author: COBB, Chief Justice. WOODALL, Justice

text:
    ARCHER WESTERN CONTRACTORS, LTD. v. BENISE-DOWLING & ASSOCIATES, INC.
    1080252.
    Supreme Court of Alabama.
    Sept. 30, 2009.

      C. William Daniels, Jr., Clifton C. Mos-teller, and Nancy Fouad of Burr & For-man, LLP, Mobile, for appellant.
    Robert B. Huie, Birmingham, and Jim H. Fernandez of Fernandez & Combs, LLC, Mobile, for appellee.
    J. Lister Hubbard, Richard H. Allen, and Arden Reed Pathak of Capell & Howard, P.C., Montgomery, for amicus curiae Alabama Associated General Contractors, Inc., in support of the appellant.
    Troy King, atty. gen., and Corey L. Maze and William G. Parker, Jr., asst, attys. gen., for amicus curiae State of Alabama, in support of the appellant.
   COBB, Chief Justice.

Archer Western Contractors, Ltd. (“Archer Western”), appeals from the trial court’s amended judgment, based on the trial court’s granting of the motion of Benise-Dowling & Associates, Inc. (“Benise-Dowling”), to amend the original judgment. We reverse and remand.

Facts and Procedural History

Archer Western was the general contractor on a project to construct a building (“the RSA tower”) in Mobile in 2005. In March 2005, Archer Western entered into a subcontract (“the subcontract”) with Benise-Dowling for work to be performed in the construction of the RSA tower. The subcontract provided that it was to be “governed by the laws of the State of Georgia.” The subcontract also provided that disputes arising out of the contract “shall be submitted to the court ... where the project is located or where [Archer Western’s] principal place of business is located.” Archer Western’s principal place of business is in Georgia, as is Benise-Dowling’s principal place of business.

After Benise-Dowling began work on the RSA tower, a dispute arose between it and Archer Western. On May 5, 2008, Benise-Dowling sued Archer Western and its bonding company, Travelers Casualty and Surety Company, in the Mobile Circuit Court. Benise-Dowling alleged in its complaint that Archer Western had failed to pay Benise-Dowling $886,786 for work Benise-Dowling says it performed under the subcontract.

The parties proceeded with discovery, and, on August 22, 2008, Archer Western moved for a summary judgment on the ground that Benise-Dowling was a foreign corporation and that, at the time it started work on the RSA tower, Benise-Dowling had not been authorized by the secretary of state to transact business in Alabama as required by § 10-2B-15.01(a), Ala.Code 1975. Therefore, Archer Western contended, pursuant to § 10-2B-15.02(a), Ala. Code 1975, Benise-Dowling was barred from suing on the subcontract in Alabama.

Archer Western argued alternatively that § 34-8-1 et seq., Ala.Code 1975, required Benise-Dowling to be licensed in Alabama to perform work as a contractor. According to Archer Western, Benise-Dowling was not properly licensed during two separate and allegedly relevant periods. Therefore, Archer Western contended, Benise-Dowling was barred from suing on the subcontract and the subcontract was void. Benise-Dowling filed a brief in opposition to the motion, accompanied by exhibits.

On September 26, 2008, the trial court entered the following order:

“Motion for summary judgment pursuant to Rule 56[, Ala. R. Civ. P.,] filed by Archer Western ... is hereby granted. [Sjummary judgment [is] entered in favor of defendants, dismissing claims against them. Each party to bear its own costs.”

On October 21, 2008, Benise-Dowling filed a motion pursuant to Rule 59, Ala. R. Civ. P., to alter, amend, or vacate the summary judgment. In that motion, Benise-Dowling argued various substantive reasons for its contention that the summary judgment had been improperly granted. In the alternative, Benise-Dowl-ing asked the trial court to alter or amend the summary judgment to specify that the summary judgment dismissing Benise-Dowling’s claims was “without prejudice to the rights of [Benise-Dowling] to file suit in a jurisdiction other than Alabama.” Archer Western filed a brief in opposition to Benise-Dowling’s motion to amend.

On November 14, 2008, the trial court entered an order granting Benise-Dowl-ing’s motion to alter, amend, or vacate insofar as it sought a clarification that the claims were dismissed without prejudice to Benise-Dowling’s request to file an action in a jurisdiction other than Alabama. On the same day, the trial court entered the following order:

“Motion for summary judgment pursuant to Rule 56[, Ala. R. Civ. P.,] filed by Archer Western ... is hereby granted. Summary judgment entered in favor of defendants, dismissing claims against them without prejudice, except to the filing in the State of Alabama of a subsequent action on the same claims. Each party to bear its own costs.”

On November 14, 2008, Archer Western appealed from the judgment as so amended.

Analysis

The single issue in this appeal is whether the trial court erred in amending its judgment to specify that the judgment was “without prejudice, except to the filing in the State of Alabama of a subsequent action on the same claims.” More specifically, we are called upon to determine whether the trial court erred in determining that the judgment was “without prejudice” outside Alabama; the effect of the trial court’s judgment in Alabama is not properly before us in this case. Archer Western makes no argument that the trial court erred in dismissing Benise-Dowling’s claims with prejudice to the filing of another action on the same claims in Alabama. Moreover, Benise-Dowling did not appeal from the amended summary judgment. In fact, Benise-Dowling’s motion to amend expressly requested the trial court to amend the judgment to specify that the judgment was “without prejudice to the rights of [Benise-Dowling] to file suit in a jurisdiction other than Alabama” (emphasis added), and the trial court granted that relief. See State Farm Mut Auto. Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974) (“[A] party may not avail himself of error, if any, into which he has led the court; that is called invited error.” (citing Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 244 So.2d 591 (1971), and Thompson v. Magic City Trucking Serv., 275 Ala. 291, 154 So.2d 306 (1963))).

As to the effect of the trial court’s judgment in jurisdictions other than Alabama, the parties disagree. They offer competing arguments regarding the construction of various Alabama statutes. They also press competing theories as to whether the Alabama Legislature intended for those statutes, the public policies underlying them, and judgments entered in accordance with them to be followed in other jurisdictions. However, the extraterritorial effect of an Alabama court’s judgment is not determined by Alabama statutes, the intent of the Alabama Legislature, or the public policy of Alabama. Alabama’s legislature and its courts simply do not have the authority to direct other jurisdictions as to what effect those jurisdictions must give the judgments and laws of our State. See Thomas v. Washington Gas Light Co., 448 U.S. 261, 271, 100 S.Ct. 2647, 65 L.Ed.2d 757, (1980) (plurality opinion) (“To vest the power of determining the extraterritorial effect of a State’s own laws and judgments in the State itself risks the very kind of parochial entrenchment on the interests of other States that it was the purpose of the Full Faith and Credit Clause and other provisions of Art. IV of the [United States] Constitution to prevent. See Nevada v. Hall, 440 U.S. 410, 424-25 [(1979)].”).

Rather, the effect another jurisdiction ought to give the judgment in this case is determined by principles of comity and public policy, and, if that other jurisdiction is one of our sister states, by the United States Constitution and federal law. Under these principles and authorities, the power of an Alabama court to determine the effect of an Alabama judgment is limited solely to the authority to prescribe the effects of that judgment in our own State. Thomas, 448 U.S. at 271, 100 S.Ct. 2647 (“[I]n effect, by virtue of the full faith and credit obligations of the several States, a State is permitted to determine the extraterritorial effect of its judgment; but it may only do so indirectly by prescribing the effect of its judgments within the State.” (emphasis added)).

Therefore, in amending its order, the trial court granted relief that was beyond its authority to grant. In so doing, the trial court exceeded its subject-matter jurisdiction. Ex parte Culbreth 966 So.2d 910, 911-12 (Ala.2006) (‘“Jurisdiction is “[a] court’s power to decide a case or issue a decree.” .... In deciding whether [a ... ] claim properly challenges the trial court’s subject-matter jurisdiction, we ask ... whether the trial court had the [requisite] constitutional and statutory authority....’ ” (quoting Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006))). In matters of subject-matter jurisdiction, we are not limited by the arguments of the parties. Rather, we are obligated to address the absence of subject-matter jurisdiction ex mero motu. See Crutcher v. Williams 12 So.3d 631, 635 (Ala.2008); and Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (“[I]t is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.” (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958))).

Because the trial court exceeded its jurisdiction in amending its judgment in response to Benise-Dowling’s motion to amend to provide that its judgment was without prejudice to Benise-Dowling’s right to bring an action in a jurisdiction other than Alabama, we reverse the amended judgment of the trial court and remand the case. See Crutcher, 12 So.3d at 635 (“ ‘[I]t would amount to usurpation and oppression for a court to interfere in a matter over which it has no jurisdiction, and its pronouncements in respect thereto would be without force, and its decrees and judgments would be wholly void. This is a universal principle, as old as the law itself.’ ” (quoting Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930))).

The trial court is directed to vacate its amended judgment on remand, and the court’s original summary judgment should be reinstated on remand.

REVERSED AND REMANDED.

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

LYONS and WOODALL, JJ., dissent.

WOODALL, Justice

(dissenting).

The trial court had subject-matter jurisdiction over this action. Its amended judgment, entered in November 2008, merely purported to enforce § 10-2B-15.02(a), Ala.Code 1975, by “dismissing [the] claims against [Archer Western with prejudice] to the filing in the State of Alabama of a subsequent action on the same claims.” It is true that the amended judgment, in all other respects, “dismiss[ed] [the] claims against [Archer Western] without prejudice.” The majority construes this latter phrase to be a “deter-min[ation] that the judgment was ‘without prejudice’ outside Alabama.” 33 So.3d at 1219. However, I do not so construe the judgment. Instead, it appears to me that the trial court properly recognized that the binding effect of its judgment was limited to the courts of Alabama and that any other court in which Benise-Dowling might later file suit would have to decide for itself what effect, if any, to give the judgment and the underlying statute.

