years of age or older is the one “subjecting” the other person to sexual contact and the reference to “the actor” must be read to refer to the person doing the criminal act of subjecting. Consequently, the actor who never touches the sexual or other intimate parts of “a person not married to the actor,” as is the case here, has not committed the crime described in these statutes.

I recognize that the Court of Criminal Appeals in Ray justified its construction of the statute by noting that “courts are not required to abandon common sense.” - So.3d at-. In my view, that conclusion is merely a gloss to cover judicial revision of a statute a court cannot believe got through the legislature in its current form. Whether my common sense would have been so offended as to compel me to vote against such legislation had I been a member of the legislature at the time of passage is not a consideration that can justify my disregarding the mandate to construe penal statutes strictly against the State. See Jansen v. State ex rel. Downing, 273 Ala. 166, 168, 137 So.2d 47, 48 (1962) (noting that “all questions of propriety, wisdom, necessity, utility and expediency in the enactment of laws are exclusively for the legislature, and are matters with which the courts have no concern”). See also DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998) (“[I]t is our job to say what the law is, not to say what it should be”).

I would reverse the judgment of the Court of Criminal Appeals with instructions to remand the case to the trial court for the entry of a judgment of acquittal as to the charge of first-degree sexual abuse of R.K. I therefore must respectfully dissent.

COBB, C.J., and WOODALL, J., concur.

      . At the time of the offense, § 13A-6-66(a), Ala.Code 1975, provided:
      “(a) A person commits the crime of sexual abuse in the first degree if:

      “(3) He being 16 years of age or older, subjects another person to sexual contact who is less than 12 years old.”
      Section 13A-6-66, Ala.Code 1975, was amended effective July 1, 2006, to delete subsection (a)(3). The provisions of that subsection were moved to § 13A-6-69.1 and the offense described in that subsection was designated a class B felony. Section 13A-6-60(3), Ala.Code 1975, defines ("sexual contact”) as:
      "Any touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.”

      . Section 13A-6-63(a), Ala.Code 1975, provides:
      "(a) A person commits the crime of sodomy in the first degree if:

      "(3) He, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.”
      Section 13A-6-60(2), Ala.Code 1975, defines "deviate sexual intercourse” as:
      "Any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.”


author: MOORE, Judge. BRYAN, Judge,

text:
    Willie JONES v. Ray RUTH.
    2080249.
    Court of Civil Appeals of Alabama.
    July 24, 2009.
    Certiorari Denied Sept. 11, 2009
    Alabama Supreme Court 1081484.

      Thomas E. James of Morris, Haynes & Hornsby, Birmingham, for appellant.
    William A. Austill of Austill, Lewis & Pipkin, P.C., Birmingham, for appellee.
   MOORE, Judge.

Willie Jones appeals from a summary judgment entered by the Montgomery Circuit Court in favor of Ray Ruth in a civil action based on §§ 25 — 5—11(c)(1) and (c)(2), Ala.Code 1975. We reverse.

Jones, a maintenance worker employed by Flowers Bakery, received severe injuries to his left hand as the result of an accident arising out of and in the course of his employment on October 29, 2006. Jones executed a settlement agreement on June 25, 2008, releasing various claims associated with his injuries. Paragraph 9(B) of the agreement Jones signed states, in pertinent part:

“B. SETTLEMENT OF COMPENSATION BENEFITS, VOCATIONAL BENEFITS, AND ANY AND ALL RIGHTS TO REOPEN THE CLAIM UNDER ALA. CODE § 25-5-57(a)(3)i (1975) AND ANY AND ALL CLAIMS REGARDING WRONGFUL TERMINATION AND RETALIATORY DISCHARGE
“The parties have agreed to settle this claim on a compromise basis. The sum of Fourteen Thousand Dollars and No Cents ($14,000) represents the complete and total lump sum settlement to [Jones] under the Worker’s Compensation Act of the State of Alabama for any and all claims made or which may be made, arising under the Alabama Workers’ Compensation Act, including, but not limited to, disability compensation benefits vocational rehabilitation services owing or alleged to be owing by [Flowers Bakery] to [Jones] arising out of the accident and claims referred to herein, and any and all rights to reopen the claim under Ala. Code § 25-5-57(a)(3)i. (1975), and any claims for wrongful termination or retaliatory discharge. By entering into and accepting the benefits of this settlement, [Jones] releases and fully and finally discharges [Flowers Bakery] and its employees ... from any claims for disability benefits, vocational rehabilitation benefits, and any claims for wrongful termination and/or retaliatory discharge, and any employment status related claims as may be made.”

