author: MURDOCK, Judge.

text:
    Rachelle SMITH v. TYSON FOODS, INC.
    2000605.
    Court of Civil Appeals of Alabama.
    Aug. 1, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1021916.

      John T. Robertson IV of Henslee, Robertson & Strawn, L.L.C., Gadsden, for appellant.
    Jack W. Torbert, Jr., of Torbert & Tor-bert, P.A., Gadsden, for appellee.
   On Application for Rehearing

MURDOCK, Judge.

This court’s opinion of May 24, 2002, is withdrawn and the following is substituted therefor.

Rachelle Smith sued Tyson Foods, Inc., on November 8, 1999, seeking to recover benefits under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, for three separate work-related injuries. Tyson Foods answered, asserting the statute of limitations as an affirmative defense. Discovery proceeded, and on April 26, 2000, Tyson Foods amended its answer, claiming that it should be permitted a set-off against any recovery based upon Smith’s allegedly having refused suitable employment (see § 25-5-57(e), Ala.Code 1975) and alleging additional defenses. On May 25, 2000, upon motion of Tyson Foods, the trial court issued an order directing the parties to mediate the claim before a Department of Industrial Relations ombudsman on or before July 31, 2000. Thereafter, on June 19, the trial court entered an order compelling the parties to mediate the claims on August 4, 2000. Also on June 19, Tyson Foods amended its answer a second time, adding a counterclaim. That counterclaim sought a judgment declaring that it would not incur liability under § 25-5-11.1, Ala.Code 1975, if it terminated Smith’s employment pursuant to a company policy addressing excessive absences resulting from non-work-related injuries.

The trial court issued a notice on October 2, 2000, setting the case for trial on December 21, 2000. On October 20, 2000, Smith’s attorney filed a motion to withdraw, alleging a breakdown in the attorney-client relationship.

On November 28, 2000, the trial court entered the following order: “On motion after hearing, the Court hereby severs[] the motion for Declaratory Judgment from the [Worker’s] Compensation Claim and cases continued for result of mediation.” This order was sent to all attorneys of record.

On December 8, 2000, the trial court granted the motion to withdraw filed by Smith’s attorney. The trial court called the case for trial on December 21, 2000, and no one responded on Smith’s behalf. On December 29, 2000, the trial court dismissed Smith’s claims and entered a judgment in favor of Tyson Foods on its counterclaim.

On January 19, 2001, Smith, acting pro se, filed a motion to set aside the judgment dismissing her claims. On January 26, 2001, new counsel representing Smith filed a motion on her behalf seeking to set aside the judgment on her claims and on the counterclaim; that motion was supported by Smith’s affidavit, in which Smith averred that she had not been represented by counsel on December 21, 2000, when her case was called for trial and that she had had no knowledge that a trial had been scheduled for that date. On February 12, 2001, the trial court denied the motion, citing as authority Rule 60, Ala. R. Civ. P.

Smith appeals, contending that the trial court abused its discretion in denying her motion to set aside the judgment. We agree.

- Although the trial court cited Rule 60, Ala. R. Civ. P., as authority for denying Smith’s motion, this court has held that motions seeking to set aside judgments that are filed within 30 days of the date on which the judgment being challenged was entered are properly construed as motions to set aside a default judgment pursuant to Rule 55(c), Ala. R. Civ. P. Englebert v. Englebert, 791 So.2d 975 (Ala.Civ.App. 2000). That portion of the trial court’s judgment stating that Tyson Foods will not be liable for a retaliatory discharge if it terminates Smith’s employment for excessive absences is properly viewed as a default judgment on Tyson Foods’ counterclaim.

Our standard of review with respect a trial court’s ruling on a motion to set aside a default judgment under Rule 55(c), Ala. R. Civ. P., is whether the court’s ruling amounts to an abuse of discretion. The determination of whether the trial court has abused its discretion involves the application of a two-step process. In Sampson v. Cansler, 726 So.2d 632 (Ala.1998), our Supreme Court observed:

“In Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988), this Court held that the trial court has broad discretion in determining whether to grant or to deny a defendant’s motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments — judicial economy and the defendant’s right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.
“Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’ Kirtland, 524 So.2d at 605.”

726 So.2d at 633.

A review of the trial court’s judgment pertaining to the declaratory-judgment counterclaim of Tyson Foods does not indicate that the trial court considered either part of the two-step process described in Kirtland — particularly in light of the trial court’s reference to Rule 60(b) as the basis of its judgment. Accordingly, we reverse that portion of the trial court’s judgment consisting of a declaratory judgment as to Tyson Foods’ policy allowing termination for excessive absences resulting from non-work-related injuries. On remand, the parties and the trial court should utilize the Kirtland analysis in addressing the issue whether a declaratory judgment should have been entered in favor of Tyson Foods by default. See Cobb v. Loveless, 807 So.2d 566 (Ala.Civ.App.2001); TCI Cablevision of Alabama, Inc. v. Tehranchi, 739 So.2d 519 (Ala.Civ.App.1999); Sawyer v. Perkins, 717 So.2d 432, 433 (Ala.Civ.App.1998).

With regard to the portion of the trial court’s judgment dismissing Smith’s workers’ compensation claims, we construe that part of the trial court’s judgment as being a sanction under Rule 41, Ala. R. Civ. P., for Smith’s failure to appear at trial. The trial court’s judgment was captioned as a “default judgment” and does not specifically refer to Rule 41. However, the text of the judgment reads, in pertinent part:

“This matter having come before the Court for trial on the 21st day of December 2000 and the Plaintiff having failed to appear for trial, and the Plaintiff not being an infant or an unrepresented incompetent person and having failed to appear for trial, default judgment is hereby entered against Plaintiff and in favor of Defendant.
“1. It is hereby ordered and adjudged that judgment is entered in favor of Defendant against the Plaintiff on the claims of Plaintiff and the claims of Plaintiff are dismissed.”

It is well settled that pleadings and other filings are treated according to their substance, rather than their form or their captions. See Breaux v. Bailey, 789 So.2d 204 (Ala.2000). Despite its caption as a “default judgment,” the first portion of the trial court’s judgment evidences an intent to sanction Smith pursuant to Rule 41(b) for having failed to appear at a scheduled trial to prosecute her claims.

The trial court’s order dismissing Smith’s claims does not specify whether the dismissal is with or without prejudice; therefore, the dismissal “operates as an adjudication upon the merits.” Rule 41(b), Ala. R. Civ. P. The trial court’s judgment, therefore, forever bars Smith from prosecuting her claims against Tyson Foods.

This court has held:

“ ‘The dismissal of a civil action for want of prosecution because of the plaintiffs failure to appear at a trial falls within the judicial discretion of a trial court and will not be reversed upon an appeal except for an abusive use of that discretionary power.’ Thompson v. McQuagge, 464 So.2d 105, 106 (Ala.Civ.App.1985). However, ‘[dismissal with prejudice is a harsh sanction and should be used only in extreme circumstances.’ Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990) (quoting Selby v. Money, 403 So.2d 218, 220 (Ala.1981)).”

Goodley v. Standard Furniture Mfg. Co., 716 So.2d 226, 227 (Ala.Civ.App.1998). See also Hodge v. R & R Movers, 716 So.2d 740 (Ala.Civ.App.1998) (trial court erred in dismissing an action pursuant to Rule 41(b) where the plaintiff sought to set aside the dismissal on grounds that, at the time the case was dismissed, he was unrepresented and was actively seeking counsel and where he was unaware that a hearing had been scheduled).

In the present case, there is no evidence that Smith willfully or deliberately disregarded the trial court’s order. Smith’s attorney was given permission by the trial court to withdraw as her counsel 13 days before the scheduled trial date, and there is no evidence indicating that that attorney notified Smith that the trial had been set. Moreover, the trial court’s order dated November 28, 2000, severing the workers’ compensation claim from the declaratory-judgment counterclaim and continuing both cases for the “result of mediation” was also of record at the time of the court’s order allowing counsel for Smith to withdraw. The order lends itself to a reasonable interpretation that trials on both the workers’ compensation claim and the declaratory-judgment counterclaim would be continued pending further notice from the court (i.e., upon receipt of the results of the mediation). In light of Smith’s lack of counsel and the confusion surrounding the trial court’s conflicting orders concerning whether a trial remained scheduled for December 21, 2000, we conclude that Smith did not act unreasonably in failing to be present in court on December 21, 2000. Cf. Thompson v. Williams, 752 So.2d 525 (Ala.Civ.App.1999).

We conclude, therefore, that the trial court abused its discretion, both in dismissing Smith’s workers’ compensation claims with prejudice and in entering a declaratory judgment by default in favor of Tyson Foods on its counterclaim against Smith. Therefore, that court’s judgment is due to be reversed and the cause remanded for further proceedings.

OPINION OF MAY 24, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . It is unclear from the record whether the trial court intended, by using the term "severs,” to truly sever the claims in the manner authorized by Rule 21, Ala. R. Civ. P. (separating the claims into entirely independent actions so as to necessitate separate judgments), or whether the trial court instead intended only to create separate trials as authorized by Rule 42(b), Ala. R. Civ. P. See generally Key v. Robert M. Duke Ins. Agency, 340 So.2d 781 (Ala.1976). However, whether the trial court intended to sever the claims or merely to order separate trials does not affect the outcome of this appeal.


source: Caselaw Access Project

author: CRAWLEY, Judge.

license: Public Domain

text:
    Max BOWDOIN v. STATE of Alabama et al.
    2020257.
    Court of Civil Appeals of Alabama.
    Aug. 22, 2003.
    Rehearing Denied Oct. 10, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1030177.

      C. Franklin Snowden III, Montgomery, for appellant.
    William F. Kelley, Jr., gen. counsel for appellee Retirement Systems of Alabama.
   CRAWLEY, Judge.