For these reasons, I cannot agree with the majority’s holding that “the trial court granted relief that was beyond its authority to grant.” 33 So.3d at 1220. I would affirm the judgment of the trial court. Therefore, I respectfully dissent.

LYONS, J., concurs.

      . "RSA" is an abbreviation for “Retirement Systems of Alabama.”

      . Travelers Casualty and Surety Company is not a party to this appeal. Therefore, we do not discuss Travelers' involvement in the case.

      . Sometime after it began work on the RSA tower, Benise-Dowling obtained a certificate of authority, although the parties dispute whether that certificate was related to the subcontract.

      . Contrary to Benise-Dowling's arguments, § 10-2B-15.02(a), Ala.Code 1975, does not preclude the courts of this state from exercising jurisdiction over actions brought by unauthorized foreign entities transacting business in Alabama for the purpose of enforcing their contracts. See § 10-2B-15.02(a), Ala.Code 1975 (“All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation.” (emphasis added)); Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177, 1182 (Ala.2006) (“Where ‘the trial court ha[s] no subject-matter jurisdiction, [it has] no alternative but to dismiss the action.’

        ‘ “Any other action taken by a court lacking subject matter jurisdiction is null and void.” ’ " (quoting other cases)); McWhorter v. State Bd. of Registration for Prof'l Eng’rs & Land Surveyors ex rel. Baxley, 359 So.2d 769, 771 (Ala.1978) ("In arriving at a determination of legislative intent, the entire Act must be examined and construed as a whole, and, if possible, every word in it given effect.” (citing Tillman v. Sibbles, 341 So.2d 686 (Ala.1977))).
      Also contrary to Benise-Dowling’s arguments, § 34-8-1 et seq., Ala.Code 1975, does not preclude the courts of this state from exercising jurisdiction over this action. Benise-Dowling points to no provision in § 34-8-1 et seq., or to any other law, that would deprive Alabama courts of subject-matter jurisdiction, and we have found no such law. See Ala. Const. 1901, Art. VI, § 142(b) (providing that the circuit courts of this state "shall exercise general jurisdiction in all cases except as may otherwise be provided by law " (emphasis added)); see also Ala.Code 1975, § 12-2-7 (“The Supreme Court shall have authority [t]o exercise appellate jurisdiction coextensive with the state, under such restrictions and regulations as are prescribed by law....").

      . See U.S. Const., Art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”); 28 U.S.C. § 1738 (directing that the properly authenticated acts and judgments of any state "shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken”); Baker v. General Motors Corp. 522 U.S. 222, 233, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) ("A court may be guided by the forum State’s 'public policy' in determining the law applicable to a controversy. See Nevada v. Hall, 440 U.S. 410, 421-24 (1979). But our decisions support no roving 'public policy exception' to the foil faith and credit due judgments.” (citing Estin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); and Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S.Ct. 641, 52 L.Ed. 1039 (1908))); Martin v. Robbins, 628 So.2d 614, 618 (Ala.1993) ("The doctrine of comity is ... a principle of courtesy by which the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction merely out of deference and respect." (citing State ex rel. Speer v. Haynes, 392 So.2d 1183 (Ala.Civ.App.1979))).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    J.L. BUTLER, Sr., and J.L. Butler, Jr. v. MAXISTORAGE, INC., Dewey Brazelton, and Brazelton Properties, Inc.
    2071154.
    Court of Civil Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied June 26, 2009.
    Certiorari Denied Oct. 9, 2009 Alabama Supreme Court 1081337.

      J.L. Butler, Sr., pro se; and J.L. Butler, Jr., pro se.
    Kevin D. Heard and Angela S. Ary of Heard & Associates, LLC, Huntsville, for appellees.
   THOMPSON, Presiding Judge.

J.L. Butler, Sr. (“Butler”), and J.L. Butler, Jr. (“Jamie”) (collectively, “the Butlers”), appeal from two summary judgments entered in favor of MaxiStorage, Inc. (“MaxiStorage”), Dewey Brazelton, and Brazelton Properties, Inc. (“BP”). In the judgments, entered at separate times as to separate claims, the trial court found that BP was the owner of MaxiStorage and that MaxiStorage was the owner of certain property on Jordan Lane in Huntsville (“the property”), ejected the Butlers from the property, awarded MaxiStorage $72,500 for the Butlers’ wrongful detention of the property, denied the Butlers’ counterclaim of intentional interference with contractual or business relations, and dismissed all the remaining claims of the parties. The Butlers timely appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The evidentiary submissions of the parties in support of their respective motions for a summary judgment and their oppositions thereto tend to show the following. Union Planters Bank (“the bank”) held a promissory note for approximately $250,000 and a mortgage on a parcel of property on Jordan Lane in Huntsville. The property was environmentally contaminated with oil and gas, and the bank, which did not want to foreclose on the property itself because of the contamination, was willing to sell its interest in the property for less than the amount of indebtedness represented by the promissory note. Jamie and William J. Gibbons, Jr., an attorney for the bank, discussed the possibility of the Butlers’ purchasing the bank’s interest in the property, i.e., the mortgage. In 2000, Jamie contacted Bra-zelton to determine if Brazelton would lend money to the Butlers to enable them to purchase the bank’s interest in the property. No loan was made at that time.

In 2003, the bank still held the promissory note and mortgage on the property. In October 2003, Gibbons and Brazelton had a conversation during which Gibbons asked Brazelton whether he would be interested in purchasing the bank’s interest in the property for $75,000 if the Butlers did not purchase it. The Butlers did not buy the bank’s interest, and Brazelton, through BP, made the purchase. On October 20, 2003, the bank assigned the promissory note and the mortgage to BP. Gibbons told Jamie that Brazelton, through BP, had bought the bank’s interest in the property.

After the promissory note and mortgage had been assigned to BP, Jamie told Brazelton the Butlers were still interested in purchasing them. Brazelton and Jamie also discussed the possibility of establishing a “shell corporation” to foreclose on the mortgage so as to avoid individual liability for the environmental contamination. Butler had executed a durable power of attorney appointing Jamie as his attorney in fact, and the Butlers assert that, at all times during the events made the basis of this case, Jamie was acting as Butler’s attorney in fact. Jamie offered Brazelton an existing shell corporation, MaxiStorage. Butler was the sole shareholder of MaxiStorage. Brazelton and Jamie appear to have reached an agreement for the Butlers to buy the interest in the property for $100,000, with $25,000 down and the remaining $75,000 plus ten percent interest due at the end of one year. In addition, the Butlers agreed to provide Brazelton with a “shell corporation” that would foreclose on the mortgage.

Pursuant to the agreement, on October 27, 2003, Jamie gave Brazelton a check for $25,000. On October 29, 2003, Jamie signed a “Bill of Sale” purporting to transfer all Butler’s shares in MaxiStorage to BP. The bill of sale provided in pertinent part as follows:

“KNOW ALL MEN BY THESE PRESENTS: That J.L. Butler, SR, for and in the consideration of the sum of Ten and no/100 ($10.00) Dollars, and other good and valuable considerations, to me paid by BRAZELTON PROPERTIES, INC., the receipt whereof is hereby acknowledged, does hereby grant, sell transfer and deliver unto BRAZEL-TON PROPERTIES, INC., the following property, viz:
“100 Shares being 100% of Common Stock of MaxiStorage, Inc., an Alabama Corporation.”

MaxiStorage was intended to be the “shell corporation” that would purchase the property upon foreclosure of the mortgage. No stock certificates were delivered to BP. After the shares were transferred, BP, as the sole shareholder of MaxiStorage, held a meeting at which Butler was dismissed as director and officer of MaxiStorage and Brazelton was elected president. Also on October 29, BP assigned the promissory note and mortgage on the property to MaxiStorage.

On December 1, 2003, MaxiStorage foreclosed on the mortgage. MaxiStorage made the highest and best bid at the foreclosure sale and purchased the property for $76,011. Brazelton provided the money for the purchase. Jamie attempted to give a promissory note to Brazelton, but the note was signed on behalf of MaxiSto-rage. Brazelton said he refused to accept the promissory note because it was signed on behalf of a company he claimed he already owned. The Butlers contended that they owned MaxiStorage, and Jamie refused Brazelton’s request to have Butler be personally liable on the note. Once the dispute over the promissory note arose, Brazelton attempted to return the $25,000 check Jamie had given to him as a down payment for the property, and he said he did not cash any subsequent checks the Butlers gave him toward payment of the money used to buy the property.

Jamie attempted to get a loan from a bank to repay Brazelton in full; however, he was unable to get a loan. He still attempted to pay Brazelton monthly payments; however, Brazelton would not accept them. Jamie went to the property and cut the lock on the gate and took possession of the property. Because Jamie did not have the consent or authorization of Brazelton or BP to take possession of the property, Brazelton issued a termination notice to the Butlers on March 1, 2004. When the Butlers did not vacate the property, Brazelton issued a “notice to quit” and sought delivery of the property. When the Butlers remained in possession of the property, MaxiStorage filed its action for ejectment.

The Butlers, acting pro se, contend that the trial court improperly entered summary judgments in favor of the plaintiffs because, they say, they presented substantial evidence creating genuine issues of material fact as to the ownership of MaxiS-torage and of the property and because the defendants were not entitled to a judgment as a matter of law. We review a summary judgment de novo; we apply the same standard as was applied in the trial court. Kendrick v. Earl’s Inc., 987 So.2d 589, 595 (Ala.Civ.App.2007). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’” Lee, 592 So.2d at 1038 (footnote omitted). “[Sjubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12 — 21—12(d), Ala.Code 1975. Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000).

