author: MURDOCK, Justice.

text:
    Nancy CARTWRIGHT and Tri-County Signature Homes, LLC v. Brenda MAITLAND and Gary Maitland.
    1060922.
    Supreme Court of Alabama.
    Aug. 28, 2009.

      J. Knox Argo, Montgomery, for appellants.
    Chip Cleveland of Cleveland & Colley, P.C., Prattville; and Chris Howell, Pratt-ville, for appellees.
   MURDOCK, Justice.

Nancy Cartwright and Tri-County Signature Homes, LLC (“Tri-County”) (hereinafter collectively “the realtors”), appeal from the denial by the Autauga Circuit Court of their motion to compel arbitration of claims filed against them and other defendants by Gary Maitland and Brenda Maitland regarding real property the Maitlands purchased in Prattville. We reverse and remand.

I. Facts and Procedural History

In early 2006, the Maitlands, who had two young daughters, moved from Texas to Alabama and began looking for a house to purchase. The Maitlands engaged Ann Ramsey, a Prattville real-estate agent, to assist them. Patricia Tracy was seeking to sell her Prattville house and had obtained the services of Tri-County and specifically Cartwright, an agent with TriCounty, to assist her.

The Maitlands allege that when they viewed and discussed Tracy’s property with Tracy and Cartwright, both Tracy and Cartwright told them that the house was located in the Prattville school district and that there were no latent defects in the house. Based on these representations, the Maitlands entered into a real-estate purchase/sales contract (“the contract”) to buy Tracy’s house with the Mait-lands signing as the purchasers and Tracy signing as the seller.

The contract contained an arbitration provision in paragraph 16B, which provided as follows:

“CONTROVERSIES, CLAIMS, COMPLAINTS, OR DISPUTES/BINDING ARBITRATION AGREEMENT: The parties agree that the property to be sold has been involved in, and necessarily involves, interstate commerce and that any controversy, claim, complaint, or dispute arising between the parties, or between the parties and the real estate licensees, the Montgomery Area Association of Realtors, Inc. (hereinafter referred to as ‘MAAR’) and/or the Multiple Listing Services, Inc. of the Montgomery Area Association of Realtors, Inc. (hereinafter referred to as ‘MLS’), or arising out of this agreement, is to be settled exclusively by binding arbitration. All parties specifically waive any rights they have to commence an action other than arbitration against each other or against real estate licensees, MAAR, and/or MLS. Any controversies, claims, complaints, or disputes arising or evolving out of or relating to this agreement or breach thereof, shall be settled under the Commercial Arbitration Rules then in force of the American Arbitration Association, and all parties agree to be bound by the decision of this arbitration. The decision of the Arbitrator shall be a final and binding resolution, which may be entered as a judgment by a court of competent jurisdiction; and may then be enforced by use of legal remedies.”

(Capitalization in original.)

The contract was executed in February 2006. The closing on the property occurred on March 6, 2006. It is undisputed that the Maitlands financed the purchase of the property with a loan from Wells Fargo Bank, N.A. The Maitlands took possession of the house on the closing date and immediately began cleaning and modifying the house to meet their specifications.

The Maitlands allege that after they moved into the house, a neighbor informed them that Tracy and her husband had manufactured crystal methamphetamine and/or other illegal drugs in the house. The Maitlands then had the house analyzed for drug contamination. The environmental-services firm with whom they contracted confirmed that the house had been used to manufacture methamphetamine; it recommended that all the fumi-ture that had been moved into the house be burned or destroyed due to the contamination; and it concluded that the house in its then current condition was uninhabitable. As a result, the Maitlands and their children moved into a rental property and continued to pay the mortgage on the property purchased from Tracy. The Maitlands also subsequently learned that the house they had purchased from Tracy was not located in the Prattville school district.

On May 9, 2006, the Maitlands sued Tracy, the realtors, and fictitiously named defendants, alleging breach of contract, fraud, conspiracy, negligence and/or wantonness, and the tort of outrage. The realtors filed a response to the complaint on July 19, 2006, that included a motion to dismiss or to compel arbitration, based upon the arbitration provision in the contract. On December 20, 2006, the realtors filed a motion requesting a ruling on their motion to dismiss or to compel arbitration. The motion was accompanied by an affidavit from Lesa Keith, the owner of TriCounty, who stated that Tri-County “assists sales of real estate to individuals and others moving to Alabama from other states.” Keith stated that “Defendants Cartwright and Tri-County are ‘real estate licensees’ licensed by the State of Alabama” as designated in paragraph 16B of the contract. She also stated that “Brenda Maitland and Gary Maitland, plaintiffs herein, obtained financing for their purchase of the property which is the subject of this lawsuit from Wells Fargo Bank, N.A., in Maitland, Florida. Wells Fargo Bank, N.A., does business in other states in addition to Alabama and Florida.” Keith also stated that the Maitlands obtained a home warranty in connection with the purchase/sale from American Home Shield, a business that operates “in states throughout the United States in addition to Alabama.”

The trial court held a hearing on the realtors’ motion to dismiss or to compel arbitration on February 20, 2007, and on that date the Maitlands filed an amended complaint, in which they omitted their breach-of-contraet claim but realleged their claims of fraud, conspiracy, negligence and/or wantonness, and the tort of outrage. After hearing arguments from the parties, the trial court denied the realtors’ motion to compel arbitration without stating its reasons for doing so. The realtors appeal.

II. Standard of Review

“This Court’s review of an order granting or denying a motion to compel arbitration is de novo. First American Title Ins. Cory. v. Silvernell, 744 So.2d 883, 886 (Ala.1999); Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 600 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999).”

United Wisconsin Life Ins. Co. v. Tankersley, 880 So.2d 385, 389 (Ala.2003). Furthermore:

“ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for ai’bi-tration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 753 (Ala.2002).

III. Analysis

From the facts, it is apparent that a contract calling for arbitration exists. The Maitlands contend, however, that the realtors did not carry then’ burden of demonstrating that the contract evidences a transaction affecting interstate commerce. As noted above, the realtors submitted an affidavit from Keith averring that the Maitlands were residents of Texas who relocated to Alabama and purchased the subject property; that the Maitlands financed the purchase with a loan obtained from a Florida office of Wells Fargo Bank, N.A.; and that the home warranty the Maitlands obtained in connection with the purchase of the property was furnished by American Home Shield, a business that operates throughout the United States. These facts constitute evidence that the transaction affects interstate commerce.

The Maitlands do not dispute that these facts show a relationship to interstate commerce. Instead, they object that the affidavit does not meet the requirements of Rule 56(e), Ala. R. Civ. P., which dictates that affidavits must be based “on personal knowledge” and “shall set forth such facts as would be admissible in evidence.” At least concerning the information respecting the home-warranty company, the Maitlands appear to be correct.

“[I]f an affidavit or the documents attached to an affidavit fail to comply with this rule, the opposing party must object to the admissibility of the affidavit or the document and move to strike. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 312-13 (Ala.2001) (noting that a party must object to evidence submitted in support of a motion for a summary judgment that does not comply with Rule 56(e), Ala. R. Civ. P.); Chatham v. CSX Transp., Inc., 613 So.2d 341, 344 (Ala.1993) (‘A party must move the trial court to strike any nonad-missible evidence that violates Rule 56(e). Failure to do so waives any objection on appeal and allows this Court to consider the defective evidence.’).”

Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 4-5 (Ala.2007).

The Maitlands did not specifically object in the trial court to the admission of Keith’s affidavit, nor did they move to strike it from the record. Accordingly, the Maitlands waived any objection to the affidavit, which renders it competent evidence to aid the realtors’ in meeting their burden of proving that the transaction affects interstate commerce. The burden therefore shifted to the Maitlands to establish that the arbitration agreement is not valid or that it does not apply to this dispute.

The Maitlands provide four arguments as to why the arbitration provision should not apply. First, they argue that the provision is not connected to the claims asserted in their amended complaint. The Maitlands note that they dropped their breaeh-of-contract claim in their amended complaint and instead rely upon tort claims of fraud, conspiracy, negligence and/or wantonness, and outrage. By forgoing the breach-of-contract claim, the Maitlands maintain that they have avoided any obligation to arbitrate their remaining tort claims.

This argument is quite similar to one made by the plaintiffs in Elizabeth Homes, L.L.C. v. Cato, supra, in which the plaintiffs contended that “they [were] the ‘masters’ of the complaint, ... and that this Court [could ]not assume that the [plaintiffs] must be suing under the purchase agreement.” 968 So.2d at 9. We rejected the argument in Cato, and we reject it here because it ignores the broad language of the arbitration provision.

The arbitration provision states that it applies to “any controversy, claim, complaint, or dispute arising between the parties, or between the parties and the real estate licensees ... or arising out of this agreement.” (Emphasis added.) It is clearly not limited to claims alleging breach of contract. The Maitlands note, citing such cases as Ex parte Cupps, 782 So.2d 772 (Ala.2000), and Old Republic Insurance Co. v. Lanier, 644 So.2d 1258 (Ala.1994), that this Court has held that such phrases as “arises under” and “arising hereunder” “cover a much narrower scope of disputes than the phrase ‘relating to.’ ” Maitlands’ brief, p. 20. Though this is true, the Maitlands’ argument overlooks the fact that the above-quoted language from the arbitration provision applies to “any controversy, claim, complaint, or dispute arising between the parties, or between the parties and the real estate licensees.” The Maitlands’ argument also neglects the fact that the contract also provides for the arbitration of “[a]ny controversies, claims, complaints, or disputes arising or evolving out of or relating to this agreement .... ” (Emphasis added.) The Maitlands’ remaining claims fall within these descriptions.