Max Bowdoin appeals from the trial court’s judgment in favor of the State of Alabama; the Retirement Systems of Alabama (“the RSA”); former Governor Don E. Siegelman; and David G. Bronner, executive secretary of the RSA (hereinafter collectively referred to as “the defendants”). We dismiss the appeal.

Bowdoin filed a complaint for declaratory relief against the defendants that alleged, in pertinent part, that “Article VI[,] Clause 2 of the United States Constitution, commonly referred to as ‘The Supremacy Clause’ provides that Federal Law super-cedes State Law and therefore, [§ ] 36-27-4(d), Code of Alabama, 1975, is unconstitutional.” Also, in Bowdoin’s notice of appeal to this court, he summarized the issue on appeal as a “[qjuestion of [the] constitutionality of Alabama Code [§ ] 36-27-4(d).”

Section 6-6-227, Ala.Code 1975, provides:

“All persons shall be made parties who have, or claim, any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance, or franchise, such municipality shall be made a party and shall be entitled to be heard; and if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.”

(Emphasis added.) Our supreme court has also observed:

“Section 6-6-227 provides that when the constitutionality of a state statute is challenged the attorney general must be served with a copy of the complaint, in order to allow him to represent the interests of the people of the State of Alabama. See Board of Trustees of Employees’ Retirement System of the City of Montgomery v. Talley, 291 Ala. 307, 280 So.2d 553 (1973). In interpreting § 6-6-227, this Court has consistently held that the failure to serve the attorney general will deny the trial court jurisdiction to resolve any claim based on the constitutional challenge. See Bratton v. City of Florence, 688 So.2d 233, 234 (Ala.1996). Any ruling that a trial court makes on a constitutional issue, when the attorney general has not been given notice and the opportunity to intervene, is void. See Ex parte St. Vincent’s Hosp., 652 So.2d 225 (Ala.1994); Fairhope Single Tax Corp. v. Rezner, 527 So.2d 1232 (Ala.1987). See, also, Busch Jewelry Co. v. City of Bessemer, 266 Ala. 492, 493, 98 So.2d 50, 51 (1957).”

Ex parte Jefferson County, 767 So.2d 343, 345 (Ala.2000)(footnote omitted).

Upon reviewing the record on appeal, we have found nothing indicating that Bowdoin served the attorney general with a copy of his complaint for declaratory relief. An answer to the complaint was filed on behalf of all the defendants by general counsel for the RSA. The case action summary indicates that the complaint was served at the address of the RSA, not the office of the attorney general. We find nothing in our laws to indicate that general counsel for the RSA is an assistant attorney general; however, this court has previously determined, in the face of a statute designating an attorney for a state agency as an assistance attorney general, that the attorney general had sufficient notice of a constitutional challenge when that notice was given to the agency’s attorney. See Morgan County Dep’t of Human Res. v. B.W.J., 723 So.2d 689 (Ala.Civ.App.1998) (relying on § 38-2-4, Ala.Code 1975, which provides that legal counsel for the State Department of Human Resources is commissioned and has the authority and duties of an assistant attorney general). The statute relating to counsel for the RSA states, in pertinent part, that “[t]he [RSA] shall have full authority to employ its own legal counsel and to conduct and control any litigation in which it is involved through such counsel,” § 36-27-25(c), Ala.Code 1975; it makes no mention of legal counsel for the RSA being an assistant attorney general. Accordingly, we conclude that the attorney general was not properly served with notice of Bowdoin’s constitutional challenge and that the trial court had no jurisdiction to rule on his complaint for declaratory relief.

While no party on appeal raised this issue to this court, issues of jurisdiction are of such magnitude that this court can consider them ex mero motu. See Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997). Because the attorney general was not served, the trial court’s judgment is void and will not support an appeal.

APPEAL DISMISSED.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur.


author: THOMPSON, Judge. MURDOCK, Judge, YATES, Presiding Judge,

text:
    ELDECO, INC. v. Ted ROMINES.
    2020278.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2003.

      Lisa D. Van Wagner, Bart Harmon, and C. Richard Hill, Jr., of Webb & Eley, P.C., Montgomery, for appellant.
    J. Chris Cochran of Pittman, Hooks, Dutton, Kirby & Heliums, P.C., Birmingham; and Jimmy S. Calton, Sr., Eufaula, for appellee.
   On Application for Rehearing

THOMPSON, Judge.

This court’s no-opinion affirmance dated May 23, 2003, is withdrawn, and the following opinion is substituted therefor.

Ted Romines sued his employer, Eldeco, Inc. (“Eldeco”), seeking workers’ compensation benefits for an alleged injury that, he maintained, rendered him permanently and totally disabled. On May 15, 2001, the trial court conducted an ore tenus hearing. Eldeco moved for a judgment as a matter of law, arguing that Romines’s claimed injury was not one for which he was entitled to benefits under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (hereinafter “the Act”).

On October 10, 2001, the trial court entered an order denying Eldeco’s motion for a judgment as a matter of law. In that order, the trial court stated that the parties had an additional 60 days from the date of that order to submit any additional evidence. Eldeco appealed to this court from the October 10, 2001, order (that appeal is hereinafter referred to as “the first appeal”). This court concluded that the October 10, 2001, order was not a final judgment that would support an appeal, and it dismissed the first appeal without an opinion. After this court’s dismissal of the first appeal, the exhibits submitted to this court pertaining to that appeal were returned to counsel for Eldeco.

The trial court, on September 16, 2002, entered a judgment finding Romines to be permanently and totally disabled as a result of an on-the-job nonaccidental injury. In that judgment, the trial court specifically incorporated the findings and conclusions of law it had reached in its October 10, 2001, order. In the September 16, 2002, judgment, the trial court noted that:

“3. The court allowed the parties an additional 60 days after the entry of the October 10, 2001, order to provide the court with any additional information and/or evidence bearing on the issues in this case.
“4. Having considered all the evidence, including the submissions of evidence after October 10, 2001, the court finds....”

Eldeco appealed from the September 16, 2002, judgment. On Eldeco’s motion, this court incorporated into the present record on appeal the record from the first appeal.

On original submission of this appeal, Eldeco argued that the trial court erred in awarding Romines benefits under the Act because, it argued, that Act does not recognize a claim such as the one asserted by Romines. Eldeco also argued that Ro-mines was not entitled to compensation for his claimed injury, which Romines characterized at trial as a nonaccidental injury, because, Eldeco argued, Romines did not present clear and convincing evidence that his job duties exposed him to a “ ‘danger or risk materially in excess’ of that danger to which all persons are ordinarily exposed in their everyday lives.” See Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996) (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 705, 318 So.2d 729, 732 (Ala.Civ.App.1975)).

At the May 15, 2001, hearing, the parties presented no expert medical testimony. At that hearing, Romines offered into evidence the depositions of two doctors and another witness; those depositions, however, were never formally admitted into evidence. Also at the May 15, 2001, hearing, the parties discussed the possibility of taking the depositions of additional witnesses. It is not clear from the record which, if any, of those additional depositions were actually taken. It is clear, however, that at least some depositions, apparently the ones Romines offered into evidence, were submitted to the trial court, because the trial court referenced the testimony of Dr. Melvin Oakley, one of the doctors whose depositions Romines offered into evidence, in its October 10, 2001, order. The trial court clerk’s “Index of Exhibits” for the May 15, 2001, hearing designated, among other items, the exhibits admitted into evidence at that hearing and included the depositions of Dr. Oakley, Willard Chuck Bentley, and Dr. Randy McDaniel. Also, the parties seem to assume, given the language in their briefs on appeal, that those depositions were admitted into evidence. Although six other exhibits admitted into evidence at the May 15, 2001, hearing were contained in a volume of the record from the first appeal that was later incorporated into the record for the current appeal, the three above-listed depositions were not submitted to this court as a part of the record for the current appeal. Both parties referenced the testimony of Dr. Oakley in their briefs submitted to this court on original submission.

Further, the trial court’s September 16, 2002, judgment notes that it considered evidence that each party submitted after the entry of the October 10, 2001, order. The record on appeal, including that portion of the record incorporated from the first appeal, does not contain any evidence submitted after the entry of the October 10, 2001, order. Neither party sought, pursuant to Rule 10(f), Ala. R.App. P., to supplement the record on appeal to include that, or any other, evidence in the record for the current appeal.

In its notice of appeal in the first appeal and in its notice of appeal from the trial court’s September 16, 2002, judgment, El-deco designated the entire record for inclusion in the record on appeal. Therefore, on original submission in the current appeal, the clerk of this court, at the request of the author of this opinion, telephoned the trial court’s clerk to inquire about the three missing depositions listed in the “Index of Exhibits” to the May 15, 2001, hearing. An employee in the trial court clerk’s office indicated that those depositions were not in the clerk’s office. In addition, also at the request of the author of this opinion, the clerk of this court inquired as to whether any materials, evidence, or exhibits had been filed in the office of the trial court’s clerk after the entry of the October 10, 2001, order that provided for the filing of such materials but before the final judgment that referenced those materials. The employee of the tidal court clerk’s office indicated that no such materials or evidence had been filed and sent a copy of the case action summary detailing the action on the case up and until that date to this court for its review. That case action summary indicated that no new evidentiary materials had been filed by either party after the entry of the trial court’s October 10, 2001, nonfinal order.

On original submission, this court considered caselaw standing for the well-settled principle that where a trial court relies on evidence that is not contained in the record on appeal in reaching its judgment, this court must presume that that evidence was sufficient to support the trial court’s judgment. This court also relied upon authority standing for the proposition that it is the appellant’s duty to ensure that the record on appeal contains sufficient evidence to warrant a reversal, and the court affirmed the trial court’s judgment without an opinion. In its no-opinion affirmance, this court cited Rule 10(f), Ala. R.App. P.; Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938 (Ala.1997); Berryhill v. Mutual of Omaha Ins. Co., 479 So.2d 1250 (Ala.1985); Cofer v. Town of Good Hope, 655 So.2d 1028 (Ala.Civ.App.1995); Wilkens v. Kaufman, 615 So.2d 613 (Ala.Civ.App.1992); and State ex rel. Gibson v. Gibson, 555 So.2d 1092 (Ala.Civ.App.1989). This court’s original decision was released on May 23, 2003.