The Butlers assert that they presented substantial evidence indicating that they never intended to transfer actual ownership of MaxiStorage to BP, and that the parties understood that the stock “transfer” was simply to allow Brazelton and BP to have a shell corporation for purposes of foreclosing on the property. The Butlers contend that they had no “do-native intent” when agreeing to the transfer of Butler’s shares in MaxiStorage to BP; therefore, they say, the trial court erred in finding that BP was the owner of MaxiStorage. They also point out that no physical stock certificates were transferred from Butler to Brazelton or BP, and thus, they argue, there was no effective transfer of stock ownership. To support their contention, the Butlers rely on Article 8 of Alabama’s version of the Uniform Commercial Code, § 7-8-101 et seq., Ala.Code 1975, which, they argue, requires a physical delivery of a certificate to complete a transfer of stock ownership.

In its judgment finding that BP owned MaxiStorage, the trial court held that the Butlers’ argument must fail because “prevailing case law holds that a transfer of ownership of stock can occur without delivery of the physical stock certificate.” The trial court stated that, under Alabama law, the transfer of stock can be achieved without physical delivery of a stock certificate in three situations: by constructive delivery, by equitable assignment, or by gift. From the order, it appears that the trial court found that the transfer of stock from Butler to BP was an equitable assignment. The court found that the analyses in Andrews v. Troy Bank & Trust Co., 529 So.2d 987 (Ala.1988), and Johnson v. Johnson, 273 Ala. 688, 144 So.2d 12 (1962), upon which the Andreivs court relied, were applicable to this case.

In Andrews, John Andress, who owned shares of common stock in Troy Bank and Trust Company (“the Troy bank”), wished to establish joint ownership in the stock with his wife, Lessie. Andress took the stock certificates to the Troy bank, which added “Mr. or Mrs.” to the original certificates issued to Andress. The Troy bank also changed its stockholders’ register and dividend records to reflect that the stock was owned by Mr. or Mrs. Andress. When John Andress died, Lessie indorsed and surrendered the certificates to the Troy bank and had them reissued in her name. The Troy bank, believing that the certificates were “joint survivorship” certificates, did so. Andrews, 529 So.2d at 988-89.

Andrews was the executor of John An-dress’s estate. He sued Lessie Andress and the Troy bank seeking a declaration of ownership of the stock. Our supreme court determined that the actions taken by John Andress in having Lessie Andress added as a co-owner of the stocks constituted an equitable assignment of an interest in the stock to Lessie “even though he never actually indorsed the certificates and never physically delivered the certificates.” Id. at 992 (footnote omitted). The supreme court specifically found that “[t]he evidence clearly supports the trial court’s finding that it was the intent of Mr. An-dress to make Mrs. Andress a co-owner of the stock in question.” Id.

The supreme court also held that there had been a constructive delivery of the stock to Lessie Andress, quoting favorably an Idaho Supreme Court case holding that,

“ ‘[w]hile the requirement of physical delivery contained in [UCC] Article 8 may serve a valid evidentiary purpose in the case of a sole owner, where, as here, there is more than one listed owner, the requirement that the new owners personally receive physical possession of the stock certificates to constitute a valid transfer is not applicable because both joint tenants cannot enjoy possession simultaneously.... This result is especially appealing because possession by one co-owner is deemed possession by all.’ ”

Andrews, 529 So.2d at 991, quoting Ogilvie v. Idaho Bank & Trust Co., 99 Idaho 361, 365, 582 P.2d 215, 219 (1978).

Johnson, the other case the trial court in this case relied upon in determining that delivery of the stock certificates to Brazel-ton or BP was not required, involved an action in equity by an alleged joint owner of corporate stock to compel the sale of the stock and the division of the proceeds among the alleged joint owners, all of .whom were siblings attempting to determine the ownership interest of stock held by their deceased parents and their uncle. At issue was whether there had been a valid transfer of stock pursuant to the Uniform Stock Transfer Act (“the USTA”), which, at the time Johnson was decided, was codified at Title 10, § 48, Ala.Code 1940 (Recomp.1958).

The Johnson court held that the transfer of corporate stock, in the strict or technical sense, was not involved in that case, and that the USTA was without controlling influence. The court concluded that, as a matter of law, the rule of equitable assignment of corporate stock was not abrogated by the adoption of the USTA. Accordingly, Alabama law continues to recognize the equitable principle that, as between the parties, there may be a transfer of ownership of stock in a corporation when the owner presently intends to make such a transfer even though there is some technical defect in the mode of transfer. See Johnson, supra; and Nashville Trust Co. v. Cleage, 246 Ala. 513, 21 So.2d 441 (1945).

The circumstances involving the stock transfer at issue here are distinguishable from those in Andrews and Johnson. BP and Butler were never co-owners of the stock at issue. Furthermore, the Butlers presented evidence indicating that the parties never intended that there be a transfer of ownership in MaxiStorage. Instead, they say, the intention of the parties was simply to provide Brazelton or BP with a shell corporation to foreclose on the mortgage on the property so the parties could avoid individual liability for the environmental contamination on the property. In Andrews, one of the cases the trial court relied upon, the supreme court acknowledged the distinction between the circumstances in Morris v. Kaiser, 292 Ala. 650, 299 So.2d 252 (1974), and those in Andrews, stating, “[i]n the usual case, actual physical possession of the security by the purchaser is necessary to complete a transfer of ownership in the security. Moms, supra. However, in the present case, Mr. Andress did not attempt to bestow on his wife complete ownership of the stock but, rather, he sought to make her a co-owner of the stock.” Andrews, 529 So.2d at 991. The circumstances in this care are more closely akin to those in Morris than to those in Andrews and Johnson.

In Morris, the appellant contended that he was a bona fide purchaser of bearer-bond securities, even though he had not physically taken delivery of them, because, he said, “constructive or symbolic delivery occurred when [the appellee] executed and delivered a written bill of sale to him.” Morris, 292 Ala. at 652, 299 So.2d at 253. The appellant also contended that his “constructive possession” of the securities, with his right to have actual delivery of them, equated to their physical delivery to him.

Under Article 8 of Alabama’s version of the UCC, which governs investment securities such as stock certificates, § 7-8-102, Ala.Code 1975, a “protected purchaser” is a purchaser for value in good faith and without notice of any adverse claim who obtains control of the security. § 7-8-308, Ala.Code 1975. “Delivery” of securities occurs when the purchaser acquires possession of the security certificate, or someone designated by the purchaser acquires possession of a security, or when an identified security is still in the possession of a third person when that person acknowledges that he or she holds the security for the purchaser. § 7-8-301, AIa.Code 1975.

The Morris court held that securities were not like goods governed by Article 2 of the UCC and that it could not “agree therefore that a bill of sale of the securities is sufficient to constitute delivery within the purview of the statute defining a bona fide purchaser of securities.” Morris, 292 Ala. at 653, 299 So.2d at 254. The court continued:

“It is quite clear to us that the appellant never became a bona fide purchaser because he never took delivery of the securities by acquiring actual physical possession of them. They remained in the possession of the Bank, and the Bank did not at any time acknowledge that it held the securities for the purchaser. The appellant acquired possession of the purported bill of sale to the securities, but he did not acquire delivery and possession of the securities themselves. Delivery to a purchaser only occurs when he or a person designated by him acquires actual physical possession of a security.”

Morris, 292 Ala. at 653, 299 So.2d at 255.

The trial court’s reliance on Andrews and Johnson was misplaced. The holdings in Andrews and Johnson lead us to conclude that the transferee still must obtain physical possession of securities such as shares of stock for the transfer to be valid, with two exceptions: (1) when the transferor attempts to transfer only partial ownership so that he or she becomes a co-owner with his or her transferee, and (2) when an identified security to be delivered is still in the possession of a third person when that third person acknowledges that he or she holds the security for the purchaser. Neither exception is present in this case; therefore, the law as stated in Moms, and acknowledged by the court in Andrews — i.e., that an effective transfer of stock requires physical possession in the transferee — controls.

The evidence is undisputed that neither Brazelton nor BP was given physical possession of stock certificates for MaxiStorage. Brazelton and BP’s argument that no stock certificates had been created, so there was nothing physical to obtain, is not determinative. As in the cases cited above, in which the transferor arranged for new certificates to be issued in the co-owners’ names, the Butlers could easily have had stock certificates issued in BP’s name and given Brazelton or BP possession of the newly issued certificates. Furthermore, as. Morris holds, the bill of sale was insufficient to constitute a transfer of shares from Butler to Brazelton or BP. Accordingly, Brazelton and BP failed to show that, as a matter of law, one or both were entitled to a judgment as a matter of law as to the ownership of Max-iStorage.

Even if we were to hold that a physical transfer of stock certificates was not needed in this case, the Butlers’ provided substantial evidence — including their testimony — that tended to show that the parties intended only to provide Brazelton or BP with a shell corporation for purposes of foreclosing on the property and that they did not intend an actual change in ownership of MaxiStorage. The Butlers’ evidence creates a genuine issue of material fact; therefore, a summary judgment based on equitable assignment, which, as related in the holdings in the cases cited above, requires an intention to transfer ownership on the part of the transferors, was improper. In his deposition, Brazelton acknowledged that he did not provide consideration for the “purchase” of stock of MaxiStorage. Failure to provide any payment for MaxiStorage tends to support the Butlers’ theory of the case that transfer of ownership of MaxiS-torage was not actually contemplated by the parties. The Butlers’ lack of effort to have stock certificates issued to Brazelton or BP and to have those certificates delivered also tends to support their contention that no actual transfer of ownership was intended by the parties.

