text:
    COLONIAL MANAGEMENT GROUP, L.P. v. STATE HEALTH PLANNING AND DEVELOPMENT AGENCY et al.
    2010797.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2002.

      Lenora W. Pate, Charles R. Driggars, and Cynthia Ransburg-Brown of Sirote & Permutt, P.C., Birmingham, for appellant.
    Mark D. Wilkerson and Keith S. Miller of Brantley, Wilkerson & Bryan, P.C., Montgomery, for appellee.
   THOMPSON, Judge.

Colonial Management Group, L.P. (“Colonial”), appeals from a judgment of the circuit court affirming the decision of the State Health Planning and Development Agency Certificate of Need Review Board (“CONRB”) granting an application filed by Tuscaloosa Treatment Center Associates, L.L.C. (“TTC”), for a certificate of need (“CON”) to construct and operate a methadone clinic in Livingston, Alabama.

On August 4, 2000, TTC submitted to the State Health Planning and Development Agency (“SHPDA”) a letter of intent to file a CON application. See Ala. Admin. Code (SHPDA Rules and Regulations) Reg. 410-1-7-.05. On October 10, 2000, TTC filed its CON application; SHPDA deemed the application complete on October 25, 2000. See SHPDA Reg. 410-1-7-.06 and -.08. After TTC’s CON application was deemed complete, Colonial filed a statement of intervention and requested that SHPDA conduct a contested-case hearing on TTC’s CON application. See SHPDA Reg. 410-1-9-.03. An administrative law judge (hereinafter “the ALJ”) was appointed and a contested-case hearing was held on March 21, 2001. The ALJ heard the testimony of witnesses on behalf of TTC and Colonial and received documentary evidence in support of TTC’s application. After the contested case hearing, on June 6, 2001, the ALJ submitted a recommended order to the CONRB suggesting that the CONRB deny TTC’s CON application.

Pursuant to SHPDA Reg. 410-1-8-.05(2), TTC filed written exceptions to the ALJ’s June 6, 2001, recommended order. Colonial responded. On July 17, 2001, the CONRB held a hearing on TTC’s CON application. On July 31, 2001, the CONRB entered an order granting TTC’s CON application. Colonial filed a request for a rehearing. See SHPDA Reg. 410-1-8-.09. On October 3, 2001, the CONRB denied Colonial’s request for a rehearing. Colonial filed a request to stay the CONRB’s order pending an appeal; the CONRB denied Colonial’s request. Colonial appealed to the Montgomery Circuit Court (hereinafter “the trial court”). The trial court held a hearing on February 19, 2002. On March 29, 2002, the trial court entered a judgment affirming the CONRB’s decision. Colonial appealed.

This court reviews a trial court’s judgment regarding the decision of an administrative agency “without any presumption of its correctness, since [the trial] court was in no better position to review the [agency’s decision] than” this court. State Health Planning & Res. Dev. Admin. v. Rivendell of Alabama, Inc., 469 So.2d 613, 614 (Ala.Civ.App.1985). Under the Alabama Administrative Procedure Act (“AAPA”), § 41-22-1 et seq., Ala.Code 1975, which governs judicial review of agency decisions,

“[e]xcept where judicial review is by trial de novo, the agency order shall be taken as 'prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

§ 41-22-20(k), Ala.Code 1975 (emphasis added). In reviewing the decision of a state administrative agency, “[t]he special competence of the agency lends great weight to its decision, and that decision must be affirmed, unless it is arbitrary and capricious or not made in compliance with applicable law.” Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993). “The weight or importance assigned to any given piece of evidence presented in a CON application is left primarily to the [CONRB’s] discretion, in light of the [CONRB’s] recognized expertise in dealing with these specialized areas.” State Health Planning & Dev. Agency v. Baptist Health Sys., Inc., 766 So.2d 176, 178 (Ala.Civ.App.1999). Neither this court nor the trial court may substitute its judgment for that of the administrative agency. Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993). “This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.” Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App.1989). Further, “an agency’s interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.” Sylacauga Health Care Ctr., Inc. v. Alabama State Health Planning Agency, 662 So.2d 265, 268 (Ala.Civ.App.1994).

Colonial first asserts that the trial court erred in that it applied the wrong standard to its review of the CONRB’s order. Pursuant to the AAPA, § 41-22-20(k), Ala. Code 1975, an agency’s order is presumed “just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” Colonial asserts that there is an exception to the “just-and-reasonable” standard of review when the CONRB rejects the ALJ’s recommended findings and issues an order contrary to the ALJ’s recommended order. Colonial asserts that before it can reject the ALJ’s recommendation, the CONRB must rely on substantial evidence stronger than that upon which the ALJ relied. In support of this assertion, Colonial cites this court’s decision in Forest Manor, Inc. v. State Health Planning & Development Agency, 723 So.2d 75 (Ala.Civ.App.1998). Before discussing the details of that case, this court notes that that case was decided before the enactment of Act No. 98-341, Ala. Acts 1998, “the Freeman Act,” which significantly amended the provisions of the Alabama Code related to SHPDA.

In Forest Manor, Inc. v. State Health Planning & Development Agency, supra, Forest Manor, along with five other health-care providers, submitted applications for a CON to provide nursing-home services in Baldwin County. One of the health-care providers that submitted an application requested that a contested-case hearing be held on all of the applications, and a contested-case hearing was held before an ALJ pursuant to SHPDA Reg. 410-1-7-.15 and Reg. 410-1-8-.02. Following the hearing, the ALJ submitted an order recommending that the CONRB deny Forest Manor’s CON application. The CONRB rejected the ALJ’s recommendation and granted Forest Manor’s CON application. The CONRB’s decision was appealed for a fair hearing pursuant to § 22-21-275(14), Ala.Code 1975 (now amended). The fair-hearing officer issued an order reversing the CONRB’s order. Forest Manor appealed to the circuit court. The circuit court affirmed the fair-hearing officer’s order denying Forest Manor’s CON application. Forest Manor appealed to this court.

The parties in Forest Manor, Inc. v. State Health Planning & Development Agency did not dispute that upon review, the decision of an agency is entitled to deference, is presumed correct, and will not be reversed unless the decision was arbitrary, capricious, or not in compliance with applicable law. Forest Manor, Inc. v. State Health Planning & Dev. Agency, 723 So.2d at 79. However, the parties did dispute to which decision this deferential standard applied. Id. This court held that “ ‘[t]he decision of the fair hearing officer [was] the final decision of [the SHPDA].’ ” Forest Manor, Inc. v. State Health Planning & Dev. Agency, 723 So.2d at 79 (quoting Methodist Homes for the Aging Corp. v. Stewart, 594 So.2d 161, 163 (Ala.Civ.App.1992)). Thus, this court concluded, the fair-hearing officer’s decision rather than the CONRB’s decision was entitled to a presumption of correctness on appeal. Id.

However, as previously stated, this court’s decision in Forest Manor, Inc. v. State Health Planning & Development Agency was decided before the Freeman Act amended certain provisions of §§ 22-21-270, -274, and -275 Ala.Code 1975. One of the changes to those provisions eliminated the mandatory requirement of requesting a fair hearing or applying for a rehearing before the CONRB as a condition precedent to the judicial review of a CONRB’s decision. § 22-21-275(6) and (12), Ala.Code 1975. The Freeman Act’s amendments to the Alabama Code sections related to SHPDA became effective in 1998. Thus, because, after the effective date of the Freeman Act, a party seeking a CON is no longer required to appeal the CONRB’s decision to a fair-hearing officer, the decision of a fair-hearing officer may no longer be the “final decision of [the SHPDA]” in all cases. Under the current statutory provisions, if a party does not seek a fair hearing before it appeals the CONRB’s decision to the circuit court, the CONRB’s decision becomes the final decision of SHPDA; thus, the CONRB’s order is the decision of the SHPDA that is entitled to a presumption of correctness on appeal.