Although the clauses quoted above from the arbitration provision do not explicitly reference claims or disputes relating to the transaction at issue and instead reference claims relating to or arising out of “the agreement,” this Court observed in Cato:

“In interpreting an arbitration provision, ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbi-trability.’ Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (emphasis added; footnote omitted). ‘Thus, a motion to compel arbitration should not be denied “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).’ Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala.2001) (emphasis added).”

968 So.2d at 7.

The Maitlands allege that the realtors, along with Tracy, induced them through fraud to sign the contract, that the realtors and Tracy conspired to hide information concerning the toxic nature of the property, that their failure to disclose the information about the property was negligent or wanton, and that they inflicted “severe emotional distress” upon the Maitlands through the sale of property that was previously used to manufacture crystal methamphetamine. The arbitration provision does not contain any limiting language that would constitute a “positive assurance” that the provision does not cover the Mait-lands’ claims.

The Maitlands also contend that the realtors were not signatories to the contract and that, therefore, they cannot claim the benefit of the arbitration provision. This argument again neglects the plain language of the arbitration provision. That provision states that it applies to “any controversy, claim, complaint, or dispute arising between the parties, or between the parties and the real estate licensees .... ” (Emphasis added.) It is undisputed that Cartwright and her employer Tri-County are “real estate licensees” within the meaning of the contract; thus, the arbitration provision on its face encompasses disputes arising between the Maitlands, who are parties to the contract, and the realtors, who are real-estate licensees.

It is true that “[w]hen an arbitration agreement limits arbitration to the signatories to the contract, this Court has refused to compel arbitration of a nonsigna-tory’s claim, because the party resisting arbitration has not agreed to arbitrate claims against a nonsignatory.” Ex parte Cox, 828 So.2d 295, 298 (Ala.2002). The arbitration provision in question, however, does not limit arbitration to the signatories to the contract. Moreover, in this case, the nonsignatory is the party seeking to compel arbitration; the signatory, the party that has contractually agreed to arbitrate, is resisting arbitration.

Further, this Court has made it clear that in some circumstances where the arbitration provision in question does not specifically limit its reach to signatories, nonsignatories may enforce it. One such circumstance is when a signatory is “ ‘equitably estopped from contesting [the nonsignatory’s] standing to invoke the [arbitration] clause.’” Ex parte Isbell, 708 So.2d 571, 576 (Ala.1997) (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993) (first bracketed language added)). Estoppel requires that the “description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it.” Ex parte Stamey, 776 So.2d 85, 89 (Ala.2000).

In First American Title Insurance Corp. v. Silvernell, 744 So.2d 883 (Ala.1999), this Court explained why the doctrine of estoppel did not apply to the arbitration provision at issue there, contrasting the provision with the arbitration agreement in Ex parte Napier, 723 So.2d 49 (Ala.1998), an earlier case in which this Court had found the doctrine of estoppel applicable:

“The arbitration provision in the Sil-vernell-First American contract provided:
“ T4. ARBITRATION
“ ‘Unless prohibited by applicable law, either the Company or the insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. All arbitrable matters, when the Amount of Insurance is $1,000,000.00 or less shall be arbitrated at the option of either the Company or the insured. All arbitrable matters when the Amount of Insurance is in excess of $1,000,000.00 shall be arbitrated only when agreed to by both the Company and the insured.’

“(Emphasis added.) Unlike the scope of the agreement in Ex parte Napier, [723 So.2d 49 (Ala.1998),] the scope of the arbitration agreement at issue in this case is relatively narrow. In Napier, the arbitration agreement at issue encompassed, among other things, disputes ‘arising from or relating to ... the relationships which [resulted] from [the] Contract.’ 723 So.2d at 51. That provision was, therefore, broad enough to encompass disputed claims arising out of the relationship of the plaintiff insureds (Napier and Godfrey) and the nonsigna-tory insurer (Foremost) and its agent (Manning). In addition, this Court in Napier concluded that the plaintiffs had specifically alleged that the named defendants, including Foremost and Manning, had conspired against them. For these reasons, this Court held that the plaintiffs’ claims against the nonsignato-ries had a connection to the claims against the signatories sufficient to es-top the plaintiffs from denying the enforceability of the arbitration provision.”

744 So.2d at 888.

Similarly, in ECS, Inc. v. Goff Group, Inc., 880 So.2d 1140 (Ala.2003), the Court explained why several cases cited by the plaintiff, in which a nonsignatory’s attempt to invoke an arbitration provision that was limited to signatories was unsuccessful, were not analogous to the arbitration provision at issue in ECS:

“The cases [Goff] cites involved arbitration clauses fundamentally different from the one at issue. For example, the arbitration provision in [Ex parte Cox, 828 So.2d 295 (Ala.2002),] provided, in pertinent part: ‘ “Any controversy or claim between or among you and I [sic] or our assignees arising out of or relat- - ing to this contract ... shall, if requested by either you or me, be determined by arbitration....’” 828 So.2d at 296 (emphasis added). In [Monsanto Co. v. Benton Farm, 813 So.2d 867 (Ala.2001) ], the arbitration provision stated, in part: ‘ “You [the buyer], your agents, and any other persons having or claiming to have a claim against Seller relating to the goods sold agree that any controversy or claim arising out of or relating to this contract or the goods sold hereunder, ... may be settled by arbitration....’” 813 So.2d at 869 (emphasis added). [Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000),] involved an arbitration provision that stated, in part: ‘ “The Dealer and Purchasers) mutually covenant .... that [as to] all disputes ... resulting from or arising out of the sale transaction entered into ... Dealer and the purchasers) agree to submit such dispute(s) to BINDING ARBITRATION.” ’ 779 So.2d at 1206 (capitalization original; emphasis added). [Southern Energy Homes, Inc. v. Kennedy, 774 So.2d 540 (Ala.2000),] involved an arbitration clause that stated, in part: ‘ “All disputes, controversies or claims ... between seller and buyer ... arising out of any transaction or relationship between seller and buyer or arising out of any prior or future dealings between seller and buyer, shall be ... settled by arbitration.” ’ 774 So.2d at 542 (emphasis added).
“In each of those cases, the language of the arbitration provision limited the clause’s application to the parties, or to specifically described third parties. In this case, by contrast, the clause merely requires the arbitration of ‘any dispute arising out of [the] Agreement, including its formation, validity or applicability to the dispute.’ Its scope is not limited to the parties to the agreement, or to their agents or assignees. Thus, this clause is ‘not so restrictive as to preclude arbitration by [ECS].’ Ex parte Stamey, 776 So.2d [85] at 89 [ (Ala.2000) ].”

880 So.2d at 1146-47.

The Court’s several decisions on this subject make it clear that estoppel applies in a dispute involving an arbitration agreement when the language of the arbitration agreement is not specifically limited to the signatories of the agreement and is, instead, broad enough to encompass disputed claims between a signatory and a nonsignatory. The arbitration provision at issue specifically encompasses disputes between a party and “the real estate licensees,” nonsignatories to the contract. Moreover, similar to the situation in Napier, the Maitlands alleged that the realtors had conspired with Tracy, thus clearly connecting their claims against a signatory to their claims against the nonsignatories. Consequently, we reject the Maitlands’ effort to contest the arbitration provision on the basis that the realtors were not parties to the contract containing the arbitration provision.

The Maitlands’ third contention as to why the arbitration provision should not apply in this action is that it is void under the doctrine of unconscionability. The Maitlands state that there is no evidence indicating that they have the monetary means to retain the services of an arbitrator, especially given that they are having to make a loan payment on one house while simultaneously renting another. They note that the filing fee for arbitration also could increase their financial burden. On this basis, the Maitlands argue that the arbitration provision is “one-sided” and “obviously in favor of [the realtors.]” Maitlands’ brief, p. 27.

“It is well settled that ‘[t]he burden of proving unconscionability of an arbitration agreement rests with the party challenging the agreement.’ Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 504 (Ala.1999); Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661, 665 (Ala.2004); see also Young v. Jim Walter Homes, Inc., 110 F.Supp.2d 1344, 1347 (M.D.Ala.2000). The party challenging the agreement must demonstrate that ‘(1) [the challenged] terms ... are grossly favorable to a party that has (2) overwhelming bargaining power.’ American Gen. Fin., Inc. v. Branch, 793 So.2d 738, 748 (Ala.2000) (summarizing the four factors set forth in Layne v. Garner, 612 So.2d 404, 408 (Ala.1992)).”

Sloan Southern Homes, LLC v. McQueen, 955 So.2d 401, 403 (Ala.2006).

The arbitration provision does not explain how the costs of arbitration are to be divided between the parties. The Mait-lands’ argument appears to assume that the burden will fall completely on them, an assumption that is speculative and not a basis for invoking the doctrine of uncon-scionability. The financial hardship the Maitlands suffered as a result of purchasing the property in question does not constitute evidence indicating that the terms of the arbitration provision are grossly favorable to Tracy or to the realtors, or that those parties had overwhelming bargaining power at the time the Maitlands signed the contract. In fact, the Maitlands present no evidence that demonstrates either requirement for invoking unconscion-ability. Thus, we must reject this argument as well.

Finally, the Maitlands contend that “the provisions of the arbitration clause are so vague that to enforce the same upon the Maitlands would be contrary to the holding of Kleiner v. First National Bank of Atlanta, 134 F.3d 1054 (11th Cir.1999).” Maitlands’ brief, pp. 27-28. Aside from the fact that we do not find the arbitration provision here to be vague in any material respect, we find no case by that name at that citation in the Federal Reporter 3d. The case that does begin at that book and page, Paladino v. Avnet Computer Technologies, Inc., is decided based on certain principles of federal law that are inappo-site to the present case. We, therefore, do not further consider this argument.

