author: HARWOOD, Justice.

text:
    Ex parte PHENIX RENTAL CENTER. (In re Phenix Rental Center v. Angel Ray Batiz).
    1012284.
    Supreme Court of Alabama.
    June 20, 2003.

      Michael J. Cohan of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for petitioner.
    Joseph Wiley, Jr., of Joseph Wiley, Jr. & Associates, Columbus, Georgia, for respondent.
   HARWOOD, Justice.

On November 12, 1997, Phenix Rental Center (“Phenix”) filed a complaint in the Russell County Circuit Court for a judgment declaring whether Phenix’s employee, Angel Ray Batiz, was entitled to workers’ compensation benefits under the Alabama Workers’ Compensation Act. Ba-tiz had been diagnosed with hepatitis C (“hepatitis”), which he alleged was for him an occupational disease. Batiz filed a counterclaim seeking those benefits. After various filings by the parties, the trial court held an evidentiary hearing on August 26, 1999 (“the 1999 hearing”), following which the trial court found, among other things, that Batiz had “suffered a work related injury by contracting hepatitis” and ordered that Phenix provide him workers’ compensation benefits. Subsequently, on April 2, 2001, the trial court held a second evidentiary hearing (“the 2001 hearing”), resulting in an order entered on April 24, 2001, declaring Batiz to be “totally and permanently disabled.” Phenix appealed to the Alabama Court of Civil Appeals, and on June 28, 2002, that court affirmed the judgment of the trial court, without an opinion. See Phenix Rental Ctr. v. Batiz (No. 2000846, June 28, 2002), 868 So.2d 1162 (Ala.Civ.App.2002) (table). After its application for a rehearing was overruled, Phenix petitioned this Court for a writ of certiorari to review the decision of the Court of Civil Appeals. We granted Phenix’s petition on December 10, 2002, to address whether the Court of Civil Appeals’ judgment affirming the trial court’s holding that Batiz is totally and permanently disabled conflicted with previous decisions of that court.

The record shows that Phenix is in the equipment-rental business, which includes the rental of portable fiberglass toilets. Beginning in October 1995, Batiz was employed by Phenix as a laborer repairing various fiberglass rental items, including the toilets. Batiz testified at the 1999 hearing that the repair work often resulted in “cuts or splinters from the fiberglass” to, or into, his hands and sometimes required him to come in contact with human waste that had not been completely pumped from waste reservoirs in the toilets.

As stated in Phenix’s complaint, on August 12, 1997, Batiz reported that he had been diagnosed with hepatitis and he alleged that he contracted the disease through his employment at Phenix. After having been diagnosed on August 12, 1997, Batiz took a leave of absence from work at Phenix and did not return to work until October 1997. Upon his return to work, Batiz worked half days and full days depending on how he felt, and he has continued to do so, as stated in both Phenix’s petition and in Batiz’s brief to this Court. Since his diagnosis, Batiz has been evaluated by Dr. Robert R. Brinson, an infectious-disease specialist, who was still treating Batiz for his disease at the time of the 2001 hearing, and by Dr. Glenn Bedsole, also an infectious-disease specialist; he has also been evaluated by Virginia Spruce and Jane Logan, both of whom are vocational consultants.

The trial court’s 1999 order directing Phenix to pay Batiz workers’ compensation benefits states, in pertinent part:

“[These] parties and counsel appeared before this court for hearing on this cause on August 26, 1999. Sworn testimony was taken and the court considered evidence admitted. The court hereby makes a finding of fact as follows:
“1. [Batiz] contracted hepatitis while an employee of [Phenix],
“2. [Batiz’s] employment at [Phenix] exposed him to hepatitis pathogens.
“3. No reasonable explanation has been proffered as to how [Batiz] contracted hepatitis other than exposure resulting from his employment at [Phenix].
“4. [Batiz] suffered vocational disability.
“5. [Batiz] needs further medical evaluation and treatment in order to determine the extent of his disability.
“It is therefore,
“Ordered, Adjudged, and Decreed:
“1. That [Batiz] suffered a work related injury by contracting hepatitis in August 1997.
“2. [Phenix] is ordered to provide worker’s compensation benefits for [Ba-tiz] effective August 12, 1997.
“3. [Batiz] is ordered to undergo further medical evaluation and treatment to be provided by [Phenix],
“4. This matter is ordered continued for further hearing by motion of either party.”

The trial court’s 2001 order found that Batiz was totally and permanently disabled; that order states, in relevant part:

“The parties and counsel appeared before the court for hearing in this cause on the 2nd day of April 2001. Sworn testimony was taken and the court considered the evidence admitted. ' Upon consideration of the same, it is hereby
“Ordered, Adjudged, and Decreed:
“1. That the defendant, [Batiz], is declared to be totally and permanently disabled.
“2. That [Phenix] is ordered to pay past medical and future medical expenses as provided by law.
“3. That [Phenix] is ordered to pay [Batiz] past and future income benefits as provided by law.
“4. That notice shall issue to the parties.”

In its petition, Phenix argues that the combined effect of these two orders was such that the trial court erred (1) in finding Batiz to be permanently and totally disabled; (2) in considering testimony about Batiz’s vocational disability; and (3) in failing to make specific findings of fact and state conclusions of law.

Our standard of review in a workers’ compensation case is that standard stated by this Court in Ex parte Trinity Industries, Inc., 680 So.2d 262, 268-69 (Ala.1996):

“[W]e will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

(Quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).) Moreover, the Court of Civil Appeals observed in Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995), that “the [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.” (Emphasis added.) Finally, Trinity Industries requires that we review the evidence in this workers’ compensation action in a light most favorable to the appellee — in this ease, Batiz. 680 So.2d at 270.

Phenix contends that the trial court erred by finding that Batiz was permanently and totally disabled. Within that argument, Phenix asserts the sub-argument that because Batiz had not reached maximum medical improvement (“MMI”) as of the time of the 2001 order, he could not be deemed permanently disabled under Alabama law. A claimant has reached MMI when “there is no further medical care or treatment that could be reasonably anticipated to lessen the claimant’s disability.” G.UB.MK. Constructors v. Traffanstedt, 726 So.2d 704, 709 (Ala.Civ.App.1998). “[M]aximum medical improvement is reached when the employee has recovered as much as medically possible from the wound such that the extent of permanent disability, if any, can be estimated.” 1 Terry A. Moore, Alabama’s Workers’ Compensation § 13:5, p. 502 (1998)(footnotes omitted). “Maximum medical improvement does not mean complete cure or total recovery from the work-related injury.” Id. “Permanent disability refers to the compensable disability remaining after the employee has reached maximum medical improvement.” Id. at § 13:15, p. 514 (emphasis added; footnote omitted). In support of its argument, Phe-nix claims that the no-opinion affirmance by the Court of Civil Appeals conflicts with that court’s earlier decisions in Alabama By-Products Corp. v. Lolley, 506 So.2d 343 (Ala.Civ.App.1987); Pemco Aeroplex, Inc. v. Johnson, 634 So.2d 1018 (Ala.Civ.App.1994); Edward Wiggins Logging Co. v. Wiggins, 603 So.2d 1094 (Ala.Civ.App.1992); and Hillery v. MacMillan Bloedel, Inc., 717 So.2d 824 (Ala.Civ.App.1998).

In Alabama By-Products, supra, an employee had injured her left knee several times during the course of her employment. She ultimately underwent knee-replacement surgery and thereafter sought workers’ compensation benefits. Litigation ensued. At the trial, conducted only five months after the surgery, the employee’s orthopedic surgeon testified as to her condition. The surgeon testified that he had not yet determined the extent of the employee’s disability, nor had he been able to establish a “disability percentage rating concerning the employee’s knee.” 506 So.2d at 344. He explained that it was his normal practice to wait approximately one year after such a surgical procedure before determining a patient’s disability percentage rating. The surgeon further testified that the employee had not reached MMI. After the hearing, the trial court found the employee to be permanently and totally disabled and, thus entitled to workers’ compensation benefits consistent with that rating. The employer appealed, arguing that the trial court’s finding that the employee was permanently and totally disabled “should have been deferred because maximum medical improvement had not been attained.” 506 So.2d at 344. Reversing the trial court’s judgment, the Court of Civil Appeals stated:

“Here the evidence was that the amount of the employee’s disability could not be determined at this time. It was [the surgeon’s] testimony that it was too soon after the knee replacement surgery for him to make any disability rating or even to comment on the extent of the employee’s disability. This testimony of [the surgeon] was not contradicted. Put another way, the evidence that the employee had not reached maximum medical improvement was not disputed.
“In view of the above, the trial court was premature in finding that the employee was permanently and totally disabled. Stated differently, there is no evidence at this time to support a finding of permanent and total disability.”

506 So.2d at 344.

In Edward Wiggins Logging Co., supra, Edward Wiggins, an employee of Edward Wiggins Logging Company, and Over-street & McCorquodale, Inc., entered into a lump-sum settlement agreement with his employers to settle his claim for workers’ compensation benefits arising from an injury to his left index finger. The agreement was presented for the trial court’s approval on April 11, 1989, and the trial court entered a judgment that same day in the amount of $4,002.01, representing a 100% disability to Wiggins’s left index finger. Just shy of two years later, Wiggins filed a motion to vacate the judgment, alleging, among other things, that he had not reached MMI until more than three months after the settlement date. The trial court set aside the judgment, and the employers appealed. Affirming the judgment of the trial court, the Court of Civil Appeals stated:

“The trial court had before it the treating physician’s progress notes reflecting that Wiggins reached maximum medical improvement as of July 27, 1989, more than three months after Wiggins entered into the settlement agreement, pro se. Our cases are clear that in order for the employee to recover permanent partial or permanent total disability benefits, the employee must have reached maximum medical improvement. Alabama By-Products Corp. v. Lolley, 506 So.2d 343 (Ala.Civ.App.1987).”