On June 3, 2003, Eldeco moved for an extension of time to file an application for rehearing, contending that the trial court’s clerk inadvertently omitted the three depositions listed in the “Index of Exhibits” for the May 15, 2001, hearing. This court granted Eldeco an additional seven days in which to file its application for rehearing. In the interim, the trial court’s clerk submitted to this court the three depositions listed in the “Index of Exhibits” for the May 15, 2001, hearing, and the clerk also submitted a folder that contained other materials.

Eldeco filed its application for rehearing in this court, and Romines filed an opposition to that application. In its brief on application for rehearing, Eldeco asked only that this court consider the three depositions omitted from the list of exhibits in the “Index of Exhibits” for the May 15, 2001, hearing. Romines, in his opposition brief, argued only the merits of the appeal and did not make any argument pertaining to any other evidence that might have been omitted from the current record on appeal. The record contains no indication of, and the parties themselves have made no argument pertaining to, any evidence that might have been submitted to the trial court after the entry of the October 10, 2001, order. Therefore, after careful consideration, we elect to reach the merits of the appeal based on the record currently before this court and to consider the arguments as originally raised on appeal. Therefore, we grant Eldeco’s application for rehearing.

Eldeco is a business which performs electrical contracting work. Romines, who was 63 years old at the time of the May 15, 2001, hearing in this matter, worked from 1978 to 1998 for Eldeco as a superintendent on its construction projects. The El-deco employees who testified on behalf of Eldeco characterized Romines as a good employee and a hard worker.

In his testimony at trial, Romines described different jobs he had supervised for Eldeco from 1995 until 1998. In essence, Romines testified that, although he was on salary for a 40-hour work week, he often worked 70-80 hours per week. Ro-mines stated that his superiors at Eldeco instructed him not to include more than 40 hours per week on his payroll sheets in order to keep the jobs on which he was working within budget. Although he insisted that he had to work more than 40 hours per week, Romines admitted that no one at Eldeco instructed him to do so.

Romines testified that he always felt pressure to bring a construction project he was supervising within or under its budget. Romines testified that it was necessary for him to be present at the construction sites at any time workers were present. Often, there were both day and night work crews. Romines stated he often put in long hours at the construction sites supervising those crews. In addition, on some jobs, Romines stated that he worked doing physical labor either with the crews or after the workers had left in order to help the project stay on schedule. Romines testified that, except for the time spent undergoing and recovering from a surgery in the early 1990s and a three-day period in which he visited his mother between jobs, he did not take any time off work, even for vacations.

Romines also stated that, although it was Eldeco’s policy not to work on “hot” electrical circuitry, during the renovation of a shopping mall in Biloxi, Mississippi, he was frequently required to do so because the electricity to the stores in the mall could not be disconnected during business hours. Romines explained that on that job he often worked on “hot” electrical circuitry because at least one of the workers on the job refused to do so.

Romines also detailed some labor problems he had on some of his jobs, including some workers’ attempts at union organization and his suspicions that some crew members were using and selling illegal drugs on the job. Additionally, Romines testified regarding at least one personality conflict with the agent of another contractor who was also working on one of the projects he supervised.

Romines testified that on some jobs he lived at the construction site in his personal recreational vehicle. There was some dispute about whether anyone at Eldeco asked Romines to live on site at any of the construction sites. In any event, Romines and all other Eldeco supervisors were paid weekly allowances to offset the cost of lodging while they were on the construction sites and away from their homes. Ro-mines collected that weekly allowance during the time that he lived on site in his recreational vehicle.

Romines testified that in 1991 he was diagnosed with high blood pressure and that his doctor prescribed medication that controlled that condition. However, in 1997, he began experiencing some additional health problems and went to a doctor in Nashville, Tennessee. At that time, Romines was diagnosed with hypertensive heart disease. Romines’s doctor told him that the condition could be treated with medication but that Romines needed to avoid stressful situations. Romines testified that he called the management office at Eldeco several times asking to be transferred to a less stressful project and that he asked to be demoted to the position of electrician.

Romines testified that the project he supervised involving the renovation of the shopping mall in Biloxi was a difficult job and that the danger on that job caused him a great deal of stress; Romines supervised that job from March 1996 through April 1997. After that job, Romines supervised the construction of a large movie-theater complex in Nashville. Romines testified that the Nashville job was also difficult and caused him stress. He explained that “[ejven though the danger was there [at the shopping-mall renovation project] in Biloxi, [the] Nashville [movie-theater project] was just stress, mental stress just constantly.”

After the completion of the Nashville movie-theater project, Romines went to work supervising the construction of a “chicken plant” in Eufaula. Romines said that that project was originally supposed to be a one-year project but that it was changed to a six-month project. According to Romines, because of design changes, the progress on that job fell behind. He also suspected certain workers of illegal drug use. Romines stated that the conditions of that job “just put stress on me.” Romines testified that the management of Eldeco had agreed to conduct drug tests at the Eufaula construction site but that he was later informed that the tests had been cancelled. Romines stated that, upon hearing that the drug tests had been can-celled, he “went all to pieces.”

Romines testified that the day after he learned that Eldeco had cancelled the planned drug tests, the stress of his job was bothering him and that, while driving between another Eldeco work site and the Eufaula chicken-plant work site, he experienced an episode of dizziness. Romines stated that he immediately sought treatment from Dr. Oakley and that Dr. Oakley hospitalized him. We note that Romines testified that this episode occurred on February 18, 1998, but Dr. Oakley testified that it occurred on February 25, 1998; the exact date of the February 1998 incident is not an issue on appeal. Romines did not return to work at Eldeco after February 1998.

The employees of Eldeco who testified at the May 15, 2001, hearing stated that Romines’s jobs were no more stressful or difficult than any other supervisor’s jobs. Those witnesses also agreed that Eldeco did not encourage its employees to work long hours or without vacations, as Ro-mines had done. Three of those witnesses testified that a supervisor should delegate work to his work crew and that there was no reason for a supervisor to do work such as the work Romines testified he had performed on “hot” electrical wires. Ronnie Hannah, a supervisor for Eldeco, stated that there was nothing out of the ordinary about Romines’s jobs but that Romines worked all the time regardless of whether his work duties called for it. Hannah also stated that there was no need for a supervisor to stay on the project site late at night because the supervisor could delegate the supervision of the work being performed to another member of his work crew.

Dr. Oakley, a specialist in internal medicine, testified that he first treated Romines on February 18, 1998, when Romines reported feeling weak and dizzy and that he was experiencing chest and head pains. The results of an electrocardiogram and blood tests were normal, and Dr. Oakley recommended that Romines continue on his blood-pressure medication. During a follow up visit on February 24, 1998, Ro-mines reported that he had headaches, that he remained weak, and that he was having difficulty tolerating stress. Dr. Oakley testified that his examination of Romines on that date was unremarkable but that he changed Romines’s blood-pressure medication. Dr. Oakley released Ro-mines to return to work, but recommended that he “opt for a less stressful working environment.”

The next day, February 25, 1998, Ro-mines returned to Dr. Oakley for an unscheduled visit because of an episode of “severe headache, confusion, blurring of vision, slurring of speech,” among other symptoms; that episode occurred while Romines was driving to the Eldeco work site in Eufaula. Dr. Oakley admitted Ro-mines to the hospital and conducted testing; that testing ruled out several physical causes of Romines’s symptoms. On March 11, 1998, Dr. Oakley told Romines that he was not to return to work because he “appeared to be burned out.”

In explaining the medical reason for Ro-mines’s not being able to return to work, Dr. Oakley testified that “[Romines] was handling the stress of his job so poorly that it was creating anxiety to the point that [Romines] was having basically surges of adrenalin running his blood pressure up, and concomitantly rendering him unable to function in his job.” Dr. Oakley also stated that Romines’s “stress at work caused him to have the problems that [Romines] was experiencing,” and that, although the stress did not cause the high blood pressure, it did cause “the high blood pressure to be much more difficult to control.” Dr. Oakley concluded that the stress Romines experienced on the job caused him to be disabled from performing his job.

In summarizing his conclusions in a letter addressed to the workers’ compensation insurer for Eldeco, Dr. Oakley testified that he “told [the insurer] that [Romines] was suffering from a severe anxiety disorder complicated by depression.” (Emphasis added.) During his testimony, Dr. Oakley read the following excerpt from his letter to the insurer:

“ ‘[Romines’s] hypertension[] ... is labile and severe enough that it affects his health physically. [Romines’s] anxiety is severe enough that it creates a physical problem — reference his hypertension and chest pain.
‘Mr. Romines’s primary disabling diagnosis is his anxiety complicated by depression. This exacerbates his hypertension and causes chest pain. This renders him unable to function, and in my opinion, this is a permanent disability.’ ”

(Emphasis added.)

Romines did not return to work at Elde-co after February 1998; he instead chose to retire. Romines now receives Social Security disability benefits because of his hypertension. Since his retirement, Ro-mines’s health conditions have been successfully controlled by his medications.

In his complaint, Romines alleged that he had suffered an “accident-related injury.” However, at the May 15, 2001, hearing, Romines and the trial court addressed Romines’s claim as one seeking compensation for a nonaccidental injury. In seeking recovery for a nonaccidental injury, a claimant must establish both legal causation and medical causation. See Ex parte Trinity Indus., Inc., supra (setting forth the requirements for establishing legal and medical causation of a nonaccidental injury). In its October 10, 2001, order, the trial court found that the stress Ro-mines experienced while employed by El-deco caused or aggravated the blood-pressure condition for which Romines sought workers’ compensation benefits. In its September 16, 2002, final judgment, which expressly incorporated the findings set forth in the October 10, 2001, order, the trial court determined that Romines established both legal and medical causation under Ex parte Trinity Industries, Inc., supra, and it found that Romines was permanently and totally disabled as a result of “his on-the-job nonaccidental injury.”