IV. Conclusion

The realtors have met their burden of demonstrating that the contract contained an arbitration provision and that the transaction evidenced by the contract affected interstate commerce. The burden then shifted to the Maitlands to demonstrate that the arbitration provision was not valid or should not be applied in this instance. They failed to do so. Therefore, the trial court erred in denying the motion to compel arbitration. The trial court’s order is reversed, and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . This Court applies, by analogy, the practice under Rule 56, Ala. R. Civ. P., dealing with summary-judgment motions, to motions to compel arbitration. See Ex parte Greenstreet, Inc., 806 So.2d 1203, 1207 (Ala.2001).


source: Caselaw Access Project

author: THOMAS, Judge. BRYAN, Judge,

license: Public Domain

text:
    Alexis JENKINS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Mike Rives.
    2070428.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2008.
    Certiorari Denied Sept. 11, 2009 Alabama Supreme Court 1080115.

      Rodney Newman Caffey, Montgomery, for appellant.
    Micheál S. Jackson and Hilary B. Yother of Beers, Anderson, Jackson, Patty & Fa-wal, P.C., Montgomery, for appellees.
   THOMAS, Judge.

Alexis Jenkins (“Mrs. Jenkins”) sued State Farm Mutual Automobile Insurance Company and its agent, Mike Rives (collectively referred to as “State Farm”), asserting breach-of-contract, conversion, unjust-enrichment, and bad-faith claims arising out of State Farm’s refusal to pay her claim seeking reimbursement for loss-of-consortium damages under the uninsured/underinsured-motorist (“UIM”) provisions of her State Farm automobile insurance policy. The trial court entered a summary judgment in favor of State Farm. Mrs. Jenkins appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Jenkins’s husband, Charles Jenkins (“Mr. Jenkins”), was injured in a two-car automobile accident on July 18, 2004; he was insured by a State Farm automobile insurance policy. The driver of the automobile that caused the accident, Victor Manuel Ramirez, was insured by Allstate Insurance Company. In February 2005, Mr. Jenkins sued Ramirez, alleging that Ramirez’s negligence and wantonness resulted in his injuries. Based on a letter from Ramirez’s attorney that appears in the record, on or before May 3, 2006, Mr. Jenkins agreed to settle his tort claims against Ramirez for Ramirez’s policy limits of $20,000.

A mere two days before the date reflected on the letter memorializing the apparent settlement of Mr. Jenkins’s claims against Ramirez, or on May 1, 2006, Mr. Jenkins, through his attorney, Rodney Caffey, notified State Farm by letter of his intent to seek UIM benefits under his policy. The letter stating that intent indicated that, included with the letter, was “the settlement demand package, which prompted [Ramirez’s insurer, Allstate] to tender their [sic] $20,000 dollar [sic] policy limits.” Correspondence between Caffey and State Farm (through various State Farm personnel) included in the record indicates that State Farm requested several additional items from Mr. Jenkins in order to evaluate the UIM claim; in addition, in a letter dated May 12, 2006, State Farm specifically instructed Mr. Jenkins not to accept any payment or sign any releases without first notifying State Farm. On August 20, 2006, Caffey notified State Farm that, if he did not hear from State Farm within 10 days, he would consider State Farm’s silence to be a refusal to pay under Mr. Jenkins’s insurance contract and that he would then add State Farm as a defendant to the pending action against Ramirez. State Farm apparently failed to respond, and Caffey amended Mr. Jenkins’s complaint against Ramirez to include State Farm as a defendant and to state both a breach-of-contract and a bad-faith claim against State Farm in September 2006.

In October 2006, Jenkins and Ramirez filed a joint stipulation of dismissal, agreeing to a dismissal of the action against Ramirez with prejudice. Notably, however, State Farm was not a party to the joint stipulation. See Rule 41(a)(1)(h), Ala. R. Civ. P. (requiring that a stipulation of dismissal be signed by all parties who have appeared in the action). On October 4, 2006, State Farm notified Caffey that it still required certain medical and medical-expense records to conclude evaluation of Mr. Jenkins’s claim. The record contains a letter from Caffey dated March 12, 2007, indicating that he had made arrangements for a particular medical bill referred to in the October 2006 letter from State Farm to be forwarded by the medical provider directly to State Farm.

On August 31, 2007, Caffey wrote to State Farm again. In that letter, he advised State Farm that he represented Mrs. Jenkins and that she was seeking “full indemnification and reimbursement for all of her derivative State Farm Insurance first party coverages, relevant to the [accident on July 18, 2004].” The letter went on to say that, “[u]nless Mrs. Jenkins receives full compensation for her derivative UIM claim relevant to [the July 18, 2004, accident], she will have no choice but to litigate the matter.” State Farm denied Mrs. Jenkins’s claim, and she sued State Farm on September 21, 2007.

State Farm ultimately moved to dismiss Mrs. Jenkins’s claims. In its motion, State Farm argued that Mr. Jenkins had not notified State Farm of the settlement discussions between Mr. Jenkins and Ramirez and that State Farm had learned of the settlement only after the joint stipulation of dismissal with prejudice was “granted” by the trial court on October 26, 2006. See Rule 41(a)(2), Ala. R. Civ. P. (stating that, in situations other than those governed by Rule 41(a)(1), a plaintiff may seek a court order dismissing his or her action); but see Rule 41(a)(1)(h) (indicating that a dismissal by stipulation is accomplished without need of a court order). Thus, State Farm argued that Mr. Jenkins’s failure to notify State Farm of his intent to settle had impaired State Farm’s subrogation rights and had waived Mr. Jenkins’s rights to UIM benefits. See Lambert v. State Farm Mut. Auto. Ins. Co., 576 So.2d 160, 167 (Ala.1991) (setting out the procedure applicable to situations in which the rights of the insured and the rights of the UIM insurer conflict, which includes requiring the insured to notify the UIM insurer of any proposed settlement and its terms and the allowance of a reasonable time for the UIM insurer to investigate the UIM claim to determine its course of action). Further, State Farm argued that, because Mrs. Jenkins’s claim for loss of consortium was derivative of Mr. Jenkins’s claim against Ramirez, Mr. Jenkins’s dismissal with prejudice of his claims against Ramirez extinguished Mrs. Jenkins’s loss-of-consortium claim against Ramirez as well, leaving her no claim against Ramirez for which State Farm might owe UIM benefits. Finally, State Farm argued that Mrs. Jenkins failed to preserve State Farm’s subrogation rights regarding her claim (apparently by failing to notify State Farm of Mr. Jenkins’s settlement with Ramirez, which State Farm believes settled Mrs. Jenkins’s loss-of-consortium claim against Ramirez). State Farm attached what appears to be a facsimile from its litigation division that included a copy of Mr. Jenkins’s amended complaint and contained what appeared to be an internal memorandum indicating that the adjuster was awaiting receipt of certain reports and records necessary to evaluate Mr. Jenkins’s UIM claim.

In response to State Farm’s motion, Mrs. Jenkins argued that State Farm was notified of the settlement discussions between Ramirez and Mr. Jenkins in a timely manner and that its loss of its subrogation interest was the result of its own neglect. Mrs. Jenkins also argued that neither she nor Mr. Jenkins had ever signed a release absolving any defendant of liability. Finally, Mrs. Jenkins argued that Ramirez’s statement to the police officer investigating the accident, which appeared in the accident report, established Ramirez’s fault and that Allstate’s tender of Ramirez’s policy limits fixed the extent of the damages, thus satisfying the burden imposed on her as a UIM claimant. See State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 431, 286 So.2d 302, 306 (Ala.Civ.App.1973) (defining the term “legally entitled to recover damages” and stating that “the insured must be able to establish fault on the part of the uninsured motorist, which gives rise to damages, and must be able to prove the extent of those damages. In a direct action by the insured against the insurei', the insured has the burden of proving in this regard that the other motorist was uninsured, legally liable for damage to the insured, and the amount of this liability.”); see also Le-Fevre v. Westberry, 590 So.2d 154, 157 (Ala.1991); and Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala.1983). Mrs. Jenkins attached to her response the letters between Caffey and State Farm; several pleadings from Mr. Jenkins’s case against Ramirez; letters between Caffey and Ramirez’s attorney regarding the settlement of Mr. Jenkins’s claim against Ramirez, which included two unsigned, releases; and the accident report relating to the July 18, 2004, accident.

The trial court entered judgment for State Farm, specifically relying on Mr. Jenkins’s failure to properly notify State Farm of his intent to settle his claims against Ramirez as required by Lambert. Further, the trial court concluded that Mrs. Jenkins’s claim, because it was derivative of Mr. Jenkins’s claim, was extinguished when Mr. Jenkins’s claim against Ramirez was voluntarily dismissed with prejudice. Based on this reasoning, the trial court concluded that Mrs. Jenkins had no claim to assert against Ramirez and therefore no UIM claim to assert against State Farm. Finally, the trial court concluded that Mrs. Jenkins had herself failed to preserve State Farm’s subro-gation rights against Ramirez.

As noted above, Mrs. Jenkins appeals from the judgment entered in favor of State Farm. Typically, when a party attaches external materials to support a motion to dismiss and those materials are considered by the trial court in disposing of the motion, we consider the motion to dismiss to have been converted into a Rule 56, Ala. R. Civ. P., summary-judgment motion. See Rule 12(b). Mrs. Jenkins also filed external materials in support of her response to State Farm’s motion. We will therefore review the trial court’s judgment under the summary-judgment standard. Boles v. Blackstock, 484 So.2d 1077 (Ala.1986).