The contested evidence as to the intention of the parties as to the ownership of MaxiStorage creates a genuine issue of material fact. Neither Brazelton nor BP had physical possession of the stock certificates of MaxiStorage, and the evidence was disputed as to whether the parties intended to vest ownership of MaxiStorage in Brazelton or BP. Therefore, a summary judgment in favor of Brazelton and BP regarding ownership of MaxiStorage was improper and must be reversed.

Because the ownership of MaxiStorage is not settled, the subsequent ownership of the property remains at issue. Thus, those portions of the trial court’s summary judgments determining the ownership of the property and ejecting the Butlers from the property are also due to be reversed. Because the summary judgments are due to be reversed in their entirety, we also need not determine the other issues the Butlers raise on appeal.

For the reasons set forth above, the summary judgments entered in favor of MaxiStorage, Brazelton, and BP are due to be reversed in their entirety, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . The Butlers initially appealed after the entry of the second summary judgment; however, one claim was still pending, and on December 12, 2007, this court, without opinion, dismissed the appeal because it was not from a final judgment. The final claim was dismissed on July 2, 2008, and on August 12, 2008, the Butlers filed a timely notice of appeal.

      . The record does not provide details regarding the underlying promissory note and mortgage, but the foreclosure deed indicates that the previous owners of the property had defaulted on the mortgage.

      . Presumably, by "shell corporation” the parties meant a corporation without assets.

      . The parties did not raise the legality of the "shell corporation," which, the Butlers say, was intended to be used to shelter the parties from liability for environmental contamination of the property. This court does not condone sham corporations under any circumstances. However, illegality is an affirmative defense, Rule 8(c), Ala. R. Civ. P., and our supreme court has held that failure to plead illegality precludes appellate-court review of the matter. Kershaw v. Knox Kershaw, Inc., 523 So.2d 351 (Ala.1988) (holding that the defendant's failure to plead the affirmative defense of the alleged illegality of a contract provision precluded consideration of that defense). Because the parties did not raise the issue of the legality of the shell corporation at trial or on appeal, this court cannot consider the issue.

      . That former Code section provided:
      "Title to a certificate and to the shares represented thereby can be transferred only, by delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person. The provisions of this section shall be applicable although the charter or articles of incorporation or code of regulations or by-laws of the corporation issuing the certificate and the certificate itself provide that the shares represented thereby shall be transferable only on the books of the corporation or shall be registered by a registrar or transferred by a transfer agent.”

        Cf. §§ 7-8-301, 7-8-307, 7-8-309, and 7-8-313, Ala.Code 1975.


author: PITTMAN, Judge.

text:
    S.J.R. v. F.M.R.
    2071020.
    Court of Civil Appeals of Alabama.
    July 24, 2009.
    Certiorari Denied Oct. 9, 2009 Alabama Supreme Court 1081524.
    See also, 933 So.2d 352; 984 So.2d 468.
    Richard D. Lively, Prattville, for appellant.

      Louis C. Colley and C. Terry Gregg, Jr., of Cleveland & Colley, P.C., Prattville, for appellee.
   PITTMAN, Judge.

S.J.R. (“the mother”) appeals from a judgment modifying the child-custody provisions of her divorce judgment from F.M.R. (“the father”). The mother contends that the father failed to meet the burden of proof set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), so as to justify a change of custody; that the trial court erred in ordering her to pay child support; and that the trial court erred in admitting hearsay evidence at trial.

This is the fourth occasion that these parties have been before this court concerning the custody of the parties’ now 15-year-old daughter (“the child”). We will briefly summarize the pertinent facts rather than discuss the case history at length. In July 1996, the parties were divorced by a judgment that incorporated an agreement of the parties. In that judgment, the mother was awarded primary physical custody of the child and the father was awarded standard biweekly weekend visitation.

Between 1999 and 2001, the mother and the father became embroiled in a custody-modification proceeding stemming from conflicting allegations that the child’s paternal grandfather or the mother’s flaneé, or both, had sexually molested the child. The trial court entered a judgment changing the child’s primary physical custody from the mother to the father on July 16, 2002, and the mother appealed from that judgment. See S.J.R. v. F.M.R., 933 So.2d 352 (Ala.Civ.App.2004) (“S.J.R. I”). In reviewing the trial court’s 2002 judgment, this court determined that the trial court had improperly admitted hearsay testimony over the objection of the mother; we reversed the trial court’s judgment awarding custody of the child to the father and remanded the cause for a new trial. 933 So.2d at 361-62. That decision was issued by this court on May 7, 2004. The father filed an application for a rehearing on May 20, 2004; that application for a rehearing was overruled on February 25, 2005. On March 11, 2005, the father filed a petition for a writ of certiorari to the Alabama Supreme Court; that petition was denied on January 13, 2006. The certificate of judgment in S.J.R. I was issued on January 18, 2006.

As we noted in S.J.R. v. F.M.R., 984 So.2d 468 (Ala.Civ.App.2007) (“S.J.R. III”), while appellate proceedings were continuing in S.J.R. I, the mother filed a motion on October 19, 2004, to show cause why physical custody of the child should not be immediately returned to the mother and to set a visitation schedule for the father. In response to that motion, the trial court entered the following order on December 8, 2004: “Show cause issue denied. Court officially suspends all visitation based specifically on testing of [the court-appointed child counselor]; visitation suspended for [the] mother.” Under Ex parte Tiongson, 765 So.2d 643 (Ala.2000), a decision of this court “ ‘is not final until th[is] court issues its certificate of judgment, and an application for rehearing in th[is] court and a petition in [the Alabama Supreme] Court for writ of certiorari stay the issuance of that certificate.’ ” 765 So.2d at 643 (quoting Jackson v. State, 566 So.2d 758, 759 n. 2 (Ala.1990)). This court, in S.J.R. v. F.M.R., 975 So.2d 1024 (Ala. Civ.App.2005) (table), treated the December 2004 visitation order as an appealable final judgment and affirmed without opinion; however, as we noted in S.J.R. III, review of that order would have been proper only via a petition for an extraordinary writ.

The genesis of S.J.R. III was equally convoluted. After the certificate of judgment in S.J.R. I had been issued, the trial court set the ease “ ‘for final disposition on pending petition at 9:00 on 9-7-06.’ ” 984 So.2d at 470. After several continuances, and after both parties had filed numerous motions, on October 18, 2006, the trial court again set the case for a final hearing to dispose of “ ‘all pending matters’ ” on March 8, 2007. Id. However, on October 26, 2006, the mother filed a motion seeking to regain custody of the child immediately; the trial court heard argument, but no additional testimony concerning the mother’s motion on January 4, 2007, but it denied the mother’s request for custody and again awarded the father pendente lite custody of the child. Id. The mother again filed a notice of appeal from the temporary award of custody to the father, thus preventing a final hearing on the merits. Id.

Because we recognized in S.J.R. III that the mother had improperly attempted to appeal from a nonfinal pendente lite custody order, we dismissed that appeal. However, we had consolidated that appeal with the mother’s mandamus petition seeking an immediate custody hearing and a recu-sal of the trial judge. On the basis of Ex parte R.D.N., 918 So.2d 100 (Ala.2005), we granted the mother’s petition for a writ of mandamus ordering the trial judge to re-cuse himself from further proceedings in the case. The certificate of judgment in S.J.R. III was issued on December 7, 2007.

The present appeal is from a custody-modification judgment entered by a second trial judge on July 9, 2008. On March 27, 2008, that judge conducted an ore tenus proceeding on the parties’ competing custody-modification petitions. The parties, the child’s guardian ad litem, the child’s private counselor, the child’s T-ball coach, the child’s second-grade teacher, the child’s fourth-grade-teacher, and the child’s junior-high-school counselor testified during the hearing. The trial court also received certain documentary evidence; the previously recorded testimony of a witness, who was unavailable due to mental illness at the time of trial, and a stipulation that the deposition of the child’s psychiatrist would be offered as soon as it was transcribed.

On July 9, 2008, the trial court entered a final judgment resolving the competing child-custody petitions of the parties. In that judgment, the trial court recounted the lengthy procedural history that had led to the modification hearing in 2008 and noted that the mother had testified on her own behalf and had called only one witness, the father, to support her claims. On the other hand, the judgment noted that the father had called as witnesses numerous teachers and counselors and had offered other testimony from the child’s psychiatrist to support his request for an award of custody of the child. The child’s teachers, without exception, commented on the father’s continuing devotion to and involvement with the child. The child’s coach stated that he had seen a marked improvement in the child’s social and academic skills during the time that the father had been awarded pendente lite custody of the child.

At his deposition, the child’s psychiatrist stated that he had diagnosed the child as having pervasive developmental disorder, which includes a “spectrum of five diagnoses” that include autism and attention deficit/hyperactivity disorder (“ADHD”). In her testimony, the child’s counselor, noted that although she agreed with the psychiatrist’s diagnosis, she understood that the child’s pediatrician had diagnosed the child with ADHD before the child had been referred to the psychiatrist. The counselor stated that the father had hired her to be the child’s private counselor following the original custody-modification hearing in 2002; she stated that she had been working with the child extensively since that time. She noted that, at the time of the 2008 hearing, the child was suffering from a mood disorder that was exacerbated by the child’s having entered adolescence. She opined that, based upon her years of personally counseling the child and the child’s multiple developmental diagnoses, moving the child’s custody back to the mother from the pendente lite custody of the father would cause “irreparable damage” to the child. On cross-examination, the counselor opined that the mother was overprotective of the child, which, she said, contributed to the child’s separation anxiety and other developmental problems. Upon direct questioning by the trial court, the counselor stated that, because she thought the mother had “significantly contributed to” the child’s psychological problems during the time the mother had had primary physical custody of the child, any future visitation between the mother and the child should be supervised until a positive environment could be developed such that interaction between them would not exacerbate the child’s developmental problems.