In essence, Eldeco does not dispute the trial court’s factual finding that the stress Romines suffered toward the end of his employment with Eldeco caused Romines’s high blood pressure to become unmanageable, which prevented Romines from being capable of maintaining employment. Rather, Eldeco challenges the trial court’s determination that Romines’s claim was compensable under the Act. Eldeco argues that the Act does not authorize recovery for a claim such as the one Romines has asserted. The issue regarding whether Eldeco is liable for paying workers’ compensation benefits on Romines’s claim can be reduced to the characterization of the nature of Romines’s claim for those benefits; the parties dispute whether Ro-mines’s claimed injury should be classified as a “mental disorder or mental injury” or as a “physical injury.”

Eldeco bases its argument on the Act’s definition of an “injury” for which a claimant may recover an award of benefits. Specifically, in defining “injury,” the Act provides that an “[ijnjury does not include a mental disorder or mental injury that has neither been produced nor been proximately caused by some physical injury to the body.” § 25-5-1(9), Ala.Code 1975 (emphasis added). This court has recognized that in Ex parte Trinity Industries, Inc., supra, our supreme court defined a nonac-cidental injury such as the one claimed by Romines to be “an injury ‘not produced by some sudden and traumatic external event.’” B E & K, Inc. v. Weaver, 743 So.2d 476, 480 n. 3 (Ala.Civ.App.1999) (quoting Ex parte Trinity Indus., Inc., 680 So.2d at 266) (emphasis added). “Under Alabama law, for an employee to recover for [mental injuries or] psychological disorders, the employee must have suffered a physical injury to the body and that physical injury must be a proximate cause of the psychological disorders.” Ex parte Vongsouvanh, 795 So.2d 625, 628 (Ala.2000). Eldeco characterizes Romines’s claim as one for a mental-injury disorder that was not produced by a work-related injury, and, therefore, Eldeco maintains that § 25-5-1(9) bars Romines’s claim for workers’ compensation benefits.

Romines admits that his claim is based on mental stress, as opposed to stressful physical exertion; however, Romines asserts that because his mental or emotional stress caused physiological symptoms, i.e., causing his high blood pressure to become unmanageable when he was in a stressful situation, he is entitled to recover for the physiological manifestations caused by his on-the-job stress. In characterizing his claim as one seeking compensation for a nonaccidental injury, Romines explained his theory of recovery before the trial court by indicating that he was not seeking recovery for a mental disorder; rather, he was seeking an award of benefits for his symptoms relating to his hypertension, which he claimed was the “physical injury” resulting from his work-related mental stress.

At this juncture, we must point out that in Safeco Insurance Cos. v. Blackmon, 851 So.2d 532 (Ala.Civ.App.2002), this court noted that a claim seeking benefits for coronary-artery disease allegedly caused, in part, by work-related stress was more in the nature of an occupational disease than an injury or a nonaccidental injury. However, the court applied an analysis based on a theory of nonaccidental injury because that is the theory under which the case was tried before the trial court. Safeco Ins. Cos. v. Blackmon, supra. Similarly, in this case, neither the parties nor the trial court considered the issue whether Romines’s claim should be treated as a claim for benefits for an occupational disease. Therefore, for the purposes of this appeal, we do not decide whether Ro-mines’s claim might have been more appropriately designated as one arising from an occupational disease rather than a non-accidental injury or whether Romines’s claim was compensable as an occupational disease.

In its judgment, the trial court applied the legal- and medical-causation tests set forth in Ex parte Trinity Industries, Inc., and its progeny in awarding Romines workers’ compensation benefits. However, before that causation analysis may be analyzed, the threshold question that must be answered is whether Romines’s claim is one based on a mental disorder or a physical injury; the answer to that question determines whether Romines may maintain his claim under the nonaccidental-inju-ry theory.

The parties direct this court to only one case that arguably allowed a worker to receive workers’ compensation benefits for a condition caused, at least in part, by work-related stress. See Safeco Ins. Cos. v. Blackmon, supra. In Blackmon, the worker needed medical treatment for coronary-artery disease after a period of two to three months duripg which the worker had gone from working approximately 40 hours per week to a more stressful situation in which he worked 70 or 80 hours per week. The medical evidence in that case established that a number of factors, including stress, contributed to the worker’s coronary-artery disease. The trial court awarded the worker workers’ compensation benefits based on its finding that the worker had suffered a 30% physical impairment. 851 So.2d 539-40.

This court analyzed the employer’s appeal in Blackmon by applying the causation analysis applicable to nonaccidental injuries set out in Ex parte Trinity Industries, Inc., supra. This court did so because the worker had sought compensation for an “injury” and because “the parties [had] stipulated that there were two issues for the [trial] court to consider: (1) ‘whether the accident arose out of and in the course of the employment’ and (2) ‘the extent of [the worker’s] disability.’ ” Safeco Ins. Cos. v. Blackmon, 851 So.2d at 537. This court ultimately determined that the worker had failed to meet the burden for establishing causation that is set forth in Ex parte Trinity Industries, Inc., supra. Blackmon, supra.

In Blackmon, the worker’s doctors stated that the work-related stress the worker suffered was one of several factors causing his coronary-artery disease. In the current case, the evidence indicates that Ro-mines’s high-blood-pressure symptoms for which he sought workers’ compensation benefits were caused solely by work-related mental stress; Romines testified that his doctors recommended only that he reduce or eliminate his exposure to stress and that they did not recommend any other lifestyle change that might assist in lowering his high blood pressure. More significantly, in Blackmon, the parties’ stipulation of the issues to be addressed indicates that the court was not presented with and did not decide the issue whether the definition of “injury” under § 25-5-1(9), Ala.Code 1975, encompassed the coronary-artery disease for which the worker sought workers’ compensation benefits. In the current case, however, Eldeco has consistently maintained that Romines’s claim is precluded by the definition of “injury” set forth in § 25-5-1(9). Therefore, we must conclude that this court’s holding in Blackmon is not dispositive of the issue whether the term “injury” in the Act encompasses physical conditions brought about solely or in part by a mental injury or disorder.

Although Romines characterizes his claim as one for a physical injury, i.e., for hypertension, the medical evidence presented at the May 15, 2001, hearing clearly established that Romines’s work-related mental or emotional stress caused his disability. Dr. Oakley’s testimony established that Romines’s symptoms were initiated by a rush of adrenalin, a physical symptom, which caused his blood pressure to increase. However, it is equally clear that the cause of the adrenalin rush was Romines’s mental stress or his inability to effectively cope with that stress. Dr. Oakley’s diagnosis was that Romines had a “severe anxiety disorder” that created “a physical problem” in the nature of “hypertension and chest pain” and that the stress, not the high blood pressure, caused Romines’s disability. Therefore, given that evidence, we must conclude that, although the stress Romines experienced produced physical symptoms, that mental or emotional stress was in the nature of a mental injury, i.e., the “severe anxiety disorder,” for which § 25-5-1(9) prevents recovery.

No Alabama case has recognized emotional or mental stress that causes a physiological manifestation to be compensable as a nonaccidental injury under the Act. Although the Act is to be liberally construed, the Alabama Legislature has explicitly excluded a mental injury not caused by a physical injury from the definition of a compensable injury under the Act. We are not, given the arguments presented by the parties on appeal and the facts of this case, inclined to broaden the terms of the Workers’ Compensation Act to require employers to provide workers’ compensation benefits for a claim seeking compensation, under a nonaccidental-inju-ry theory, for physical symptoms or changes to the body caused by stress or a similar mental injury that was not a result of a physical injury. See 25-5-1(9), Ala. Code 1975.

APPLICATION GRANTED; NO-OPINION AFFIRMANCE OF MAY 23, 2003, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs specially.

YATES, P.J., dissents.

MURDOCK, Judge,

concurring specially.

I am not persuaded that Romines’s injury was “unexpected and unforeseen.” See Kane v. South Cent. Bell Telephone Co., 368 So.2d 3, 5 (Ala.1979) (“ ‘The requirement that there must be shown a violent and unusual event which causes the injury [has been] replaced by the principle that there [is] an accident if the result [is] unexpected and unforeseen and it [is] caused by the job.’ ”) (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 705, 318 So.2d 729 732 (1975) (emphasis added)).

Nor am I persuaded that this is a case that satisfies the requirement articulated in Ex parte Trinity Industries, Inc., as to so-called “nonaccidental injury” cases, that the employee must prove that his job duties exposed him to a “danger or risk materially in excess of that to which people are normally exposed in their everyday lives.” See Ex parte Trinity Indus., Inc., 680 So.2d 262, 267 (Ala.1996). Even assuming the worker in this case experienced stress materially in excess of that to which people are normally exposed in their everyday lives, the question would still remain whether that stress was foist upon the employee by the duties of his job, or by the employee himself because of the manner in which he elected to perform those duties.

The main opinion states that this court is not inclined to require the employer to provide workers’ compensation benefits for physical symptoms or changes to Ro-mines’s body caused by stress or similar mental injury that, itself, was not a result of a physical injury, “given the arguments presented by the parties on appeal and the facts of this case.” 884 So.2d at 876. I note that among those facts is the fact that the employee does not appear to have suffered “an unexpected or unforeseen” injury and the fact that it was the employee himself, not his job, that appears to have caused the mental stress at issue.

YATES, Presiding Judge,

dissenting.

Because I believe that Romines suffered a compensable injury, I must respectfully dissent from the main opinion.