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. 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 evi-denee 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 Ala.Code 1975, § 12-21-12(d). 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. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

Although on appeal Mrs. Jenkins attacks the summary judgment by arguing that Mr. Jenkins gave proper notice of his decision to settle his claim against Ramirez to State Farm, we conclude, based on our de novo review, that the summary judgment should be reversed on another, more fundamental basis — the fact that the record does not establish that Mrs. Jenkins’s loss-of-consortium claim against Ramirez and her potential UIM claim against State Farm was extinguished by Mr. Jenkins’s settlement. Although State Farm is correct that Mrs. Jenkins’s loss-of-consortium claim is a derivative claim that depends on the establishment of the tortfeasor’s liability to Mr. Jenkins, see Ex parte N.P., 676 So.2d 928, 930 (Ala.1996) (“Because a claim for loss of consortium is a derivative claim, a jury must find for a spouse asserting a loss of consortium if the jury finds against the defendant on the underlying claim, provided that the spouse claiming loss of consortium can prove damage to his or her marital interest resulting from the underlying wrongful act.”); see also Mattison v. Kirk, 497 So.2d 120, 123 (Ala.1986), overruled in part on other grounds by Carbon Hill Mfg., Inc. v. Moore, 602 So.2d 354, 356 (Ala.1992), and King v. National Spa and Pool Inst., Inc., 607 So.2d 1241, 1246 (Ala.1992) (“The wife’s right of recovery depends only upon a showing of liability on the part of third-party Defendants. To make her case, she simply must prove that her husband’s injury was caused by the Defendant’s wrongful acts and that, as a result, she lost her husband’s consortium from the time of the injury until his death.”), it is incorrect in its assumption that Mrs. Jenkins’s claim was extinguished by the settlement of Mr. Jenkins’s claim. Neither the record nor Alabama law supports that conclusion.

A loss-of-consortium claim is a derivative claim of a noninjured spouse, arising out of the injury to the injured spouse. Mattison, 497 So.2d at 123. However, a loss-of-consortium claim is considered to be a separate property right of the noninjured spouse. Emerson v. Southern Ry. Co., 404 So.2d 576, 580 (Ala.1981); see also Price v. Southern Ry. Co., 470 So.2d 1125, 1130 (Ala.1985) (stating, while explaining why a wife’s cause of action for loss of consortium did not abate upon the death of her husband, “[t]he cause of action belongs to her, and the loss is hers, not his. She has been deprived of her right of full marital participation with her husband because of the acts of the defendant.”). Because the noninjured spouse’s right is his or her independent right and a separate property right, the noninjured spouse is entitled “to pursue an independent cause of action on [his or] her own behalf.” Emerson, 404 So.2d at 580. Although our supreme court has recognized that a loss-of-consortium claim will typically be presented together with the claims of the injured spouse, Alabama law does not require that the claims be brought in the same action. Swartz v. United States Steel Corp., 293 Ala. 439, 445, 304 So.2d 881, 886 (1974).

Mrs. Jenkins did not assert her loss-of-consortium claim in Mr. Jenkins’s action against Ramirez, so the possible release of Mr. Jenkins’s stated and unstated claims against Ramirez in conjunction with the settlement of Mr. Jenkins’s action against Ramirez would not necessarily have served to release Mrs. Jenkins’s claim. State Farm did not produce a signed release containing language that would release Ramirez from liability for Mrs. Jenkins’s loss-of-consortium claim; in fact, the record does not contain a signed release. Furthermore, although the dismissal of Mr. Jenkins’s claims could possibly have an effect on Mrs. Jenkins’s claim against Ramirez, see Mattison, 497 So.2d at 123 (noting that a loss-of-consortium recovery depends on the defendant’s liability for the injury to the spouse), the dismissal of those claims did not necessarily affect Mrs. Jenkins’s claim against State Farm. Thus, State Farm has not established that Mrs. Jenkins’s claim against State Farm was extinguished by the dismissal of Mr. Jenkins’s action against Ramirez or by the settlement and possible release of Mr. Jenkins’s claims against Ramirez.

We also disagree with the trial court’s conclusion that Mrs. Jenkins’s loss-of-consortium claim is barred by any failure on the part of Mr. Jenkins to notify State Farm about the settlement of his negligence and wantonness claims against Ramirez; as noted above, Mrs. Jenkins’s loss-of-consortium claim is her independent claim and was not released by Mr. Jenkins’s settlement with and possible release of Ramirez. We are likewise unconvinced that Mrs. Jenkins has failed to preserve State Farm’s subrogation rights; the record does not reflect that Mrs. Jenkins’s loss-of-consortium claim was settled at any point, and, therefore, she did not fail to properly notify State Farm as required by Lambert. Accordingly, Mrs. Jenkins is entitled to pursue her claim seeking reimbursement under the UIM provisions of her policy for loss-of-consortium damages that she may establish in this action against State Farm.

REVERSED AND REMANDED.

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

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

The main opinion reverses the summary judgment on the basis of the argument that, even though Mrs. Jenkins’s loss-of-consortium claim is a derivative claim that arises from the injury to her husband, nonetheless it was not extinguished by her husband’s settling his claim because Alabama law considers her claim to be her separate property right. I must respectfully dissent from that holding because Mrs. Jenkins never presented that argument to the trial court. Although we review a summary judgment de novo, nonetheless, we “‘can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.’ ” Ladas Land & Dev., Inc. v. Merritt & Walding Props., L.L.P., 978 So.2d 55, 59-60 (Ala.Civ.App.2007) (quoting Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000)) (emphasis altered).

      . The dissent argues that we cannot reverse the summary judgment on this basis because Mrs. Jenkins never made this exact argument to the trial court. 30 So.3d at 420. However, we cannot agree that the record does not contain material presenting the argument to the trial court. We base our reversal on our analysis of the exact argument presented to the trial court by State Farm in support of the motion for a summary judgment. Our de novo review of a summary judgment requires us to apply the same standard as that applied by the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Thus, we reviewed State Farm's legal argument and examined the law cited by State Farm and other law on the subject; we determined that State Farm failed to prove that it was entitled to a judgment as a matter of law, which it is required to do in order to secure a summary judgment. Rule 56(c)(3), Ala. R. Civ. P.

      . In Swartz, our supreme court recognized a wife's right to sue alleging loss of consortium. Swartz, 293 Ala. at 446, 304 So.2d at 887. In the main opinion, the court considered several arguments against the recognition of that right, including the possibility of overlapping damages. 293 Ala. at 445, 304 So.2d at 886. The opinion explained that the key to preventing overlapping recoveries was procedural in nature. Id.

      "Because of the mutuality of interest of the husband and the wife in the marriage, the possibility of overlapping damages must be guarded against. In Diaz v. Eli Lilly & Co. (Mass.[1973]), 302 N.E.2d 555, the Massachusetts court pointed out that the key to the problem of double recovery was procedural. The court then elaborated as follows:
      " 'As a practical matter, the consortium claim, when asserted at all, will usually be presented together with the negligence claim for the physical injuries, husband and wife joining in the same action. Such joinder is of course permitted and invited by the procedural rules. When, perchance, separate actions have been brought, the defendant (or plaintiffs in the actions) would normally be entitled to have them consolidated for trial. Further, we think the defendant could ordinarily insist, if he considered it to his advantage, that the other spouse be joined in the main negligence action so that a possible claim for loss of consortium should not be outstanding when the negligence claim was disposed of, leaving a possibility of duplicating recoveries.'
      "The Massachusetts court based its conclusions on Massachusetts procedural rules governing permissive joinder, consolidation, and compulsory joinder, which in turn were based on corresponding provisions of the Federal Rules of Civil Procedure. Likewise our Alabama Rules of Civil Procedure as to Permissive Joinder (Rule 20), Consolidation (Rule 42), and Compulsory Joinder (Rule 19), are in all respects similar to their counterparts in the Federal Rules. We feel that the above mentioned Alabama Rules of Civil Procedure will assure an orderly disposition of all future claims for loss of consortium."

        Id.

      . Although the statute of limitations on Mrs. Jenkins's loss-of-consortium claim against Ramirez has run, State Farm cannot rely on that procedural bar. Ex parte Mason, 982 So.2d 520 (Ala.2007); State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d 959 (Ala.2007).


author: BRYAN, Judge. MOORE, Judge,

text:
    Arthur HAYNES v. Ron COLEMAN.
    2070959.
    Court of Civil Appeals of Alabama.
    April 10, 2009.
    Rehearing Denied Sept. 4, 2009.

      Marcus E. McCrory, Mobile, for appellant.
    Mark S. Boardman and Dana Bolden Hill of Boardman, Carr, Hutcheson <& Bennett, P.C., Chelsea, for appellee.
   BRYAN, Judge.

Arthur Haynes appeals from a judgment dismissing his claims against Ron Coleman alleging malicious prosecution and abuse of process. We affirm.

Haynes was employed as a public-school teacher in Mobile County. The Board of School Commissioners of Mobile County terminated Haynes’s employment, pursuant to § 16-24-9, Ala.Code 1975, a part of the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975. Pursuant to § 16-24-10, Ala.Code 1975, Haynes appealed his dismissal to a hearing officer, and, following a hearing, the hearing officer reinstated Haynes’s employment.

Haynes subsequently sued Coleman, alleging claims of malicious prosecution and abuse of process, among other claims. The complaint, as amended, alleged that Coleman was an employee of the Mobile County public-school system. Haynes’s complaint alleged, in pertinent part, that Coleman had “impartfed] false information to investigators, co-workers, and supervisors, knowing or having reasonable grounds to believe that the information imparted was false and that it would lead to administrative actions or proceedings being held against LHaynes].”