Further, this court has rethought its holding that the CONRB’s decision is subject to a higher standard of review when it rejects the recommended order of the ALJ; we now believe that that part of the holding in Forest Manor, Inc. v. State Health Planning & Development Agency was wrongly decided. The contested-case hearing in Forest Manor, Inc. was tried before the ALJ pursuant to SHPDA Reg. 410-1-8-.02. That regulation provides that, following the contested-case hearing, the ALJ must make a recommendation to the CONRB to approve or deny the CON application. Pursuant to SHPDA Reg. 410-1-8-.05, the CONRB must accept or reject ALJ’s recommendation by a majority vote. In his dissent in Forest Manor, Inc., Judge Crawley properly stated that “the ALJ’s recommendation is not a binding order on the parties, and the SHPDA regulations do not require that the CONRB give any deference to an ALJ’s recommendation. See SHPDA Reg. 410-1-8-.05.” Forest Manor, Inc. v. State Health Planning & Dev. Agency, 723 So.2d at 82 (Crawley, J., dissenting, joined by Thompson, J.). As in this case, many CONRB decisions involve an analysis of statistical and demographic data that is unaffected by an assessment of witness credibility and demeanor. However, we would note that there is merit to the notion that when an ALJ has conducted an ore tenus proceeding and is the only administrative official to have had the opportunity to observe the witnesses and evaluate their credibility and demeanor, there should be “at least some degree of deference to the hearing officer’s findings when conflicting testimony and demeanor evidence are involved.” See Personnel Board v. King, 456 So.2d 80, 82 (Ala.Civ.App.1984). Thus, where there is substantial evidence, other than a witness’s ore tenus testimony and demean- or, that is probative of the witness’s credibility or lack thereof, that evidence may be considered by the CONRB and the CONRB is free to rule consistently with such other evidence. However, we would note that when the only substantial evidence as to the credibility of a witness is the witness’s own testimony and demeanor at an ore tenus proceeding conducted by an ALJ, a CONRB that has not seen or heard the witness testify would have no basis, other than the ALJ’s findings, upon which to assess the credibility of the witness. Thus, where the credibility or lack of credibility of the witness is material to the outcome of a contested case, the fact that the only available evaluation of the witness’s credibility comes from the ALJ’s proposed findings should have to be considered in evaluating whether the CONRB’s ultimate decision is supported by substantial evidence.

This court concludes that under the facts of this case, pursuant to the SHPDA regulations, it is within the CONRB’s discretion to accept or reject the ALJ’s recommendation. See SHPDA Reg. 410-1-8-.05. Further, in a case such as this where the CONRB’s order is the final decision of SHPDA, the CONRB’s order is entitled to a presumption of correctness on appeal. Thus, this court’s review of the CONRB’s decision is deferential. This court, in eon-sidering the other evidentiary issues raised on appeal, will not reverse the CONRB’s order unless it is arbitrary, capricious, or not in compliance with applicable law. See § 22-21-275(6) and (12), Ala.Code 1975; Alabama Renal Stone Inst., Inc. v. Statewide Health Coordinating Council, supra.

Colonial argues that the trial court erred in affirming the CONRB’s order because, it says, the order was inconsistent with the current applicable State Health Plan (“SHP”). Before granting a CON application for a methadone-treatment facility, the CONRB must determine, among other things, that the application for the proposed health-care facility, service, or capital expenditure is consistent with the SHP that was effective when SHPDA received the application for the CON. § 22-21-268, -264, and -266 Ala.Code 1975; SHPDA Reg. 410-6-1-.02. The current SHP, the 1996-1999 SHP, is codified in Chapter 410 of the Alabama Administrative Code, specifically at SHPDA Reg. 410-2-1-.01 through 410-2-5-.05 (2002). As related to methadone-treatment facilities, the SHP states, in pertinent part:

“(3) Methadone Treatment
“(a) Prior to June 1991 Alabama operated two methadone clinics in Birmingham and in Mobile, both of which were operated through a DMH/MR contract. These clinics are part of the UAB Mental Health Center and the Mobile Mental Health Center. The average number of clients served in any given month never exceeded 380 of which fewer than 5% were clients from out of state.
“(b) From June 1991 until September 30, 1995 the number of climes has grown to a total of 13 statewide. The number of clients in any given month by the 11 private clinics averages over 1,200. Approximately 40% of the clients are from the surrounding states of Tennessee, Mississippi, Georgia, and Florida. For this reason, it would appear that the location of these clinics have been strategically located close to each of these state lines. The DMH/MR has pending applications requesting certification for an additional eight clinics and has been contacted about the prospects of an additional six new applications. If all these were made operational, there would be a total of 27 clinics in the state of Alabama — an increase of 1250% in the number of such climes in the last 5 years.
“(c) The proliferation of these clinics has become a major public health care policy issue and consequently requires examination to determine the overall need for such clinics throughout the state. Since these clinics are health care facilities which dispense medications, they are subject to the certificate of need process. All new clinics must file for a certificate of need. In order to determine a methodology by which to project the need for methadone treatment and maintenance for the citizens of Alabama, the Statewide Health Coordinating Council recommends a two year moratorium on any new clinics not now operational.”

Ala. Admin. Code (SHPDA) Reg. 410-2-4-.11.

Colonial asserts that the location of TTC’s facility and the potential use of the facility by out-of-state residents is inconsistent with the 1996-1999 SHP. The moratorium imposed by the 1996-1999 SHP expired more than two years before TTC filed its October 10, 2000, CON application; no methodology “to project the need for methadone treatment and maintenance for the citizens of Alabama” was ever established. Because of a lack of guidance, SHPDA requested “suggestions” from the State Methadone Authority for types of data to be submitted by applicants in support of a CON application. The State Methadone Authority sent a letter to SHPDA suggesting that certain data, including statistical data, be submitted in support of a CON application to establish a methadone-treatment facility; however, those suggestions included no reference to or restrictions on the location of new methadone-treatment facilities. On August 17, 2000, SHPDA forwarded the suggestions in the State Methadone Authority’s letter to persons seeking to receive certificates of need for a methadone-treatment facility.

In its July 31, 2001, order, the CONRB found that TTC’s proposal for its methadone-treatment facility was consistent with the current SHP. Although the 1996-1999 SHP included statements regarding the State Health Coordinating Council’s concern of the placement of methadone-treatment facilities near Alabama’s borders and the need to establish a methodology to determine whether a need exists in a certain area for a facility, the moratorium imposed by that section has expired and no methodology for determining the necessity of methadone-treatment facilities was ever established. Further, the current SHP does not prohibit methadone-treatment facilities from being placed near the borders of the state or from treating out-of-state patients. Thus, this court cannot say that the CONRB erred in concluding that TTC’s application was in compliance with the applicable SHP. Further, this court cannot say that the CONRB’s conclusion that TTC’s CON application was in compliance with the applicable SHP was arbitrary or capricious or that it was not in compliance with applicable law. See Alabama Renal Stone Inst., Inc. v. Statewide Health Coordinating Council, supra; § 41-22-20(k), Ala.Code 1975.

Colonial further asserts that the trial court erred in affirming the CONRB’s July 31, 2001, order because, it says, the order was inconsistent with applicable CON statutes and regulations. Colonial asserts that TTC’s application failed to comply with applicable statutes and regulations. In support of its argument, Colonial argues that TTC failed to present sufficient evidence of a “substantially unmet need” in the area where it proposed to place its treatment facility and that the CONRB included residents of another state in its determination of need in determining whether TTC had demonstrated a “substantially unmet need.”

In addition to the requirement that the application for a methadone-treatment facility be consistent with the current SHP, before granting a CON application for a methadone-treatment facility the CONRB must determine that the applicant has demonstrated a “substantially unmet public requirement for the proposed health care facility, service or capital expenditure.” § 22-21-264(4), Ala.Code 1975. Pursuant to SHPDA Reg. 410-1-6-.05, the

“[djetermination of a substantially unmet public requirement for the proposed health care facility, service, or capital expenditure shall be made before approval may be granted. The need shall be consistent with orderly planning within the state and community for furnishing comprehensive health care. Such determination of need shall be made based on the merits of the proposal after giving appropriate consideration to the following:
“(b) specific data supporting the demonstration of need for the proposed change in facility or service shall be reasonable, relevant, and appropriate.”

In support of its application, TTC submitted, among other things, information regarding its proposed facility; articles and information on methadone treatment; information regarding the number of methadone-treatment facilities and patients in Alabama; information regarding the number of drug-related offenses and arrests in Sumter County; and a letter from the mayor of Livingston indicating the mayor’s support for the proposed facility at the proposed location. At the March 21, 2001, hearing Nathan Watkins, the district attorney for the 17th judicial circuit, which includes the City of Livingston and Sumter County, testified on behalf of TTC. Watkins testified that in addition to serving as the district attorney, he had also sat on the West Alabama Mental Health Board since it was formed in 1972. According to Watkins, he was familiar with the health needs of the Sumter County area. Watkins testified that the Livingston community needed the facility and that the community supported the placement of the facility in Livingston. Watkins stated that at the time of the ALJ hearing, he was prosecuting four pending cases involving charges of forged prescriptions for opiate-derivative drugs, a type of drug an addiction for which might be treated with methadone.

Two patients, one from Alabama and one from Mississippi, from TTC’s Tuscaloosa methadone-treatment facility testified that their treatments required them to drive long distances and that they would use a methadone-treatment facility in Livingston if one were located there. Both patients testified that they knew several other people who suffered from opiate-related addictions and who would use a methadone-treatment facility if one were located in Livingston.