603 So.2d at 1095 (emphasis supplied).

In Pemco, supra, Steven R. Johnson sought workers’ compensation benefits from his employer Pemco Aeroplex, Inc. (“Pemco”), as a result of an alleged back injury he suffered in the course of his employment. At an oie tenus hearing, Johnson’s chiropractor, who had been treating Johnson for approximately two and a half years following the injury, testified that he had placed permanent lifting restrictions on Johnson and that Johnson had reached MMI. Following that proceeding, the trial court found that Johnson had suffered a permanent partial disability and that he had suffered a 30% loss of earning capacity as a result of the injury. The trial court awarded workers’ compensation benefits accordingly, and Pemco appealed. The Court of Civil Appeals affirmed the trial court’s judgment finding that Johnson had reached MMI and had suffered a 30% loss of earning capacity; however, it reversed the trial court’s judgment insofar as it allocated benefits for accrued temporary total disability, accrued permanent partial disability, and future permanent partial disability, because of a discrepancy in the computation of those benefits. The Court of Civil Appeals explained:

“The trial court further found that Johnson had received all temporary total benefits to which he was entitled, indicating at first blush that the trial court intended to award permanent partial disability benefits. A finding that Johnson was entitled to 165 weeks of accrued permanent partial disability benefits, however, is inconsistent with the trial court’s finding that Johnson reached maximum medical improvement in February 1992. It appears that the 165 weeks of accrued disability benefits encompassed the time period from August 1989 until October 1992. Part of this time was prior to Johnson reaching maximum medical improvement. In order for an employee to recover permanent disability benefits, he must have reached maximum medical improvement. Edward Wiggins Logging Co. v. Wiggins, 603 So.2d 1094 (Ala.Civ.App.1992). The trial court’s award of accrued permanent partial disability benefits is therefore inconsistent with its finding that Johnson reached maximum medical improvement in February 1992.”

634 So.2d at 1021 (emphasis supplied).

. Finally, in Hillery v. MacMillan Bloedel, Inc., supra, Bobby Edward Hillery, a log-truck driver employed by MacMillan Bloedel, Inc. (“MacMillan”), was injured while on the job in an accident involving another truck. Hillery had no visible signs of injury immediately after the accident, but he did not return to work, on the recommendation of a neurologist that he not drive until he had undergone a psychiatric evaluation. Shortly thereafter, Mac-Millan ceased its logging operations and laid off all of its truck drivers, including Hillery. Hillery then sued MacMillan for workers’ compensation benefits. The trial court awarded Hillery temporary total disability benefits from February 4, 1993, the date of his injury, until March 12,1993, the date he was laid off, and permanent partial disability benefits thereafter. Hillery appealed, asserting that nothing in the record established that he had reached MMI, and that, therefore, he was still entitled to receive temporary total disability benefits. Holding that the trial court had improperly determined that Hillery had reached MMI on a particular date, the Court of Civil Appeals stated, “[W]e cannot determine whether MMI was reached, or, if it has been reached, when it was reached.” 717 So.2d at 826. The court declared that “[b]efore a trial court can award permanent total or permanent partial disability benefits, the worker must have reached MMI. Alabama By-Products Corp. v. Lolley, 506 So.2d 343, 344 (Ala.Civ.App.1987).” Id. at 825 (emphasis supplied). See also Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784 (Ala.Civ.App.2002).

Our review of the record supports Phe-nix’s contention that Batiz had not reached MMI at the time of the trial court’s 2001 order finding that he was permanently and totally disabled. In Batiz’s response to Phenix’s motion to preclude evidence of vocational disability filed on June 2, 1999, Batiz’s attorney stated, “First, Mr. Batiz has not reached maximum medical improvement. He has not even begun to be treated for his permanent chronic illness.” Then, at the 1999 hearing, Jane Logan, a vocational consultant, testified, in relevant part:

“Q: Were you able to come up with a vocational disability rating for Mr. Ba-tiz?
“A: Well, basically, as I shared with you, this was a very difficult thing to do simply because there is [sic] a lot of factors here to take into consideration, one being that he has not had the treatment that has been recommended. Doctor Bedsole indicated in his deposition that he did need to go through or— excuse me — he did need to be seen by a doctor that regularly treats people with hepatitis, so as to be exposed to new medications that are out there for him. He has not gone through that and therefore it is almost like he really has not reached a point of maximum medical improvement or his condition hasn’t stabilized to the point where we have a good idea of what his restrictions or physical capabilities are going to be in the future....”

(Emphasis supplied.) In a deposition of Dr. Brinson, taken in August 2000, he was asked by counsel for Batiz this question, giving this response:

“[Counsel for Batiz]: My last question would be where does he go from here? I know the judge is going to want to know. What is he supposed to be doing medically before he tries to make some kind of legal conclusion?
“A: ... Well, the thing that needs — if he has completed the six months of treatment, if he was able to take that despite the side effects, then he needs— we need to determine what his RNA titer is and what his — liver enzymes are now off treatment. And then if there’s still a question of the amount of his symptoms that he’s having, then maybe consider rebiopsying his liver to see if there’s been any change. In other words, has the liver biopsy progressed or gotten worse despite treatment. Has it gotten better. Has it stayed the same. That would be the kind of thing to determine what to do next.”

Shortly before the 2001 hearing, Dr. Brinson responded to a document that had been submitted to him six weeks earlier. That document, from Phenix’s workers’ compensation insurer, contained the question “[p]lease advise if [Batiz] has reached maximum medical improvement.... _Yes _No.” Dr. Brinson placed a check mark next to the “no” option. That same document also contained the question “[i]f the patient has not reached MMI, what is the anticipated date?” to which Dr. Brinson responded “unknown.” That information was provided to the trial court at the hearing. Also at that hearing, counsel for Batiz made the following statements during a colloquy among him, the court, and counsel for Phenix:

“[Counsel for Phenix, Michael J. Cohan]: ... While his hepatitis is stable, according to Dr. Brinson, he also says he is not at maximum medical improvement until this therapy, interferon therapy/-1 is completed.
“[Counsel for Batiz]: The only thing— Mr. Cohan is correct....
“[Mr. Cohan]: I have a vocational expert that is here, but to be quite candid, the vocational expert is virtually going to testify to what’s contained in that case-law that with him not reaching MMI that there’s no way to assign a disability, and based on what we do have, assumes that MMI is zero.
“The Court: Do you have anything in here that would refute that he’s not at MMI?
“[Counsel for Batiz]: Your honor. I have a caselaw [sic]
“The Court: Of course, you’re saying that he has not reached maximum medical improvement in that he has a permanent condition?
“[Counsel for Batiz]: He has a permanent restriction.
“[Counsel for Batiz]: ... And we maintain that in the instance of Mr. Batiz having never been off of work, there’s not an evaluation as to whether he has received maximum medical improvement or not.”

Batiz has presented no evidence to contradict Phenix’s contention that he had not reached MMI at the time the trial court ruled that he was permanently and totally disabled.

Finally, Batiz asserts in his brief to this Court that “[h]e has not reached maximum medical improvement, because he has an incurable disease.” (Batiz’s brief, p. 11.) In light of the Court of Civil Appeals’ decisions in Alabama By-Products, Pemeo, Edward Wiggins Logging Co., and Hillery, and considering the lack of substantial evidence indicating that Batiz had reached MMI as of the time of the 2001 hearing, we conclude that the trial court erred in declaring him to be permanently and totally disabled. We hold, in agreement with Alabama By-Products, Perneo, Edward Wiggins Logging, and Hillery, that before a trial court can make a determination that an employee is permanently (and either partially or totally) disabled under the Alabama Workers’ Compensation Act, the employee must have reached MMI. Batiz does not respond in any way to Phenix’s argument concerning the rule of Alabama By-Products and the other cases cited above that an employee seeking compensation for either permanent partial disability or permanent total disability (as opposed to either temporary total disability or temporary partial disability) must first have reached MMI. Batiz chooses instead to state dismissively, but without acknowledging any particular case, that Phenix “cites a series of cases of which many are not relevant to this issue before the Court. Furthermore, the cases cited by [Phenix] are not controlling and does [sic] not represent any kind of firm decision on the part of this Honorable Court” (Batiz’s brief, p. 3). Batiz states that his understanding is that Phenix “draws its argument pertaining to maximum medical improvement from Section 25 — 5—57(a)(3)[i.] where it basically states that when an injured employee returns back to work at an income level equal to or greater than the pre-injury wages, then no disability will be presumed to have been inflicted on the employee by that particular injury.” (Ba-tiz’s brief, pp. 7-8.) That Code section provides, in pertinent part:

“i. Return to Work. If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25-5-57(a)(3), an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability. Notwithstanding the foregoing, if the employee has lost his or her employment under circumstances other than any of the following within a period of time not to exceed 300 weeks from the date of injury, an employee may petition a court within two years thereof for reconsideration of his or her permanent partial disability rating .... ”

Batiz then undertakes to knock down that “straw man” argument by asserting that § 25-5-57(a)(3)i. does not apply in this case because, he argues, he “is not returning to work because he never left” (Batiz’s brief, p. 11). He continues by arguing that “the fact that [he] continued to work because of necessity does not mean that his injury has not caused him to lose his ability to continue his trade” (Ba-tiz’s brief, p. 9). In the final analysis, Batiz simply takes the position that because his hepatitis is “incurable” his resulting disability must be permanent. The only portion of either hearing he cites in support of that contention is the testimony of vocational consultant Virginia Spruce, who, he says, testified that he was “totally and permanently disabled.” Our review of the pages of the record Batiz cites for that testimony, which Ms. Spruce gave at the 1999 hearing, reveals that Ms. Spruce was careful to avoid expressing any opinion about Batiz’s permanent level of disability, as reflected by the following segments of that testimony:

“[Ms. Spruce]: No, at this time I feel he is 100 percent disabled.
“[Ms. Spruce]: ... He needs to be evaluated so that we know what the future holds for this gentleman.
“[Mr. Cohan]: Again, you are assuming that his condition is going to be such that he needs this extensive treatment and that this is going to be debilitating in the future, when in fact you have testified you don’t know; is that right? “[Ms. Spruce]: I think that you misunderstood me. Right now he is feeling that fatigue. He has some health problems right now. I don’t know to what extent because he has not been evaluated and I am not a doctor.
“[Mr. Cohan]: When you were looking at Dr. Bedsole’s deposition, do you recall him stating that there are people with chronic hepatitis who are incapacitated but there are a number of other people that continue to work?
“[Ms. Spruce]: Would you tell me what page you are on?
“[Mr. Cohan]: Page 33 of his deposition, specifically line 17 — end of 17.
“[Ms. Spruce]: 17.
“[Mr. Cohan]: It says, ‘There are people who have chronic hepatitis who are incapacitated by it but there are [a] number of people that have chronic hepatitis who continue to work.’
“[Ms. Spruce]: Right. And it says, ‘It depends on the severity of the hepatitis.’
“[Mr. Cohan]: And we don’t know what the severity of the hepatitis in Mr. Batiz is?
“[Ms. Spruce]: No, we do not.
“[Mr. Cohan]: So we are assuming or you are assuming when you say that he is 100% disabled that this is going to be an incapacitating problem down the road?
“[Ms. Spruce]: I am stating at this time that since he is unable to maintain substantial gainful activity working 40 hours a week at best and that this is a sheltered-type environment, if he had to go out in the workplace right now, I don’t feel he would be employable. That does not mean that that is forever; but at this point in time I don’t think he could go out on [sic] the employment market and find a job outside of employment with the insured and that appears to be a sheltered-type environment for him.”

After all is said and done, the record is devoid of any evidence indicating that, as of the time the trial judge issued his April 24, 2001, order finding Batiz to be “totally and permanently disabled,” Batiz had in fact reached MMI, as that status is defined by the law. That is not to say that, under the state of the record, the trial judge could not have attempted a determination of some sort of temporary disability rating. He acted prematurely, however, in making a determination of permanent disability.

The three cases cited by the Court of Civil Appeals in its no-opinion affirmance are Ex parte Trinity Industries, Inc., supra; Bidermann Industries Corp. v. Peterson, 655 So.2d 997 (Ala.Civ.App.1994); and Sumiton Timber Co. v. Anderson, 620 So.2d 54 (Ala.Civ.App.1993). In the latter two cases and in Trinity Industries, Inc. v. Cunningham, 680 So.2d 253 (Ala.Civ.App.1995), which this Court affirmed in Ex parte Trinity Industries, Inc., the Court of Civil Appeals affirmed an award of compensation benefits based on a finding of permanent and total disability. In none of those cases was the issue whether the injured employee had reached MMI. Trinity dealt with the issue of “medical causation” in a situation where an employee “was rendered permanently and totally disabled as the result of a stroke suffered while at the workplace of his employer ....” Ex parte Trinity Indus., 680 So.2d at 265. In Bidermann, the trial judge found that the employee’s “ ‘doctors offer no cure or hope that her condition will substantially improve.’ ” 655 So.2d at 999. That finding was not challenged on appeal, the only issue in dispute being the cause of the employee’s condition. The proof in Sumiton Timber included the testimony of a licensed professional counselor in vocational rehabilitation who testified that the employee was “totally and permanently disabled.” 620 So.2d at 55 (emphasis supplied).

It was apparently the understanding of all concerned at the outset of the 2001 hearing that the only issues to be addressed were one or more unpaid medical bills and whether Batiz had reached MMI, as a precondition to any finding of permanent disability. That concept of the scope of the hearing was stated at the beginning of the hearing by counsel for Phenix, and he reiterated it several times during the course of the hearing, eliciting at least one confirmatory response from the trial judge. Because our reversal of the Court of Civil Appeals’ judgment in this case is based on the absence of evidence from which the trial court could have made a determination of any degree of permanent disability, we recognize that a further evi-dentiary proceeding will be required. For that reason, we pretermit consideration of Phenix’s other claims of error relating to the trial court’s finding of total disability even though Batiz had continued working for Phenix after his injury at allegedly the same or greater wage, thus invoking the limitations of § 25-5-57(a)(3)i., set out above.

The judgment of the Court of Civil Appeals is reversed and the case remanded for the Court of Civil Appeals, in turn, to remand to the trial court for further proceedings consistent with our opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and STUART, JJ., concur.

      . As a part its toilet-rental business, Phenix has trucks with large receiving tanks and a vacuum or pump that removes the waste contained in the waste reservoir of the toilets and pumps it into the tank on the truck.

      . Batiz stated at the 1999 hearing that not all of the days he had taken off or had worked only a half day since his diagnosis were as a result of his illness, but rather some of those absences or partial work days had been used to take care of "personal business and stuff” and for vacations.

      . In his deposition, Dr. Brinson stated that he had placed Batiz on a "combination Rebetron 1,000 milligrams and Interferon three million units three times a week.” Dr. Brinson explained that such regimen is
      "an antiviral medication like you would use for other viral illnesses to try to reduce the viral replication in the liver.... Interferon has some properties that also reduce the amount of fibrosis. It's been shown the fibrosis in the liver is decreased as well with Interferon therapy in people with hepatitis C."


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    PHENIX RENTAL CENTER v. Angel Ray BATIZ.
    2000846.
    Court of Civil Appeals of Alabama.
    Aug. 22, 2003.
    Michael J. Cohan of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
    Joseph Wiley, Jr., of Joseph Wiley, Jr., & Associates, Columbus, Georgia, for ap-pellee.
   On Remand from the Alabama Supreme Court

MURDOCK, Judge.

This court affirmed the trial court’s judgment, without an opinion. Phenix Rental Center v. Batiz (No. 2000846, June 28, 2002) 863 So.2d 1162 (Ala.Civ.App.2002) (table). This court’s judgment has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Phenix Rental Center, 873 So.2d 226 (Ala.2003). In compliance with the Supreme Court’s opinion, the judgment of the trial court is hereby reversed, and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: PITTMAN, Judge. THOMPSON, Judge,

text:
    Beverly A. McCURDY v. Robert L. McCURDY.
    2020336.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2003.
    David C. Livingston, Gadsden, for appellant.
    Robert G. Wilson, Fort Payne, for appel-lee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.; Ex parte Fann, 810 So.2d 631 (Ala.2001); Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996); Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App.1998); O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996); Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996); Grimsley v. Grimsley, 545 So.2d 75 (Ala.Civ.App.1989); Nowell v. Nowell, 474 So.2d 1128 (Ala.Civ.App.1985).

CRAWLEY and MURDOCK, JJ., concur.

YATES, P.J., and THOMPSON, J., dissent.

THOMPSON, Judge,

dissenting.

I dissent from the no-opinion affirmance. The majority affirms, among other things, the trial court’s failure to award the wife a portion of the husband’s retirement benefits. The evidence presented to the trial court indicates that the parties were married for approximately 30 years, during which the husband worked for Delta Airlines as a pilot. The wife, during that period of time, moved with the husband to help further his career and only worked sporadically. The husband, whose current employment income exceeds the wife’s employment income by more than $10,000 per month, would receive $5,988 in monthly retirement income for the duration of his life if he retired at the time the wife filed for divorce. Given the length of the parties marriage and the disparity between the parties’ incomes, I would reverse the trial court’s judgment insofar as it fails to award the wife a portion of the husband’s retirement benefits. See Turner v. Turner, 804 So.2d 1118 (Ala.Civ.App.2001)(re-versing judgment of trial court awarding wife only 30% of husband’s retirement benefits in light of length of marriage and disparity between parties’ incomes, and where wife had no retirement benefits of her own). Accordingly, I dissent.

YATES, P.J., concurs.


author: CRAWLEY, Judge.

text:
    AVONDALE MILLS, INC. v. Donald Ray GALLUPS.
    2020465.
    Court of Civil Appeals of Alabama.
    Aug. 22, 2003.

      Donald W. Lang, Sylacauga, for appellant.
    R. Blake Lazenby of Wooten, Thornton, Carpenter, O’Brien, Lazenby & Lawrence, Talladega, for appellee.
   CRAWLEY, Judge.

Avondale Mills, Inc. (“the company”), appeals from the trial court’s award of workers’ compensation benefits to Donald Ray Gallups (“the worker”). We reverse and remand.

The worker sued the company seeking to recover workers’ compensation benefits, alleging that he had suffered a job-related accident or occupational disease as a result of his exposure to cotton dust in the course of his employment with the company. The company answered and denied liability. Following an ore tenus proceeding, the trial court entered an order finding that the worker suffered from occupational asthma and granulomatous lung disease as a result of his employment and that he was permanently and totally disabled; the trial court awarded benefits accordingly. The company filed a motion to alter or amend the trial court’s judgment, or, in the alternative, for a new trial. The trial court amended its judgment insofar as it related to a lump-sum award of total-disability payments and the award of an attorney fee. The company filed a notice of appeal to this court.