As previously noted, the mother did not offer any corroborating testimony to support her claim of being the better custodial parent. Indeed, the testimony of both parents confirmed that the mother had not seen or talked with the child in four years. The child’s private counselor testified that the mother had never contacted her during that time to arrange any type of visitation — i.e., by telephone, by letter, or in person. In fact, the counselor approvingly noted that the father had “gone beyond” her professional recommendations in order to help the child cope with her developmental problems and to grow into a productive person. However, the counselor also testified that the child’s developmental and psychological problems were going to evolve and worsen during her adolescence and that the child would need constant medical and psychiatric care for the foreseeable future.

Based upon the testimony of the child’s psychiatrist, teachers, and counselors, we conclude that the trial court properly determined that the father had proved that a change in circumstances had occurred and that awarding the father custody of the child would materially promote the child’s best interests and would outweigh any disruptive effects caused by awarding the father custody. The trial court’s custody award, therefore, was proper.

The mother also asserts the trial court erred in ordering her to pay $750 a month in child support. First, we note that the parties’ combined monthly income exceeds $10,000, and, therefore, the child-support computation does not fall within the parameters of the “schedule of basic child support obligations” in effect before January 2009. See Rule 32(C)(1), Ala. R. Jud. Admin. (“The [trial] court may use its discretion in determining child support in circumstances where combined adjusted gross income ... exceeds the uppermost levels of the schedule.”). In her appellate brief, the mother attempts to extrapolate a “suggested” child-support obligation of $355.16 per month. However, the Comment to Rule 32 (as amended to conform to amendments effective October 4, 1993) expressly states that “[w]here the combined adjusted gross income exceeds the uppermost limit of the schedule, the amount of child support should not be extrapolated from the figures given in the schedule, but should be left to the discretion of the court.”

Citing Dyas v. Dyas, 683 So.2d 971, 973-74 (Ala.Civ.App.1995), the mother contends that the father failed to present evidence from which the trial court could conclude that $750 was an appropriate amount of monthly child support. Also, citing Dyas, she asserts that the trial court could not award any support without testimony regarding the child’s needs. We disagree with the mother’s characterization of the evidence.

The record is replete with testimony regarding the extensive amount of time and effort that the father had spent in hiring tutors for the child, in enrolling her in different enrichment activities, and in retaining a private counselor for the child (who testified that she had counseled the child on 266 separate occasions). Although the mother points out that the modification judgment requires her to equally share in the cost of all uncovered “medical, dental, orthodontic, or optomet-ric services” that the child may receive in the future, we cannot properly interpret the wording of that provision as including the child’s personal counseling or tutoring services, both of which will be needed on a regular basis throughout the child’s minority; the costs of those services were, in actuality, allocated to the father alone. In addition, we note that the combined testimony of the child’s teachers, doctors, and counselors indicated that the child’s special academic and psychological needs are extensive and expensive. A specific dollar amount is not needed for this court, or the trial court, to conclude that the child’s overall needs are substantial. Moreover, the fact that this case has taken nearly seven years to be finally resolved has meant that the father has had to bear the entire burden of paying for all the child’s expenses, including all pertinent medical bills, since the date the first modification judgment was entered on July 16, 2002. We cannot say that the trial court erred in ordering the mother to pay $750 toward the monthly expenses for the remaining four years of the child’s minority.

Finally, as in S.J.R. I, the mother asserts that the trial court erred in admitting hearsay evidence during the private counselor’s testimony over her attorney’s objection. A thorough reading of the transcript of the proceeding leading to the judgment currently being appealed reveals not a single instance in which the counsel- or testified regarding statements that the child made to her. The counselor was questioned by the father’s attorney, by the mother’s attorney, and by the trial judge, and in every instance she stated that she based her answers and her opinions on her interactions with the parties, on her observations of the child, and on the medical diagnoses of the child’s ongoing personality and mood disorders. Unlike the situation in S.J.R. I, at no time did the counsel- or read any of her notes into evidence or quote the child as telling her specific “facts” when answering questions during the trial. The reversible error in S.J.R. I, which was the use of the child’s out-of-court statements for the truth of the matter asserted as the basis of a factual conclusion, is thus not present on this record. See S.J.R. I, 933 So.2d at 360-61. Therefore, we conclude that the mother has failed to demonstrate that hearsay was admitted over her objection.

The modification judgment is due to be affirmed.

AFFIRMED.

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

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

      . By order dated November 19, 2008, the Alabama Supreme Court amended Rule 32, Ala. R. Jud. Admin., including the child-support guidelines, effective January 1, 2009. By order dated February 25, 2009, the Alabama Supreme Court amended Rule 32(A)(4) and Rule 32(B)(7), Ala. R. Jud. Admin., effective March 1, 2009. Those amendments are not applicable in this case.


author: THOMAS, Judge.

text:
    Louis B. HANKS, Margaret C. Hanks, and Tommy F. Clement v. Billy Mack SPANN.
    2080211.
    Court of Civil Appeals of Alabama.
    Aug. 21, 2009.
    Rehearing Denied Oct. 9, 2009.

      Frances R. Clement, Montgomery, for appellants.
    Allen Grocholski, Fayette, for appellee.
   THOMAS, Judge.

This is the second time these parties have been before this court. Louis B. Hanks, Margaret C. Hanks, and Tommy F. Clement own lands in Marion County that are divided by an old road, 10 feet wide, referred to in the testimony as a “field road,” a “logging road,” or a “wagon road.” The deeds of the Hankses and Clement describe the road as the boundary between their properties. Billy Mack Spann owns land at the southwest end of the road. Spann and his predecessors in title had used the road without objection from the Hankses and Clement, or their predecessors in title, for more than 20 years. When Spann opened a fill-dirt pit on his property and began hauling dirt over the road, however, the Hankses and Clement sued Spann, seeking an order declaring that Spann had no right or interest in the road and enjoining Spann from using the road. Spann answered, asserting that he had an easement by prescription and an easement by necessity upon the road. Following a bench trial, the Marion Circuit Court, Judge Bobby R. Aderholt, determined that the Hankses and Clement had failed to prove that they owned the road separating their properties and that Spann had a prescriptive easement over the road.

The Hankses and Clement appealed to the Alabama Supreme Court, which transferred that appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. In Hanks v. Spann, 990 So.2d 399 (Ala.Civ.App.2008), this court reversed the judgment, holding that Judge Aderholt had erred by granting Spann a prescriptive easement over the road without determining who owned the road. We remanded the cause with instructions to “(1) determine the owner or owners of the logging road; (2) determine whether there exists an easement by prescription and/or necessity; and (3) if the court determines that an easement by prescription and/or necessity exists, determine whether the scope of the easement has been overburdened.” 990 So.2d at 403 (footnote omitted).

On remand, the ease was assigned to Circuit Judge Talmage Lee Carter. Judge Carter reviewed the trial transcript and the exhibits that had been admitted in the proceeding tried before Judge Ader-holt, as well as briefs of the parties, and he entered a judgment on October 20, 2008, determining that the Hankses own to the center line on the south side of the road; that Clement owns to the center line on the north side of the road; that Spann has a prescriptive easement over the road; and that Spann has not overburdened the scope of the easement. The Hankses and Clement filed a postjudgment motion, alleging that the evidence was insufficient to support Judge Carter’s judgment and that Judge Carter had incorrectly applied the law to the facts. Following the denial of that motion, the Hankses and Clement appealed to the supreme court, which again transferred the appeal to this court pursuant to § 12-2-7(6). We affirm in part, reverse in part, and remand with instructions.

Factual Background

The following evidence was undisputed. The road in question runs over unimproved farm land and timberland. For more than 20 years, Spann and his predecessors in title, as well as other farmers and nearby property owners, had used the road with the knowledge of and without objection from the Hankses and Clement or their predecessors in title. Spann presented nine witnesses who testified that they had used the road for years without seeking permission from anyone. Danny Lou Spann, Billy Mack Spann’s 75-year-old sister, testified that she had used the road all of her life; she remembered someone’s stopping her on the road to tell her that President Franklin D. Roosevelt had died. Seventy-four-year-old William Burleson said that he had used the road to haul corn and cotton from the fields. He said that he did not think anyone minded his using the road and that, “[if] they did, they didn’t say anything about it.”

Clement testified that he and the Hankses owned the road and that they did not mind if others used it. Louis Hanks agreed that he knew Spann and others had been using the road for years and that he did not mind. Before Spann obtained his property, the use of the road had been confined to recreational or agricultural purposes, such as hunting, riding horses and bicycles, picking blackberries, feeding wild animals, and gaining access to gardens, farms, and individuals who were working in the fields. Sometime in the 1990s, Spann had cut timber on his property and had used the road to haul his timber out, at which time he had improved the road by putting down gravel, smoothing the road, and installing a culvert to keep the road from washing away in a low place. Shortly before the Hankses and Clement sued Spann in 2005, Spann had begun to sell top soil from a dirt pit on his property and had used the road to haul dirt to and from the pit.

Standard of Review

Because Judge Carter reviewed the record of the bench trial conducted by Judge Aderholt and heard no oral testimony, the ore tenus rule does not apply to our review of the judgment he rendered. See Ex parte Horn, 718 So.2d 694, 705 (Ala.1998). We review de novo Judge Carter’s conclusions of law and his application of law to the facts. See Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008).