Kenneth Elliot Warner, the medical director of TTC’s Tuscaloosa facility, testified that methadone may be used to treat addictions to heroin, Lortab, Lorcet, Dilau-did, Oxycontin, and other prescription pain medication. According to Warner, a need existed for a methadone-treatment facility in Sumter County. Warner testified that at the time of the hearing, TTC’s Tuscaloosa facility had six patients from west Alabama. Warner testified that some of his patients had informed him that they knew of other addicts who would like to receive treatment but who were unable to travel the distance to the Tuscaloosa facility. Warner testified that because of the rural nature of the Sumter County area, statistical data regarding the number of persons arrested or treated for opiate use in Sumter County was not readily available and would be difficult to collect. According to Warner, approximately one-fourth of the patients receiving treatment at TTC’s Tuscaloosa facility are residents of Meridian, Mississippi. Warner stated that the “bulk of the need” for the methadone-treatment facility comes from Meridian, Mississippi.

Steven Nippert, the executive director of TTC, testified that he had difficulty obtaining statistical data regarding opiate-related arrests and deaths because of the rural nature of Sumter County. Nippert stated that he was aware of 6 to 10 patients from TTC’s Tuscaloosa methadone-treatment facility who would use a facility in Sumter County if one were located there. Nippert testified that 95% of the patients treated at TTC’s Tuscaloosa facility are addicted to prescription pain medication and not to heroin. According to Nippert, from his experience, addicts do not openly admit their addiction, but they “slowly begin to come out of the woodwork” when they discover that treatment is available in their area. In support of TTC’s CON application, TTC submitted a letter written by Nippert to SHPDA that stated that Watkins had informed him that there had been 62 arrests in the previous year related to the sale and possession of opiates in the Sumter County area.

Raymond Stevenson Flora, the regional director for Colonial, testified on behalf of Colonial in opposition to TTC’s CON application. Flora testified that although he was not familiar with the Sumter County area, he was familiar with Colonial’s methadone-treatment center in Montgomery; Flora testified that TTC’s proposed facility could treat patients who use or might use Colonial’s Montgomery methadone-treatment facility. Flora testified that Alabama has no specific methodology for determining the existence of a need for a methadone-treatment center and that there is no policy in Alabama requiring methadone-treatment facilities to refuse treatment to out-of-state residents. However, Flora stated that he did not think TTC’s CON application demonstrated that there was a “substantial unmet public need” in Sumter County.

The ALJ’s June 6, 2001, recommended order states, in pertinent part:

“2. In accordance with Code of Alabama § 22-21-264, the award of a [CON] must be based upon a consideration and evaluation of certain minimum review criteria set forth in SHPDA [Reg.] 410-1-6-01 et seq. Before granting a CON, the [CONRB] must first make a finding that the CON application is consistent with the appropriate State Health Plan (e.g., the State Health Plan applicable to Methadone-treatment Facilities at [SHPDA Reg.] 410 — 2—4—.11(3); SHP at 84), and that there is a demonstration of a ‘substantially unmet public requirement’ of need for the proposed services in the identified health service area. Alabama Code § 22-21-264(4) and [SHPDA Reg.] 410-l-6-.02(l)(a).
“3. Pursuant to [SHPDA Reg.] 410-1-3-.02(l)(a), SHPDA may seek ‘comment’ from other state regulatory agencies when reviewing a CON application. According to [SHPDA Reg.] 410-1-6-,01(l)(b), the CON proposal shall be consistent with ‘additional criteria’ prescribed by regulation adopted under state law as well as other applicable state and local requirements to which the proposal may be related.
“4. In accordance with [SHPDA Reg.] 410-1-3-02(1), SHPDA contacted the State Methadone Authority of Alabama Department of Mental Heath and Mental Retardation, which regulates opiate replacement treatment facilities, and requested [its] assistance ‘to provide criteria for review’ of all the CON applications for opiate replacement treatment facilities.
“5. SHPDA issued a Memorandum on August 17, 2000, to the Recipients of Letters of Intent for Opiate Replacement Facilities Entitled: Additional Criteria to Be Submitted with Certificate of Need Applications, which sets forth ‘suggested’ information to be submitted with the CON application![] ...
“6. [SHPDA Reg.] 410-1-6-.05 requires that the need for the CON project be determined after giving appropriate consideration of evidence that the applicant’s CON project proposal fulfills a substantially unmet public requirement of health need in the identified health service area. As stated in SHPDA [Reg.] 410-l-6-.05(l)(b) and 410-l-6-.06(l)(a), the applicant is also required to submit ‘specific data supporting the demonstration of need for the proposed facility or service, which supporting data shall be reasonable relevant and appropriate.’
“7. No formal needs assessment, feasibility study or detailed need statistical analysis of any type was submitted by the [TTC] in the CON application ... or [at] the hearing to support the need for the proposed facility. [TTC], however, submitted testimony at the contested case hearing that the need for the facility is based only on a combination of (1) personal anecdotal information; and (2) the personal testimony of two Tuscaloosa Clinic patients, one residing in Meridian, Mississippi, and one residing in Wilcox County, with no testimony from any potential patient for the proposed] medical service area, residing in or from [Livingston], Alabama, or [the] Sumter County area.
“8. The anecdotal and personal opinions of testimony offered by [TTC’s] witnesses remained unsupported by reasonable, relevant, and factual data. [TTC] and [its] supporting witnesses were unable to provide in any detailed or specific manner, a demonstrated substantial unmet public requirement of need in the identified health service area for the proposed project.
“9. Despite inquiries from the [ALJ], who expressed concern on the record regarding the lack of supporting statistical information and data, [TTC] was unable to provide any data from Sumter County and the surrounding Alabama counties that demonstrated a ‘substantial unmet public requirement’ of need in the identified medical service are for the proposed project. In fact, [TTC] and its supporting witnesses confirmed that only ‘a half dozen to ten patients’ currently receiving methadone services in [TTC’s] Tuscaloosa facility are actually residing in the West Alabama counties identified in the CON application as the medical service area allegedly in need of a full service opiate replacement treatment facility. [TTC] and its supporting witnesses confirmed that patients, if any, in need of services in Sumter County would be from Mississippi and not Alabama residents or citizens. [TTC] also confirmed that heroin is not a problem in the state of Alabama and that opiate overdose rarely is a cause of death, even though opiate overdoses include all related opiate drugs, not just heroin.
“10. Pursuant to Ala.Code § 22-21-234(4) and [SHPDA Reg.] 410-1-6-.02(l)(a), SHPDA is required to evaluate each CON application for consistency with the most recent SHP. The most recent Alabama SHP addresses methadone maintenance facilities but does not set forth a specific methodology for determining the need for additional opiate replacement treatment facilities in the State of Alabama. [SHPDA Reg.] 410-2-4-11(3), SHP at 184. However, the current SHP does not set forth the Alabama State Health Planning public policy regarding Methadone Maintenance Facilities and the moratorium imposed by the Statewide Healthcare Coordinating Council in 1996.
“11. The most recent SHP addresses Methadone Maintenance Facilities at [SHPDA Reg.] 410-2-4-11(3). [TTC] agrees that the 1996-1999 State Health Plan is the most current plan.
“12. The SHP expresses the current Alabama public policy concern of the proliferation of ‘border clinic’ or clinics that have been ‘strategically located’ along Alabama state lines to entice the pool of non-Alabama residents from neighboring states of Mississippi, Tennessee, Florida, and Georgia into Alabama for methadone treatment.... [TTC] admits that there are no opiate replacement treatment services available in Mississippi. [TTC] also readily admits that ‘patients will also come from Meridian, Mississippi’ to the [Livingston] facility, because there are not services available in Meridian.
“13. [TTC] and [TTC’s medical director], Dr Kenneth E. Warner, admit that there are only ‘half a dozen to ten Alabama residents from the identified medical service area ... attending its existing Tuscaloosa facility. Further, [TTC] admits that half of the current patients attending [TTC’s] Tuscaloosa Treatment Center (approximately one-half of 180 patients or 90 patients) are from outside the Tuscaloosa area. Of that amount, approximately one-half (45) are from the Meridian/Philadelphia, Mississippi area.
“C. Conclusions of Law
“Based on the foregoing factual findings, as well as the additional facts reflected in the certified record, and the transcript as a whole, and the application of theses facts to the controlling legal principals found in the CON law, the SHPDA rules, the SHP, and administrative and court decisions regarding said laws and regulations, the following conclusions of law are hereby recommended by the undersigned ALJ to the [CONRB] for incorporation into a final order of the [CONRB] regarding [TTC’s CON application],
“7. [TTC failed to meet its burden] to produce evidence to address each review criterion and standard set forth in § 22-21-260 et seq., Ala.Code 1975, and specifically in [SHPDA Reg.] 410-1-6-.01 through -.18, and each sub-part of said criterion. [TTC] fail[ed] to provide any demonstrative evidence of a substantial unmet public requirement of need for the proposed CON project based on specific data supporting the need in Alabama for a full service opiate replacement treatment facility in Sumter County, Alabama, to serve the public interest of Alabama and Alabama residents, and therefore, [TTC’s CON application] should be denied.
“8. [TTC’s CON application] is inconsistent with the policies stated in the current Alabama State Health Plan in that the Applicant admits that the project has been strategically located near the Alabama/Mississippi State line to serve residents from Meridian, Mississippi, who may be in need of such service, and, therefore, [TTC’s CON application] should be denied.”