(Bold typeface in original.)

On that same date, the Montgomery Circuit Court approved a petition seeldng approval of the settlement agreement, pursuant to § 25-5-56, Ala.Code 1975 (requiring circuit court approval of certain settlements affecting an employee’s right to workers’ compensation benefits). In the judgment approving the settlement agreement, the court incorporated the language from Paragraph 9(B) of the settlement agreement.

About a month following the execution of the settlement agreement and the entry of the judgment approving the settlement agreement, Jones filed a civil action in the same circuit court against Ruth. In that action, Jones alleged that Ruth had caused his injuries by willfully and intentionally removing from a machine a safety guard or safety device provided by the manufacturer of the machine with full knowledge that injury or death would likely or probably result from the removal. See Ala.Code 1975, § 25-5-11(c)(2). Jones also claimed that Ruth had willfully and intentionally injured him in violation of Ala.Code 1975, § 25 — 5—11(c)(1). In addition, Jones claimed that Ruth had negligently or wantonly designed the machine at issue.

On September 9, 2008, Ruth filed a motion to dismiss or, in the alternative, a motion for a summary judgment. In that motion, Ruth argued that the settlement agreement barred the claims filed by Jones and that Jones’s complaint asserting claims of negligence and wantonness did not state a claim for which relief could be granted. See Ala.Code 1975, §§ 25-5-52 and 25-5-53 (barring co-employee actions, except those based on willful conduct). After holding oral argument, the trial court entered a summary judgment in favor of Ruth. Jones filed a timely notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Jones argues that the trial court erred in entering the summary judgment on his §§ 25 — 5—11(c)(1) and (c)(2) claims. Jones maintains that the trial court incorrectly concluded that he had released those claims.

“In the absence of fraud or ambiguity, a release supported by valuable consideration will be given effect according to the intention of the parties, which is to be judged by the court from what appears within the four corners of the instrument itself, and ordinarily parol evidence is not admissible to impeach or vary its terms.”

Johnson v. Asphalt Hot Mix, 565 So.2d 219, 220 (Ala.1990) (citing Trimble v. Todd, 510 So.2d 810 (Ala.1987); Jehle-Slauson Constr. Co. v. Hooch-Rich Architects & Consulting Eng’rs, 435 So.2d 716 (Ala.1983); and Ala.Code 1975, § 12-21-109). A settlement agreement is a contract and is to be construed like any other contract. See Jones v. Bullington, 401 So.2d 740, 741 (Ala.1981). A written release must be given effect according to its plain terms. Hartford Accident & Indem. Co. v. Cochran Plastering Co., 935 So.2d 462, 471 (Ala.Civ.App.2006).