Prescriptive Easement

The evidence was undisputed that the road in question runs through unimproved land, that it has been used by local farmers and property owners, including Spann and his predecessors in title, for more than 20 years, that none of the users had sought the permission of the owners before they used the road, and that none of the users had been asked by the owners to discontinue their use of the road. During the trial of the case before Judge Aderholt in 2006, the following occurred on cross-examination of Spann:

“Q. [By Mr. Vinson, counsel for the Hankses and Clement]: So [the Hanks-es and Clement, or their predecessors in title,] didn’t [mind] you using [the road] or your daddy using it. It was permissive?
“MR. GROCHOLSKI [counsel for Spann]: I object to that. It is not permissive unless he testified he got express permission.
“THE COURT: Sustained.”

Judge Aderholt’s ruling on the objection was incorrect because it is settled law that Spann’s use of the road was presumed to be permissive. See Ford v. Alabama By-Products Corp., 892 So.2d 217 (Ala.1980):

“ A private easement[] is not established merely by the use of the lands of another for a period of twenty years or more. Such use must have been adverse to the owner of the premises over which the easement is claimed, under claim of right, exclusive, continuous and uninterrupted, with actual or presumptive knowledge of the owner.’ West v. West, 252 Ala. 296, 40 So.2d 873 (1949). There is a presumption that the user is permissive rather than adverse unless shown otherwise. Also, such a permissive use does not ripen into a prescriptive or adverse use unless there has been such a repudiation of the permissive use as to afford notice of an adverse claim. Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974).”

392 So.2d at 219. Cf. Cotton v. May, 293 Ala. 212, 214, 301 So.2d 168, 169 (1974) (rejecting appellants’ “argument [that they had a prescriptive easement in a roadway] ... based on the testimony of numerous witnesses that they never had ‘to ask permission’ to use the roadway” because that “approach fail[ed] to meet the requirements for the acquiring of a private easement by prescription in this state”). To rebut the presumption that the use of a road is permissive, the user claiming a prescriptive easement has the burden of showing that his or her use was adverse to that of the owner for the 20-year prescriptive period. Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983).

Judge Aderholt’s belief that the use of the road could not be permissive unless the user had received the owner’s express permission undoubtedly led him into the error demonstrated in the following portion of his February 23, 2007, judgment:

“Plaintiffs claim that the defendant asked for permission since the year 2000 to use the road to haul timber out. Defendant denied this and stated that he did discuss improving, or doing some work on, the road and putting a gate and lock on it with Joel Clement, the father of one of the plaintiffs and that [Joel Clement] stated that that would be no problem.
“That was the only evidence that the use of the road by defendant was permissive. But that is immaterial in this case because the evidence is overwhelming and uncontroverted that the defendant and his predecessors in title had been using this road for twenty or more years, before the plaintiffs ever acquired title to their property, without the permission of anyone.”

(Emphasis added.)

“[A]n easement by prescription ‘ “is not established merely by the use of the lands of another for a period of twenty years or more.” ’ ” Aman v. Gilley, [Ms. 2031166, September 2, 2005] — So.3d -, - (Ala.Civ.App.2005) (quoting Cotton v. May, 293 Ala. at 214-15, 301 So.2d at 170, quoting in turn West v. West, 252 Ala. 296, 297-98, 40 So.2d 873, 874 (1949)). Spann presented no evidence indicating that his use of the road was anything other than permissive.

“ ‘[A] permissive occupant cannot change his possession into adverse title no matter how long possession may be continued, in the absence of a clear, positive and continuous disclaimer and disavowal of the title of the true owner brought home to the latter’s knowledge; there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise non-hostile possession into one that is hostile.’ ”

Smith v. Persons, 285 Ala. 48, 55, 228 So.2d 806, 811 (1968) (quoting Stewart v. Childress, 269 Ala. 87, 93, 111 So.2d 8, 13 (1959), citing in turn White v. Williams, 260 Ala. 182, 187, 69 So.2d 847, 851 (1954)). Spann presented no evidence indicating that he had engaged in any conduct that would have put the Hankses or Clement on notice that he was asserting a hostile claim to the road. On the contrary, Spann’s evidence indicated that his use of the road was undertaken in recognition of the superior rights of the Hankses and Clement. For example, Spann testified that when he cut timber on his property and used the road to haul out the timber, Louis Hanks “rode up on his tractor and confronted” him. When Spann explained to Hanks that he had no other way “to bring [his timber] out,” Hanks said, “Well, I don’t want you tearing the road up,” and Spann replied, “We are not going to tear the road up. If we start making a problem we will stop hauling out.” Even Spann’s putting a locked gate across the road — an act that might, under other circumstances, have indicated a disavowal of the owners’ title, see Hinds v. Slack, 293 Ala. 25, 30, 299 So.2d 717, 721 (1974) — was done in apparent deference to the rights of the Hankses and Clement. Spann testified:

“I talked to Mr. Clement’s dad. I told him my plan was to put a gate up there to keep people from going in and out basically during hunting season. I also talked to Mr. Hanks at the same time. I said, I will give you a key to it. They both said we don’t need a key. I said, well, I gave the guy that lived in the trailer beside the gate, I give him a key so if anybody needed passage. Mr. Joel Clements called me one time and said I need to get in that gate. I said, I’ll unlock it and leave it unlocked.”

Judge Aderholt incorrectly applied the law to the undisputed facts when he ruled that Spann had a prescriptive easement over the road. Judge Carter’s judgment perpetuated that error when he also determined, in his October 20, 2008, judgment on remand, that Spann had a prescriptive easement. See Aman v. Gilley, — So.3d at - (stating that the claimants “did not present any evidence to rebut the presumption that their use of the disputed property was permissive.... [T]he mere use of the disputed property for 20 years or more does not establish an easement by prescription.”).

Easement by Necessity

Because Judge Carter found that Spann had a prescriptive easement, he did not decide whether Spann had an easement by necessity. An easement by necessity requires a conveyance from a common owner or grantor. See Henderson v. Dunn, 871 So.2d 807, 813 (Ala.Civ.App.2001). In Bull v. Salsman, 435 So.2d at 29, the Alabama Supreme Court discussed the reason underlying that requirement:

“A common law way of necessity is a type of easement by implication and ‘rests on the implication that the parties intended and agreed to provide for such a way.’ Sayre v. Dickerson, 278 Ala. 477, 491, 179 So.2d 57 (Ala.1965). For such an implication to arise, there must have been an original grantor who impliedly granted an easement across his remaining lands to the purchaser of the land-locked parcel. Therefore it has been stated that ‘[ojriginal unity of ownership of the dominant and servient tenements is always required for an easement of necessity.’ Helms v. Tullis, 398 So.2d 253, 255 (Ala.1981); see also, Burrow v. Miller, 340 So.2d 779 (Ala.1976); Sayre v. Dickerson, supra; Hamby v. Stepleton, 221 Ala. 536, 130 So. 76 (1930).”

The evidence in the present case was undisputed that Spann’s property and the property owned by the Hankses and Clement did not have a common grantor and, thus, that there was no original unity of ownership. Accordingly, Spann could not have had an easement by necessity.

The Scope of Spann’s Permissive Use

Having determined that Spann had neither an easement by prescription nor an easement by necessity over the road, we conclude that Spann had only an implied license to use the road owned by the Hankses and Clement. See Tuders v. Kell, 739 So.2d 1069, 1073 (Ala.1999) (quoting Restatement (Second) of Torts § 330 (1965), for the proposition that “ ‘[a] licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent’ ”). In Boyce v. Cassese, 941 So.2d 932, 941 (Ala.2006), our supreme court, quoting from Jon W. Bruce & James N. Ely, Jr., The Law of Easements and Licenses in Land § 1:4 (West Group 2001), explained the difference between an easement and a license:

“ ‘A license is often defined as permission to do an act or a series of acts on another’s land that, absent authorization, would constitute trespass. Because permission is the voluntary grant of a personal privilege, the landowner may usually revoke consent at any time and thereby terminate the license. Given their revocable nature, licenses generally are not considered to reach the status of interests in land. In contrast, easements are irrevocable interests in land of potentially perpetual duration.’ ”

Just as the holder of an easement cannot alter the essential character of the easement or materially increase the burden on the servient estate, see Ex parte Lightwave Techns., LLC, 971 So.2d 712, 718 (Ala.2007); Blalock v. Conzelman, 751 So.2d 2, 6 (Ala.1999), one who enters property under a license becomes a “trespasser from the time when he goes beyond the purpose for which he was permitted to enter,” see Snedecor v. Pope, 143 Ala. 275, 287, 39 So. 318, 323 (1905). The evidence at trial indicated that the purposes for which Spann and others had been permitted to use the road were limited to recreational pursuits and ingress and egress to agricultural fields. Louis Hanks testified:

“Of course Billy Mack and people used [the road] for years. We knew that. We didn’t stop them. But when they started hauling, the road got larger and they started hauling dirt over there we were concerned [about] a big dirt pit, which trucks would be coming in and out of just like over on Smith Road there is a large dirt pit over there now. ' We were very concerned that this might happen over there and causing our property value to go down.”

We hold that Spann’s use of the road to conduct his dirt-hauling operation was not within the purposes for which he and others had historically been permitted to use the road. Accordingly, we conclude that Spann’s heavy-truck, commercial use exceeded, in kind rather than extent, the scope of his implied license to use the road for recreational purposes or for ingress and egress to agricultural fields. See Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 272 (Ala.2006).

The Description of the Road Oumed by the Hankses and Clement

Judge Carter’s judgment describes the road as follows:

“beginning at the end of Ivey Street in Winfield, Alabama, and extending southeasterly along the property owned by Louis B. Hanks and Margaret C. Hanks and Tommy F. Clements in the SW HI of the SE HI of Section 15, Township 13 South, Range 12 West.”

(Emphasis added.) The undisputed evidence at trial demonstrated that the road is, in fact, located in the southeast quarter of the southwest quarter of Section 15, Township 13 South, Range 12 West.

