December 5, 2014
City of Mobile
from Mobile Circuit Court. (CV-11-1196).
Appellant: Carroll J. Ogden, Mobile.
Appellee: Wanda B. Rahman, Asst. City Atty., City of Mobile
Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ.,
THOMPSON, Presiding Judge.
January 4, 2011, the City of Mobile (" the City" )
notified Cassandra Matthews, one of its employees, of its
intent to suspend her without pay and that a predisciplinary
hearing was scheduled for January 12, 2011. Following the
hearing, the City, on January 25, 2011, notified Matthews
that it would suspend her without pay for a period of 24
hours, effective February 21, 2011. Act No. 470, Local Acts
of 1939 (" the Act" ), as amended, governs the
civil-service system for Mobile County and the
City. The Act has been amended several
times, and the most recent amendment pertaining to some of
the provisions applicable to this case occurred in Act No.
2004-105, Ala. Acts 2004.
Act, as amended, provides the method by which a suspended
employee may challenge before the Mobile County Personnel
Board (hereinafter " the Board" ) the City's
decision to suspend him or her. See § XXIII of the Act,
as amended by Act No. 2004-105, Ala. Acts 2004, p. 157
(" The suspended employee shall have the right to file
an appeal of the suspension for a hearing before the
board." ). The Rules and Regulations of the Personnel
Board for Mobile County (hereinafter " the Rules and
Regulations" ), formulated pursuant to the Act, set
forth a more specific explanation of an employee's right
" An employee desiring to appeal from a dismissal,
suspension or demotion shall, within ten days after notice
thereof, file with the Director [of the Board] a written
answer or explanation of the charges. Such answer shall
contain (1) an admission or denial of guilt and, (2) reasons
why the action should not become effective. Upon receipt of
the appeal, the Director shall forward a copy thereof to the
Appointing Authority concerned. The Director shall prepare
and have available simplified forms for use by an employee in
perfecting an appeal to the Personnel Board from such
disciplinary action as aforesaid. The Personnel Department
shall, where necessary, assist the employee to perfect such
14.4, Rules and Regulations.
record indicates that Matthews was served with notice of the
Board's decision to suspend her for 24 hours without pay
on February 15, 2011, and that she timely filed a written
form notice of appeal of the City's suspension decision
with the Board's personnel director on that same date.
Matthews's appeal of her 24-hour suspension was pending
before the Board, on April 18, 2011, Matthews received a
predisciplinary-hearing notice from the City that informed
her of the City's intent to terminate her employment;
that notice also specified that a hearing was scheduled for
May 2, 2011. On May 2, 2011, the City terminated
Matthews's employment, and Matthews received notice of
the termination of her employment on May 9, 2011.
Act specifies that an employee who has been dismissed from
his or her employment " may, within ten days after
notice, appeal from the action of [the City] by filing a
written answer to the charges." § XXIII, Act No.
470, Local Acts of 1939 (emphasis added). Again, Rule 14.4
has clarified the Act by requiring that, in order to appeal
to the Board from a decision of the City to terminate
employment, " [a]n employee desiring to appeal from a
dismissal ... shall, within ten days after notice thereof,
file with the Director [of the Board] a written answer or
explanation of the charges. Such answer shall contain (1) an
admission or denial of guilt and, (2) reasons why the action
should not become effective." (Emphasis added.)
record on appeal contains a document dated May 13, 2011, that
specifies that the document was delivered " [v]ia e-mail
to Elna McDonald for delivery to Donald Dees[, the
Board's personnel director]." Although the record
does not so indicate, " Elna McDonald" presumably
is employed in the office of the Board's personnel
director. In that May 13, 2011, document, Matthews stated
that she wanted to appeal the termination of her employment
and set forth several brief statements summarizing the basis
for that purported appeal.
party has discussed in their briefs submitted to this court
the jurisdictional implications of Matthews's attempt to
appeal the City's termination decision via an e-mail to
the Board. Regardless, this court must take notice of
jurisdictional issues ex mero motu. Wallace v. Tee Jays
Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App. 1997). It is
clear that Matthews attempted to satisfy the requirement in
§ XXII of the Act and Rule 14.4 that she file a "
written answer" by sending the May 13, 2011, e-mail
communication purporting to appeal from the City's
termination decision. A " writing" is " [a]ny
intentional recording of words in a visual form, whether in
handwriting, printing, typewriting, or any other tangible
form ...." Black's Law Dictionary 1846 (10th ed.