In this case, the first clause of the second sentence in Paragraph 9(B) provides that Jones releases “any and all claims made or which may be made, arising under the Alabama Workers’ Compensation Act .... ” Ruth argues that, pursuant to Sanders v. Southern Risk Services, 603 So.2d 994 (Ala.1992), and Gates Rubber Co. v. Cantrell, 678 So.2d 754 (Ala.1996), that phrase should be construed broadly to include claims under §§ 25 — 5—11 (c)(l) and (c)(2). In Sanders, a worker settled his workers’ compensation claim against his employer. In that settlement agreement, the worker agreed to accept $7,500 “‘in full settlement of any and all claims for compensation benefits due and rehabilitation or retraining benefits due under the Workmen’s Compensation Act of the State of Alabama.’” 603 So.2d at 995. The settlement agreement further provided: “ ‘When payment hereunder has been made the employer shall be, and hereby is released from all claims on account of said injury, under said Act or otherwise.’ ” Id. The worker subsequently sued his employer and its third-party workers’ compensation administrator asserting claims of retaliatory discharge, fraud, and the denial of rehabilitation expenses. 603 So.2d at 994. In discussing the effect of the settlement agreement on the claim of retaliatory discharge, the supreme court stated: “Unless there is evidence of fraud, a settlement of an employee’s claims under the Workmen’s Compensation Act is conclusive of any other claims the worker may have.” 603 So.2d at 995. The court ultimately held that the settlement agreement unambiguously released the employer from “all other obligations” to the worker, except its obligation to pay future medical expenses. Id. at 996.

In Cantrell, Cantrell entered into a written workers’ compensation settlement agreement, which provided, in pertinent part, that in exchange for $25,000 Cantrell would release Gates Rubber Company and its workers’ compensation insurance carrier

“ ‘from any and all liability now accrued or hereafter to accrue for compensation and vocational rehabilitation benefits under the workmen’s compensation laws of the State of Alabama, or otherwise, due or arising out of [Cantrell’s work-related] injury of August 19, 1990, or any other accidental injury sustained by [Cantrell] while employed by [Gates Rubber Company] ....’”

678 So.2d at 754-55 (emphasis omitted). Nine months later, Cantrell filed a retaliatory-discharge action against Gates Rubber. Relying heavily on its holding in Sanders, the supreme court held that

“a ‘settlement of any and all claims for compensation benefits due and rehabilitation or retraining benefits due’ is ‘conclusive of any other claims,’ unless there is evidence of fraud, ... or the claim in issue is expressly excepted from the settlement agreement.”

678 So.2d at 756 (quoting Sanders, 603 So.2d at 995).

Sanders and Cantrell only tenuously support Ruth’s argument that a release of “any and all claims arising under the Alabama Workers’ Compensation Act” should be construed to bar actions under §§ 25-5 — 11(c)(1) and (c)(2). Most notably, neither case concerns the effect of a workers’ compensation settlement agreement on a claim against a co-employee based on those subsections. In Sanders, the supreme court did hold that the language of the settlement agreement barred a claim for rehabilitation expenses made against the third-party administrator, but only because the settlement agreement specifically addressed that claim. 603 So.2d at 995. In both cases, the broad language that a release of workers’ compensation benefits also releases other claims, except those expressly reserved, referred solely to claims based on retaliatory discharge under § 25-5-11.1, Ala.Code 1975.

The supreme court directly addressed the effect of a workers’ compensation settlement agreement on claims under §§ 25-5 — 11(c)(1) and (c)(2) in Dudley v. Mesa Industries, 770 So.2d 1082 (Ala.2000). In Dudley, a worker received personal injuries in an industrial accident in 1996. In 1997, the worker brought a civil action against his employer, Mesa Industries, for workers’ compensation benefits; he later amended his complaint to state a claim against the employer based on an alleged violation of § 25-5-ll(e)(2). In 1998, the worker entered into a settlement agreement with Mesa, pursuant to which Mesa was “ ‘released and forever discharged from any and all claims for compensation and vocational rehabilitation benefits due or which may become due to the [worker] under the Workmen’s Compensation Act of Alabama.’” 770 So.2d at 1083. The circuit court approved the settlement agreement, but at the same time it granted the worker leave to amend his complaint. The worker later amended his complaint to allege fraud and tort-of-outrage claims against Mesa and to assert a third-party claim against Fluke Corporation. Id. Both Mesa and Fluke moved to dismiss the action on the ground that the settlement agreement had terminated the litigation, depriving the circuit court of subject-matter jurisdiction. The circuit court dismissed all the claims, concluding that its judgment approving the workers’ compensation settlement agreement had finally adjudicated all pending claims and that the subsequent amendment was, therefore, ineffective.