Coleman moved to dismiss all Haynes’s claims on the ground that the applicable statute of limitations barred each of those claims. With the exception of the claims of malicious prosecution and abuse of process, the trial court dismissed Haynes’s claims on the ground that they were time-barred. Regarding the claims of malicious prosecution and abuse of process, Coleman filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss on the ground that those claims could not be based on an administrative proceeding. The trial court granted the motion to dismiss and entered a judgment dismissing those two claims. Haynes appealed to supreme court, and that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“ ‘The appropriate standard of review of a trial court’s [ruling on] a motion to dismiss is whether “when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appeal's that the pleader could prove any set of circumstances that would entitle [the pleader] to relief.” Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993); Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985). This Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. Nance, 622 So.2d at 299. A “dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Nance, 622 So.2d at 299; Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).’ ”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1017 (Ala.2003) (quoting Lyons v. River Road Constr., Inc., 858 So.2d 257, 260 (Ala.2003)).

On appeal, Haynes first argues that the trial court erred in dismissing his malicious-prosecution claim because, he says, a malicious-prosecution claim may be based on an administrative proceeding initiated pursuant to the Teacher Tenure Act. “The elements of malicious prosecution are: (1) a judicial proceeding initiated by the defendant, (2) the lack of probable cause, (3) malice, (4) termination in favor of the plaintiff, and (5) damage.” Cutts v. American United Life Ins. Co., 505 So.2d 1211, 1214 (Ala.1987). Our research reveals no Alabama case recognizing a malicious-prosecution claim premised on an administrative proceeding. Heretofore, it appears that claims of malicious prosecution in Alabama have been based on judicial proceedings only. Haynes argues that this court should recognize a malicious-prosecution claim based on a administrative proceeding. Several jurisdictions have decided that a malicious-prosecution claim may be based on an administi’ative proceeding under certain circumstances. See Melvin v. Pence, 130 F.2d 423, 425-27 (D.C.Cir.1942); National Surety Co. v. Page, 58 F.2d 145, 148 (4th Cir.1932); Hillside Assocs. v. Stravato, 642 A.2d 664, 666-69 (R.I.1994); Lindenman v. Umscheid, 255 Kan. 610, 633, 875 P.2d 964, 979 (1994); DeLaurentis v. City of New Haven, 220 Conn. 225, 248-49, 597 A.2d 807, 819 (1991); American Credit Card Tel. Co. v. National Pay Tel. Corp., 504 So.2d 486, 489 (Fla.Dist.Ct.App.1987); Groat v. Town Bd. of Glenville, 73 A.D.2d 426, 428-30, 426 N.Y.S.2d 339, 340-41 (1980); McGuire v. Armitage, 184 Mont. 407, 410-11, 603 P.2d 253, 255 (1979); Donovan v. Barnes, 274 Or. 701, 703-06, 548 P.2d 980, 982-83 (1976); Cassidy v. Cain, 145 Ind.App. 581, 588-89, 251 N.E.2d 852, 856-57 (1969); Kauffman v. A.H. Robins Co., 223 Tenn. 515, 520-27, 448 S.W.2d 400, 402-05 (1969); Carver v. Lykes, 262 N.C. 345, 352-54, 137 S.E.2d 139, 145-46 (1964); Hardy v. Vial, 48 Cal.2d 577, 580-81, 311 P.2d 494, 495-96 (1957); Rainier’s Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 564-66, 117 A.2d 889, 895-96 (1955); and Dixie Broad. Corp. v. Rivers, 209 Ga. 98, 105-06, 70 S.E.2d 734, 740-41 (1952).

We decline to decide whether a malicious-prosecution claim in Alabama may be based on an administrative proceeding because, even if we were to recognize such a claim, Coleman did not initiate the administrative proceeding in this case. As noted, a malicious-prosecution action must be based on a proceeding “initiated by the defendant.” Cutts, 505 So.2d at 1214. We find Davis v. Board of Education of St. Louis, 963 S.W.2d 679 (Mo.Ct.App.1998), to be instructive regarding whether Coleman initiated the administrative proceeding in this case. In Davis, pursuant to Missouri state law, a superintendent of a public-school system suspended a teacher and filed charges against that teacher to a board of education. Id. at 683. Following a hearing, the board of education reinstated the teacher’s employment. Id. The teacher subsequently sued, among others, two public-school employees, alleging malicious prosecution. Id. at 684. Before the superintendent filed charges against the teacher, the two school employees had interviewed students, had taken the students’ statements, had given those statements to the superintendent, and had made a recommendation to the superintendent. Id. at 686-87.

In Davis, the Missouri Court of Appeals discussed whether the two school-employee defendants had initiated the administrative proceeding against the teacher:

“What constitutes initiation, institution or instigation of charges in an agency setting depends on how charges are brought to the agency for adjudication. ...
“... [W]hen an agency official has sole authority to initiate the action, persons who have provided information to that official are not held to have initiated or taken an ‘active part’ in initiating the action. The general rule is that an individual who merely provides facts concerning the conduct of another to an officer possessing the authority to issue charges is not liable for malicious prosecution. See e.g., Lindenman[ v. Umscheid, 255 Kan. 610, 633,] 875 P.2d [964,] 979 [ (1994) ]. In Lindenman the Kansas Supreme Court held that a county board of health employee who inspected a day care center and filed a report with the board did not initiate the board’s ex parte suspension of the day care center’s license and cannot be considered an ‘active part’ of the board’s subsequent revocation action against the day care center. Id. The board filed the revocation action when the day care center refused to stipulate to the accuracy of the inspection report, a condition for lifting the suspension. Id. at 969. Likewise, in Werner v. Hearst Publications, Inc., 65 Cal.App.2d 667, 151 P.2d 308, 312 (1944), individuals who sent a letter to an investigator for a state bar association complaining about an attorney did not institute the show cause proceeding against the attorney, where the local bar association committee made an independent investigation and one of its members signed the complaint initiating the proceeding. This holding was reaffirmed in Stanwyck v. Horne, 146 Cal.App.3d 450, 194 Cal.Rptr. 228, 234 (1983).”

963 S.W.2d at 686.

The court in Davis then concluded that the teacher had not established a malicious-prosecution claim against the two school employees because those employees had not instigated the proceedings against the teacher:

“Under the above cases, [the two school employees’] actions in interviewing the students, taking their statements, passing on the statements to [the supei’intendent], and making a recommendation based thereon do not constitute instigation of the charges [against the teacher]. [The superintendent] was the only one who had legal authority to issue the charges [under state law].... Thus, as a matter of law, [the two school employees] could not have instigated the proceedings.”

963 S.W.2d at 686-87. See also Vandall v. Trinity Hosps., 676 N.W.2d 88, 96 (N.D.2004) (stating that a physician had failed to state a claim against a colleague for wrongful use of civil proceedings when, under North Dakota state law, an investigative panel, not a person making a report or complaint to the panel, is the entity that initiates administrative proceedings against a physician).

In this case, the administrative proceeding regarding Haynes’s dismissal was initiated pursuant to § 16-24-9, Ala. Code 1975, which provides, in pertinent part: “(a) An employment contract with a teacher on continuing service status may be cancelled only in the following manner: The superintendent shall give written notice to the employing board and the teacher of the superintendent’s intention to recommend a cancellation as provided in Section 16-24-8[, Ala.Code 1975].” The remainder of § 16-24-9 and § 16-24-10, Ala.Code 1975, establish the procedure concerning teacher dismissals after the superintendent initiates the dismissal proceeding.

Haynes’s complaint alleges the role that Coleman played in allegedly instigating the proceedings: “Coleman and others maliciously caused the prosecution, via administrative proceedings against [Haynes] by imparting false information to investigators, co-tvorkers, and supervisors, knowing or having reasonable grounds to believe that the information imparted was false and that it would lead to administrative actions or proceedings being held against [Haynes].” Like the two school employees in Davis, Coleman allegedly provided information that later led to the superintendent’s initiating the administrative proceeding against Haynes. Under § 16-24-9(a), as under Missouri law in Davis, the superintendent initiates proceedings to terminate a teacher’s employment. Because Coleman did not initiate the administrative proceeding against Haynes, even if such a proceeding could support a malicious-prosecution action, Haynes’s malicious-prosecution claim must fail. Accordingly, the trial court did not err in dismissing the malicious-prosecution claim against Coleman.

Next, Haynes argues that the trial court erred in dismissing his abuse-of-process claim because, he says, that claim may be based on an administrative proceeding under the Teacher Tenure Act. We have found no Alabama case indicating that an abuse-of-process action may be premised on an administrative proceeding. Although no Alabama case has directly addressed whether an administrative proceeding may give rise to an abuse-of-process claim, we note that, in the context of an abuse-of-process claim, our supreme court has stated: “Legal process has been defined in Black’s Law Dictionary (6th ed. 1990) as ‘a summons, writ, warrant, mandate, or other process issuing from a court.’ Preskitt v. Lyons, 865 So.2d 424, 430 (Ala.2003) (emphasis added). Haynes argues that Alabama should now recognize an abuse-of-process claim based on the “process” present in administrative proceedings. In making this argument, Haynes argues that the same reasons for permitting a malicious-prosecution claim to be based on an administrative proceeding also support permitting an abuse-of-process claim to be based on an administrative proceeding. See cases cited supra regarding jurisdictions permitting a malicious-prosecution claim to be based on an administrative proceeding.

We decline to address whether an abuse-of-process claim may be founded on an administrative proceeding, because, even if we were to recognize such a claim, Haynes has failed to plead the necessary elements of his abuse-of-process claim. “The elements of the tort of abuse of process are 1) the existence of an ulterior purpose, 2) a wrongful use of process, and 3) malice.” C.C. & J., Inc. v. Hagood, 711 So.2d 947, 950 (Ala.1998). “The tort of abuse of process differs from the tort of malicious prosecution; the tort of abuse of process is concerned with ‘the wrongful use of process after it has been issued,’ while the tort of malicious prosecution is concerned with ‘the wrongful issuance of process.’ ” Shoney’s, Inc. v. Barnett, 773

So.2d 1015, 1024 (Ala.Civ.App.1999) (quoting Hagood, 711 So.2d at 950).