2014) (emphasis added). The parties have made no argument
before this court concerning whether an e-mail communication
may be considered to be a writing or a " written
answer" under the Act and the Rules and Regulations.
Therefore, this court does not reach that issue. Even
assuming, however, that Matthews's May 13, 2011, e-mail
communication constituted a " written answer" under
§ XXII of the Act and Rule 14.4, both the Act and Rule
14.4 require that Matthews, as the employee aggrieved by the
City's termination decision, " file" the
written answer or explanation of the charges with the Board
via the Board's personnel director.
term " file" is not defined in the Act or the Rules
" A fundamental rule of statutory construction is to
'ascertain and give effect to the intent of the
legislature in enacting the statute.' IMED Corp. v.
Systems Eng'g Assocs. Corp., 602 So.2d 344, 346
(Ala. 1992). Words of a statute are to be given their
'natural, plain, ordinary, and commonly understood
meaning[s].' Tuscaloosa County Comm'n v. Deputy
Sheriffs' Ass'n of Tuscaloosa County, 589 So.2d
687, 689 (Ala. 1991). If the language of the statute is clear
and unambiguous, the Legislature's clearly expressed
intent must be given effect. Ex parte Prudential Ins. Co.
of Am., 721 So.2d 1135 (Ala. 1998)."
Ex parte Southeast Alabama Med. Ctr., 835 So.2d
1042, 1065 (Ala.Civ.App. 2002).
this context, the term " file" means " [t]o
deliver a legal document to the court clerk or record
custodian for placement into the official record."
Black's Law Dictionary 745 (10th ed. 2014). Our courts
have rejected arguments that an oral notice may be considered
a " filing." In Ingram v. State, 882 So.2d
374, 376-77 (Ala.Crim.App. 2003), the Court of Criminal
Appeals held that a rule stating that a defendant must "
timely file" a notice of his or her intent to withdraw a
guilty plea implicitly required that the motion be made in
writing; an oral motion was not sufficient to fulfill the
requirement of a " filing." Also, in Turner v.
Alabama State Tenure Commission, 523 So.2d 401
(Ala.Civ.App. 1987), this court held that a teacher's
oral notice to a board that she desired to appeal the
board's decision to a circuit court did not meet the
statutory requirement that the notice of appeal be "
filed." This court explained:
" An accepted judicial definition of 'filing' is
the delivery of a document to a specified officer for
permanent keeping as a notice or record in the place where
his official records and papers are kept. See 16A Words and
Phrases, 'Filing,' at 149 (1959). An oral complaint
has been held not to constitute the 'filing' of a
notice of intent to bring a civil action. Hays v.
Republic Steel Corporation, 531 F.2d 1307 (5th Cir.
1976). In short, the plain meaning of 'file' in
§ 16-24-9[, Ala. Code 1975,] contemplates a writing that
can be filed."
Turner, 523 So.2d at 403. Sending an e-mail
communication, like making an oral statement, does not
constitute the delivery of a legal document to a custodian of
contains no provision specifying that the Rules of Civil
Procedure govern disputes under the Act, and, therefore,
those rules do not apply in this action. Rule 81(b), Ala. R.
Civ. P.; Berryman v. Civil Serv. Bd. of Muscle
Shoals, 571 So.2d 1122, 1124 (Ala.Civ.App. 1990).
However, we note, as instructive, that our court system
provides a secure method of filing certain pleadings and
documents in an electronic-filing system; an electronic
transmission into the secure electronic-filing system is
deemed to constitute a filing of a legal document in the
court system. See Rule 5(e), Ala. R. Civ. P. (Providing, in
part, that " [a] pleading, motion, order, or other
document filed by electronic means in accordance with an
order or rules of the Supreme Court of Alabama constitutes
filing with the court for the purpose of applying these
rules." ); see also Rule 57, Ala. R. App. P. (governing
electronic filing), and the Administrative Policies and
Procedures for Electronic Filing in the Civil Division of the
Alabama Unified Judicial System, effective Sept. 6, 2012.