Conclusion

That part of Judge Carter’s judgment determining that the Hankses and Clement each own to the center line of the road in dispute is affirmed. That portion of the judgment erroneously describing the road as being located in the “SW 1/4 of the SE 1/4 of Section 15, Township 13 South, Range 12 West” is reversed, and the cause is remanded with instructions to correct the description to read as follows:

“beginning at the end of Ivey Street in Winfield, Alabama, and extending southeasterly along the property owned by Louis B. Hanks and Margaret C. Hanks and Tommy F. Clement in the SE 1/4 of the SW 1/4 of Section 15, Township 13 South, Range 12 West.”

That portion of the judgment determining that Spann has a prescriptive easement over the road is reversed, and the cause is remanded with instructions to enter a judgment on that issue in favor of the Hankses and Clement.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

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

      . Because Spann did not assert that the road had become a public road by prescription, we assume that Spann’s claim was solely one for a private prescriptive easement and that the judgments of both circuit judges constituted awards of a private prescriptive easement. See Johnson v. Metro Land Co., 18 So.3d 962, 968 (Ala.Civ.App.2009).


text:
    M.S. v. ALABAMA DEPARTMENT OF HUMAN RESOURCES.
    2080540.
    Court of Civil Appeals of Alabama.
    Aug. 28, 2009.

      Elissa H. Green, Huntsville, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   THOMAS, Judge.

M.S. (“the mother”) appeals from a judgment terminating her parental rights to her son D.S. (“the child”). We affirm.

The mother is 31 years old; by her own admission, she has been an alcoholic since the age of 16. She suffers from cirrhosis of the liver and paranoid schizophrenia. The Madison Juvenile Court had previously terminated her parental rights to another child. The child who is the subject of the present appeal was born on January 29, 2008. He was removed from the mother’s custody on February 8, 2008, when he was 10 days old, following a domestic-violence incident between the mother and her boyfriend. The mother does not know who the child’s father is. She stated that there were five men, known to her by their first names only, who could possibly be the child’s father.

At the shelter-care hearing on February 8, 2008, the juvenile court determined that the child was dependent and awarded custody to the Department of Human Resources (“DHR”). Following the shelter-care hearing, DHR placed the child in foster care and developed an Individualized Service Plan (“I.S.P.”) for the mother. Despite the fact that it was not statutorily required to use reasonable efforts to rehabilitate the mother or to reunite her with the child, see § 12-15-65(m), Ala.Code 1975 (providing that “[rjeasonable efforts shall not be required to be made where the parental rights to a sibling have been involuntarily terminated”), DHR assessed the mother’s needs and began providing services to her. DHR determined that the mother needed a substance-abuse-treatment assessment, a psychological evaluation, and parenting classes. It proposed to offer her those services plus bi-monthly supervised visitation with her child, transportation, random drug-and-alcohol screening, and parenting classes.

The mother had a psychological evaluation on March 21, 2008, by Dr. Christine Lloyd, a clinical psychologist. Based on a personal interview with the mother, Dr. Lloyd determined that the mother was an alcoholic, that she had been diagnosed as suffering from cirrhosis of the liver and anemia, that she was receiving Supplemental Security Income (“S.S.I.”) as a consequence of being a “slow learner,” and that she was neither under a doctor’s care nor compliant with recommended medical treatments for her physical conditions. Dr. Lloyd testified that, at the time of her evaluation, the mother was incoherent and may have been under the influence of alcohol. Dr. Lloyd was, therefore, unable to make a definitive diagnosis of mental illness, but she noted that the mother’s psychological tests indicated that she had a “schizoid personality disorder, with paranoid personality features.” Dr. Lloyd recommended that the mother seek medical care for her physical problems and attend an inpatient treatment facility for alcoholism, after which, Dr. Lloyd said, the mother would benefit from psychological intervention and a follow-up psychological evaluation.

The mother had an alcohol-and-drug-treatment assessment that resulted in a recommendation that she enter a detoxification program immediately. The mother complied with that recommendation and participated in a three-day “detox” program from May 21 to May 24, 2008. In June 2008, the mother participated in group-therapy sessions at Bradford Health Services. DHR provided her with transportation to the sessions. On June 25, 2008, after the mother had attended six sessions at Bradford, the therapist recommended that the mother undergo residential treatment for her alcoholism. The mother refused to enroll in a residential program, and she did not participate in the Bradford group-therapy sessions after June 25. Meghan Nobriga, the mother’s caseworker at the Madison County DHR, testified that she did not hear from, and was unable to locate or contact, the mother from June 25 to September 2. On August 25, DHR filed a petition to terminate the mother’s parental rights.

On September 2, 2008, the mother telephoned Nobriga to say that she had gone through another three-day detoxification program during which, she said, she had been advised to enroll in a residential alcohol-treatment facility. The mother told Nobriga that the program staff had located a facility for her but that she had chosen a different facility, Phoenix House in Tuscaloosa, and would be leaving soon. The mother was at Phoenix House from the middle of September until December 8, 2008. Nobriga received monthly reports from the Phoenix House staff concerning the mother’s progress. The reports indicated that the mother was complying with the program requirements, which, in addition to alcohol-dependency treatment, included G.E.D. classes, parenting classes, and Alcoholics Anonymous (“A.A.”) meetings. On three occasions, Nobriga transported the child to Tuscaloosa to visit the mother while she was in residence at Phoenix House.

On December 1, 2008, the mother telephoned Nobriga to inform her that she had completed the Phoenix House program and would be coming home on December 3. Nobriga reminded the mother to provide DHR with her address and telephone number as soon as she returned home so that DHR could resume services to her. The mother did not contact Nobriga again until January 14, 2009.

On that occasion, Nobriga informed the mother that she should have drug-and-alcohol screenings once per week; she told the mother that DHR would provide transportation to the screening site if she needed it. Between January 14 and March 6, 2009 — the date of the termination-of-parental-rights trial — the mother was scheduled for seven drug-and-alcohol-sereening tests; she failed to appear for five of them.

At a scheduled court hearing on December 12, 2008, the mother’s attorney had requested that the mother be given a second psychological evaluation. Nobriga made an appointment for the mother with Dr. Lloyd on January 21, 2009; the mother failed to keep the appointment and failed to contact DHR and explain why she would not be there. Nobriga set up a second appointment for February 4, 2009; again, the mother failed to show up or to contact DHR. At trial, the mother testified that she had not received the notice of the first appointment that, Nobriga said, had been mailed to her brother’s address because, the mother explained, she was no longer living with her brother. The mother stated that she had missed the second appointment because she was “busy trying to obtain a residence.” The mother finally saw Dr. Lloyd for a second psychological evaluation on February 25, 2009, less than two weeks before the hearing on the petition to terminate her parental rights.

Dr. Lloyd testified that the mother had improved since her first evaluation almost a year earlier; she was coherent and she told Dr. Lloyd that she had conquered her alcohol problem. She stated that she had been “clean” on all her drug-and-alcohol tests. Dr. Lloyd was able to make a definite diagnosis regarding the mother’s psychological state. Based on the mother’s psychological tests and the mother’s history of having experienced auditory and visual hallucinations “all her life,” as well as other factors, Dr. Lloyd opined that the mother was suffering from paranoid schizophrenia. Dr. Lloyd also found that the mother had borderline mental retardation.

Dr. Lloyd’s recommendations were: first, that the mother should be treated with psychotherapy and medication for paranoid schizophrenia; second, that the mother should participate in an outpatient recovery program for alcoholism, such as A.A., because of the high probability of relapse; and third, that the mother should attend parenting classes. Dr. Lloyd explained that, without treatment for her mental illness and alcoholism, the mother would not be able to parent the child and parenting classes would not be effective.

The mother has not been employed for 10 years. Her sole source of income is S.S.I. benefits of approximately $650 per month. In the first juvenile proceeding with respect to this child, the court waived the mother’s child-support obligation. At the time of trial, the mother was living in a one-bedroom duplex and her rent payment was $469 per month. Nobriga’s testimony indicated that the mother has never had stable housing, that the mother had lived in 3 different places after returning from the Phoenix House program, and that, for approximately 4 of the 13 months that Nobriga was the mother’s caseworker, No-briga did not know where the mother was or how to reach her. When the termination-of-parental-rights petition was filed, Nobriga had not heard from the mother in two months.

Nobriga testified that, although the mother was allowed supervised visitation with the child twice per month, she had actually visited the child only 9 times in 13 months, and 3 of those visits occurred because Nobriga brought the child to Tuscaloosa to see the mother. Nobriga stated that the mother loves the child and is appropriately attentive and caring during the visits. Nobriga acknowledged that, in the mother’s first I.S.P., DHR had identified parenting classes as a service that the mother needed and that DHR would offer her. She admitted that DHR had not provided parenting classes to the mother. Nobriga also conceded that the mother currently needed mental-health treatment and that DHR had never provided her with any mental-health services beyond evaluations, but, she said, DHR had focused first on treating the mother’s alcoholism, believing that until the mother’s substance-abuse issues were addressed, mental-health or parenting services “would not really benefit” the mother. Pointing out that, after completing the Phoenix House program, the mother had not attended A.A. or any other alcoholism support group and had not reported for five of seven scheduled drug-and-alcohol tests, Nobriga testified that she was not convinced that the mother had maintained her sobriety. Nobriga testified that several maternal relatives had appeared at the shelter-care hearing. She said that DHR had investigated those relatives and had found that none of them were suitable placement resources for the child.