“ ‘ “[T]he [ulterior motive] must culminate in an actual abuse of the process by perverting it to a use to obtain a result which the process was not intended by law to effect ....”’ Dempsey v. Denman, 442 So.2d 63, 65 (Ala.1983) (quoting 72 C.J.S. Process § 120, pp. 1190-91 (1951)) (emphasis added). ‘ “If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse Dempsey, 442 So.2d at 65 (quoting 1 Am.Jur.2d Abuse of Process § 13 (1962)) (emphasis added).”

Willis v. Parker, 814 So.2d 857, 865 (Ala.2001).

Haynes’s abuse-of-process claim alleged, in pertinent part:

“Coleman ... maliciously abused legal process, causing [Haynes] to endure suspension of his employment and termination proceedings; to endure the stress of a hearing to reinstate his employment, and as a consequence thereof, [Haynes] has been caused to suffer damages in the form of substantial financial loss; metal anguish, and emotional distress and well as damage to his personal and professional reputation.”

The complaint contains no factual allegations regarding how Coleman abused the administrative process after the superintendent, not Coleman, initiated that process. A defendant cannot be held liable for abuse of process unless he or she “somehow acted outside the boundaries of legitimate procedure after [the initiation of the proceeding].” Hagood, 711 So.2d at 951. The complaint does not allege how Coleman “ ‘ “pervert[ed the process] to a use to obtain a result which the process was not intended by law to effect.” ’ ” Willis, 814 So.2d at 865 (emphasis omitted). Therefore, Haynes has failed to allege an abuse-of-process claim upon which relief can be granted.

Further, Haynes’s abuse-of-process claim fails because Haynes has not alleged that Coleman possessed an ulterior purpose even if he did “use” the administrative process.

“As our supreme court has explained, a defendant cannot be liable for the tort of abuse of process ‘ “[i]f the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint.” ’ Duncan [v. Kent], 370 So.2d [288] at 290 [(Ala.1979) ] (quoting 1 Am.Jur.2d Abuse of Process, § 13 (1962)). However, liability attaches ‘ “if the suit is brought, not to recover on the cause of action stated in the complaint, but for a collateral purpose.” ’ Id. For example, if a creditor, who was legally entitled to garnish a debtor’s wages, garnished the debtor’s exempt wages solely for the purpose of coercing the debtor to pay the entire debt, the creditor would be liable for abuse of process. See Dickerson v. Schwabacher, 177 Ala. 371, 376, 58 So. 986, 988 (1912) (giving this hypothetical in a discussion of the tort of abuse of process). ‘Thus, if a defendant prosecutes an innocent plaintiff for a crime without reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process.’ William L. Prosser, Handbook of the Law of Torts, § 121, at 857 (4th ed. 1971).”

Shoney’s, Inc. v. Barnett, 773 So.2d at 1025. Because Haynes has not alleged that Coleman acted with an ulterior purpose, Haynes’s abuse-of-process claim fails for this additional reason.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

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

MOORE, J., concurs in the result in part and dissents in part, with writing, which THOMAS, J., joins.

MOORE, Judge,

concurring in the result in part and dissenting in part.

I concur in the result with regard to the majority opinion’s affirmance of the abuse-of-process claim. In Preskitt v. Lyons, 865 So.2d 424 (Ala.2003), our supreme court noted that “legal process” is defined as “ ‘a summons, writ, warrant, mandate, or other process issuing from a court.’ 865 So.2d at 430 (quoting Black's Law Dictionary (6th ed. 1990)) (emphasis added). In light of this language, I conclude that this court cannot expand an abuse-of-process claim to an administrative proceeding. See also Stolz v. Wong Commc’ns Ltd. P’ship, 25 Cal.App.4th 1811, 1823, 31 Cal.Rptr.2d 229, 236-37 (1994) (“We have located no authority extending the tort of abuse of process to administrative proceedings. Application of the tort to administrative proceedings would not serve the purpose of the tort, which is to preserve the integrity of the court.”); Moore v. Western Forge Corp., 192 P.3d 427, 439 (Colo.Ct.App.2007) (“The vast majority of jurisdictions decline to recognize abuse of process in nonjudicial proceedings.”) (citing Stolz, supra; Kirchner v. Greene, 294 Ill.App.3d 672, 229 Ill.Dec. 171, 691 N.E.2d 107 (1998); Gordon v. Community First State Bank, 255 Neb. 637, 651, 587 N.W.2d 343, 353 (1998); McCarthy v. KFC Corp., 607 F.Supp. 343 (W.D.Ky.1985); Stagemeyer v. County of Dawson, 192 F.Supp.2d 998, 1010 (D.Neb.2002); O’Hayre v. Board of Educ. of Jefferson County, 109 F.Supp.2d 1284, 1296-97 (D.Colo.2000); and Char v. Matson Terminals, Inc., 817 F.Supp. 850, 858-59 (D.Haw.1992)).

I respectfully dissent, however, from the majority opinion’s affirmance of the trial court’s judgment dismissing Arthur Haynes’s malicious-prosecution claim. Although, as noted by the main opinion, Alabama courts have not previously determined whether a malicious-prosecution claim may be based on an administrative proceeding, 30 So.3d 425, I believe, based on the following analysis, that our supreme court would recognize the test set out in 3 Restatement (Second) of the Law of Torts § 680 (1977), which provides:

“One who takes an active part in the initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if
“(a) he acts without probable cause to believe that the charge or claim on which the proceedings are based may be well founded, and primarily for a purpose other than that of securing appropriate action by the board, and
“(b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.”

Under current Alabama law, “[t]he elements of malicious prosecution are: (1) a judicial proceeding initiated by the defendant, (2) the lack of probable cause, (3) malice, (4) termination in favor of the plaintiff, and (5) damage.” Cutts v. American United Life Ins. Co., 505 So.2d 1211, 1214 (Ala.1987). Many administrative proceedings bear all the hallmarks of a traditional judicial proceeding in which a person’s legally protected interest may be adversely affected only when such due-process requirements as notice and an opportunity to be heard, the right to procure evidence and cross-examine witnesses, and the right to appeal have been afforded to that person. Those proceedings so closely resemble judicial proceedings that they may be considered “quasi-judicial” in nature. See Hillside Assocs. v. Stravato, 642 A.2d 664 (R.I.1994).

In Melvin v. Pence, 130 F.2d 423, 426 (D.C.Cir.1942), the leading case on the subject, the United States Court of Appeals for the District of Columbia stated:

“Much of the jurisdiction formerly residing in the courts has been transferred to administrative tribunals, and much new jurisdiction involving private rights and penal consequences has been vested in them. In a broad sense their creation involves the emergence of a new system of courts, not less significant than the evolution of chancery. The same harmful consequences may flow from the groundless and malicious institution of proceedings in them as does from judicial proceedings similarly begun. When one’s livelihood depends upon a public license, it makes little difference to him whether it is taken away by a court or by an administrative body or official. Nor should his right to redress the injury depend upon the technical form of the proceeding by which it is inflicted. The administrative process is also a legal process, and its abuse in the same way with the same injury should receive the same penalty.”

I agree with the foregoing language to the extent that it holds that malicious-prosecution claims encompass claims alleging malicious instigation of quasi-judicial administrative proceedings designed to terminate a person’s legally protected interest. As many other jurisdictions have already recognized, extending the cause of action to such administrative proceedings only recognizes and protects their intended quasi-judicial nature without unduly enlarging the scope of the tort remedy. See Stravato, supra.

Pursuant to Ala.Code 1975, § 16-24-1 et seq. (“the Teacher Tenure Act”), a teacher in “continuing service” has a legally protected interest in continued employment. Ala.Code 1975, § 16-24-2. Alabama Code 1975, § 16-24-9, affords notice and an opportunity to be heard to tenured teachers before their employment contracts may be canceled. Further, Ala.Code 1975, 16-24-10, allows the teacher to request a post-termination hearing before a hearing officer. The hearing officer must, upon the request of the teacher, issue subpoenas for witnesses and documentary evidence. Ala. Code 1975, § 16-24-10(a). After the hearing, the hearing officer must render a written decision. Id. The teacher may request a review of the hearing officer’s decision by the Court of Civil Appeals. Ala.Code 1975, § 16-24-10(b). The administrative proceedings provided for in §§ 16-24-9 and 16-24-10 undoubtedly are quasi-judicial in nature. Any malicious instigation of administrative proceedings to procure the cancellation of a tenured teacher’s employment contract without good cause should be actionable.

The main opinion does not appear to disagree with that conclusion, but it decides that the trial court properly dismissed Haynes’s complaint because Ron Coleman, the defendant below, did not “initiate” the administrative proceeding against Haynes. 30 So.3d at 423. Our supreme court has held: Alabama Power Co. v. Neighbors, 402 So.2d 958, 962 (Ala.1981). However, “if one ‘corruptly or oppressively brings about the indictment or prosecution of another maliciously and without probable cause ... by [method of] fraud, perjury, subornation, or by the willful suppression of known material facts, the intentional thwarting of a fair investigation,’ [Alabama Power Co. v. Neighbors, 402 So.2d 958, 965 (Ala.1981) ], [he or] she is the initiator of the judicial proceeding against the malicious prosecution plaintiff.” Shoney’s, Inc. v. Barnett, 773 So.2d 1015, 1023 (Ala.Civ.App.1999). Thus, although the district attorney ultimately must make the decision to prosecute in a criminal case, a person who gives false information to the police or to the district attorney that results in a prosecution could be deemed the initiator of the judicial proceeding. Id.