However, the rules that govern the courts' secure
electronic-filing system do not allow filing pleadings or
documents by e-mail in our courts. See Committee Comments to
Amendments to Rule 5, Ala. R. Civ. P., Effective October 24,
2008 (" The additions to Rule 5(b) and Rule 5(e)
recognize that electronic filing is now an optional means of
filing and service in every county in Alabama. Electronic
filing must be accomplished within the electronic-filing
system established by order and rules of the Supreme Court of
Alabama, not merely e-mail communication." (emphasis
added)). Thus, in Alabama's court system, certain filings
may be accomplished through the secure electronic-filing
system, but sending e-mail transmissions do not constitute
in our court system, there is no mechanism by which a party
in a dispute before the Board may make an electronic filing
of pleadings or motions. There is also no provision in the
Rules and Regulations allowing for e-mail "
filings" of pleadings,
motions, or notices of appeal. The Act requires that an
aggrieved employee " file" a written answer to the
charges as a method of appealing to the Board. We cannot
construe an e-mail, particularly one sent to a presumed
employee of the Board as opposed to the Board's personnel
director (as is required for a properly filed answer or
notice of appeal under the Rules and Regulations), as an
effective filing of a notice of appeal to the Board, as is
required under the Act. Accordingly, we hold that
Matthews's May 13, 2011, e-mail did not constitute a
proper " filing" of a notice of appeal to the Board
of the City's termination decision, as required by the
Act or the Rules and Regulations.
Board had jurisdiction to consider Matthews's appeal of
the 24-hour suspension, but, because Matthews failed to
properly appeal to the Board from the May 2, 2011, decision
terminating her employment, the Board did not have
jurisdiction to consider Matthews's purported appeal of
the termination decision. See, e.g., City of Prattville
v. S& M Concrete, LLC, [Ms. 2120271, Sept. 13, 2013] 151
So.3d 295, 302 (Ala.Civ.App. 2013) (The time for appealing a
zoning-board decision is jurisdictional.); and LaGrange
Church of the Nazarene, Inc. v. Board of Zoning Adjustment of
Muscle Shoals, 473 So.2d 1076, 1078 (Ala.Civ.App. 1985)
(" The statutory time period within which an appeal must
be taken in a zoning board case is jurisdictional in
nature." ). Regardless, the Board conducted a hearing on
July 12, 2011, on both Matthews's appeal of the 24-hour
suspension and on her purported appeal of the City's
termination decision. On July 26, 2011, the Board issued a
decision in which it affirmed the February 2011 suspension
without pay. In that decision, the Board also purported to
reverse, in part, the City's decision to terminate
Matthews's employment. The Board's decision stated
that the Board " unanimously agreed ... [that Matthews
was] guilty of conduct unbecoming an employee in the public
service; incompetence or inefficiency; and violation of any
lawful or reasonable regulations or order made and given by a
superior." However, the Board disagreed with the
termination decision, and, instead, it determined that the
punishment should be modified to a suspension without
backpay. As already explained, because Matthews failed to
effectively appeal to the Board from the City's May 2,
2011, decision terminating her employment, that portion of
the Board's July 26, 2011, decision purporting to address
and modify the City's decision to terminate
Matthews's employment is void. Alves v. Board of
Educ. for Guntersville, 922 So.2d 129, 134 (Ala.Civ.App.
2005) (" A judgment [or decision] entered by a tribunal
that lacks subject-matter jurisdiction is void." ).
Act, as amended, provides that " [a]ny person directly
interested, within 14 days, may appeal to the Circuit Court
of Mobile County from any order of the board, by filing
notice thereof with the board, whereupon the board shall
certify to a transcript of the proceedings before it and file
the same in court." § XXXIV of the Act, as amended
by Act. No. 2004-105, Ala. Acts 2004, p. 159 (emphasis
added). The City filed a written notice purporting to appeal
to the Mobile Circuit Court (" the trial court" )
from that part of the Board's July 26, 2011, decision
addressing the City's decision to terminate
Matthews's employment. However, a void decision or
judgment will not support an appeal; therefore, the trial
court never obtained subject-matter jurisdiction over any
issue pertaining to the termination of Matthews's
employment. Board of Sch. Comm'rs of Mobile Cnty. v.
Thomas, 130 So.3d 199, 204 (Ala.Civ.App. 2013);
Alves v. Board of Educ. for Guntersville, 922 So.2d
the City's ineffective appeal to the trial court was
purportedly pending in that
court, Matthews moved the trial court to set aside, pursuant
to Rule 60(b), Ala. R. Civ. P., the Board's July 26,
2011, decision. The trial court denied that motion. Both
Matthews and the City then moved for a summary judgment.
February 2014, the trial court asked the parties to brief
several issues, one of which was whether there was any record
of Matthews's having appealed the Board's July 26,
2011, decision to the trial court. In response to the trial
court's inquiry, Matthews submitted a signed statement by
her former attorney stating that he had sent an e-mail "
to Mr. Donald Dees" notifying Dees of Matthews's
desire to appeal the Board's July 26, 2011, decision.