As the main opinion points out, the trial court and Romines treated Romines’s claim as one seeking compensation for a nonaccidental injury. For an injury to be compensable, it must be “caused by an accident arising out of and in the course of’ the employee’s employment. § 25-5-51, Ala.Code 1975. The phrase “arising out of’ an employee’s employment requires a causal connection between the injury and the employment. Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313, 314 (Ala.Civ.App.1993). The phrase “in the course of the employee’s employment” refers to the time, place, and circumstances under which the accident occurred. Id. To establish causation in a workers’ compensation case where the injury is nonaecidental, i.e., where the injury was not caused by some sudden and unexpected external event, an employee must satisfy a two-part causation test by producing substantial evidence establishing both (a) legal causation and (b) medical causation. Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). See also City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (Ala.Civ.App.1975). To prove “legal causation,” one need only establish that “the performance of his or her duties as an employee exposed him or her to a ‘danger or risk materially in excess’ of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., Inc., 680 So.2d at 267, quoting Howard, 55 Ala.App. at 705, 318 So.2d at 732. To establish medical causation, a claimant “must produce substantial evidence tending to show that the exposure to risk or danger proven in step one of the Howard test ‘was in fact [a] contributing cause of the injury’ for which benefits are sought.” Ex parte Trinity Indus., Inc., 680 So.2d at 269, quoting Howard, 55 Ala.App. at 706, 318 So.2d at 732.

I disagree with the main opinion’s conclusion that Romines’s claim is based on a mental disorder rather than a physical injury and is therefore not compensable. In Safeco Insurance Cos. v. Blackmon, 851 So.2d 532 (Ala.Civ.App.2002), an employee sued his employer seeking to recover workers’ compensation benefits related to his coronary artery disease, which he claimed was caused in part by work-related stress. The evidence in Blackmon indicated that the employee’s job had become significantly more stressful over a two- to three-month period. The medical evidence presented in that case indicated that the employee’s work-related stress was a contributing cause of the employee’s coronary artery disease. The trial court determined that the employee suffered a 30% physical impairment and awarded benefits accordingly. This court reversed the judgment of the trial court in Blackmon, concluding that the employee failed to prove legal and medical causation; however, this court analyzed the employee’s claim seeking recovery for coronary artery disease brought on in part by his work-related stress as a claim for a nonaccidental injury. In doing so, this court noted that the employee’s complaint sought recovery for an “injury” and that the employee’s counsel advised the trial court that the parties had stipulated that an issue for the court to consider was “ ‘whether the accident arose out of and in the course of the employment.’ ” Blackmon, 851 So.2d at 537.

Romines claims that he is not seeking recovery for a mental disorder; rather, he says, he is seeking recovery for symptoms related to his diagnosis of high blood pressure or hypertension, which he claims resulted from his work-related mental stress. Romines alleged in his complaint that he

“suffered an accident[] related injury ... and ... that the performance of his duties of employment exposed [him] to a danger and/or risk materially in excess of that to which people not so employed are ordinarily exposed in their everyday lives and that the exposure to this risk was a contributing cause of [his] injury.”

Counsel for Romines stated to the trial court on the record at the beginning of the ore tenus proceeding that the issue for determination is “causation.” I do not believe that the allegations of injury in this case are distinguishable from those in Blackmon; therefore, I, as the trial court did, would treat Romines’s claim as one seeking recovery for a nonaccidental injury.

After reviewing the record, I conclude that substantial evidence exists to support the court’s judgment that work-related stress caused Romines’s hypertension to become unmanageable, thus causing him to be permanently and totally disabled. Accordingly, I respectfully dissent from the main opinion.

      . The case action summary sent to this court by the employee of the office of the trial court's clerk contains a list of the trial court’s and parties' actions on the case through April 24, 2003.

      . Those materials appear, at least in part, to be medical records. The certifications of the first appeal and this current appeal by the trial court's clerk do not reference those materials. Nothing in the record on appeal, including the certification of either record on appeal, indicates the origin of those materials or that those materials were admitted into evidence or filed with the trial court. Therefore, we have not considered those materials in our disposition of this appeal.

      . A “hot” circuit or wire is one in which the electricity is not turned off during the time the workers work on or with that circuit or wire.

      . "Hypertension” is defined as "[h]igh blood pressure.” Stedman’s Medical Dictionary 855 (27th ed.2000). The terms "hypertension” and "high blood pressure” are used interchangeably throughout this opinion.

      . In his brief on appeal, Romines contends that in Blackmon, "just as in the present matter,” the parties stipulated that the only issue before the court was whether Romines's claimed injury arose out of and in the course of his employment. The record does not support that assertion. At the May 15, 2001, hearing, the parties agreed that the only issue to be addressed at that hearing was the issue of compensability or causation. Eldeco specifically "dispute[d] that this case [involves] a compensable injury.”

      . Although Romines's complaint uses the word "accident,” it is clear to me that when this allegation is viewed in context with the remainder of the complaint, he intends to allege a "nonaccidental” injury.


author: HOUSTON, Justice. JOHNSTONE, Justice

text:
    Ex parte Ted ROMINES. (In re Eldeco, Inc. v. Ted Romines).
    1022065.
    Supreme Court of Alabama.
    Dec. 30, 2003.
    J. Chris Cochran of Pittman, Hooks, Dutton, Kirby & Heliums, P.C., Birmingham; and Jimmy S. Calton, Sr., Eufaula, for petitioner.
    Lisa D. Van Wagner and Bart Harmon of Webb & Eley, P.C., Montgomery, for respondent.
   HOUSTON, Justice.

WRIT DENIED.

SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., dissents.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the denial of the petition for the writ of certiorari. Ted Romines’s mental predisposition to the on-the-job-injury, hypertension in this case, does not except his hypertension, a physical injury, from the definition of “injury” in the Workers’ Compensation Act.

“ ‘Preexisting diseases or other predisposition does not prevent compensability. The employer takes the worker as he finds him. It is not necessary that the employment conditions be the sole cause, or dominant cause, so long as they are a contributing cause.’ ”

Ex parte Valdez, 636 So.2d 401, 405 (Ala.1994) (quoting Arthur Larson, The Law of Workmen’s Compensation § 41.64(c) (1991)).

That hypertension can be a physical injury is evident from the majority opinion of the Court of Civil Appeals in this case, Eldeco, Inc. v. Romines, 884 So.2d 867 (Ala.Civ.App.2003). Footnote 4 of that majority opinion states:

“ ‘Hypertension’ is defined as ‘[hjigh blood pressure.’ Stedman’s Medical Dictionary 855 (27th ed.2000). The terms ‘hypertension’ and ‘high blood pressure’ are used interchangeably throughout this opinion.”

Romines, 884 So.2d at 873 n. 4. That majority opinion observes:

“During his testimony, Dr. Oakley read the following excerpt from his letter to the insurer:
“ ‘ “[Romines’s] hypertension ... is labile and severe enough that it affects his health physically. [Ro-mines’s] anxiety is severe enough that it creates a physical problem — reference his hypertension and chest pain.
“ ‘ “Mr. Romines’s primary disabling diagnosis is his anxiety complicated by depression. This exacerbates his hypertension and causes chest pain. This renders him unable to function and in my opinion, this is a permanent disability.” ’ ”

Romines, 884 So.2d at 873 (some emphasis original; some emphasis added; footnote 4 omitted). That majority opinion also discloses the mechanism of Romines’s injury:

“Dr. Oakley also stated that Romines’s ‘stress at work caused him to have the problems that [he] was experiencing,’ and that, although the stress did not cause the high blood pressure, it did cause ‘the high blood pressure to be much more difficult to control.’ Dr. Oakley concluded that the stress Ro-mines experienced on the job caused him to be disabled from performing his job.”

Romines, 884 So.2d at 873.


text:
    David Paul SKIEFF v. Joan COLE-SKIEFF.
    2010951.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2003.
    Rehearing Denied Oct. 24, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1030237.

      J. Michael Williams, Sr., Auburn, for appellant.
    D. Robert Stankoski, Jr., of Ham, Stan-koski, Stankoski & Zundel, LLP, Fairhope, for appellee.
   MURDOCK, Judge.

David Paul Skieff (“the husband”) appeals from an order of the Lee Circuit Court granting a Rule 60(b), Ala. R. Civ. P., motion for relief from a final judgment filed by Joan Cole-Skieff (“the wife”); the order set aside a default judgment that had been entered in favor of the husband on the divorce complaint he filed against the wife in Lee County.

The parties were married in 1995 in Florida, and they lived there until late 2001. In 1999, the parties began making payments on a parcel of land in Lee County that was adjacent to the residence of the husband’s family; the parties made their final payment on the land on May 25, 2001, at which time they owned the land outright. In June 2001, the couple purchased a mobile home and had it placed on the parcel of land. In August 2001, the husband moved into the mobile home in Alabama, taking most of the couple’s belongings with him in the move. The wife followed the husband to Alabama and moved into the mobile home in September 2001. She testified at the hearing on the Rule 60(b) motion that at that time she had intended to make the mobile home their permanent residence.

In November 2001, the parties separated after a domestic dispute occurred; the husband lived with his parents, while the wife continued to live in the mobile home. On December 1, 2001, the wife moved back to Florida to live with her parents; she testified that she had no intention at that point of returning to Alabama to live with her husband. On December 19, 2001, the husband filed a complaint for divorce in the Lee Circuit Court; the wife filed a complaint for divorce in Florida on the same date. On December 22, 2001, the wife was served with the complaint in the action filed by her husband; the husband testified that he was never served with the wife’s complaint in the divorce action she filed in Florida. On January 30, 2002, the husband filed a motion for a default judgment in the Lee County divorce action. The trial court entered a default judgment granting a final judgment of divorce on February 1, 2002.