(Emphasis original; footnotes omitted.)

In rejecting the ALJ’s recommendation, the CONRB July 31, 2001, order states, in part:

“3. In essence, the ALJ recommended denial of the application due to the absence of statistical evidence which would support a finding of substantially unmet community need for the proposal and [the ALJ’s] conclusion that the proposal was inconsistent with the State Health Plan (SHP) because the proposed location of the facility is in relative proximity to Mississippi.
“4. The primary service area for this project is Sumter County and with the secondary service comprising the surrounding counties of Greene, Marengo and Choctaw.
“5. The 1996-1999 SHP addresses methadone-treatment facilities in [SHPDA Reg.] 410-1^4-11 but does not provide a specific numerical formula for determining need for outpatient treatment in an Opiate Replacement Facility. Due to ‘proliferation’ of outpatient clinics close to the border of neighboring states, a two-year moratorium was imposed on new clinics on July 25, 1996. The moratorium has expired without the adoption of specific numerical need methodology.
“6. Based on the totality of the evidence presented to the Board, it finds that there exists substantial evidence of an unmet community need for the proposal.
“7. The Board has carefully considered the location of the proposed facility and the evidence regarding its likely patient base. Concerns about outpatients facilities being located close to adjoining states so as to attract clients from said states does not equate to an outright prohibition against a clinic being located in the vicinity of an adjoining state line. Further, the 1996 moratorium adopted, in part, to address such concerns expired approximately three years ago.
“9. The applicant received letters of support from the District Attorney and local hospital administrators, demonstrating local support for the project notwithstanding the fact that some out-of-state patients may be treated.
“10. The Board received suggested review criteria submitted by the Methadone Advisory Committee for outpatient treatment in an Opiate Replacement Facility. The Board has not considered the methodology submitted by the Methadone Advisory Committee as separate criteria for the issuance fo [of] a CON. It has, however, examined all ‘reasonable, relevant, and appropriate’ information to determine whether existing statutory and administrative criteria have been met, including, but not limited to, evidence of the locational appropriateness of the proposed facility and the reasonable potential of the facility to meet licensure standards.”

In its July 31, 2001, order, the CONRB further found that based on its examination of all of the “reasonable, relevant, and appropriate” information submitted by TTC, a substantially unmet community need existed for TTC’s proposed methadone-treatment facility in Sumter County.

On appeal, Colonial continues to argue that the CONRB’s decision is not supported by substantial evidence because TTC failed to present statistical data demonstrating an unmet community need. However, there are no relevant statutory provisions or administrative regulations requiring TTC to submit specific statistical data in support of its CON application. The relevant provisions provide that “specific data” submitted by a CON applicant be “reasonable, relevant and appropriate.” See § 22-21-264(4)0»), Ala.Code 1975, and SHPDA Reg. 410-1-6-.05. Although the 1996-1999 SHP included statements regarding the State’s concern of the placement of methadone-treatment facilities near Alabama’s borders and the need to establish a methodology to determine whether a need exists in a certain area for the placement of a facility, the moratorium imposed by that section has expired and no methodology for determining the necessity of methadone treatment facilities was ever established.

This court must view the CONRB’s July 31, 2001, order as “prima facie just and reasonable.” See § 41-22-20(k), Ala.Code 1975. Further, neither this court nor the trial court is permitted to “substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” § 41-22-20(k); State Health Planning & Dev. Agency v. Baptist Health Sys., Inc., 766 So.2d at 178. “This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.” Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d at 975. Given the evidence, this court might well have reached a different result than that the CONRB reached. However, this court cannot say that the CONRB erred in concluding that TTC’s CON application was supported by evidence of a “substantially unmet public requirement for the proposed health-care facility.” Further, this court cannot say' that the CONRB’s conclusion that TTC’s CON application was supported by evidence of a “substantially unmet public requirement” was arbitrary, capricious, or not in compliance with applicable law. See § 41-22-20(k), Ala.Code 1975; Alabama Renal Stone Institute, Inc. v. Statewide Health Coordinating Council, supra.

Colonial has failed to demonstrate that the trial court’s judgment affirming the CONRB’s decision was arbitrary, capricious, or contrary to applicable law. The decision of the trial court is affirmed.

AFFIRMED.

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

      . Section 22-21-260(13), Ala.Code 1975.

      . The parties do not dispute that the 1996-1999 SHP is the applicable current SHP.

      . The State Health Coordinating Council is an appointed board that, among other things, is responsible for drafting and revising the SHP.

      . After receiving a request from SHPDA, the State Methadone Authority sent a letter to SHPDA suggesting certain data for the CONRB to consider, including statistical data, in support of a CON application to establish a methadone-treatment facility.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Michael CHAMBERS and Watha Chambers v. ADVANCED PROCESSING SYSTEMS d/b/a Snelling Personnel Services; and The Hon Company.
    2010985.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2002.

      J. Wilson Mitchell of Mitchell, Bernauer & Winborn, Florence, for appellants.
    Larry B. Moore of Moore & Trousdale, P.C., Florence, for appellee Advance Processing Systems d/b/a Snelling Personnel Services.
    David K. Howard and Tina M. Parker of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Florence, for appellee The Hon Company.
   THOMPSON, Judge.

Michael Chambers and Watha Chambers (hereinafter together referred to as “the plaintiffs”) filed a complaint alleging retaliatory discharge and intentional infliction of emotional distress against Advance Processing Systems d/b/a Snelling Personnel Services (“Snelling”) and The Hon Company (“Hon”). The plaintiffs later amended their complaint to allege against Hon a claim of negligent or wanton failure to maintain a safe work environment.

Snelling moved for a summary judgment on the plaintiffs’ claims against it. On November 6, 2001, the trial court entered a summary judgment in favor of Snelling on the plaintiffs’ claims. Hon then filed a motion for a summary judgment on all of the plaintiffs’ claims against it; the trial court granted that motion on May 2, 2002. The plaintiffs appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

A motion for a summary judgment is properly granted where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). After the moving party makes its prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 588 So.2d 794 (Ala.1989). To carry that burden, the nonmoving party is required to present substantial evidence, i.e., “evidence of such weight and quality that fair-minded persons in the exercise of impartial júdgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must view the evidence in a light most favorable to the nonmoving party, and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact in favor of the nonmovant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

The record indicates the following. Michael Chambers (hereinafter “Chambers”) began working for Snelling, a temporary-employment agency, on September 8,1998. In September 1999, Snelling assigned Chambers to work at Hon. It is undisputed that Hon controlled the manner in which Chambers performed his job duties for Hon.

On September 18, 1999, while working at Hon, Chambers was struck by a moving forklift. Chambers suffered an injury to his nose and knee as a result of that accident; he later also claimed to have suffered an injury to his neck as a result of that accident. Chambers filed a claim for, and received, workers’ compensation benefits from Snelling.

As a result of his on-the-job injury, Chambers was absent from work until October 1999. In October 1999, Chambers returned to work for Snelling and was assigned to work at Hon on a fight-duty basis; he worked a fight-duty job for approximately one month. Chambers then attempted to return to full-duty work, but he was unable to perform his regular job duties for Hon.

Snelling and Hon maintain that on several occasions in November and December 1999, Chambers did not show up for work at Hon and did not telephone either Snell-ing or Hon to inform either employer that he would not be at work. Snelling’s employee policy requires its employees to inform Snelling when they are unable to work so that Snelling can make arrangements to provide another worker for its clients. Chambers testified in his deposition that he missed work in order to attend physical therapy sessions and that he had informed Hon each time he had to miss work.