“In other words, the circuit court held it had no jurisdiction to consider the amended complaint filed after March 13, 1998. Thus, it is apparent that the trial judge thought his order releasing Mesa from the workers’ compensation and vocational-rehabilitation claims also released Mesa from the claim made pursuant to § 25-5-11.”

770 So.2d at 1083.

On appeal, the supreme court considered the “ultimate issue” to be whether the judgment approving the workers’ compensation settlement agreement had adjudicated only the workers’ compensation claim against Mesa or whether it also had adjudicated the § 25-5-ll(c)(2) claim. Id. In deciding that issue, the supreme court acknowledged that the circuit court had ruled that it had finally adjudicated all the pending claims against Mesa when it had approved the workers’ compensation settlement agreement, but the court stated further that

“we cannot ignore the language of the order itself or the trial court’s conduct after it entered that order. The wording of the [order approving the workers’ compensation settlement agreement] and the trial court’s allowing [the worker] to amend his complaint strongly suggest that the trial court intended for a portion of the lawsuit to continue.”

770 So.2d at 1084. As to the terms of the settlement agreement, the court noted that, in Johnson v. Asphalt Hot Mix, supra, it had specifically held that an action under § 25-5-11 is a tort action for damages and not a claim for workers’ compensation benefits. It also stated:

“Based on the foregoing, we conclude that the language used by the trial court in its [order approving the settlement agreement] releasing Mesa from all claims for ‘compensation and vocational rehabilitation benefits’ arising under the Workers’ Compensation Act applied only to [the worker’s] claim for workers’ compensation and vocational benefits. Therefore, [the worker’s] claim, which was pleaded based on § 25-5-11, survived. Consequently, based on this record, we conclude that the trial court’s order that ‘[Mesa] be released and forever discharged from any and all claims for compensation and vocational rehabilitation benefits due or which may become due to the [worker] under the Workmen’s Compensation Act of Alabama’ did not adjudicate all the claims in [the worker’s] lawsuit.”

770 So.2d at 1084-85. In a footnote, the supreme court also mentioned that “there are no indications that the trial court, at that time, intended a full adjudication, because of the fact that when it entered its order it simultaneously granted [the worker’s] motion for leave to amend his complaint.” 770 So.2d at 1085 n. 2. The court therefore reversed the judgment dismissing the action.

Notably, two justices, Chief Justice Hooper and Justice See, dissented from that portion of the opinion in Dudley reversing the dismissal of the § 25 — 5—11(c)(2) claim. 770 So.2d at 1085. Relying on Cantrell, supra, and Sanders, supra, the dissent reasoned that the language of the settlement agreement should have been construed broadly so as to release Mesa from all claims the worker may have had against Mesa, including the § 25-5-11(c)(2) claim. The seven justices in the majority obviously rejected that reasoning by voting to concur in the reversal of the judgment.

Ruth argues that Dudley should be construed as holding that a settlement agreement releasing all claims “arising under the Alabama Workers’ Compensation Act” also releases §§ 25 — 5—11(c)(1) and (c)(2) claims unless those claims are pending at the time the settlement agreement is entered. We acknowledge that, in Dudley, the § 25 — 5—11(c)(2) claim was pending at the time the judgment approving the workers’ compensation settlement agreement was entered, but that procedural fact does not detract from the core holding in Dudley that a settlement of claims for workers’ compensation benefits does not release claims under §§ 25-5-ll(e). Dudley strongly supports Jones’s position that the workers’ compensation settlement agreement at issue in this case does not release his claims against Ruth.

However, the language of the settlement agreement in Dudley is not identical to the language of the settlement agreement in this case. In Dudley, the worker released only “ ‘claims for compensation and vocational rehabilitation benefits due or which may become due to the [worker] under the Workmen’s Compensation Act of Alabama.’ ” 770 So.2d at 1083. In this case, Jones released “any and all claims made or which may be made, arising under the Alabama Workers’ Compensation Act, including, but not limited to, disability compensation benefits vocational rehabilitation services .... ” Ruth argues that, unlike the settlement agreement in Dudley, the settlement agreement in this case includes all claims “arising under the Alabama Workers’ Compensation Act,” not just claims for workers’ compensation benefits. Ruth maintains that §§ 25—5—11 (c)(1) and (c)(2) claims “arise under the Alabama Workers’ Compensation Act” and that, therefore, the settlement agreement includes those claims even if they are not expressly mentioned therein.