On March 14, 2002, the wife filed a motion, pursuant to Rule 60(b), for relief from the final judgment of divorce. On April 26, 2002, a hearing was held on the motion in which the trial court considered both written and oral evidence; that hearing was continued, and it was concluded on May 13, 2002. On May 22, 2002, the trial court granted the wife’s motion for relief from the final judgment, finding that the husband had not been a resident of Alabama for six months prior to filing his complaint and that the wife was not a resident of Alabama at the time the husband filed his complaint; therefore, the trial court concluded that, pursuant to § 30-2-5, Ala.Code 1975, it did not have subject-matter jurisdiction to consider the husband’s complaint.

The husband appeals, contending that a portion of § 30-2-4, Ala.Code 1975, actually controls in this case and that therefore the complaint was properly filed in Lee County; he further contends that he satisfied the requirements of § 30-2-5 because he was a resident of Alabama for six months prior to filing the complaint.

“Where evidence is presented ore tenus, this court will not disturb a lower court’s judgment unless that judgment is palpably wrong, without supporting evidence, or manifestly unjust.” Seymour v. Seymour, 597 So.2d 1368, 1369 (Ala.Civ.App.1992). The major factual issue in this case involves the residency of the parties.

“The determination of whether the parties resided in [a certain county] is a factual question resolved by the trial court after a hearing of the evidence by the court. Such a finding is given a presumption of correctness and will not be disturbed by this court unless we can say it was plainly and palpably wrong.”

Ex parte Greene, 527 So.2d 1320, 1321 (Ala.Civ.App.1988).

Section 30-2-4 provides:

“Complaints for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides.”

Section 30-2-5 provides: “When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.” This court has held that “[ujnder Alabama law, the require-inent of ‘residency’ with respect to [§ 30-2-5] has been construed to mean that one’s ‘domicile’ must have been in Alabama for the preceding six months.” Andrews v. Andrews, 697 So.2d 54, 56 (Ala.Civ.App.1997).

“A person’s domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact.”

Ex parte Weissinger, 247 Ala. 113, 117, 22 So.2d 510, 514 (1945).

In analyzing the husband’s claims, we first review the trial court’s finding that the wife was a nonresident at the time the husband filed his complaint in Lee County. It is undisputed that the wife had moved back to Florida at the time the husband filed the complaint for divorce, and she testified that she intended to make Florida her residence from that point forward. That testimony is bolstered by the fact that the wife filed for divorce in Florida after she moved back there. Thus, at the time the husband filed the complaint, the wife was both physically residing in and had the intent to continue to reside in Florida, thereby meeting both requirements for establishing a domicile. There is nothing in the record contradicting this conclusion by the trial court.

Because the wife was a nonresident when the husband filed his complaint, § 30-2-5 is applicable to this case. That section mandates that when the defendant to the suit is a nonresident, in order to be permitted to file a divorce complaint in Alabama, the party filing the complaint must have been a resident of Alabama, i.e., domiciled in Alabama, for six months before filing his or her complaint. Consequently, the next step in analyzing the husband’s arguments is to evaluate the trial court’s finding that the husband was not domiciled in Alabama for six months prior to his filing the complaint. The husband filed his complaint on December 19, 2001, which means that, in order meet the requirement of § 30-2-5, he must have established a domicile in Alabama before June 19, 2001.

While the husband’s brief to this court notes that his complaint stated that he had been a resident of Lee County for six months, the record indicates otherwise. The husband testified that he and his wife had “every intention of moving up [to Alabama] as soon as [they] purchased the land [for the mobile home] in May [2001].... ” However, he also testified that he and his wife did not actually move to Alabama until September 2001, with the husband bringing their belongings in August and the wife following the husband to the residence in September. In other words, while the husband may have had the intent to make Alabama his domicile at least six months before filing his complaint, he did not actually reside in Alabama for that period of time before filing his complaint. Domicile, as previously stated, requires both intent to reside and actual residence. Thus, the trial court correctly concluded that the husband “was in fact domiciled in Alabama for approximately four (4) months at the time of the filing of his complaint for divorce on December 19, 2001.” Because the husband was not a resident of Alabama for six months before filing his complaint for divorce, and because the wife was a nonresident at the time the husband filed his complaint, § 30-2-5 dictates that the trial court did not have jurisdiction to entertain the husband’s divorce complaint.

The husband counters this conclusion by arguing that the portion of § 30-2-4 stating that “[c]omplaints for divorce may be filed ... in the circuit court of the county in which the parties resided when the separation occurred” permits him to file the divorce complaint in Lee County. It is undisputed that the parties separated while living in Lee County. The wife contends, however, that she was not a “resident” of Alabama at the time the couple separated, and in fact was never a resident of Alabama, but a resident of Florida. However, this claim is directly contradicted by the wife’s own testimony, in which she stated that she intended to make the mobile home in Lee County her residence when she moved there to live with her husband. The facts that the couple had been paying for the parcel of land in Lee County for a year and a half prior to moving there, that they had purchased a $28,000 mobile home, and that the husband and wife had moved all of their belongings from their residence in Florida to the mobile home support the wife’s testimony that she intended to make Lee County her place of permanent residence. Thus, the wife’s claim that she was not “residing” in Lee County when the couple separated is not supported by the record.

Because both parties were residing in Lee County when the separation occurred, the husband maintains that § 30-2-4 permitted him to file his divorce complaint in Lee County.

However, interpreting any clause of § 30-2-4 to permit the husband to file his divorce complaint in Alabama places it in conflict with § 30-2-5 on the facts of this case. “Statutes should be construed together so as to harmonize the provisions as far as practical.” Ex parte Jones Mfg, Co., 589 So.2d 208, 211 (Ala.1991). As noted above, § 30-2-5 does not permit the husband to file his divorce complaint in Alabama because he did not reside in Alabama for six months before filing the complaint. Yet, under the husband’s argument — that the second clause of § 30-2-4 is controlling — the husband would be permitted to file his divorce complaint in Lee County, the county where the parties resided when their separation occurred.

Such a reading misconstrues the nature of the two statutes. Section 30-2-5 relates to subject-matter jurisdiction of divorce complaints. See, e.g., Livingston v. Livingston, 835 So.2d 1021, 1023 (Ala.Civ.App.2002) (“For a trial court to gain jurisdiction over the marital res, the complaining party must have been a resident of Alabama for six months before filing a complaint of divorce. See § 30-2-5, Ala.Code 1975.” (Emphasis added.)). Section 30-2-4 describes where venue should lie in divorce actions. See, e.g., Ex parte Moss, 278 Ala. 628, 632, 179 So.2d 753, 757 (1965) (“[Section] 28, Title 34, Code 1940 [the predecessor to § 30-2-4], is for the benefit of ‘the parties’ and may be waived since it relates to venue as distinguished from jurisdiction of the subject matter.” (Emphasis added.)).

“Statutes as to jurisdiction of necessity pertain and relate to the tribunal, court, or officer who is to exercise the jurisdiction conferred. These statutes, of course, as the one in question, may relate to territorial jurisdiction, as well as to that of the person or of the subject-matter. Venue statutes, however, do not relate to jurisdiction, territorial, personal, or of the subject-matter; they are intended to apply, and do merely apply, to direct in which one of the several tribunals, each and all of which have jurisdiction, the trial shall be had, or at which one of several places the trial shall be had, when one tribunal, court, or officer exercises the same jurisdiction at several places. If a tribunal, court, or officer has no jurisdiction or power to try a case at a given place, or at any place, then there can be no room or reason for a statute as to venue. The act or judgment in such a case is absolutely void, even on collateral attack, if the want of jurisdiction appears on the face of the proceeding. It is only when the tribunal, court, or officer has the jurisdiction or power to proceed or to act at several different places that a statute as to venue can have any excuse for existence. The venue statute, of course, presupposes that the tribunal, court, or officer has jurisdiction or power to proceed or act at different places, and then the sole purpose and effect of the statute as to venue is to direct at which of these several places the jurisdiction in the particular case may be exercised.”

Southern Ry. Co. v. Fitzpatrick, 195 Ala. 328, 330-31, 70 So. 164, 165 (1915) (Mayfield and Thomas, JJ., dissenting) (emphasis added). In short, a venue statute cannot confer jurisdiction where a jurisdictional statute provides that no jurisdiction exists. Thus, because § 30-2-5 deprives the trial court of jurisdiction to entertain the husband’s divorce complaint, § 30-2^4 cannot be interpreted to permit the husband to file the complaint in Alabama.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ„ concur.

      . Similarly, in construing Title 34, § 28, Ala. Code 1940, the predecessor to § 30-2-4, our Supreme Court has stated:
      "The word 'resides' as used in [Title 34, § 28, Ala.Code 1940, the predecessor to § 30-2-4,] means legal residence and is equivalent to domicile. The terms, as employed, are synonymous and denote the place where the person is deemed in law to live, which may not always be the place of one’s actual dwelling, and are to be contra-distinguished from temporary abode.”

        Ex parte Weissinger, 247 Ala. 113, 117, 22 So.2d 510, 513 (1945).

      . In addition to the explanation set forth below as to why the husband’s position is without merit, that position arguably conflicts with the holding of our Supreme Court in Ex parte Moss, 278 Ala. 628, 179 So.2d 753 (1965) (holding that the last clause of the similarly worded predecessor to § 30-2-4 stands alone and spells out where divorce suits against nonresidents are to be filed).


author: BASCHAJB, Judge.

text:
    Patricia Norman BERTRAM v. STATE.
    CR-00-2277.
    Court of Criminal Appeals of Alabama.
    Dec. 21, 2001.
    Rehearing Denied Jan. 18, 2002.

      Thomas M. Haas, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BASCHAJB, Judge.

The appellant, Patricia Norman Bertram, pled guilty to felony driving under the influence (“felony DUI”), a violation of § 32-5A-191(a)(2) and (h), Ala.Code 1975, and misdemeanor leaving the scene of an accident, a violation of § 32-10-1, Ala. Code 1975. The circuit court sentenced her to serve a term of five years in prison on the felony DUI conviction, but split the sentence and ordered her to serve two years in prison followed by five years on supervised probation. It also sentenced her to serve a concurrent term of one year in the county jail on the leaving the scene of an accident conviction. Finally, it imposed a $4,100 fine on the felony DUI conviction. This appeal follows.