In early December 1999, Hon telephoned Snelling and informed it that Chambers had, on December 2, 1999, and December 3, 1999, failed to show up for work and had not telephoned to notify Hon that he would not be at work. Hon asked Snelling not to assign Chambers to work for Hon any longer. In support of its motion for a summary judgment, Snelling submitted a document that stated that Chambers had failed to inform it or Hon of several of his absences from work and that instructed Chambers to call Snelling in the future if he was unable to go to a work assignment; that document was dated December 6, 1999, and it was signed by Chambers.

After Hon asked Snelling not to assign Chambers to work for it, Snelling reassigned Chambers to work for a different company, Mantle Craft. However, Chambers worked at Mantle Craft for only one day. Chambers stated that he was unable to tolerate the work environment at Mantle Craft because paint fumes present at the Mantle Craft workplace aggravated his migraine headaches. Chambers contends in his brief on appeal that those headaches originated with his September 18, 1999, on-the-job injury. Chambers alleges that Snelling did not try to find him any further employment. Snelling contends that Chambers did not telephone to inform Snelling when he was available and willing to accept work assignments.

Chambers’s wife, Watha Chambers (hereinafter “Watha”), also worked for Snelling. In the fall of 1999, she worked part-time as a secretary in Snelling’s office. In late November 1999, Diane McIntyre, a “co-owner” of Snelling who was Watha’s supervisor, informed Watha that Snelling did not need her to work in its office during the 1999 holiday season. In late December 1999, Diane McIntyre contacted Watha and offered her temporary job assignments with two of Snelling’s clients. Watha testified that she refused both of those offers of employment because she had “personal differences” with Diane McIntyre, and she did not want to work for Snelling any longer.

We note that in support of their opposition to Hon’s motion for a summary judgment, the plaintiffs submitted Chambers’s affidavit. Hon moved to strike the affidavit. The trial court entered its summary judgment on May 2, 2002. On May 24, 2002, the trial court, apparently ex mero motu, amended its May 2, 2002, judgment to grant Hon’s motion to strike Chambers’s affidavit. The trial court explained that it ordered the affidavit stricken because it was not based on Chambers’s personal knowledge. See Rule 56(e), Ala. R. Civ. P.

On appeal, the plaintiffs first argue that the trial court erred in entering a summary judgment on Chambers’s retaliatory-discharge claims against Hon and Snelling. The plaintiffs contend that both defendants had, in violation of § 25-5-11.1, Ala. Code 1975, constructively terminated Chambers’s employment in retaliation for his having filed a workers’ compensation claim. Section 25-5-11.1 provides:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11.”

A wrongful termination under 25-5-11.1, Ala.Code 1975, has been interpreted to include a constructive termination. Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364 (Ala.1988). Our supreme court has defined “constructive discharge” as follows:

“ ‘[I]f [a]n employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee.’ ”

Irons v. Service Merch. Co., 611 So.2d 294, 295 (Ala.1992) (quoting Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir.1990)).

In their brief on appeal, the plaintiffs, citing Marlow v. MidSouth Tool Co., 535 So.2d 120 (Ala.1988), argue that Chambers is an employee of both Hon and Snelling and, therefore, that he may maintain a retaliatory-discharge action against both. In Marlow v. MidSouth Tool Co., our supreme court held that for workers’ compensation purposes, a worker employed by a temporary-employment agency is an employee both of his “general employer,” which is the temporary-employment agency, and of the “special employer,” which is the employer to which the agency assigned the worker. Marlow v. MidSouth Tool Co., 535 So.2d at 123 (citing Terry v. Read Steel Prods., 430 So.2d 862 (Ala.1983); Pettaway v. Mobile Paint Mfg. Co., 467 So.2d 228 (Ala.1985); and Bechtel v. Crown Cent. Petroleum Corp., 495 So.2d 1052 (Ala.1986)). Given that precedent, we agree with Chambers’s argument that, for the purposes of an action brought under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, he was an employee of both Hon and Snelling.

However, to maintain an action against both employers, Chambers must establish that he was terminated from his employment with each employer because he sought workers’ compensation benefits from that employer. § 25-5-11.1, Ala.Code 1975; Thomas v. Bakers Indus., a Div. of Sonoco Prod. Co., 737 So.2d 469 (Ala.Civ.App.1999). In this case, Chambers sought and received workers’ compensation benefits only from Snelling; he did not file a claim seeking to recover benefits from Hon.

In Thomas v. Bakers Industrial, supra, this court affirmed a summary judgment in an action in which the facts were similar to those of this case. In that case, the worker was employed by a temporary-employment agency and suffered an on-the-job injury while assigned to work at another company. The worker later sued the company, alleging that she was terminated from her employment with the company in retaliation for seeking workers’ compensation benefits. This court agreed with the worker’s contention that the worker was, for the purposes of the Workers’ Compensation Act, an “employee” of both the company and the temporary-employment agency. However, this court affirmed the trial court’s summary judgment in favor of the company because the worker had sought workers’ compensation benefits from the temporary-employment agency and not from the company. In so holding, this court stated that the worker “is precluded from suing the company on the basis of a retaliatory discharge, because she filed no workers’ compensation claim against it; filing such a claim against the company would be an essential element of a retaliatory-discharge cause of action.” Thomas v. Bakers Indus., 737 So.2d at 471.

The facts of this case as they pertain to Hon are virtually identical to those of Thomas v. Bakers Industrial, supra. In order to prove a claim of retaliatory-discharge against Hon, Chambers must establish that his employment was terminated because he sought workers’ compensation benefits from Hon. See § 25-5-11.1, Ala.Code 1975; Thomas v. Bakers Indus., supra. Chambers did not seek workers’ compensation benefits from Hon and is, therefore, unable to prove an essential element of his retaliatory-discharge claim against Hon. See Thomas v. Bakers Indus., a Div. of Sonoco Prod. Co., 737 So.2d at 471. We affirm the trial court’s summary judgment in favor of Hon on Chambers’s retaliatory-discharge claim.

The plaintiffs’ argument in their brief on appeal on the issue of retaliatory discharge primarily addresses Chambers’s claim against Hon. However, the plaintiffs briefly assert that there existed a factual issue that would defeat a summary judgment regarding Chambers’s retaliatory-discharge claim against Snelling.

In order to defeat Snelling’s properly supported motion for a summary judgment on his retaliatory-discharge claim, Chambers was required to present substantial evidence indicating that Snell-ing deliberately made Chambers’s work environment so intolerable that he was forced to resign his employment. See Irons v. Service Merch. Co., supra. The plaintiffs cite an employer-generated report indicating that Chambers had telephoned, on four different days, to inform Snelling that he would not be at work because of either headaches or a migraine headache. After Hon no longer wanted to employ Chambers, Snelling reassigned Chambers to work at Mantle Craft. Chambers testified that he was able to work at Mantle Craft for only one day because paint fumes at that workplace aggravated his migraine headaches. The plaintiffs contend that the foregoing evidence creates a question of fact regarding whether Snelling constructively terminated Chambers’s employment in retaliation for his filing against it a claim seeking workers’ compensation benefits. We cannot say, however, that the above-cited evidence constitutes substantial evidence tending to indicate that Snelling knew of the paint fumes at Mantle Craft or knew that those fumes would aggravate Chambers’s headaches and create an intolerable work environment for him. Thus, we must conclude that Chambers has failed to present the requisite substantial evidence indicating that Snelling “deliberately [made Chambers’s] working conditions so intolerable” that Chambers was forced to resign his employment with Snelling. Irons v. Service Merch. Co., 611 So.2d at 295. We cannot say that the trial court erred in entering a summary judgment on the Chambers’s retaliatory-discharge claim against Snelling.

The plaintiffs also argue in their brief on appeal that the trial court erred in entering a summary judgment in favor of Snelling on Watha’s retaliatory-discharge claim. As we have already discussed, a plaintiff may prevail on a retaliatory-discharge claim only where she shows that her employer terminated her employment because she had filed a claim against it for workers’ compensation benefits. See § 25-5-11.1, Ala.Code 1975; Bullion v. JMBL, Inc., 657 So.2d 834, 836 (Ala.1995) (a plaintiff presents a prima facie case of retaliatory discharge “by proving that she was terminated because she sought to recover workers’ compensation benefits”). Watha did not suffer an on-the-job injury, nor did she seek workers’ compensation benefits from Snelling. Therefore, Watha may not prevail on her claim against Snell-ing made pursuant to § 25-5-11.1, Ala. Code 1975.