“If a defendant merely gives the district attorney’s office information regarding an alleged crime, leaving the decision to prosecute entirely to the uncontrolled discretion of the district attorney, who thereafter makes his own independent investigation and thereupon takes the information before the grand jury which returns indictments against the suspects, the defendant, in a malicious prosecution action, is not regarded as having instigated the criminal proceeding.”

It follows that, in an administrative proceeding concerning the dismissal of a teacher, although the superintendent ultimately must make the decision to recommend to the local school board that a teacher’s employment contract be canceled, § 16-24-9, if a person gives false information that brings about that recommendation, that person may be deemed the initiator of the administrative proceeding. In support of his malicious-prosecution claim, Haynes alleged that Coleman had “impart[ed] false information to investigators, co-workers, and supervisors, knowing or having reasonable grounds to believe that the information imparted was false.” I believe that those allegations, if true, are sufficient to state that Coleman initiated the administrative proceeding against Haynes and that he did so with malice and without probable cause.

In his complaint, Haynes further alleged that the hearing officer ultimately issued a ruling in his favor in the administrative proceeding. Construing that allegation most strongly in Haynes’s favor, see Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1017 (Ala.2003) (quoting Lyons v. River Road Constr., Inc., 858 So.2d 257, 260 (Ala.2003)), I conclude that Haynes appropriately alleged that the administrative proceeding was terminated in his favor, one of the essential elements of a malicious-prosecution claim. Haynes also alleges that, as a result of the prosecution of the administrative proceeding against him, he suffered “shame, humiliation, mental distress, and injury and damage to his reputation in the community.” Those allegations satisfy the final element of a malicious-prosecution claim under Alabama law. I believe the trial court erred in dismissing that count of the complaint containing the malicious-prosecution claim. Therefore, I respectfully dissent.

THOMAS, J., concurs.

      . The record on appeal is unclear regarding the position Coleman held in the school system. The summons and complaint were served on Coleman "c/o Blount High School.”

      . The court in Davis declined to hold that a malicious-prosecution action in Missouri could be premised on an administrative proceeding because, even if that holding were adopted, the teacher in that case, like Haynes in this case, had failed to established the elements of a malicious-prosecution action.


author: MOORE, Judge.

text:
    T.B. v. T.H. and S.H.
    2071009.
    Court of Civil Appeals of Alabama.
    April 17, 2009.
    Certiorari Denied Sept. 11, 2009 Alabama Supreme Court 1080652.

      David R. Clark, Prattville, for appellant.
   On Rehearing Ex Mero Motu

MOORE, Judge.

This court’s opinion of February 27, 2009, is withdrawn, and the following is substituted therefor.

T.B. (“the mother”) appeals from a judgment purporting to award custody of her child, J.G., to the child’s maternal grandmother and maternal stepgrandfather (“the maternal grandparents”). We dismiss the appeal as being from a void judgment.

On June 22, 2007, the maternal grandparents filed a petition in the Lee Juvenile Court, which was assigned case number JU-07-420.01, requesting that the juvenile court declare the child dependent and award them temporary emergency custody of the child. That same day, the juvenile court entered an order awarding the maternal grandparents temporary legal and physical custody of the child. After a July 6, 2007, hearing, the juvenile court entered a pendente lite order with the consent of all the parties on August 6, 2007; that order provided that the maternal grandparents and the mother would exercise joint legal and physical custody of the child. Following a subsequent hearing on August 22, 2007, the juvenile court entered an order providing that the maternal grandparents would have temporary custody of the child and that the mother would have visitation; the juvenile court also set the matter for a final hearing.

After the final hearing, the juvenile-court judge stated to the parties that he believed that the maternal grandparents

“ha[d] established by clear and convincing evidence the material allegations in the petition. However, [the court is] of the opinion that this — even though dependency is alleged, that this is, in fact, a custody case.... ”

The judge explained that he was finding that the mother had voluntarily relinquished custody of the child to the maternal grandparents and that the mother had subjected the child to emotional abuse to such a degree as to render her unfit and improper to be entrusted with the care and upbringing of the child. The judge then stated that “[t]he appeal time will be 42 days from the date of this judgment, because I am the circuit court judge sitting in the trial of this case.” Finally, the judge stated that he was going to award custody of the child to the maternal grandparents under the standard enunciated in Ex parte McLendon, 455 So.2d 863 (Ala.1984) — that the change of custody from the mother to the maternal grandparents would materially promote the best interests of the child and would more than offset the disruptive effect inherent in the transfer of custody.

The judge subsequently rendered a judgnent, which was entered under case number JU-07-420.01, on June 23, 2008. That judgment restated most of the oral pronouncements of the judge: that although dependency was alleged, the judge considered the case to be a custody case; that the mother had voluntarily relinquished custody of the child to the maternal grandparents; that the mother had emotionally abused the child, rendering her unfit to have custody of the child; and that the maternal grandparents had proven that the change in custody from the mother to the maternal g’andparents satisfied the McLendon standard. The judgment awarded custody of the child to the maternal grandparents, subject to certain visitation privileges of the mother. The judgment also stated that any appeal from the judgment must be filed within 14 days. The judge purported to sign the judgnent in his capacity as a circuit-court judge. On July 7, 2008, the mother filed a motion to alter, amend, or vacate the judgment. That motion was denied by operation of law on July 21, 2008. See Rule 1(B), Ala. R. Juv. P. The mother filed her notice of appeal on August 4, 2008.

“Although neither party has raised an issue regarding this court’s jurisdiction, ‘ “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” ’ ” C.D.S. v. K.S.S., 963 So.2d 125, 129 n. 3 (Ala.Civ.App.2007) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

Juvenile courts are purely creatures of statute and have extremely limited jurisdiction. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). That limited jurisdiction allows a juvenile court to make a disposition of a child in a dependency proceeding only after finding the child dependent, V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (“ ‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.’ ”).

In the case at bar, the maternal grandparents’ allegation that the child was dependent was the only basis for the juvenile court’s jurisdiction to make a final determination as to the custody issue. In the final judgment and in his earlier oral pronouncement, the juvenile-court judge declared that he had found that the maternal grandparents had proven the material allegations in them petition by clear and convincing evidence. That statement, standing alone, would indicate that the juvenile court had found the child dependent. The maternal grandparents did allege in their petition that the child was dependent, and allegations of dependency must be proven by clear and convincing evidence. See Ala.Code 1975, § 12-15-65(f). However, the judge plainly stated in the judgment, as he did at the end of the final hearing, that “the [juvenile court] is of the opinion that even though dependency is alleged, ... this, in fact, is a custody case.” See A.L. v. S.J., 827 So.2d 828, 838 (Ala.Civ.App.2002) (when parties disputed whether underlying action was dependency action, facts that trial court, a juvenile court, stated that “ ‘[t]here is nothing that does indicate that this is a dependency case’” and that trial court made no express finding of dependency supported conclusion that action was not a dependency action). Based on that premise, the court then proceeded to find that the mother had voluntarily relinquished custody of the child to the maternal grandparents and that the mother was unfit to have custody of the child. Those findings are essential to overcome the presumption in favor of parental custody in a child-custody case between a parent and a non-parent, see Ex parte Terry, 494 So.2d 628 (Ala.1986) (also holding that those facts must be proven by clear and convincing evidence), but those findings are not required in a dependency case. See O.L.D. v. J.C., 769 So.2d 299, 302 (Ala.Civ.App.1999) (“This case is not simply a custody dispute between a parent and nonparent, but, rather, is a dependency case; therefore, Terry is not applicable.”); J.P. v. S.S., 989 So.2d 591 (Ala.Civ.App.2008); and W.T.H. v. M.M.M. 915 So.2d 64 (Ala.Civ.App.2005); see also K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 387 (Ala.Civ.App.2004) (holding that Terry “ ‘parental unfitness’ ” standard is “more stringent” than the dependency “best interests” standard). Likewise, the finding that the maternal grandparents had met the McLendon standard is inconsistent with a disposition under the dependency statute, which is governed by the “best interests” standard. See L.L.M. v. S.F., 919 So.2d 307, 311 (Ala.Civ.App.2005) (“Because this is a dependency ease, the juvenile court needed to determine only if transferring legal custody of the child to the father was in the best interest of the child.... The juvenile court’s determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon.”). We therefore conclude that the final judgment reflects the juvenile court’s intention to treat the case as a custody case, not a dependency case. Once the juvenile court decided that the case would not be decided on dependency principles, the juvenile court had no jurisdictional basis for determining custody of the child. See, e.g., C.D.S., 963 So.2d at 130.

As he explained to the parties at the final hearing and as indicated by his signature on the final judgment, the judge attempted to adjudicate the matter as a custody dispute under his authority as a circuit-court judge. However, neither party had invoked the jurisdiction of the circuit court by filing a complaint regarding the custody of the child in the circuit court. Moreover, the judgment rendered by the judge was entered under the juvenile-court case number, thus indicating that no new circuit-court action had ever been commenced.

In C.D.S. v. K.S.S., supra, a circuit-court judge in Houston County also served as a juvenile-court judge. 963 So.2d at 127 n. 2. In his capacity as a circuit-court judge, the judge in C.D.S. appointed a guardian ad litem for two children who were the subject of a postdivorce custody dispute. 963 So.2d at 126-27. Based on the misconduct of the parents as revealed in the circuit-court proceeding, the guardian ad litem filed a dependency petition in the juvenile court. 963 So.2d at 127. After purporting to enter a judgment finding the children dependent in the circuit-court proceeding, the judge transferred the circuit-court case to the juvenile court. Id. Acting in his capacity as a juvenile-court judge, the judge, on a motion filed by the children’s father, denied the dependency petition filed by the guardian ad litem as moot. 963 So.2d at 128. Subsequently, the judge rendered a judgment that was later entered under the juvenile-court case number purporting to grant the mother’s motion to modify custody, which had been filed in the circuit court. Id.