On appeal, the company argues that the trial court erred by awarding workers’ compensation benefits to the worker because, it says, (1) the worker failed to present clear and convincing evidence to support that he has an occupational disease; (2) the worker failed to prove that he had reached maximum medical improvement (“MMI”); and (3) the worker failed to prove that his condition was permanent in nature. The standard of review this court employs when reviewing a trial court’s judgment in a workers’ compensation case is well-settled. The Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975, provides that “[i]n reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” § 25 — 5—81(e)(1), Ala. Code 1975. Our supreme court has stated the standard of review to be employed as to a trial court’s findings of fact as follows:

“[U]nder the applicable standard of review, we will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996)(quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975). See also § 25 — 5—81(e)(2), Ala.Code 1975. Further, “[t]he [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

We find one issue raised by the company to be dispositive of this appeal — whether the worker failed to prove that he had reached MMI. Dr. Louis Pappas testified by deposition for the employee. During the deposition, Dr. Pappas testified during direct examination by the worker’s counsel, in pertinent part, as follows:

“Q. And I offer Plaintiffs Exhibit 1 [a document entitled ‘Avondale Mills Sick and Accident Pay’ containing an ‘Attending Physician’s Statement’ section in which Dr. Pappas indicated that he had diagnosed the worker with occupational asthma and ‘brown lung’]. Dr. Pappas, [the worker] has testified in his deposition, and I expect him to testify at trial, that he has difficulty even rolling his garbage can from his door out to the street, that he becomes extremely short of breath and he has virtually no stamina any longer. Would those complaints or that history be consistent with this occupational asthma we’ve discussed?
“A. Oh yeah, it sure could be.
“Q. And does the fact that he has continued to have those types of symptoms and complaints since he left the cotton mill at [the company] in May of 2001 lead you to believe that that condition is permanent in nature?
[Counsel for the company made an objection.]
“Q. Go ahead.
“A. I think that for the foreseeable future he is disabled. What the future holds as he gets away from this and whether this will resolve remains to be seen. I mean, I don’t know the answer to that.
“Q. And is that because you just I guess wait and see.
“A. One has to follow it, and sometimes these things burn out, sometimes they’re ongoing....”

On cross-examination by the company’s counsel, Dr. Pappas stated that he did not know the answer, to a reasonable degree of medical certainty, to the question whether the worker had reached MMI. Further, the trial court noted in its order as follows:

“While no specific witness testified to a specific day as to when the [worker] reached [MMI], based upon the totality of the evidence the Court finds that the [worker] reached [MMI] in or around February, 2002, after which Dr. Pappas opined that the [worker] continued to be disabled and would remain so for the foreseeable future.”

Our supreme court recently reaffirmed a series of cases from this court holding that a trial court may not determine that a workers’ compensation claimant is permanently disabled when the worker has not reached MMI. In Ex parte Phenix Rental Center, 873 So.2d 226 (Ala.2003), the supreme court examined four cases decided by this court: Alabama By-Products Corp. v. Lolley, 506 So.2d 343 (Ala.Civ.App.1987); Pemco Aeroplex, Inc. v. Johnson, 634 So.2d 1018 (Ala.Civ.App.1994); Edward Wiggins Logging Co. v. Wiggins, 603 So.2d 1094 (Ala.Civ.App.1992); and Hillery v. MacMillan Bloedel, Inc., 717 So.2d 824 (Ala.Civ.App.1998). The supreme court cited Alabama By-Products for the proposition that it is premature for a trial court to determine that a worker is permanently and totally disabled when the only testimony was that the worker had not reached MMI. Edward Wiggins Logging Co., supra, was quoted by the supreme court in Phenix Rental Center for the proposition that: “ ‘Our cases are clear that in order for the employee to recover permanent partial or permanent total disability benefits, the employee must have reached maximum medical improvement. Alabama By-Products Corp. v. Lolley, 506 So.2d 343 (Ala.Civ.App.1987).’ ” 873 So.2d at 230-31 (quoting Edward Wiggins Logging Co., 603 So.2d at 1095 (emphasis supplied in Phenix Rental Ctr.)). This court’s opinions in Pemco and Hillery, supra, were quoted in Phenix Rental Center for this same statement of law. In Phenix Rental Center, supra, the supreme court concluded that because the evidence before the trial court was that the worker had not reached MMI, the trial court had prematurely determined that the worker was permanently disabled.

We also note that this case is very similar to Hillery, supra, because in this case the only medical testimony was that the question whether the worker had reached MMI could not be answered. Without any definitive testimony to support that the worker had in fact reached MMI, we find the trial court’s assignment of the MMI date to be without support. Thus, as we did in Hillery, we reverse the trial court’s judgment and remand the cause to the trial court in order for it to conduct a further evidentiary proceeding to determine whether the worker has reached MMI and, if so, to determine the date he reached MMI. Accordingly, it is unnecessary to address the remaining issues raised by the company at this time.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . See Phenix Rental Center, 873 So.2d at 235-36 ("Because our reversal of the Court of Civil Appeals’ judgment in this case is based on the absence of evidence from which the trial court could have made a determination of any degree of permanent disability, we recognize that a further evidentiary proceeding will be required."Xemphasis added).


author: THOMPSON, Judge.

text:
    Samuel RAVIV v. HANOVER INSURANCE COMPANY.
    2020443.
    Court of Civil Appeals of Alabama.
    Aug. 22, 2003.
    Derek B. Simms, Birmingham, for appellant.

      W. Scott McGarrah of McGarrah & Davenport, P.C., Birmingham, for appellee.
   THOMPSON, Judge.

On March 28, 2002, Samuel Raviv sued Hanover Insurance Company (“Hanover”), Geico General Insurance Company (“Gei-co”), and Family Car Center, Inc., in the Jefferson Circuit Court (“the trial court”), alleging a breach-of-contract claim against all of the defendants and a bad-faith failure-to-pay-insurance-proceeds claim against Hanover; Family Car Center was dismissed as a defendant, and Raviv settled his claim against Geico. On November 15, 2002, Hanover filed a motion for a summary judgment. On January 2, 2003, the trial court granted Hanover’s motion for a summary judgment. Raviv timely appealed from that judgment.

The standard of review applicable to a summary judgment is the same as the standard for granting a summary-judgment motion. In reviewing a summary judgment, this court must review the record in the light most favorable to the nonmoving party and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party. Cook v. AFC Enters., Inc., 826 So.2d 174, 176 (Ala.Civ.App.2002) (citing Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990)). The standard for granting summary judgment has been stated as follows:

“A summary judgment is appropriate where there is no genuine issue of material fact 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). ‘When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the non-movant to present “substantial evidence” creating a genuine issue of material fact.’ Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Bain v. Gray, 835 So.2d 1034, 1037 (Ala.Civ.App.2002).

On March 22, 2001, Raviv was struck in the rear of the vehicle he was driving by a drunk driver. At the time of the accident, Raviv was test-driving a Toyota 4Runner sport-utility vehicle with the permission of Tim Groover, an employee of Executive Auto Sales (“Executive”).

Shortly before the accident, Raviv was referred to Groover, who agreed to assist him in his search for an automobile. Following their introduction, Raviv received a telephone call from Groover who had located a Toyota 4Runner (“the Toyota”) owned by Family Car Center that was in Raviv’s price range. On March 15, 2001, Joe South, an automotive dealer for Family Car Center, allegedly agreed to sell the Toyota to Executive for $19,000; Executive took possession of the Toyota that day.

Joe South submitted an affidavit to the trial court. According to South, he sold the Toyota to Executive for $19,000 on March 15, 2001. At that time, South relinquished possession of the Toyota and the keys to the vehicle to Groover. South stated that no documents were signed and no payment was made at that time because he had recently purchased the Toyota on behalf of Family Car Center from another dealer, and, therefore, he did not have the title documents to the vehicle. South claimed that it is a common practice for the seller of an automobile to forego payment until the automobile’s title is confirmed. According to South, the car was sold on March 15, 2001, even though the exchange of the purchase money and the title did not occur until several days after the actual sale.

On March 29, 2001, after the accident with the drunk driver, Raviv filed a claim with the drunk driver’s insurance company, ALFA Insurance Company (“ALFA”), for the property damage to the Toyota. The Limbaugh Toyota Collision Center estimated the amount of the damage to the Toyota at $1,424.62. On April 2, 2001, ALFA issued an insurance check in the amount of $1,424.62 to “Samuel G. Raviv and Derek B. Simms, Attorney at Law,” for the property damage to the Toyota. In his affidavit, Raviv stated that all of the insurance proceeds from ALFA were given to Groover and Executive. Raviv claims that he did not receive any of the ALFA insurance proceeds.

At the time of Raviv’s accident, Family Car Center’s automobiles were insured by an automobile insurance policy issued by Hanover; that policy provided automobile-liability insurance and uninsured-motorist coverage. Raviv contended that Family Car Center was the owner of the Toyota and he sought underinsured-mo-torist insurance proceeds as a third-party beneficiary from Hanover for injuries he sustained during the accident. Raviv presented the trial court with an assignment-of-title document showing that Family Car Center was the registered owner of the Toyota as of March 14, 2001. Hanover denied Raviv’s underinsured-motorist claims, alleging that Family Car Center was not the owner of the Toyota at the time of the accident.

In a brief to the trial court, Hanover stated that there was an agreement between Family Car Center and Executive under which Executive was to purchase the Toyota on March 15, 2001; Hanover claims this agreement is evidenced by a bill of sale and by Executive’s payment of the purchase price of the Toyota on March 27, 2001, five days after the accident. Therefore, Hanover refused to pay Raviv’s underinsured-motorist claim because, it contended, the Toyota was legally owned by Executive and not by Family Car Center, its insured.

In its summary-judgment order, the trial court determined that Family Car Center did not own the Toyota at the time of the accident involving Raviv. The trial court relied on Auto-Owners Insurance Co. v. Delude, 827 So.2d 806 (Ala.Civ.App.2001), which states that ownership of a vehicle can be established by evidence that a party has taken possession of a vehicle, that a party has dominion and control over a vehicle, and that a transfer of money for the vehicle has occurred. The trial court did not elaborate upon its application of the law to the facts set forth before the trial court. The trial court did, however, find that Executive and Family Car Center had reached an agreement concerning the sale of the Toyota and that Executive had taken possession of the Toyota pursuant to that agreement. The trial court also relied upon Executive’s payment of the $19,000 purchase price after the accident as evidence that Executive was the owner of the car at the time of the accident.