Attached to the signed statement was a copy of a printout of
an August 9, 2011, e-mail from Matthews's former
attorney, addressed to Elna McDonald, with the subject line
" Cassandra Matthews." That e-mail contained a
notation that it was " Sent to Elna McDonald for
delivery to Donald Dees" and indicated that Matthews
wanted to cross-appeal the Board's decision on the issues
of the 24-hour suspension and the termination of her
employment. Thus, as she had in her attempt to appeal the
City's termination decision to the Board, Matthews
attempted to appeal the Board's decision on both issues
to the trial court by e-mail.
we note that, regardless of the propriety of an attempt to
appeal the Board's decision to the trial court by e-mail,
Matthews, like the City, could not appeal that part of the
Board's decision purporting to address the termination of
Matthews's employment because the Board's decision
with regard to the issue of the termination of Matthews's
employment was void for want of jurisdiction. Accordingly,
Matthews's purported appeal to the trial court pertaining
to the termination decision was ineffective.
Matthews did properly appeal to the Board from the City's
decision to suspend her for 24 hours without pay in February
2011. Thus, the Board had jurisdiction to enter that part of
its July 26, 2011, decision in which it affirmed the
City's decision to impose that 24-hour suspension, and
Matthews could have appealed that portion of the Board's
decision to the trial court. However, Matthews attempted to
appeal the Board's decision pertaining to the 24-hour
suspension by e-mail. Section XXXIV of the Act, as amended by
Act. No. 2004-105, Ala. Acts 2004, requires that an appeal of
a decision of the Board to the trial court be made " by
filing notice thereof with the board." As already
stated, the Act does not define the terms " file"
or " filing," and it does not provide for any
method of electronic filing. Under the authority of Ingram v.
State, supra, and Turner v. Alabama State Tenure Commission,
supra, the requirement that a document or notice of appeal be
" filed" with the Board is not satisfied by sending
an e-mail communication.
It is well settled that an appeal is not a matter of vested
right but is by the grace of statute, and it must be
perfected pursuant to the time and manner prescribed in the
controlling statute." Van v. Mobile Cnty. Pers.
Bd., 705 So.2d 465, 466 (Ala.Civ.App. 1997). We have
already concluded that the trial court did not have
subject-matter jurisdiction to consider Matthews's
purported appeal of the Board's termination decision. In
addition, because Matthews's August 9, 2011, e-mail
communication did not constitute a " filing" of a
notice of appeal as required by § XXXIV of the Act, as
amended, it did not invoke the jurisdiction of the trial
court to consider Matthews's purported appeal of the
Board's July 26, 2011, decision. See, e.g., Ex parte
Alabama State Pers. Bd., 90 So.3d 766, 769-70
(holding that a circuit court did not obtain jurisdiction
over an appeal from a state-agency decision because the
notice of appeal from a board's decision was not timely
filed); and Ex parte Personnel Bd. of Jefferson
Cnty., 513 So.2d 1029, 1032 (Ala.Civ.App. 1987) (the
circuit court never obtained jurisdiction over an untimely
appeal from the board's decision to the circuit court).
Therefore, the trial court also never obtained subject-matter
jurisdiction to consider the issue of the 24-hour suspension.
trial court entered a judgment on March 12, 2013. However,
because the trial court never obtained jurisdiction over the
issues presented to it, that judgment is void. Maclin v.
Congo, 106 So.3d 405, 408 (Ala.Civ.App. 2012). A void
judgment will not support an appeal, and, therefore, we
dismiss Matthews's appeal. Id.
Thomas, Moore, and Donaldson, JJ., concur.
The parties do not dispute the
applicability of the Act to this action.
Although the record contains only some, or
a portion of some, of the Rules and Regulations, this court
may take judicial notice of any applicable rules and
regulations when a statute referring to and authorizing the
creation of those rules or regulations specifies that they
shall have the force and effect of law. State v.
Friedkin, 244 Ala. 494, 497, 14 So.2d 363, 365 (1943);
see also Ex parte Vizzina, 533 So.2d 658, 660 (Ala.
Matthews has argued before this court that
the City's original termination decision was void.
However, because the jurisdiction of the Board and the trial
court were never properly invoked with regard to that
decision, those bodies, and this court, have no authority to
consider that argument.