The mother testified that she had first rejected the suggestion that she undergo residential treatment for her alcoholism because she did not think she needed it, but then, as she became sicker and sicker, she thought she would die if she did not get help, so she enrolled in and completed the Phoenix House program. Responding to a question about her five no-shows for drug-and-alcohol tests, the mother testified that she missed the tests because she had no transportation; she acknowledged that she could have received transportation services from DHR if she had contacted No-briga, which, she admitted, she did not do. The mother explained that, during the times she had not been in contact with Nobriga, she had “nowhere to live” and the places where she stayed did not have a telephone. In answer to a question about why she did not visit her child more than nine times in more than a year, she said that there was “no reason.” She testified, however, that she loved her child and would do “whatever it took” to get him back.

In oral argument to the juvenile court at the conclusion of the testimony, DHR’s attorney emphasized the fact that it was not required to make reasonable efforts to rehabilitate the mother because the mother had previously had her rights to another child involuntarily terminated. In response, the mother’s attorney argued that DHR had never formally invoked § 12-15-65(m), the statutory provision exempting it from making reasonable efforts, and had never given the mother notice that it would rely on that Code section, but had, instead, provided the mother with rehabilitation services. The mother’s attorney maintained that once DHR had begun to make rehabilitation efforts, it was obligated to follow through with those efforts.

The juvenile court entered a judgment determining that the mother had exercised only limited visitation with the child, that DHR had made reasonable efforts at reunification, that there were no less drastic alternatives to terminating the mother’s parental rights, that there were no suitable relative placements for the child, that the mother was “unable or unwilling to discharge her responsibilities to the child,” and that the mother’s “conduct and condition ... is such as to render [her] unable or unlikely to change in the foreseeable future.”

On appeal, the mother argues (1) that DHR did not exhaust all reasonable efforts to rehabilitate her and to reunite her with the child, (2) that DHR did not present sufficient evidence of her current circumstances, and (3) that the juvenile court failed to consider all viable alternatives to the termination of her rights.

Reasonable Efforts

When required, DHR must establish by clear and convincing evidence that it has made reasonable efforts to reunite a child with his or her parents. See B.J.K.A. v. Cleburne County Dep’t of Human Res., 28 So.3d 765, 770 (Ala.Civ.App.2009) (stating that “[t]here is no question that DHR is required to exert reasonable efforts toward the reunification of a parent and his or her child, except in limited circumstances ....”). One of the circumstances exempting DHR from making reasonable efforts to reunite a parent with a child is present in this case. Section 12-15-65(m) provides that “[rjeasonable efforts shall not be required to be made where the parental rights to a sibling have been involuntarily terminated.” The juvenile court’s finding that DHR made reasonable efforts is surplusage because, not being a matter that DHR was required to prove, it was not necessary to the judgment.

The Mother’s Current Circumstances

The mother’s argument as to this issue is somewhat disjointed, but we discern that she is contending that because her circumstances at the time of the termination hearing had improved somewhat over the circumstances that existed at the time DHR opened its case file on her, the termination of her parental rights was premature and she should be given additional time to improve her situation. Specifically, the mother points out that her completion of an inpatient alcohol-abuse program indicated her willingness and ability to do the things necessary to parent her child.

The mother’s completion of the inpatient alcohol-abuse program indicates that she decided to comply in September with a recommendation that she had rejected over two months earlier — that she enter a residential treatment facility to address her alcohol-abuse problem. Given that DHR was not required to provide the mother with any rehabilitative services before moving to terminate her rights, the mother’s window for compliance with the recommendations made by DHR’s service providers, or for rehabilitating herself, was narrow indeed. Cf. § 12-15-65(n), Ala. Code 1975, which provides:

“If reasonable efforts are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in situations as described above [outlining aggravated circumstances under which reasonable efforts are not required], a permanency hearing, as provided in Section 12-15-62, shall be held for the child within 30 days after the determination. Reasonable efforts shall be made to place the child and to complete whatever steps are necessary to finalize the permanent placement of the child. Reasonable efforts to place a child for adoption or with a legal guardian or custodian may be made concurrently with other reasonable efforts.”

Simply put, if the mother wanted to be reunited with her child, she did not have two months to waste. Moreover, while the mother’s completion of the Phoenix House program was commendable, it was only the first step on what, according to the evidence, was likely be a long path towards overcoming her alcohol dependency. The evidence indicated that the mother had not taken any further steps — such as participating in A.A. or showing up for substance-abuse testing that could have verified her claimed sobriety. Finally, even assuming that the mother had done everything that was necessary to overcome her alcohol dependency, she was, at the time of the termination hearing, unable to parent her child because of significant unaddressed mental-health issues — issues for which DHR was not required to assist her or to “give her more time.”

In 1998, the Alabama Legislature, in response to the passage of the federal Adoption and Safe Families Act (“the ASFA”) — specifically, 42 U.S.C. § 671(a)(15)(D)(iii) — enacted § 12-15-65(m), which provides that reasonable efforts to preserve the family or to reunite a parent with his or her child are not required if the parental rights of the parent to a sibling of the child have been involuntarily terminated. In addition, § 12-15-65(m) lists four aggravated circumstances whose existence, if found by a “court of competent jurisdiction,” will exempt DHR from making reasonable efforts. Subsection (m) does not require that a prior involuntary termination of parental rights to another child be determined by a court of competent jurisdiction before DHR will be exempt from the reasonable-efforts requirement. For those aggravated circumstances that do require court determination, however, subsection (m) limits to 30 days the time after which a court’s determination that reasonable efforts are no longer required must be followed by a permanency hearing. Both provisions— one self-executing and one requiring judicial determination — were intended to accelerate the process by which a parent’s rights are terminated and a child’s need for permanency is realized. The purpose and scope of the ASFA were stated in the report of the House of Representatives’ Committee on Ways and Means to Congress:

“The Committee bill is expected to increase the number of adoptions in the United States. Three major provisions of the bill were designed to produce this increase in adoptions. First, under current law, States must engage in ‘reasonable efforts’ to help families that have abused or neglected their children. Some observers have argued that uncertainty about the reasonable efforts standard sometimes delays State action in making children available for adoption. In response to this problem, the bill requires States to define ‘aggravated circumstances’ in State law, such as child torture or sexual abuse, that would permit the State to bypass the Federal reasonable efforts criterion and move expeditiously to terminate parental rights and make a child available for adoption. In addition, States would not be required to reunite families in cases where a parent has murdered another child or lost their parental rights to a sibling....
“There seems to be almost universal agreement that adoption is preferable to foster care and that the nation’s children would be well served by a policy that increases adoption rates. Over the past several years, however, witnesses before the Committee have testified that there are a variety of barriers to adoption, some of them Federal. One barrier is the ‘reasonable efforts’ criterion in the Federal statute. This criterion requires States to make reasonable efforts to prevent removing a child from its home and to facilitate returning children to their homes if removal has been necessary. The intent of this policy is to provide services to families so that they can continue to fulfill their child rearing function.
“However, there seems to be a growing belief that Federal statutes, the social work profession, and the courts sometimes err on the side of protecting the rights of parents. As a result, too many children are subjected to long spells of foster care or are returned to families that reabuse them.
“The bipartisan group that wrote this legislation recognized the importance and essential fairness of the reasonable efforts criterion. What is needed is not a wholesale reversal of reasonable efforts or of the view that government has a responsibility to help troubled families solve the problems that lead to child abuse or neglect. The Federal government now spends well over $4.5 billion dollars helping these families and their children.... Rather than abandoning the Federal policy of helping troubled families, what is needed is a measured response to allow States to adjust their statutes and practices so that in some circumstances States will be able to move more efficiently toward terminating parental rights and placing children for adoption.
“Thus, the Committee bill would require States to define ‘aggravated circumstances,’ such as child torture, chronic abuse, or sexual abuse, in which States are allowed to bypass the Federal reasonable efforts criteria and instead would be required to make efforts to place the child for adoption. In addition, States would be required to bypass reasonable efforts to provide services to families if the parent has murdered a child, committed manslaughter in the death of a child, or has another child for whom parental rights were involuntarily terminated.”

H.R. Rep. 105-77, at 7-8 (1997), reprinted in 1997 U.S.C.C.A.N. 2739, 2739-40 (emphasis added). See generally M.A.J. v. S.F., 994 So.2d 280 (Ala.Civ.App.2008) (holding that DHR properly ended reunification efforts after only eight months, when previous reunification efforts had failed and the record indicated that further efforts would be unavailing).

Viable Alternatives

The mother contends that the juvenile court erred by determining that there were no “less drastic alternatives to terminating [her] parental rights.” She maintains that an alternative not considered by the juvenile court was to provide her with the parenting classes that, DHR witnesses acknowledged, had been identified as a need for her, but had not been provided to her. That contention is another version of the “more-time-to-improve” argument that we have previously rejected. We reject it in this context for the' same reason: because DHR was not required to use reasonable efforts to rehabilitate the mother in order to reunite her with her child, the mother could be reunited with her child only if she rehabilitated herself — i.e., established that she was willing and currently able to parent her child — before DHR moved to terminate her rights. That did not occur in this case.

The judgment of the Madison Juvenile Court is affirmed.

AFFIRMED.

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

      . Section 12-15-65 was effective until January 1, 2009. See Act. No 2008-277, Ala. Acts 2008. Neither the mother nor DHR raises any issue with respect to the applicability of § 12-15-312(c), Ala.Code 1975, a part of the Alabama Juvenile Justice Act of 2008 (see Act No. 2008-277, codified at Ala.Code 1975, § 12-15-101 et seq.), and we, therefore, assume without deciding that § 12-15-65(m) applies in this case.


author: STUART, Justice.

text:
    Ex parte M.S. (In re M.S. v. Alabama Department of Human Resources).
    1081733.
    Supreme Court of Alabama.
    Oct. 9, 2009.
    Elissa Hutson Green, Huntsville, for petitioner.
    Submitted on petitioner’s brief only.
   STUART, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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