On appeal, Raviv argues that there is substantial evidence to create a material issue of fact as to whether Family Car Center was the owner of the Toyota at the time of the accident and as to whether the Toyota was insured by Family Car Center’s insurance policy with Hanover. Section 32-8-39(d), Ala.Code 1975, states that a certificate of title to a motor vehicle establishes prima facie evidence of the facts appearing on the face of that certificate. However, the information contained on the certificate of title is subject to scrutiny by contradicting evidence. Cincinnati Ins. Co. v. Nelson, 668 So.2d 539 (Ala.1995); Eleven Automobiles v. State, 384 So.2d 1129 (Ala.Civ.App.1980); Crowley v. State Farm Mut. Auto. Ins. Co., 591 So.2d 53 (Ala.1991).

In Crowley, our Supreme Court noted: “[T]he absence of ownership indicated by the absence of a certificate of title ... can be rebutted by other evidence of ownership. For example, ownership or a transfer of ownership can be established by evidence of a party’s taking possession of the vehicle; by evidence of a bill of sale that manifests an intent to sell and transfer the vehicle and to grant dominion and control over it; and by evidence of a transfer of money for the vehicle.”

591 So.2d at 55.

The record does not support the trial court’s conclusion that there were no issues of material fact. Raviv has presented a Louisiana certificate of title that lists World Omni Financial Corporation (“Omni”) as the registered owner of the Toyota and Alabama Holding Corporation as the trustee for Omni. Raviv also introduced an assignment-of-title document showing that the title was transferred to Family Car Center on March 14, 2001. The certificate of title and the assignment-of-title document are prima facie evidence that Omni was the owner of the Toyota and that its ownership was transferred to Family Car Center before the accident.

Family Car Center presented evidence that Executive had possession of the car and that Executive had already agreed to purchase the Toyota from Family Car Center before the accident occurred. The undisputed evidence indicates that Executive paid Family Car Center the $19,000 purchase price five days after the accident, as indicated by the bill of sale. Family Car Center has presented evidence that Executive had the intent to buy the vehicle and had already taken possession of the Toyota at the time of the accident. See Crowley v. State Farm Mut. Auto. Ins. Co., supra.

Raviv introduced an assignment-of-title document that establishes that Family Car Center purchased the Toyota before the accident, and he introduced a bill of sale that indicates that Executive did not purchase the Toyota from Family Car Center until five days after the accident. Viewing the facts in the light most favorable to the nonmovant, we hold that Raviv has introduced substantial evidence indicating that there was a genuine issue of material fact as to whether Executive or Family Car Center was the owner of the Toyota at the time of the accident. See Hanners v. Balfour Guthrie, Inc., supra. The trial court erred in determining that there was no genuine issue of material fact in dispute. Therefore, the judgment of the trial court is reversed.

The sole issue addressed in this opinion is the propriety of the summary judgment. It should be noted that we are not commenting on the ultimate disposition of this case. We are merely concluding that summary judgment is not proper at this stage.

REVERSED.

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


text:
    Lillon S. HILL v. The NATIONAL AUCTION GROUP, INC.
    2020498.
    Court of Civil Appeals of Alabama.
    Aug. 22, 2003.

      Joshua B. Sullivan of Henslee, Robertson, Strawn & Knowles, L.L.C., Gadsden, for appellant.
    E. Britton Monroe and Preston B. Davis of Lloyd, Gray & Whitehead, P.C., Birmingham, for appellee.
   THOMPSON, Judge.

This is an appeal from an order granting a motion to compel arbitration.

The record indicates that John Agricola owned certain parcels of real property in Etowah County. Agricola entered into a contract (hereinafter referred to as “the listing agreement”) with The National Auction Group, Inc. (“NAG”), which provided that NAG would include Agricola’s real property in a real-estate auction conducted by NAG. The listing agreement, which is dated July 10, 2000, and is signed by Agricola and representatives of NAG, sets forth the terms of the agreement between Agricola and NAG. The listing agreement also contains an arbitration provision.

NAG advertised the auction that would include the sale of Agricola’s real property. It appears from the record on appeal that the auction was conducted on September 6, 2000. It is undisputed that Lillon S. Hill was the successful bidder for one parcel (“the parcel”) of Agricola’s property that was sold at the auction conducted by NAG. On September 6, 2000, Hill and Agricola entered into a “real estate purchase and sale agreement” (hereinafter “the real-estate contract”), which contained the terms of Hill’s purchase of the parcel from Agrí-cola. The real-estate contract between Hill and Agricola did not contain an arbitration agreement.

On February 12, 2002, Hill sued Agríco-la and NAG. In his complaint, Hill alleged that “the defendants” had failed to convey the parcel to him pursuant to the terms of the real-estate contract, and he sought damages for an alleged breach of contract. Hill also sought damages for an alleged fraudulent misrepresentation, claiming that “the defendants” misrepresented to him that the parcel was for sale and that it would actually be sold to the successful bidder at the September 6, 2000, auction. In addition, Hill sought specific performance of the real-estate contract.

NAG answered Hill’s complaint and denied liability. Agricola also answered and denied liability; in his answer, Agricola also asserted a cross-claim against NAG. On June 21, 2002, NAG sought to compel arbitration of Hill’s claims against it and to stay the proceedings in the trial court. Hill opposed that motion. NAG also later moved to compel arbitration of the cross-claim Agricola asserted against it; it does not appear that Agricola opposed that motion.

The transcript of the oral arguments for the November 15, 2002, hearing in this matter indicates that the attorney for NAG referenced an amended complaint that Hill had filed shortly after NAG filed its motion to compel arbitration; NAG’s attorney stated that, in that amended complaint, Hill had alleged that he was not asserting a breach-of-contract claim against NAG but that he was only seeking damages from NAG for an alleged fraudulent misrepresentation. Also, in a footnote in his opposition to NAG’s motion to compel arbitration, Hill himself referenced that amended complaint. That amended complaint is not a part of the record on appeal. However, in their briefs submitted to this court, both parties address only the fraudulent-misrepresentation claim asserted by Hill against NAG. Therefore, in this opinion, we address the arguments of the parties with regard to only that one claim.

The trial court, on November 25, 2002, entered an order granting NAG’s motion seeking to compel arbitration of Hill’s claim against it. Hill filed a petition for a writ of mandamus in our supreme court; that court elected to treat the petition as a timely filed appeal. See Rule 4(d), Ala. R.App. P. (“An order granting or denying a motion to compel arbitration is appeal-able as a matter of right.”). The supreme court later transferred the appeal to this court after it concluded that this court had jurisdiction of the appeal.

An appellate court reviews an order granting or denying arbitration de novo, or without a presumption of correctness attaching to the trial court’s decision. Lewis v. Oakley, 847 So.2d 307 (Ala.2002). “Therefore, this Court must determine ‘whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999).” Lewis v. Oakley, 847 So.2d at 318. The party seeking to compel arbitration has the initial burden of establishing the existence of a contract containing a written arbitration provision, and that party must also demonstrate that the transaction that forms the contract between the parties affects interstate commerce. Transouth Fin. Corp. v. Bell, 739 So.2d 1110 (Ala.1999). In this case, the question whether the transaction affects interstate commerce is not before this court; the parties dispute only the issue pertaining to whether the arbitration provision contained in the listing agreement encompasses Hill’s claim against NAG.

On appeal, Hill argues that because he did not sign the listing agreement that contained the arbitration provision, he cannot be required to arbitrate his claim against NAG.

“It is black-letter law that arbitration agreements must be enforced according to general standards of contract law. See Quality Truck & Auto Sales, Inc. v. Yassine, 730 So.2d 1164, 1167-68 (Ala.1999). Accordingly, ‘ “a party cannot be required to submit to arbitration any dispute he has not agreed to submit.”’ Old Republic Ins. Co. v. Lanier, 644 So.2d 1258, 1260 (Ala.1994) (quoting A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 362 (Ala.1990)). It is the general rule that a nonsignatory to an arbitration agreement cannot be forced to arbitrate her claims. See Ex parte Stripling, 694 So.2d 1281 (Ala.1997); Thomson-CSF, S.A. v. American Arbitration Ass’n, 64 F.3d 773 (2d Cir.1995).”

Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001).

Our supreme court has recognized two exceptions to the general rule that a party who has not signed a document containing an arbitration provision will not be required to submit to arbitration to which he or she did not agree. Under those two exceptions, a nonsignatory to a contract may be required to submit to arbitration where he or she is a third-party beneficiary of the contract containing the arbitration provision, or where the nonsignatory’s claims are intertwined with the contract containing the arbitration provision; those exceptions are known as the third-party-beneficiary exception and the “intertwining-elaims” exception, respectively. See AmSouth Bank v. Dees, 847 So.2d 923 (Ala.2002); SouthTrust Bank v. Ford, 835 So.2d 990 (Ala.2002); Conseco Fin. Corp. v. Sharman, 828 So.2d 890 (Ala.2001); Cook’s Pest Control, Inc. v. Boykin, supra; Ex parte Stamey, 776 So.2d 85 (Ala.2000); Ex parte Dyess, 709 So.2d 447 (Ala.1997). In addition, our supreme court has also noted that where the scope of the arbitration provision is limited to encompass only the parties who signed that agreement, a nonsignatory cannot be compelled to arbitrate pursuant to that arbitration provision. Cook’s Pest Control, Inc. v. Boykin, 807 So.2d at 527. We first address Hill’s argument pertaining to the scope of the arbitration provision at issue; we then address the third-party-beneficiary and intertwining-claims exceptions.

Hill maintains that he cannot be required to arbitrate his claim against NAG pursuant to the arbitration provision contained in the listing agreement because he is not a signatory to the listing agreement and because the terms of the arbitration provision contained in the listing agreement limit that provision to apply only to the parties who signed that agreement. In support of this portion of his argument, Hill cites Cook’s Pest Control, Inc. v. Boykin, supra.