In their brief on appeal, the plaintiffs characterize Watha’s retaliatory-discharge claim as being made pursuant to the Workers’ Compensation Act, but under a theory derived from the Americans with Disabilities Act (“the ADA”), 42 U.S.C. § 12101 et seq. Under the ADA, an employer may not discriminate against an employee on the basis that the employee is related to or associated with a person who is considered to be disabled under the ADA. 42 U.S.C. § 12112(b)(4); Hilburn v. Murata Elecs. N. America, Inc., 181 F.3d 1220 (11th Cir.1999). The plaintiffs have not asserted a claim under the ADA. In their argument on this issue, the plaintiffs briefly contend that this court should adopt an “association discrimination” cause of action under § 25-5-11.1 of Alabama’s Workers’ Compensation Act similar to the cause of action available under 42 U.S.C. § 12112(b)(4) of the ADA. However, the Workers’ Compensation Act does not provide for a retaliatory-discharge cause of action for a person who is related to worker who has filed a workers’ compensation claim. It is the function and duty of the Legislature, and not of the courts, to determine whether to expand the Workers’ Compensation Act to create such a cause of action. This court may not judicially create a cause of action such as the one advocated by the plaintiffs. Given the argument in the plaintiffs’ brief on appeal, we cannot say the trial court erred in entering a summary judgment in favor of Snelling on Watha’s claim alleging retaliatory discharge.

The plaintiffs also argue that the trial court erred in entering a summary judgment on Chambers’s claims alleging negligence and/or wantonness on the part of Hon. In the plaintiffs’ amended complaint, Chambers contended that Hon had negligently or wantonly failed to provide him a safe workplace in violation of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq. In their brief on appeal, the plaintiffs cite facts set forth in Chambers’s affidavit submitted in opposition to Hon’s motion for a summary judgment as evidence that supports Chambers’s claim on this issue. However, the trial court ordered that Chambers’s affidavit be stricken because it was not based on Chambers’s personal knowledge. See Ex parte Head, 572 So.2d 1276 (Ala.1990) (affidavits made pursuant to Rule 56(e), Ala. R. Civ. P., must be based on the personal knowledge of the affiant).

In their brief on appeal, the plaintiffs assert only in passing that the trial court improperly struck Chambers’s affidavit. The plaintiffs make no distinct argument on appeal that the striking of that affidavit was in error, and they cite no authority to support such an argument, in contravention of Rule 28(a)(10), Ala. R.App. P. Therefore, this court will not consider the propriety of the trial court’s ruling striking Chambers’s affidavit. See Ex parte Riley, 464 So.2d 92 (Ala.1985); Boshell v. Keith, 418 So.2d 89 (Ala.1982). Given the plaintiffs’ failure to demonstrate that the trial court erred in ordering Chambers’s affidavit stricken, we may not consider the assertions set forth in that affidavit in our review of this appeal. The record contains no other evidence pertaining to Chambers’s claim alleging negligent or wanton failure to maintain a safe workplace. There being no other evidence in the record to support Chambers’s argument that Hon failed to provide him a safe workplace, this court must affirm the trial court’s summary judgment in favor of Hon on this issue.

The plaintiffs have failed to demonstrate that the trial court erred in entering a summary judgment in favor of Snelling and Hon. Therefore, we affirm the summary judgment.

AFFIRMED.

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

      . The record does not indicate the nature of Diane McIntyre’s ownership interest in Snell-ing.


author: MURDOCK, Judge.

text:
    William JOYNER and Debra Joyner v. B & P PEST CONTROL, INC.
    2001170.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2002.

      Thomas S. McGrath, Huntsville, for appellants.
    Gary K. Grace and Jennifer M. Matthews of Grace & Associates, Huntsville, for appellee.
   MURDOCK, Judge.

William Joyner and Debra Joyner sued B & P Pest Control, Inc. (“B & P”), alleging that in 1998 the Joyners had a termite infestation near the front entrance to their residence and that they contacted B & P to treat their residence pursuant to a Termite Soil Treatment Guarantee that B & P had issued them. B & P treated the Joy-ners’ termite infestation by drilling holes through a brick walkway and an underlying concrete slab near the front entrance to the Joyners’ residence, inserting an injection rod through those holes and into the soil beneath the walkway, and pumping termite killing pesticide (“termiticide”) into that soil. However, according to the Joy-ners, B & P failed to properly plug the treatment holes it drilled in the concrete slab. The Joyners alleged that, as a result of B & P’s actions, their basement flooded with pesticide-laden water when it rained. They asserted claims against of negligence, wantonness, fraud, and suppression against B & P. In an amended complaint they also alleged that B & P negligently and wantonly trained and supervised the employee who actually performed the termite treatment on the Joyners’ residence.

A jury trial began on March 19, 2001. At the conclusion of the Joyners’ case, B & P moved for a judgment as a matter of law; the trial court postponed ruling on the motion until the close of all the evidence. At the conclusion of a three-and-one-half-day trial, B & P renewed its motion for a JML. B & P argued that a broken sewer pipe, which it had requested that the Joyners produce during discovery and which it claimed was responsible for the Joyners’ flooding problem, had been lost or destroyed by Burt Cox, the contractor who performed repairs to the Joyners’ home in an effort to correct the Joyners’ flooding problem; therefore, B & P argued, it was entitled to a JML based upon the alleged spoliation of evidence. B & P also argued that the Joyners failed to present substantial evidence to support their claims.

After hearing arguments on B & P’s motion, the trial court dismissed the jury and stated that the parties could submit briefs regarding the issues presented in B & P’s motion if they so desired. B & P submitted a brief in support of its motion; the Joyners did not file a brief in opposition to B & P’s motion, but instead filed a letter with the trial court stating that they would “stand on their stated arguments made on the record before the Court.”

On June 12, 2001, the trial court entered a judgment granting B & P’s motion for a JML and dismissing all of the Joyners’ claims, with prejudice. The trial court stated no reason for granting B & P’s motion. The Joyners appealed to the Alabama Supreme Court; that court transferred the case to this court, pursuant to Ala.Code 1975, § 12-2-7.

The Joyners argue that the trial court erred by granting B & P’s motion for a JML and in several of its evidentiary rulings. In regard to the JML, the Joyners argue that they presented substantial evidence to support their claims that B & P acted negligently or wantonly in regard to the manner in which it treated their home for termites; that they presented substantial evidence to support their claims that B & P negligently or wantonly trained or supervised the B & P employee who performed the treatment; that they presented substantial evidence indicating that B & P made fraudulent misrepresentations or that it suppressed material facts in connection with the 1998 termite treatment; and that a JML could not be supported on the ground of spoliation of evidence because there was no evidence indicating that the Joyners willfully destroyed the broken sewer pipe or that they knew they should have retained it.

We first address the Joyners’ argument that a JML could not be supported on the ground of spoliation of evidence. The Joy-ners contend that the record does not support a finding that they willfully destroyed evidence that they knew would be needed to support B & P’s case and that therefore the trial court erred in granting B & P’s motion for a JML to the extent that that motion was based on an allegation of spoliation.

After the Joyners’ basement flooded, they hired Cox to correct the flooding problem. In an attempt to determine whether the treatment holes were the source of the flooding, Cox exposed, and perhaps broke, the sewer pipe when he first excavated the area under the concrete slab and brick walkway, reflashed the sewer pipe where it entered the basement wall, and repoured the concrete slab over the excavated area. A few days after Cox’s first excavation, the Joyners’ basement flooded again, at which time the Joy-ners also noticed that the flood water had a sewage odor that apparently was not present during earlier flooding. A few days later, Cox again excavated the area underneath the brick walkway and removed the sewer pipe, which he noted was broken at a point between one foot and three feet from the basement wall. Cox testified that he attempted to preserve the pipe at his office, but that one of his employees mistakenly disposed of it.

The parties offered conflicting evidence as to whether the sewer pipe began leaking before or after Cox’s first excavation. The Joyners presented substantial evidence indicating that Cox’s employees broke the sewer pipe during their first excavation and that there was no smell of sewage during the flooding that occurred before Cox’s first excavation. B & P presented substantial evidence, based upon the location of the soil underneath the walkway, the location of the sewer pipe both before and after its repair, and the presence of certain water stains in the basement wall near the area where the pipe ran through the wall, that the sewer pipe might have been leaking before Cox’s first excavation and that it was merely a coincidence that the Joyners first noticed water leaking into their basement after B & P drilled the treatment holes in the concrete slab.