The appellant argues that, because she was originally charged with misdemeanor DUI, the municipal court improperly transferred her cases for prosecution in the circuit court. She also argues that the circuit court improperly used a prior DUI conviction from the State of Florida to enhance her sentence on her DUI conviction. The appellant bases her arguments on a contention that only prior convictions pursuant to § 32-5A-191, Ala.Code 1975, may be used to enhance a sentence for a conviction pursuant to § 32-5A-191, Ala.Code 1975. We disagree.

“ ‘Where, as here, this Court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained.’ Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985). ‘[T]he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.... In construing the statute, this Court should gather the intent of the legislature from the language of the statute itself, if possible .... We may also look to the reason and necessity for the statute and the purpose sought to be obtained by enacting the statute.’ Pace v. Armstrong World Industries, Inc., 578 So.2d 281, 283 (Ala.1991). ‘If possible, the intent of the legislature should be gathered from the language of the statute itself. However, if the statute is ambiguous or uncertain, the Court may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another.’ Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala.1991).”

Carroll v. State, 599 So.2d 1253, 1264 (Ala.Crim.App.1992), aff'd, 627 So.2d 874 (Ala.1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994).

Section 32-5A-191, Ala.Code 1975, provides, in pertinent part:

“(a) A person shall not drive or be in actual physical control of any vehicle while:
“(2) Under the influence of alcohol;
“(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years.”

Section 32-5A-191, Ala.Code 1975, does not specifically state that only convictions pursuant to that section may be used to enhance a sentence for a conviction pursuant to that section. However, the Commentary to § 32-5A-191, Ala.Code 1975, states, in part:

“The purpose of this section is not only to bring the law on driving while intoxicated in line with the most recent advances made in other states to achieve something closer to uniform treatment with our sister states, but also to make DUI statutes more enforceable and to do a better job of helping identify the problem of the drinking driver and to keep him off the highway.”

Clearly, the Legislature has concluded that people who drive while they are intoxicated pose a threat to society. Accordingly, it has stated that its purpose in passing § 32-5A-191, Ala.Code 1975, was threefold: 1) to help make the treatment of people who drive while they are intoxicated in Alabama more consistent with the treatment of such people in sister states; 2) to help identify people who drive while they are intoxicated; and 3) to keep people who drive while they are intoxicated off of the highways.

The narrow reading of § 32-5A-191, Ala.Code 1975, that the appellant encourages would be contrary to the Legislature’s express intent to expand, rather than to constrict, the enforcement of DUI laws. Such a reading might also encourage people who drive while they are intoxicated to move from jurisdiction to jurisdiction to avoid more severe punishment for subsequent convictions. We reject such a narrow interpretation of § 32-5A-191, Ala. Code 1975. Rather, just as we have concluded that felony convictions from other jurisdictions may be used to enhance sentences pursuant to the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, see, e.g., Watson v. State, 392 So.2d 1274 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981), we conclude that DUI convictions from other jurisdictions may be used to enhance a sentence for a conviction pursuant to § 32-5A-191, Ala. Code 1975. Therefore, the circuit court properly used the appellant’s prior DUI conviction from the State of Florida to enhance her sentence. Furthermore, because the appellant had three prior DUI convictions that could properly be used to enhance her sentence, the municipal court properly transferred her case for prosecution in the circuit court. See State v. Thrasher, 783 So.2d 103, 107 (Ala.2000); Ex parte Formby, 750 So.2d 587 (Ala.1999). Accordingly, the appellant’s arguments are without merit, and we affirm the circuit court’s judgment.

AFFIRMED.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

      . To the extent the appellant may argue that the transfer violated her right to a speedy trial, her argument is not properly before this court because she did not first present it to the circuit court. See Harris v. State, 705 So.2d 542 (Ala.Crim.App.1997).

      . When she entered her guilty pleas, the appellant specifically reserved her right to raise these issues on appeal. See Prim v. State, 616 So.2d 381 (Ala.Crim.App.1993).


author: JOHNSTONE, Justice. STUART, Justice

text:
    Ex parte Patricia Norman BERTRAM. (In re Patricia Norman Bertram v. State of Alabama).
    1010892.
    Supreme Court of Alabama.
    March 7, 2003.
    Rehearing Denied Nov. 21, 2003.

      Thomas M. Haas, Mobile, for petitioner.
    William H. Pryor, Jr., atty. gen., and Andy S. Poole and Yvonne A.H. Saxon, asst, attys. gen., for respondent.
   JOHNSTONE, Justice.

The defendant Patricia Norman Bertram was convicted of violating Subsections (a)(2) and (h) of Section 32-5A-191, Ala.Code 1975, “felony driving under the influence.” The Court of Criminal Appeals affirmed in an opinion, Bertram v. State, 884 So.2d 886 (Ala.Crim.App.2001).

We granted Bertram’s petition for a writ of certiorari to address a single question of first impression: whether Subsection (h) of Section 32-5A-191 means for prior out-of-state convictions for driving under the influence of alcohol to count toward the total of convictions necessary to constitute the felony defined by that subsection. We reverse and remand because traditional rules of statutory construction do not allow that interpretation.

After reserving her right to appeal the adverse rulings of the trial court on the issue now before us, the defendant pleaded guilty to Count I of the indictment, which charged, in pertinent part, that she “did, on or about September 22, 2000, drive or have actual physical control of a vehicle, while [she] was under the influence of alcohol, in violation of § 32-5A-191(a)(2) and (h) of the Code of Alabama.... ” She admitted that she was under the influence of alcohol while she was driving on September 22, 2000. The State then proffered three prior convictions for driving under the influence of alcohol. The defendant challenged only one of them. Her ground was that the challenged prior conviction was not an Alabama conviction for violating Section 32-5A-191 but was, rather, a Florida conviction for violating a Florida driving-under-the-influence-of-alcohol statute and therefore was not a conviction within the meaning of Subsection (h) of Section 32-5A-191, defining the felony charged against her. The trial court rejected the defendant’s challenge, counted the Florida conviction, and convicted the defendant of the Subsection (h) felony.

Section 32-5A-191 reads, in pertinent part:

“(a) A person shall not drive or be in actual physical control of any vehicle while:
“(2) Under the influence of alcohol;
“(e) Upon first conviction, a person violating this section shall be punished by [stating the penalty].
“(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by [stating the penalty].
“(g) On a third conviction, a person convicted of violating this section shall be punished by [stating the penalty],
“(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].” (Emphasis added.)

The only kind of convictions mentioned by Section 32-5A-191 are convictions for “violating this section.” Section 32-5A-191 nowhere mentions any kind of conviction except a conviction for “violating this section.” The text of Section 32-5A-191 nowhere mentions generic convictions for “driving under the ■ influence,” much less out-of-state generic convictions under out-of-state statutes.

‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”

IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). “ ‘[I]t is well established that criminal statutes should not be “extended by construction.” ’ ” Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (quoting Ex parte Evers, 434 So.2d 813, 817 (Ala.1983), quoting in turn Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973)).

“A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
“Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).
“One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing [Young v. State], 58 Ala. 358 (1877).
“No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.”

Clements v. State, 370 So.2d 723, 725 (Ala.1979) (quoted in whole or in part in Ex parte Murry, 455 So.2d 72, 76 (Ala.1984), and in Ex parte Walls, 711 So.2d 490, 494 (Ala.1997)) (emphasis added).

‘Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used ....’ United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936). See also, Ex parte Evers, 434 So.2d 813, 816 (Ala.1983); Fuller v. State, 257 Ala. 502, 60 So.2d 202, 205 (1952).”

Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993) (emphasis added). “[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993).” Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000) (emphasis added). The “rule of lenity requires that ‘ambiguous criminal statute[s] ... be construed in favor of the accused.’ ” Castillo v. United States, 530 U.S. 120, 131, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (paraphrasing Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)).

We read Section 32-5A-191 according to these traditional, well-settled rules of statutory construction. At the very least in favor of the defendant before us, an eminently reasonable construction of this section is that the word conviction means conviction of violating this section everywhere the word conviction appears within the section, including where the word conviction appears in Subsection (h) defining the felony. Such a construction would require that Subsection (h) be read to mean “On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].” The rules of statutory construction we have quoted require us to adopt this construction rather than the construction urged by the State to the effect that “On a fourth or subsequent conviction [of violating any driving-under-the-influence statute of any state ], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].” The construction urged by the State contains an internal inconsistency, extends the purview of the statute beyond its express text, and construes any ambiguity against the defendant and in favor of the State, all contrary to the traditional, well-settled rules of statutory construction.

In the case before us, the defendant’s prior Florida conviction is not a conviction of violating Section 32-5A-191. Therefore the trial court erred in counting the Florida conviction toward the total of convictions necessary to constitute the Subsection (h) felony and erred in convicting the defendant on that basis, and the Court of Criminal Appeals erred in affirming the defendant’s conviction. Accordingly, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, LYONS, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., dissent.

STUART, Justice

(dissenting).

I dissent from the majority’s holding that the judgment in this case must be reversed and the case remanded. I disagree with the majority’s reasoning that the “traditional rules of statutory construction” interpreting § 32-5A-191, Ala.Code 1975, prevent the use of an out-of-state conviction for driving under the influence of alcohol or a controlled substance in determining the appropriate sentence for a conviction pursuant to § 32-5A-191(f), (g), or (h).