In Cook’s Pest Control, our supreme court referenced its earlier holding in Southern Energy Homes, Inc. v. Gary, 774 So.2d 521 (Ala.2000), in which that court held that a nonsignatory could not compel arbitration of a claim asserted by a signatory to an arbitration provision because the provision at issue was limited, by its express terms, to apply only to the parties who signed the agreement providing for arbitration. In Cook’s Pest Control, 807 So.2d at 527, the court expanded the holding of Southern Energy Homes to prevent a signatory to an arbitration agreement from compelling a nonsignatory to arbitrate where the arbitration provision was limited to apply only to the parties to the agreement. Our supreme court found, in addition to its determination that the claims did not fall under the third-party-beneficiary exception or the intertwining-claims exception, that the “narrow scope” of the arbitration agreement at issue in that case provided an “independent basis” for affirming the trial court’s denial of the motion to compel arbitration. Cook’s Pest Control, Inc. v. Boykin, 807 So.2d at 527.

The arbitration provision contained in the listing agreement between Agricola and NAG provides, in pertinent part:

“1. Agreement. Any dispute(s) pertaining to legal controversies and other matters and questions arising out of or relating to the auction made the subject of this agreement by the National Auction Group, Inc., an Alabama corporation, hereinafter referred to as ‘NAG,’ and the Seller, including but not limited to, the terms of this agreement, representation, promises, undertakings or covenants made relating to the auction agreement, services provided under the auction agreement, and the validity and construction of arbitration in accordance with the commercial arbitration rules of America Arbitration Association [sic]. The parties agree to be bound by the result as their SOLE remedy.
“2. SCOPE. Arbitration shall apply to ANY dispute between the parties concerning questions of law or fact or both arising out of or relating to this agreement, its performance, or its alleged breach, which is not disposed of by agreement of the parties within Thirty (30) days.”

(Emphasis added.)

We construe the language in the arbitration provision contained in the listing agreement to apply only to the parties to that agreement. Therefore, we hold that NAG, a signatory to the listing agreement, could not compel Hill, a nonsignatory, to arbitrate his claim pursuant to the arbitration provision contained in the listing agreement because that arbitration provision was specifically limited, by its own terms, to the parties signing the listing agreement. See Cook’s Pest Control, Inc. v. Boykin, supra; SouthTrust Bank v. Ford, 835 So.2d 990, 995 (Ala.2002).

Hill also maintains that he is not subject to the third-party-beneficiary exception to the rule that a party will not be required to arbitrate pursuant to a provision in a contract to which the party is a nonsignatory. Our supreme court has stated that a party who claims to be a third-party beneficiary of a contract must demonstrate that the parties to the contract intended “ ‘to bestow a direct, as opposed to an incidental, benefit upon the third party.’ ” Ex parte Stamey, 776 So.2d 85, 92 (Ala.2000) (quoting Weathers Auto Glass, Inc. v. Alfa Mut. Ins. Co., 619 So.2d 1328, 1329 (Ala.1993)) (holding in part that the contract containing an arbitration provision did not demonstrate that the parties to that contract intended to bestow a direct benefit upon the alleged third party). See also Cook’s Pest Control, Inc. v. Boykin, 807 So.2d at 526. Hill contends that he is not a third-party beneficiary of the listing agreement between Agrícola and NAG and that nothing in the listing agreement indicates that he was intended to benefit from that agreement.

In this case, Hill is not the party claiming third-party-beneficiary status; NAG asserts that Hill is a third-party beneficiary of its listing agreement with Agricola. However, the record and the briefs on appeal do not indicate under what theory NAG asserts that it and Agrí-cola, in executing the listing agreement, intended to “bestow a direct ... benefit” on Hill. Ex parte Stamey, 776 So.2d at 92. Rather, in arguing that Hill is a third-party beneficiary of the listing agreement, NAG argues that Hill, in asserting his fraudulent-misrepresentation claim against NAG, must rely on the terms of the listing agreement in order to establish the reasonable-reliance element of that claim. Thus, NAG asserts that Hill is attempting to take advantage of some parts of the listing agreement while attempting to avoid other parts of that agreement. It is well settled that a party may not seek to take advantage of the benefits of a contract while seeking to avoid the burdens of that contract, such as an arbitration agreement. Credit Sales, Inc. v. Crimm, 815 So.2d 540 (Ala.2001); Cook’s Pest Control, Inc. v. Boykin, supra; Georgia Power Co. v. Partin, 727 So.2d 2 (Ala.1998); Ex parte Dyess, supra. NAG cites Ex parte Dyess, supra, and Credit Sales, Inc. v. Crimm, supra, as support for its assertion that Hill is a third-party beneficiary of the listing agreement because, it asserts, he is allegedly seeking to use the listing agreement to his benefit in establishing his fraudulent-misrepresentation claim against NAG.

In Ex parte Dyess, supra, Dyess was injured in an automobile accident while test-driving a dealer’s automobile. He sought coverage pursuant to an uninsured-motorist insurance policy between the dealer and an insurer; that insurance policy contained an arbitration provision. Our supreme court denied Dyess’s petition for a writ of mandamus seeking to vacate the trial court’s order compelling arbitration. The court concluded that the uninsured-motorist policy upon which Dyess based his claims was clearly intended to benefit “people in Dyess’s situation,” and, therefore, that Dyess was a third-party beneficiary of that policy. Ex parte Dyess, 709 So.2d at 452. The court determined that Dyess was attempting to benefit from the provisions of the uninsured-motorist insurance policy while trying to avoid the arbitration provision contained in that policy.

In Credit Sales, Inc. v. Crimm, supra, Crimm and Whitehead each signed certain documents in connection with their purchase of an automobile. In addition, Wfiiitehead, but not Crimm, signed a document that provided for the refund of the down payment on the automobile when the indebtedness on the automobile was fully paid; that document contained an arbitration provision. Crimm and Whitehead sued the defendants when the defendants refused to return the amount they had paid as a down payment on the automobile. The trial court granted the defendants’ motion to compel arbitration as to Wfiiite-head, but it denied the motion as to Crimm. In reversing that part of the trial court’s judgment pertaining to Crimm, our supreme court agreed with the defendants that Crimm was a third-party beneficiary of the contract that provided for the return of the down payment. Crimm, 815 So.2d at 545. The court explained that Crimm could not assert a claim for the return of the down payment pursuant to the contracts she executed; rather, her claims pertaining to the defendants’ failure to refund the down payment could “be based only upon the contract between Wfiiitehead and the defendants.” Crimm, 815 So.2d at 546 (emphasis added). The court concluded that Crimm could not base her claims on the contract to which she was not a signatory and also avoid the arbitration provision in that contract because she was not a signatory to the contract. Instead, Crimm “must accept or reject the entire contract.” Id.

In both Ex parte Dyess and Crimm, the plaintiffs’ claims arose out of and were based entirely on the contracts that contained the arbitration agreements the plaintiffs sought to avoid. In this case, Hill characterizes his claim as being based solely on the real-estate contract between himself and Agricola. Although NAG is correct that one way in which Hill could establish the element of reasonable reliance in his claim against NAG would be to reference the listing agreement, reference to that agreement is not the only way in which Hill could seek to establish all of the elements of his fraudulent-misrepresentation claim against NAG. Thus, we conclude that the facts of Ex parte Dyess and Crimm are distinguishable from the facts of this case.

Our review of the record indicates that Hill is correct that the record contains no evidence that, in entering into the listing agreement, NAG and Agricola intended to bestow a direct benefit upon Hill, see Ex parte Stamey, supra, or that they intended to bestow a direct benefit upon people in Hill’s situation, i.e., the ultimate purchaser of the parcel, see Ex parte Dyess, supra. Also, we cannot say that NAG established that Hill was impermissibly seeking to take advantage of the listing agreement while avoiding the arbitration provision contained in that agreement. See Credit Sales, Inc. v. Crimm, supra; Cook’s Pest Control, Inc. v. Boykin, supra; Georgia Power Co. v. Partin, supra; Ex parte Dyess, supra. Therefore, we agree with Hill that it has not been demonstrated that he is subject to the third-party-beneficiary exception that would require him, as a nonsignatory to the listing agreement, to arbitrate his claims against NAG pursuant to the arbitration provision contained in the listing agreement.

Hill also maintains that his misrepresentation claim against NAG is not intertwined with the listing agreement so as to bring him under the intertwining-claims exception to the general rule regarding nonsignatories. Our supreme court has explained the intertwining-claims exception by stating that a party may be required to arbitrate, even if the party is a nonsignatory to a contract containing an arbitration provision, “where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped to deny the arbitrability of the related claim.” Conseco Fin. Corp. v. Sharman, 828 So.2d at 893. Thus, parties who have entered into written arbitration agreements may be estopped from avoiding arbitration required under those agreements. See Ex parte Tony’s Towing, Inc., 825 So.2d 96, 99 (Ala.2002) (citing the discussion in E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187 (3d Cir.2001), pertaining to the intertwining-claims exception). However, the doctrine of estop-pel, and, therefore, the intertwining-claims exception, apply only to prevent a signatory to a contract containing an arbitration provision from avoiding arbitration. SouthTrust Bank v. Ford, supra; Ex parte Tony’s Towing, Inc., supra.