Our supreme court has stated that whether a claim “arises under the Alabama Workers’ Compensation Act” depends primarily on whether the claim may be considered a traditional workers’ compensation claim resulting from an occupational disease or accidental injuries. See generally Jackson County Hosp. v. Alabama Hosp. Ass’n Trust, 619 So.2d 1369, 1371 (Ala.1993). Tort claims, although based on occupational injuries, are premised on different standards of proof and different measures of damages than claims for workers’ compensation benefits and are not considered to “arise under” the Act. Id. Pursuant to Johnson, stipra, and Dudley, supra, the supreme court has already decided that a claim under § 25-5-11(c) is a tort claim for damages, which is substantively different from a traditional workers’ compensation claim. Hence, under the foregoing reasoning, the claims Jones has made against Ruth would not be considered as “arising under” the Act even though they are contained in the Act.

The settlement agreement further discharges “any claims for wrongful termination and/or retaliatory discharge, and any employment status related claims as may be made.” Ruth argues that the phrase “employment status related claims” includes claims under §§ 25—5—11(c)(1) and (c)(2) because, he says, those claims are based solely on Jones’s status as an employee. Jones, on the other hand, maintains that “employment status related claims” concern only claims asserting sexual harassment, discrimination, wrongful termination, or other similar causes of action based on adverse employment decisions.

The settlement agreement does not define the phrase “employment status related claims”; however, we conclude that that phrase unambiguously releases claims for damages arising from the alteration of, or injury to, Jones’s employment status with Flowers Bakery and not to claims for damages arising from personal injuries received by Jones due to, or based on, his identity as an employee of Flowers Bakery. “Employment status” generally refers to the entire legal relation between the employer and the employee. See Tidwell v. City of Memphis, 193 S.W.3d 555, 563 (Tenn.2006). In the legal context, claims related to employment status ordinarily refer to claims seeking damages for injuries to that relation, such as discriminatory acts that affect the terms, conditions, or benefits of the employee’s employment. See James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.2004). Had the parties to the settlement agreement intended Jones to release personal-injury claims against his co-employees, they would not have used the phrase “employment status related claims” in the settlement agreement but, rather, would have used words more apt to that purpose.

“When the language of a release specifically limits the scope of the release, the release will not bar claims outside the scope of the release.” Cavender v. State Mut. Ins. Co., 748 So.2d 863, 868 (Ala.1999). Because the §§ 25-5-11(c)(1) and (c)(2) claims Jones has filed against Ruth are outside the scope of the specific language of the settlement agreement, we conclude that the trial court erred in entering the summary judgment in favor of Ruth. We therefore reverse the trial court’s judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BRYAN, J., concurs specially.

BRYAN, Judge,

concurring specially.

Our supreme court’s analysis in Jackson County Hospital v. Alabama Hospital Ass’n Trust, 619 So.2d 1369, 1370-71 (Ala.1993), compels me to conclude that Willie Jones’s claims based on §§ 25 — 5—11(c)(1) and (c)(2), Ala.Code 1975, do not “arise under” the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Therefore, I agree that Jones’s release of “any and all claims ... arising under the Alabama Workers’ Compensation Act” does not include his claims based on §§ 25 — 5—11(c)(1) and (c)(2).

      . Jones does not argue that the trial court erred in entering the summary judgment on his negligence and wantonness claims; thus, we do not address those claims further.

      . Section 25-5-11(c)(2) does not provide a cause of action against an employer, but the employer did not raise that issue in Dudley. 770 So.2d at 1085 (Hooper, C.J., dissenting).