As the Court of Criminal Appeals has stated:

‘Although criminal statutes must be strictly construed in favor of those sought to be subject to their operation, the interests of justice demand that criminal statutes not be construed irresponsibly. In construing a statute this court has an obligation to ensure that such construction is in line with common sense and practicality of application.’ Donley v. City of Mountain Brook, 429 So.2d 603, 607 (Ala.Cr.App.1982). See, also, Nobis v. State, 401 So.2d 191 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (1981).
“In a similar vein, this court noted in Mayberry v. State, 419 So.2d 262, 265 (Ala.Cr.App.1982) that ‘the construction [of a statute] should not defeat the obvious intent of the legislature, [citation omitted] or destroy the spirit and force of the law the legislature intended to enact.’ See, also, § 13A-1-6, Code of Alabama 1975.”

Darby v. State, 516 So.2d 775, 783 (Ala.Crim.App.1985)(bracketed language in original; emphasis added). See also Whatley v. Town of Priceville, 672 So.2d 1378, 1381 (Ala.Crim.App.1995).

Section 32-5A-191, Ala.Code 1975, addresses the offense of driving under the influence of alcohol and the appropriate punishments for that offense. The section is entitled “Driving while under influence of alcohol, controlled substances, etc.” It is contained in Article 9, which is entitled “Serious Traffic Offenses.” The elements of the offense of driving under the influence of alcohol or a controlled substance are defined in § 32-5A-191(a). Subsections (e), (f), (g), and (h) provide the sentence-enhancement provisions.

Act No. 95-784, Ala. Acts 1995, amended § 32-5A-191, Ala.Code 1975, to, among other things, lower the blood-alcohol level at which one is prevented from operating a vehicle from .10 percent to .08 percent. The preamble to Act No. 95-784 specifically states,

“Relating to the offenses of driving a vehicle while under the influence of alcohol or a controlled substance; to amend Section 32-5A-191, Code of Alabama 1975, so as to increase the fines for such offenses and to lower the blood alcohol level at or above which a person is prohibited from operating a motor vehicle from 0.10 to 0.08 percent-”

(Emphasis added.) Act No. 95-784 specifically provided:

“Be It Enacted by the Legislature of Alabama:
“Section 1. The Legislature finds, determines, and declares the following:
“(1) Driving a vehicle while under the influence of alcohol or a controlled substance continues to be a major problem on the highways of our state and causes the death or injury of thousands of our citizens each year.
“(2) The Legislature should use whatever authority is available to it to discourage driving a vehicle while under the influence of alcohol or a controlled substance, including the levying of fines therefor at a level which will discourage such activity.
“(9) This act should be liberally construed to accomplish its purposes and to promote the policies contained therein which are declared to be the public policy of this state.”

(Emphasis added.) This policy — to deter individuals from repeatedly driving a vehicle while under the influence of alcohol or a controlled substance — is reiterated in the preamble to Act No. 2000-677, Ala. Acts 2000, another act amending § 32-5A-191. Act No. 200-677 specifically states that its purpose is as follows:

“To amend Section 32-5A-191, relating to driving under the influence of alcohol or a controlled substance; to increase the penalties for second and subsequent DUI convictions; to increase the minimum days of imprisonment or, in lieu thereof, community service days that may be imposed on second DUI offenders; to provide for mandatory minimum days of confinement for fourth DUI offenders; and to provide for the suspension of the motor vehicle registration of all vehicles owned by a repeat DUI offender.”

(Emphasis added.)

The Legislature’s intent in creating the offense of driving under the influence of alcohol or a controlled substance is clear and unambiguous. This State has a valid interest in deterring conduct that risks the safety and lives of its citizens. Individuals who repeatedly drive on our roadways while under the influence of alcohol or a controlled substance endanger our citizens and shall be punished. The Legislature has determined that to deter the individual from repeatedly engaging in such dangerous conduct and to protect this State’s citizens a defendant’s punishment for driving under the influence of alcohol or a controlled substance must increase with each conviction.

The majority’s holding unnecessarily thwarts the objective of the Legislature. In my opinion the majority abandons a common-sense interpretation and practical application of the statute, inserts words into the statute that are not mandated, and construes the language of the statute directly opposite to the intent of the Legislature and to the common understanding of a reasonable person, even the accused.

The majority concludes that “[t]he only kind of convictions mentioned by Section 32-5A-191 are convictions for ‘violating this section.’ ” To reach this conclusion, the majority necessarily inserts the bracketed language into the statute:

“(e) Upon first conviction [of violating this section], a person violating this section shall be punished....
“(f) On second conviction [of violating this section] within a five-year period, a person convicted of violating this section shall be punished....
“(g) On a third conviction [of violating this section], a person convicted of violating this section shall be punished....
“(h) On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by....”

The majority reasons that the addition of the bracketed language into the introductory phrase is “eminently reasonable” in light of the phrase “violating this section” that appears in the independent clause. I disagree.

The purpose of the language “violating this section” in the independent clauses in subsections (e), (f), (g), and (h) is to identify the present offense for which a defendant is being charged — a violation of § 32-5A-191(a), Ala.Code 1975. The introductory phrases in those subsections determine the type of offense — misdemeanor or felony — and the defendant’s punishment. Indeed, the introductory phrases in those subsections provide the sentence-enhancement provisions for a conviction for driving under the influence of alcohol or a controlled substance. Ex parte Parker, 740 So.2d 432, 434 (Ala.1999). The Legislature in those introductory phrases did not limit to Alabama convictions the use for enhancement purposes of prior convictions for driving under the influence of alcohol or a controlled substance; neither did it prohibit the use of non-Alabama convictions. Cf. State v. Rea, 865 S.W.2d 923 (Tenn.Crim.App.1992)(holding that the Tennessee DUI statute did not limit the use of prior convictions for enhancement purposes to Tennessee DUI convictions only).

Additionally, I note that the language in § 32-5A-191, Ala.Code 1975, does not contain “words of art” that may require the use of only Alabama convictions. As the Oregon Court of Appeals in State v. Thomas, 34 Or.App. 187, 578 P.2d 452 (1978), explained when determining that Oregon’s driving-under-the-influence-of-alcohol statute could not be interpreted to include the use of out-of-state convictions:

“The state also maintains that a construction of ORS [Oregon Revised Statute] 484.365 to include prior foreign convictions is supported by an examination of analogous provisions of the criminal code, i.e. the ‘ex-convict in possession’ statute, ORS 166.270, and the ‘dangerous offender’ statute, ORS 161.725. However, as the state acknowledges, both statutes now expressly provide that foreign convictions are included in the terms of the statute.
“Prior to 1975, ORS 166.270 did not expressly include foreign convictions. In State v. Jones, 4 Or.App. 447, 452, 479 P.2d 1020 (1971), this court held that a prior conviction of a felony in another state was within the terms of the former statute. However, Jones is distinguishable from the situation here because the issue was the interpretation of what constitutes a prior ‘felony.’ The term ‘felony’ is one of general application which can be defined by resort to the statute of the other jurisdiction. This is in contrast to the terms ‘traffic infraction’ and ‘traffic crime’ used in ORS 484.365 which have neither general application nor are defined in other statutes.”

34 Or.App. at 193-195, 578 P.2d at 456 (footnotes omitted). Here, we are interpreting the word “conviction,” which has general application.

I agree with the majority that criminal statutes should not be extended by construction. However, the majority’s interpretation of the statute rejects the basic meaning of the words of the statute to construe it in favor of the defendant. A person is convicted of an offense. See Watson v. State, 392 So.2d 1274, 1278 (Ala.Crim.App.1980). The Legislature specifically identified in § 32-5A-191(a), Ala. Code 1975, the elements of the offense of driving under the influence of alcohol or a controlled substance that must be proven to sustain a conviction. The Legislature also specifically set forth the punishment for individuals who repeatedly engage in driving under the influence of alcohol or a controlled substance. § 32-5A-191(f), (g), and (h), Ala.Code 1975. I think it is “eminently reasonable” to conclude that the Legislature did not intend to exclude out-of-state convictions for driving under the influence of alcohol in .determining the. appropriate punishment for one driving on the highways of this State in an intoxicated state. The purpose behind the enactment of Alabama’s driving-under-the-influence-of-alcohol statute and the Legislature’s instruction to liberally construe the statute supports this conclusion. To insert “under this section” in the introductory phrases in those subsections defeats the ability of this statute to deter repeat offenders. As we stated, in Garrison v. Sumners, 223 Ala. 17, 18, 134 So. 675, 676 (1931):

“It is a fundamental rule of construction that penal statutes must be strictly construed, but should not be subjected to strained or unnatural construction in order to work exemption from their penalties. On the other hand, such statutes are not to be extended by construction. ‘While we disclaim the right to extend a criminal statute to cases out of its letter, yet we hold it to be our duty to apply it to every case clearly within the cause or mischief of making it, when its words are broad enough to embrace such case.’

(Emphasis added; citations omitted.) See also Holmes v. Lambreth, 163 Ala. 460, 50 So. 140 (1909); and Grantland v. State, 8 Ala.App. 319, 62 So. 470 (1913).

It appears ludicrous to me that a defendant would believe that the enhancements referred to in § 32-5A-191 are directed toward a conviction only under the Alabama statute and not toward any conviction for the act of driving a vehicle while under the influence of alcohol or a controlled substance. To so argue abandons common sense, ignores the plain meaning of the statute’s words, and unjustly limits the ability of the statute to address an offense the people of the State of Alabama find reprehensible.

The Legislature, in enacting § 32-5A-191, Ala.Code 1975, intended to prevent individuals from repeatedly driving their vehicles while under the influence of alcohol or a controlled substance. In this case, Bertram was convicted of driving under the influence of alcohol. The category of the offense and the level of punishment was determined by the number of prior convictions she had for driving under the influence of alcohol or a controlled substance. Whether the previous convictions for driving under the influence of alcohol were Alabama convictions or convictions from another state is a distinction without a difference. The language of our statute is broad enough to include the use of out-of-state convictions as sentence enhancements. Therefore, I respectfully dissent.

MOORE, C.J., and SEE and BROWN, JJ., concur.