In Ex parte Tony’s Towing, Inc., supra, the plaintiff sued five defendants including Tony’s Towing, Inc., regarding a dispute over the purchase and installation of her mobile home. The contract between the plaintiff and one of the defendants (not Tony’s Towing) contained an arbitration provision, and several defendants moved to compel arbitration. The trial court entered an order compelling all parties to the dispute to arbitrate their claims. Tony’s Towing petitioned our supreme court for a writ of mandamus directing the trial court to vacate that part of its judgment requiring it to arbitrate. Our supreme court issued the writ, concluding that the intertwining-claims exception did not apply to prevent Tony’s Towing, a nonsignatory to the relevant arbitration provision, from seeking to avoid arbitration. In so holding, the court cited with approval and quoted from a holding by the United States Court of Appeals for the Third Circuit that addressed the reason behind its determination that a signatory to an arbitration agreement could not, under the intertwining-claims exception, require a nonsignatory to arbitrate; that discussion reads as follows:

“This very point was recently addressed in E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187 (3d Cir.2001), where the United States Court of Appeals for the Third Circuit noted that one of the theories relied upon to obtain arbitration was that ‘courts have bound a signatory to arbitrate with a non-signatory “at the non-signatory’s insistence because of ‘the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the nonsignatory’s obligations and duties in the contract ... and [the fact that] the claims were intimately founded in and intertwined with the underlying contract obligations.”” 269 F.3d at 199 (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993)) (quoting in turn McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)). The Third Circuit then held:
“ “With reference to the second theory of equitable estoppel, appellants rely on a series of cases in which signatories were held to arbitrate related claims against parent companies who were not signatories to the arbitration clause. In each of these cases, a signatory was bound to arbitrate claims brought by a non-signatory because of the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the non-signatory’s obligations and duties in the contract and the fact that the claims were intertwined with the underlying contractual obligations....
‘“Appellants recognize that these cases bind a signatory not a non-signatory to arbitration, but argue that this is a distinction without a difference. They are wrong.
“‘Indeed, the Second Circuit recently rejected the same “distinction without a difference” argument:
“ ‘ “As these cases indicate, the circuits have been willing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed. As the district court pointed out, however, ‘[t]he situation here is inverse: E & S, as signatory, seeks to compel Thomson, a non-signatory.’ While E & S suggests that this is a non-distinction, the nature of arbitration makes it important. Arbitration is strictly a matter of contract; if the parties have not agreed to arbitrate, the courts have no authority to mandate that they do so. In the line of cases discussed above, the courts held that the parties were estopped from avoiding arbitration because they had entered into written arbitration agreements, albeit with the affiliates of those parties asserting the arbitration and not the parties themselves. Thomson, however, cannot be estopped from denying the existence of an arbitration clause to which it is a signatory because no such clause exists. At no point did Thomson indicate a willingness to arbitrate with E & S. Therefore, the district court properly determined these estoppel cases to be inapposite and insufficient justification for binding Thomson to an agreement that it never signed.”
‘Thomson-CSF, S.A. [v. American Arbitration Ass’n], 64 F.3d [773] at 779 [(2d Cir.1995)] (internal citations omitted).’
269 F.3d at 201-02 (some emphasis original; some emphasis added [in Ex parte Tony’s Towing, Inc.]) (footnotes omitted). Dunbar and the Williams defendants are therefore not in a position to insist that Tony’s submit to arbitration based upon the doctrine of intertwining.”

Ex parte Tony’s Towing, Inc., 825 So.2d at 98-99.

In this case, NAG, a signatory to the listing agreement, is seeking to require Hill, a nonsignatory, to arbitrate his claim against NAG pursuant to the arbitration provision contained in the listing agreement. However, Hill, as a nonsignatory, cannot be estopped under the intertwining-claims exception from seeking to avoid arbitration. See SouthTrust Bank v. Ford, supra; Ex parte Tony’s Towing, Inc., supra. Therefore, we must conclude that the intertwining-claims exception does not apply to compel Hill, as a nonsignatory, to arbitrate his claim against NAG, and that that exception was not an appropriate basis under which the trial court could compel Hill to arbitrate his claim against NAG.

We have determined that the foregoing exceptions do not apply to compel Hill to arbitrate his claim against NAG. Therefore, we must conclude that the trial court erred in entering an order compelling Hill, a nonsignatory to the only agreement that contained an arbitration provision, to arbitrate his claim against NAG.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . Ex parte Dyess was decided before the October 1, 2002, effective date of the amendment to Rule 4(d), Ala. R.App. P., that allows an appeal of an order granting or denying a motion to compel arbitration.


text:
    FARMERS INSURANCE COMPANY a/k/a Farmers Insurance Exchange v. PRICE-WILLIAMS ASSOCIATES, INC.
    2020291.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2003.

      W. Kyle Morris and Edward B. Hol-zwanger of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for appellant.
    David P. Broome, Mobile, for appellee.
   CRAWLEY, Judge.

Farmers Insurance Company a/k/a Farmers Insurance Exchange (“Farmers”) appeals from the circuit court’s order requiring that it pay Price-Williams Associates, Inc. (“Price-Williams”), storage fees for an automobile that was involved in an accident with another automobile insured by Farmers. We reverse and remand with instructions.

The facts underlying this case can be summarized as follows. Leslie Williams Barksdale and Timothy Lee Burttram were involved in an automobile accident. Barksdale did not have automobile insurance; Burttram’s automobile was insured by Farmers. Barksdale’s automobile sustained some damage to its rear, including a broken rear window. Following the accident, Barksdale entered into an agreement with her employer, Price-Williams, for whom she cleaned offices at least on a part-time basis, to purchase another automobile. Tom Price-Williams, the owner of Price-Williams, testified at trial that, as a result of the agreement with Barksdale, Price-Williams provided Barksdale a second automobile, stored her damaged automobile, and was to receive payment for the second automobile once her claim against Farmers was settled. It was almost one and one-half years after Price-Williams began storing the damaged automobile that Angela Turner, an adjuster with Farmers, examined the automobile being stored by Price-Williams. Tom Price-Williams testified that, when Turner was at his business, he told her that the storage fee for the automobile was $7 per day. He also testified that she agreed to that storage fee and that she decided to allow Price-Williams to continue storing the damaged automobile until the claim was settled; Turner testified that no such conversation took place.

Barksdale filed a lawsuit against Burt-tram, and a judgment was entered in her favor. She paid some of the proceeds from that judgment to Price-Williams for the second automobile she had been provided. The damaged automobile remained on Price-Williams’s premises. Price-Williams then filed this lawsuit against Farmers in the district court seeking the storage fees that had accumulated during the time the damaged automobile had been in storage. After conducting a hearing on Price-Williams’s claim for storage fees, the district court entered a judgment in favor of Price-Williams in the amount of $3,488, plus costs. Farmers appealed from that judgment to the circuit court. After conducting a hearing on the matter, the circuit court entered a judgment in favor of Price-Williams in the amount of $4,367, plus costs. Farmers then filed a notice of appeal to this court.

On appeal, Farmers contends that the circuit court erred by entering a judgment in favor of Price-Williams because, it contends, (1) it was not contractually obligated to pay Barksdale’s storage fees because there was no consideration or mutuality of assent, and (2) there was no oral contract to support such an obligation because the Statute of Frauds requires a written contract in order for a party to become liable to pay the debt of another.

Because the circuit court conducted a bench trial in this case, the ore tenus standard of review applies.

“When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court ‘will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, ‘[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).”

City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).

Farmers first argues that the circuit court erred in entering a judgment in favor of Price-Williams because, it contends, there was no mutuality of assent or consideration to support a contract. Upon reviewing the testimony presented, it is clear that whether there was mutuality of assent was a disputed question of fact. Accordingly, it was the role of the circuit court, pursuant to the ore tenus standard of review, to make a finding in consideration of the disputed testimony as to whether or not an agreement was reached between Price-Williams and Farmers. To support its judgment, which carries a presumption of correctness, see City of Prattville, supra, the circuit court necessarily found that such an agreement had been reached.

However, our review of the record and the testimony presented at trial indicates that there was no consideration supporting the alleged agreement. “The basic elements of a contract are an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement.” Hargrove v. Tree of Life Christian Day Care Ctr., 699 So.2d 1242, 1247 (Ala.1997). Price-Williams contends on appeal that Associates Commercial Corporation v. Roberts, 844 So.2d 1256 (Ala.Civ.App.2002), in which this court determined that storage fees were due to be paid by a creditor to a party who had stored its property, is analogous to this case. Our review of RobeHs indicates that it is distinguishable from this case primarily because the creditor in Roberts had a security interest in the property that had been stored. In other words, the creditor in Roberts received a benefit; in this case, no such benefit accrued to Farmers. Farmers had no ownership interest in the damaged automobile and received no other benefit from its being stored on Price-Williams’s premises. We cannot conclude that it was necessary that the damaged automobile be placed in storage in order for Barksdale’s claim arising out of the automobile accident to be settled.

As a result of our conclusion that there was a lack of consideration to support a contract between Price-Williams and Farmers, it is not necessary that we address the remaining issue raised by Farmers. The circuit court’s judgment is reversed, and the cause is remanded for that court to enter a judgment in favor of Farmers.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The damaged automobile remained on Price-Williams's premises during these proceedings. During the hearing before the-circuit court, Tom Price-Williams testified that the damaged automobile was still on his premises; Turner testified that Farmers did not want it.


author: BASCHAB, Judge. WISE, Judge,

text:
    Thomas James HAND III v. STATE of Alabama.
    CR-02-0636.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 15, 2003.

      Gregory C. Buffalow, Mobile; and Charles H. Jones, Jr., Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Marc A. Starrett, asst. atty. gen., for ap-pellee.
   BASCHAB, Judge.

The appellant, Thomas James Hand III, was charged by a complaint with “failpng] to mail or deliver a certificate of title or application therefor to the department within 10 days,” a violation of § 32-8-13(2), Ala.Code 1975. (C.R.5.) Over the appellant’s objection, the Mobile District Court allowed the State, on the day of the trial, to amend the complaint to charge that he had “fail[ed] to mail or deliver a certificate of title or application therefor to the transferee within 10 days.” (C.R.6.) The appellant was convicted in the Mobile District Court of failing to deliver a certificate of title to his transferee with 10 days, a violation of § 32-8-13(3), Ala.Code 1975. He appealed his conviction to the Mobile Circuit Court for a trial de novo, and he was again convicted of failing to deliver a certificate of title to his transferee within 10 days. The circuit court sentenced him to serve a term of 3 months in the county jail. The appellant did not file any post-judgment motions. This appeal followed.