There is no question but that dismissal of a party’s claim may be an appropriate sanction in a case where the party deliberately disposes of evidence that it knows is important evidence for further litigation. See, e.g., Cincinnati Ins. Co. v. Synergy Gas, Inc., 585 So.2d 822, 827 (Ala.1991). Our courts have repeatedly held that the dismissal of a party’s claim or the entry of a judgment against a party is an appropriate sanction for the willful spoliation of evidence. See, e.g., Capitol Chevrolet v. Smedley, 614 So.2d 439, 442 (Ala.1993); Cincinnati Ins. Co., supra; and Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala.1989). In 1983, our Supreme Court stated that “‘willfulness,’ i.e., an intentional failure, continues to be a factor, along with others, in the determination to apply the sanction of dismissal.” Blair v. Cooper, 437 So.2d 1249, 1252 (Ala.1983); see also Iverson, 553 So.2d at 89 (affirming the trial court’s dismissal of Iverson’s claim for willful spoliation of evidence, but stating “we are not to be understood as specifically holding that Iverson is guilty of intentionally or deliberately destroying evidence”). But see Weatherly v. Baptist Medical Center, 392 So.2d 832, 837 (Ala.1981) (“we do not find that element of ‘willfulness’ in plaintiffs conduct to justify the drastic sanction of dismissal”).

We note that Rule 37 does not require that a party’s failure to comply with discovery be willful, deliberate, or malicious before sanctions might by imposed; it merely requires, in pertinent part, that the trial court’s order in response to the party’s failure to produce requested evidence be “just.” See Rule 37(d), Ala. R. Civ. P. Most pertinent Alabama precedent discussing the application of Rule 37 to spoliation of evidence has arisen in the context of the sanction of dismissal. In that context, our courts have noted:

“[T]he sanction of dismissal is the most severe sanction that a court may apply. Judicial discretion must be carefully exercised to assure that the situation warrants the imposition of such a sanction. Dismissal orders must be carefully scrutinized, and the plaintiffs conduct must mandate dismissal. We have held that ‘willfulness’ on the part of the noncomplying party is a key factor supporting a dismissal. If one party has acted with willful and deliberate disregard of reasonable and necessary requests for the efficient administration of justice, the application of even so stringent a sanction as dismissal is fully justified and should not be disturbed.”

Iverson, 553 So.2d at 87 (citations omitted; emphasis added); see also Cincinnati Ins. Co., supra.

Based on our review of the record, we agree with the Joyners that the entry of a JML against them was not a just sanction under the facts of this case. In reaching this conclusion, we rely on several factors that are discussed in our caselaw and summarized in Cooper v. Toshiba Home Tech. Corp., 76 F.Supp.2d 1269 (M.D.Ala.1999).

“Under Alabama law, four factors must be considered in deciding the appropriate remedy for spoliation of evidence: (1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; and (4) alternative sources of information.”

Cooper, 76 F.Supp.2d at 1274 (citing Cincinnati Ins. Co. v. Synergy Gas, Inc., 585 So.2d 822 (Ala.1991)); see also Verchot v. General Motors Corp., 812 So.2d 296, 302 (Ala.2001); Ex parte General Motors Corp., 769 So.2d 903, 914 (Ala.1999); Capitol Chevrolet, 614 So.2d at 442-43; Iverson, 553 So.2d at 88-89; see generally Marshall v. Segona, 621 F.2d 763, 766-768 (5th Cir.1980) (discussing several considerations that should be taken into account in determining whether dismissal is an appropriate sanction).

We are mindful that B & P, through no fault of its own, was prevented from examining the broken sewer pipe. We are also mindful that B & P offered evidence tending to indicate that the sewer pipe had been leaking to some degree before it drilled the treatment holes in the concrete slab. Specifically, there was evidence from which it could be inferred that the sewer pipe had leaked in the past at least sufficiently to make stains on the concrete block composing the exterior basement wall and on the wooden sill-plate along the bottom of the framing between the exterior basement wall and the plasterboard interior basement wall.

Nonetheless, there is not substantial evidence in the record indicating that any flooding of the Joyners’ basement had ever occurred, from any source, before B & P drilled holes in the concrete slab. Moreover, based on our review of the record, we conclude that B & P failed to present substantial evidence indicating that the Joyners willfully disposed of the sewer pipe. Further, B & P was able to cross-examine Cox and Darryl Woods, the plumber who removed the broken sewer pipe, and to review pictures of the sewer pipe before Cox removed it from the ground. We also note that B & P’s inability to examine the sewer pipe did not prevent it from offering engineering or other evidence in an effort to show that the Joyners’ flooding problem was caused by sources other than the holes B & P drilled in the concrete slab.

The Joyners introduced evidence indicating that the initial flooding of their basement occurred during the first heavy rainfall after B & P drilled holes in the concrete slab. The evidence likewise tended to indicate that subsequent flooding of the basement occurred, not on a continual or daily basis, but in conjunction with rainfall.

Applying the four factors summarized in Cooper, we conclude that the dismissal of the Joyners’ various claims on the ground of spoliation of evidence by the Joyners was not justified. Accordingly, we now turn to the factual issues raised by B & P’s motion for a JML to determine whether the Joyners presented substantial evidence to support their claims.

When reviewing a trial court’s ruling on a motion for a JML, we use the same standard that the trial court used initially in granting or denying the motion. Regarding questions of fact, we must determine “whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury.” Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala.2000); see also Rule 50(a), Ala. R. Civ. P.

“Evidence is ‘substantial’ only if it is ‘of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ... In determining whether material questions of fact exist, the court must view the evidence presented at trial in a light most favorable to the nonmoving party.”

Hathcock v. Wood, 815 So.2d 502, 506-07 (Ala.2001) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

The Joyners argue that they offered substantial evidence to support their claims that B & P acted negligently or wantonly in regard to the manner in which it treated the Joyners’ residence for termites. We first note that the container label for “Premise 75,” the chemical used to treat the Joyners residence, stated in part as to post-construction treatment under a concrete slab:

“To apply a treatment under the slab, including attached porches, it may be necessary to drill through the slab or exterior foundation. Drill holes should be spaced in a manner that will allow for application of a continuous chemical treated zone. ... Apply 4 gallons of solution per 10 linear feet per foot of depth to provide a uniform treatment zone. ... Plug and fill all drilled holes in commonly occupied areas with a suitable sealant. Plugs must be of non-cellulose material or covered by an impervious, non-cellulose material.”

It was undisputed that B & P patched the treatment holes in the brick walkway with mortar, but that it did not plug the treatment holes in the concrete slab under the walkway. Albert Cole, an expert from Cook’s Pest Control, testified that the holes in the concrete slab should have been plugged to prevent moisture from migrating through the slab. Cole testified that Cook’s routinely plugged treatment holes in a concrete slab with rubber stoppers to prevent moisture from migrating through the slab and also stated that the area in which the Joyners’ residence was located had a history of moisture problems. He also testified that the treatment technique used by B & P created a greater risk for moisture problems than other available techniques. In addition, Dr. William Payne, a structural engineer who testified on behalf of the Joyners, stated that the Joyners’ flooding problem probably would not have occurred if Johnson had plugged the treatment holes with a rubber plug.

Based on the foregoing, we conclude that the Joyners presented substantial evidence indicating that B & P was negligent in the manner in which it treated the Joyners’ residence for termites. Accordingly, the trial court erred in entering a JML on the Joyners’ claim against B & P for negligence.

In regard to the Joyners’ claim that B & P was guilty of wantonness in the treatment of their residence, we note that

“ ‘[w]antonness’ is statutorily defined as ‘[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.’ Ala.Code 1975, § 6-ll-20(b)(3).
“ ‘ “Wantonness” has been defined by the Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. McDougle v. Shaddrix, 534 So.2d 228 (Ala.1988).’
“Stone v. Southland Nat’l Ins. Corp., 589 So.2d 1289, 1292 (Ala.1991). ‘Wantonness is the doing of some act or omission with reckless indifference to the knowledge that such act or omission will likely or probably result in injury.’ Bishop v. Poore, 475 So.2d 486, 487 (Ala.1985); Anderson v. Moore Coal Co., 567 So.2d 1314, 1317 (Ala.1990).”

Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994). A JML is appropriate on a wantonness claim if the plaintiff has failed to offer substantial evidence showing that the defendant knew that its act or omission would likely or probably result in injury. See Anderson v. Moore Coal Co., 567 So.2d 1314, 1317 (Ala.1990).

There is no evidence indicating that B & P knew that the failure to plug the treatment holes in the concrete slab would likely or probably result in injury. The Joyners’ own expert stated that he had never experienced water migrating through a slab as had apparently occurred in this case. That portion of the trial court’s judgment granting B & P a JML on the Joyners’ wantonness claim against B & P is due to be affirmed.

The Joyners next argue that they presented substantial evidence indicating that B & P negligently or wantonly trained or supervised the employee who was directly responsible for the termite treatment at issue, Mark Johnson. Their argument in this regard is premised not on the training or supervision B & P gave Johnson, generally, but rather solely upon B & P’s awareness of one particular prior incident in which Johnson incorrectly applied termiti-cide at another customer’s home. The Joyners contend that B & P was negligent in not taking further steps to train or supervise Johnson based on its knowledge of this previous incident.