On appeal, the father argued that the juvenile court had erred in modifying custody of the child. 963 So.2d at 129. This court, acting ex mero motu, 963 So.2d at 129 n. 3, first determined whether the juvenile court had had jurisdiction to enter the custody-modification judgment. This court held that, once the juvenile court denied the dependency petition, it lost jurisdiction to enter any judgments affecting the custody of the children, whose custody could be decided only by the circuit court. 963 So.2d at 130. In a footnote, this court observed that, although the judge served as both a juvenile-court judge and a circuit-court judge, that fact did not enable the judge to enlarge the jurisdiction of the juvenile court. 963 So.2d at 130 n. 5. Hence, this court held that the judgment rendered by the judge and entered under the juvenile-court case number was a void judgment that would not support an appeal. 963 So.2d at 130.

In this case, like in C.D.S., the judge attempted to exercise his powers as a circuit-court judge to decide a custody case in a juvenile-court proceeding. However, also like in C.D.S., the judge had no jurisdiction to adjudicate custody of the child in the juvenile court once he determined that the case was not a dependency case. Although cloaked with the authority to act as a circuit-court judge, that authority did not enable the judge to enlarge the jurisdiction of the juvenile court and rule on matters outside that court’s jurisdiction. Therefore, the final judgment entered in case number JU-07-420.01, as well as any pen-dente lite order entered by the juvenile court affecting the custody of the child and all the proceedings after the court elected to treat this case as a custody case and not a dependency case, are void.

“[A] judgment entered without subject-matter jurisdiction is void, ... and ... a void judgment will not support an appeal.” K.R. v. D.H., 988 So.2d 1050, 1052 (Ala.Civ.App.2008). Therefore, we dismiss the appeal as being from a void judgment, albeit with instructions to the juvenile court that it set aside its void judgment and orders.

ON REHEARING EX MERO MOTU: OPINION OF FEBRUARY 27, 2009, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED WITH INSTRUCTIONS.

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

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

      . In their petition, the maternal grandparents had also attempted to invoke the juvenile court’s temporary emergency jurisdiction, pursuant to Ala.Code 1975, § 12-15-153; however, the juvenile court's orders do not indicate that it concluded that the case presented an emergency. In fact, in the juvenile court’s August 6, 2007, pendente lite order, it awarded the mother and the maternal grandparents joint custody. Even so, the judgment from which the mother appeals purports to be a final custody determination, not a temporary order entered pursuant to § 12-15-153.

      . The judgment indicates that it may be appealed within 14 days, which is the appeal period for final judgments "issued by a juvenile court.” Rule 4(a)(1)(E), Ala. R.App. P. That declaration further indicates that no party had initiated a separate circuit-court action.
      It may be argued that this same language indicates the judge's intent to act as a juvenile-court judge in entering the judgment; however, a juvenile court may not adjudicate a custody case outside the context of a dependency proceeding unless the child is "otherwise before the court." Ala.Code 1975, § 12-15 — 30(b)(1). In this case, the child was before the court based only on the dependency allegations; hence, once it declined to treat the case as a dependency case, the juvenile court did not have any jurisdiction to decide the custody dispute. Its recitation of the 14-day appeal period applicable to juvenile-court judgments does not confer jurisdiction that is lacking.

      . We note that the record indicates that the child's mother and father were divorced in the state of Hawaii and that the Hawaii court awarded custody of the child to the mother. It is unclear whether the juvenile court made a determination that it had jurisdiction to modify the Hawaii custody judgment, pursuant to Ala.Code 1975, § 30-3B-203. Because we are dismissing this case on the basis that the juvenile court had no subject-matter jurisdiction, it is not necessary for us to comment further on this issue.


author: THOMAS, Judge.

text:
    Ex parte G.L. (In the Matter of H.C.L., a minor child).
    2080260.
    Court of Civil Appeals of Alabama.
    May 22, 2009.
    Ronald L. Allen, Anniston, for petition.
   On Application for Rehearing

THOMAS, Judge.

The opinion issued by this court on February 27, 2009, is withdrawn, and the following opinion is substituted therefor. G.L. (“the grandmother”), the paternal grandmother of H.C.L. (“the child”), petitions this court to issue a writ of mandamus to the Talladega Juvenile Court, ordering that court to instruct the juvenile-court intake officer to accept for filing her complaint alleging that there existed an emergency as to the immediate welfare of the child and, thereafter, to file a dependency petition with respect to the child. We grant the petition and issue the writ.

On November 17, 2008, the grandmother filed a complaint with the intake office of the Talladega Juvenile Court. The complaint alleged that the child was nine years old; that the child’s parents had been divorced by the Jefferson Circuit Court on February 23, 2000; that the divorce judgment had awarded custody of the child to the child’s father; that the father had relinquished custody to the child’s mother in June 2006, when allegations of child abuse by the father’s wife came to light; that the mother had been convicted of a felony controlled-substanee offense in 2004 and had been sentenced to five years’ imprisonment; that the mother, who is on probation, had taken up with numerous paramours and had moved between Sylacauga, Cullman, and Florida, removing the child from school several times; that the child had resided in Sylacauga since June 2008; that the mother was currently unemployed, had no means of support, and had failed to provide the child with lunch money; and that the mother recently had been living with her current boyfriend in a Syla-cauga motel. The complaint also alleged that the mother had failed or refused to seek necessary medical treatment for the child, who has tubes in her ears that must be removed in order to prevent permanent and irreparable damage to her hearing. On the same day, the grandmother also filed a petition for custody, and a verified petition for ex parte temporary custody, alleging that the child was dependent and requesting that custody be awarded to her.

On December 1, 2008, the juvenile-court intake officer returned the complaint and the petitions to the grandmother’s attorney, stating that because “[cjustody of the minor child had been previously determined in a Circuit Court case in Jefferson County, ... the Juvenile Court doesn’t have jurisdiction.” On December 18, 2008, the grandmother filed a petition for writ of mandamus with this court.

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

Rule 12, Ala. R. Juv. P., provides, in pertinent part:

“(A) Any person or agency having knowledge of the facts may make a complaint to the intake office; the complaint shall allege facts sufficient to establish the jurisdiction of the court and the child’s delinquency, dependency, or need of supervision. A complaint is made when it is filed with the intake office, which shall immediately note thereon the date and time of filing.
“(B) When a complaint is made, the intake office shall conduct a preliminary inquiry to determine whether the child is within the jurisdiction of the court and whether the best interests of the child or of the public require that a petition be filed.
“(C) If it appears from the preliminary inquiry that the child is within the jurisdiction of the court, the intake office shall either:
“(1) Utilize the informal adjustment process provided by Rule 15[, Ala. R. Juv. P.]; or
“(2) File a petition if judicial action appears necessary.
“(D) The filing of a petition shall occur within 14 days of receipt of the complaint, except as provided in Rule 15 or when a child has been detained.”

“The juvenile court is a court of limited jurisdiction, having exclusive jurisdiction over actions based on allegations that a child is dependent, delinquent, or in need of supervision. Ala.Code 1975, § 12-15-30(a).” M.P. v. C.P., 8 So.3d 316, 318 (Ala.Civ.App.2008) (emphasis added).

In S.B. v. P.G.B., 611 So.2d 392 (Ala.Civ.App.1992), this court held:

“Once a circuit court has acquired jurisdiction over a child pursuant to a divorce and decides the question of custody, the circuit court retains jurisdiction over custody until the child reaches majority. P.R.G. v. W.P.R., 590 So.2d 913 (Ala.Civ.App.1991). There are two exceptions to this rule. The juvenile court may exercise concurrent jurisdiction over a disposition of custody where there exists an emergency as to the immediate welfare of the child, P.R.G., or where [the Department of Human Resources] brings a separate action alleging dependency and requesting that custody be removed from the custodial parent due to neglect and inability to care for the child. Carter v. Jefferson County Department of Pensions & Security, 496 So.2d 66 (Ala.Civ.App.1986).”

611 So.2d at 394.

The allegations in the grandmother’s complaint serve to bring this case within the first exception to the rule that a circuit court that has made a custody determination pursuant to a divorce judgment retains jurisdiction over the custody of the child until the child reaches the age of majority — i.e., that “[t]he juvenile court may exercise concurrent jurisdiction over a disposition of custody where there exists an emergency as to the immediate welfare of the child.” Id. The grandmother has met the requirements for the relief she seeks. Therefore, this court grants the petition for a writ of mandamus and orders the juvenile court to instruct the intake officer to accept for filing the grandmother’s complaint alleging that there is an emergency with respect to the immediate welfare of the child and to exercise jurisdiction over a dependency petition with respect to the child.

APPLICATION FOR REHEARING OVERRULED; OPINION OF FEBRUARY 27, 2009, 'WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED; WRIT ISSUED.

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


author: SHAW, Justice.

text:
    Ex parte Clarence E. HAYNES, Talladega County Circuit Clerk, and Amber Edwards, Talladega County Juvenile Intake Officer. (In re Ex parte G.L. (In the Matter of H.C.L., a minor child)).
    1081171.
    Supreme Court of Alabama.
    Sept. 4, 2009.
    Griffin Sikes, Jr., Robert H. Maddox, and Nathan P. Wilson, Administrative Offfice of Courts, Montgomery, for petitioners.
   SHAW, 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, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.