The appellant argues that the circuit court did not have jurisdiction to render a judgment and impose a sentence in his case because the district court erroneously allowed the State to amend the complaint and change the term “department” to “transferee.” Specifically, he contends that the amendment changed the offense with which he was charged.

The original complaint alleged that the appellant

“did within the above named county and on or about 5/29/2000, with knowledge, did ... willfully fail to mail or deliver a certificate of title or application therefor to the department within 10 days as required by law, in violation of 032-008-013 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C.R.5) (emphasis added). The amended complaint alleged that the appellant

“did within the above named count[y] and on or about 5/29/2000 with knowledge, did willfully fail to mail or deliver a certificate of title or application therefor to the transferee within 10 days as required by law, in violation of 032-008-013 against the peace and dignity of the State of Alabama.”

(C.R.6) (emphasis added).

“The court may permit a charge to be amended without the defendant’s consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.”

Rule 13.5(a), Ala. R.Crim. P. The State contends that the district court properly amended the complaint because § 32-8-13(2) and (3), Ala.Code 1975, provide alternative methods of proving the same offense.

Section 32-8-13, Ala.Code 1975, provides:

“Offenses constituting misdemeanors.
“A person is guilty of a misdemeanor who:
“(1) With fraudulent intent, permits another, not entitled thereto, to use or have possession of a certificate of title;
“(2) Willfully fails to mail or deliver a certificate of title or application therefor to the department within 10 days after time required by this chapter;
“(3) Willfully fails to deliver to his transferee a certificate of title within 10 days after the time required by this chapter; or
“(4) Knowingly and willfully commits a fraud in any application for a title or registration; or
“(5) Willfully violates any other provision of this chapter, except as otherwise provided in this chapter.”

In Smith v. State, 739 So.2d 545 (Ala.Crim.App.1999), we stated:

“The Alabama Supreme Court, has said that, in construing 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.”
“ ‘ ‘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.” ’
“Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 297 (Ala.1998). In Nielsen, the Supreme Court further stated that when the legislature enacts a new law, it is presumed to know the existing law so that, for example, in the case of § 13A-8-16, Ala.Code 1975, if the legislature intended that the three prohibited courses of conduct set out in the statute were to be considered together, it could have used the word ‘and’ instead of ‘or.’ Nielsen, 714 So.2d at 297.”

Smith, 739 So.2d at 548 (holding that “[b]y setting forth the types of proscribed conduct in the alternative with the word ‘or,’ a reasonable interpretation of § 13A-8-16 is that receiving stolen property, retaining stolen property, and disposing of stolen property are ‘separate offenses’ ”).

The title of § 32-8-13, Ala.Code 1975, uses the plural terms “offenses ” and “misdemeanors.” Further, the various types of proscribed conduct are separated by the term “or.” When given its natural, plain, and ordinary meaning, the language in § 32-8-13, Ala.Code 1975, clearly creates separate and distinct misdemeanor offenses relating to the use of, registration of, application for, and transfer of certificates of title for automobiles. Because the offenses set forth in § 32-8-13(2) and (3), Ala.Code 1975, are separate offenses, the district court improperly amended the complaint to charge a different offense when it allowed the State to change the term “department” to “transferee.” Therefore, the circuit court did not have jurisdiction to render a judgment and impose a sentence in the appellant’s case. See Hall v. State, 655 So.2d 51 (Ala.Crim.App.1995). Accordingly, we reverse the circuit court’s judgment and remand this case for the circuit court to vacate the appellant’s conviction and sentence for failing to deliver a certificate of title to his transferee.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB and SHAW, JJ., concur; WISE, J., dissents, with opinion.

WISE, Judge,

dissenting.

I respectfully dissent from the majority opinion reversing Hand’s conviction and remanding this case for the circuit court to vacate Hand’s conviction and sentence. In my opinion, the State did not amend the indictment to charge a new offense. Rather, I agree with the State that § 32-8-13(2) and § 32-8-13(3), Ala.Code 1975, provide alternative methods of proving the same offense, namely, the willful failure to timely deliver a certificate of title. Certainly, the Alabama Uniform Certificate of Title and Antitheft Act, of which § 32-8-13 is a part, was enacted “to prevent motor vehicle thefts” and that “[t]he overall plan of the Act shows exclusive attention to maintaining records of the identity and ownership of vehicles.” Treadwell Ford, Inc. v. Campbell, 485 So.2d 312, 318 (Ala.1986). Given that both complaints charged Hand with failing to timely deliver a certificate of title, it logically follows that § 32-8-13(2) and § 32-8-13(3) are alternative methods of proving the same offense. In my opinion, because no change in the offense occurred, the trial court did not err in allowing the State to amend the complaint. See Rule 13.5, Ala.R.Crim.P. Moreover, given that Hand’s remaining claims appear to be procedurally barred, I would affirm Hand’s conviction and sentence. Therefore, I must dissent.


author: COBB, Judge. BASCHAB, Judge,

text:
    N.L.H. v. STATE of Alabama.
    CR-02-0877.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.

      Charlie A. Bottoms, Jr., Florence, for appellant.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   COBB, Judge.

N.L.H. was adjudicated delinquent based on a charge of second-degree criminal mischief, a violation of § 13A-7-22, Ala.Code 1975. The trial court placed her on probation. This appeal followed.

The State’s evidence adduced at trial indicated the following. On October 21, 2002, C.N. and her boyfriend B.J. were at B.J.’s house washing clothes. N.L.H. went to B.J.’s house. Shortly after N.L.H. arrived at B.J.’s house,, her ex-boyfriend J. came over. N.L.H. and J. argued, and N.L.H. left. Sometime after N.L.H. left, C.N., B.J., and J. went to C.N.’s house. Shortly after they arrived at the house, the doorbell rang. C.N. opened the door. N.L.H. was at the door. C.N. told N.L.H. that she could come inside the house so long as she and J. did not get into another argument. C.N. and N.L.H. began arguing. C.N. asked N.L.H. to leave. C.N. closed and locked the door. Seconds later, a porcelain scarecrow, a Halloween decoration that had been sitting on the windowsill, crashed through the front window. C.N., B.J., and J. went outside. C.N. testified that she saw N.L.H. walking to her automobile. N.L.H. got into her vehicle, pulled out of the driveway, stopped the vehicle, got out, and yelled, “If any three of y’all want some, y’all come get some, cause I’ll kill all of y’all.” (R. 11-12.) C.N.’s mother testified that the estimated cost to repair the window was approximately $225.

N.L.H. argues that the State failed to present sufficient evidence to support the adjudication of delinquency. The crux of her argument is that because there was conflicting testimony as to who threw the scarecrow through the window, there was a reasonable hypothesis from which the trier of fact could have found that someone other than N.L.H. threw the scarecrow. Although she couches her argument in terms of sufficiency of the evidence, she actually takes issue with the weight of the evidence. At trial, N.L.H. argued that the weight of the evidence was in her favor. However, her argument at trial did not preserve this issue for review. “[W]hen the trial court has made no written findings of fact in a nonjury trial, a party must move for a new trial in order to preserve for review a question relating to the sufficiency or weight of the evidence.” Ex parte James, 764 So.2d 557, 559 (Ala.1999). Although N.L.H. filed a post-judgment motion, she did not argue in that motion that the verdict was contrary to the law or to the weight of the evidence. Thus, her postjudgment motion did not preserve this argument for appellate review. Zumbado v. State, 615 So.2d 1223, 1241 (Ala.Crim.App.1993) (“The issue of the weight of the evidence is preserved by a motion for a new trial, stating ‘that the verdict is contrary to law or the weight of the evidence.’ See [Ala. R.Crim. P.] 24.1(c)(1).”).

N.L.H. argues that the State did not present sufficient evidence to sustain a delinquency adjudication for second-degree criminal mischief. Specifically, she claims that the State did not prove that the damage to the window exceeded $250.

“A person commits the crime of criminal mischief in the second degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he has such a right, he inflicts damages to property in an amount which exceeds $250.00 but does not exceed $1,000.00.”

§ 13A-7-22(a), Ala.Code 1975.

“A person commits the crime of criminal mischief in the third degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he has such a right, he inflicts damages to property in an amount not exceeding $250.00.”

§ 13A-7-23(a), Ala.Code 1975.

The State produced evidence that the cost to repair the window was $225. Thus, the State failed to prove that N.L.H. committed the offense of second-degree criminal mischief because the amount of damages involved was below the statutory limit for that offense. The evidence was sufficient, however, to find that N.L.H. committed the crime of third-degree criminal mischief. Therefore, this cause is remanded for the juvenile court to adjudicate N.L.H. delinquent on the underlying offense of third-degree criminal mischief. See M.T.R. v. State, 620 So.2d 753 (Ala.Crim.App.1993). Due return should be filed with this Court within 28 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P. J., and SHAW and WISE, JJ., concur; BASCHAB, J., concurs in part and dissents in part.

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with the majority’s conclusions that the evidence was not sufficient to establish second-degree criminal mischief, but that it was sufficient to establish third-degree criminal mischief. However, I disagree with the majority’s conclusion that it is necessary to remand this case for the juvenile court to adjudicate the appellant delinquent based on the underlying offense of third-degree criminal mischief. As long as the evidence is sufficient to support an adjudication based on the underlying offense or a lesser included offense thereof, any error regarding the offense upon which the delinquency adjudication is based is harmless. See Rule 45, Ala. R.App. P. Because the appellant will still be adjudicated delinquent, a remand in this case will not serve any purpose. Therefore, I respectfully concur in part and dissent in part.

      . The record does not reveal J.’s last name.

       Note from the reporter of decisions: On August 15, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.