We note that “negligence is not synonymous with incompetency, and a single instance of negligence will not prove an employee incompetent ...; the most competent employee may be negligent.” Collins v. Wilkerson, 679 So.2d 1100, 1103 (Ala.Civ.App.1996).

“[I]ncompetency is connected conjunc-tively with carelessness, indifference, heedlessness and recklessness. Tncompeteney, as related to the law of negligence, connotes “want of ability suitable to the task, either as regards natural qualities or experience, or deficiency of disposition to use one’s abilities and experience properly. Incompetency connotes the converse of reliability. The term may include something more than physical and mental attributes; it may include want of qualification generally, such as habitual carelessness, disposition, and temperament.” ’ ”

McGowin v. Howard, 251 Ala. 204, 207-08, 36 So.2d 323, 325 (1948). We also note that, “ ‘[w]anton supervision’ requires that the employer wantonly disregard its agent’s incompetence.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 682 (Ala.2001) (emphasis added).

The prior incident upon which the Joyners attempt to rely occurred several months before Johnson treated the Joy-ners’ residence. The Alabama Department of Agriculture sanctioned and fined B & P allegedly because Johnson applied termiticide to another residence in a man ner that was not in conformity with the label requirements. The Department of Agriculture’s complaint specifically stated that that application was “inappropriate because of the proximity of a water line leading to a drinking water well.”

We conclude, based upon our review of the record, that the Joyners did not present substantial evidence indicating that Johnson did not have the ability to properly apply termitieide or that he had a “deficiency of disposition to use [his] abilities and experience properly.” Collins, 679 So.2d at 1103. That portion of the trial court’s judgment granting B & P a JML on the Joyners’ claims that B & P negligently trained or supervised Johnson and that it wantonly trained or supervised Johnson is due to be affirmed.

The Joyners next argue that B & P made a fraudulent misrepresentation and suppressed a material fact in connection with the 1998 termite treatment. Specifically, the Joyners contend that B & P misrepresented that it “possessed the knowledge and skill to drill and treat the [Joyners’] residence without permitting toxic, contaminated water to invade the interior of the residence” and that B & P “suppressed the fact that they were not able to treat their residence without causing a flood of toxic water to invade their home.”

As to the Joyners’ fraudulent-misrepresentation claim, B & P merely informed the Joyners that it would “take care of the termites.” When Mr. Joyner questioned Johnson about why he was drilling holes in the brick walkway, Johnson stated, “[T]hat’s the way you treat them.” The Joyners did not present substantial evidence indicating that B & P made any express representation regarding whether B & P’s treatment method might permit water to migrate through the treatment holes or that it would prevent water from migrating through the treatment holes. Even if such a representation was made, there was not substantial evidence showing that the representation was untrue, i.e., that B & P did not possess the knowledge and skill to treat the Joyners’ residence without permitting contaminated water to invade the interior of the residence. There merely was evidence indicating that B & P did not employ such knowledge or skill, i.e., that it was negligent. Similarly, as to the Joyners’ suppression claim, the Joyners presented no evidence indicating that B & P knew that its treatment method might cause flooding in the Joyners’ basement. See McGowan v. Chrysler Corp., 631 So.2d 842, 847 (Ala.1993) (“A party must have knowledge of a fact in order to be liable for its suppression.”). That portion of the trial court’s judgment dismissing the Joyners’ fraudulent-misrepresentation and suppression claims is due to be affirmed.

The Joyners next argue that the trial court erred by refusing to permit them to introduce evidence showing that Johnson had caused B & P to be sanctioned and fined by the Alabama Department of Agriculture when he allegedly misapplied term-iticide to another person’s residence in a manner that permitted the termitieide to migrate into a well. Rulings on the admissibility of evidence are within the sound discretion of the trial court, and we will not disturb the trial court’s ruling absent an abuse of that discretion. See Morris v. Laster, 821 So.2d 923, 926 (Ala.2001).

“ ‘The standard applicable to a review of a trial court’s rulings on the admission of evidence is determined by two fundamental principles. The first grants trial judges wide discretion to exclude or to admit evidence. “The test is that the evidence must ... shed light on the main inquiry, and not withdraw attention from the main inquiry.” Atkins v. Lee, 603 So.2d 937 (Ala.1992) (citing Ryan v. Acuff, 435 So.2d 1244 (Ala.1983)). The second principle “is that a judgment cannot be reversed on appeal for an error unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” Atkins, 603 So.2d at 941.’ ”

Mock v. Allen, 783 So.2d 828, 835 (Ala.2000) (quoting Wal-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala.1998)).

Evidence of other wrongs or acts may be admitted to show that an employer had knowledge of an employee’s incompetence. See Rule 404(b), Ala. R. Evid.; McGowin v. Howard, 251 Ala. 204, 208, 36 So.2d 323, 325 (Ala.1948). The Joyners proffered evidence of Johnson’s previous misapplication of termiticide for the purpose of proving that B & P had knowledge that Johnson was incompetent and in support of their claims that B & P had negligently and wantonly trained and supervised Johnson. As discussed above, even if the trial court had admitted the evidence of Johnson’s previous misapplication of termiticide, the Joyners would have failed to present substantial evidence to support their claims that B & P negligently or wantonly supervised or trained Johnson. Thus, any error that the trial court might have committed by excluding evidence of Johnson’s previous misapplication of termiticide was harmless. See Taylor v. General Refrigeration Sales Co., 231 Ala. 469, 472, 165 So. 572, 574-75 (1936).

The Joyners next argue that the trial court erred by refusing to permit them to introduce into evidence a video animation of water flowing through the treatment holes and flooding their basement. Dr. William Payne, the structural engineer who testified on behalf of the Joyners, represented that he had taken part in preparing the video animation and that it fairly and accurately depicted the flooding that had occurred at the Joyners’ residence. However, we note that the trial court, after reviewing the video animation, concluded that it distorted the evidence and refused to admit it. Rule 403, Ala. R. Evid., states, in pertinent part, that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” After reviewing the video animation, we cannot conclude that the trial court abused its discretion in excluding it from evidence. See Mock, supra.

The Joyners next argue that the trial court erred by allowing Joseph Lun-dy, Jr., a real-estate appraiser and a witness for B & P, to testify regarding whether the value of the Joyners’ home might have been reduced because of the termite and flooding problem. Mr. Joyner testified that he and his wife had purchased their house for $274,000 and that he believed that the house had declined in value by $100,000 because of the 1998 termite infestation and flood damage. The Joyners argue that B & P knew that they would offer some testimony as to the reduction in value of their house, yet it failed to list Lundy as a witness in compliance with the trial court’s pretrial order.

“Whether to allow [a] witness to testify is a matter within the sound discretion of the trial judge.” Truck Rentals of Alabama, Inc. v. M.O. Carroll-Newton Co., 623 So.2d 1106, 1112 (Ala.1993). We note that B & P stated in their pretrial witness list that it would call rebuttal witnesses, that it informed the Joyners within 48 hours of the time that the decision was made to call Lundy as a witness, and that Lundy’s testimony was limited to the rebuttal of Mr. Joyner’s opinion that the Joyners’ house might have significantly declined in value because of the 1998 termite infestation and the water damage. The decision whether to allow Lundy to testify was within the discretion of the trial court and we find no abuse of that discretion under the circumstances.

Finally, the Joyners argue that the trial court erred by allowing Joe D. Worley, an engineer, to testify regarding the possible causes of the Joyners’ flooding problem. The Joyners repeatedly objected to Worley’s testimony on the ground that his opinions were “speculation” because he had not actually observed the conditions at their residence. However,

“[a] witness who has qualified as an expert may give an opinion based upon his or her own knowledge of facts, stating those facts and then his or her opinion, or he or she may give an opinion based upon hypothetical questioning as to facts already in evidence, or evidence to be subsequently admitted. Alabama Power Co. v. Robinson, 447 So.2d 148 (Ala.1983). Where personal observation is lacking, an expert witness cannot be permitted to give his or her expert opinion until facts upon which the opinion is to be based have been properly hypothesized before him or her.”

Crawford v. Hall, 531 So.2d 874, 875 (Ala.1988). We have reviewed the record and note that Worley’s testimony was based upon facts that were in evidence. The trial court did not abuse its discretion in permitting Worley to testify.

The judgment of the trial court is due to be affirmed, except as to the Joyners’ claim that B & P acted negligently in the manner in which it attempted to apply termiticide to the Joyners’ residence. As to that claim, the trial court’s judgment is due to be reversed, and the cause remanded for a new trial.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . See Rule 50, Ala. R. Civ. P.

      . The trial court refused to admit evidence of the alleged misapplication of termitieide for which B & P was sanctioned. See discussion, infra.