author: PITTMAN, Judge. MURDOCK, Judge,

text:
    AMERICAN COLOR GRAPHICS, INC. v. Rayfield FOSTER.
    2000044.
    Court of Civil Appeals of Alabama.
    Sept. 28, 2001.

      Barry V. Frederick and William D. Jones III of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for appellant.
    Oscar H. Hale, Jr., Patrick Brett Hale, and Ashley Hale Rives of Hale & Associates, Montgomery, for appellee.
   PITTMAN, Judge.

Rayfield Foster, the appellee, was injured in a workplace-related accident in 1997 and sued his employer, American Col- or Graphics, Inc. (hereinafter “ACG”), the appellant, for workers’ compensation benefits. Prior to trial, ACG filed a motion in limine to exclude from introduction into evidence certain records and testimony. After a hearing on the motion the trial court reserved ruling on the motion until the contested evidence was offered at trial. At trial ACG again objected to the introduction of such evidence, but this time the trial court allowed the evidence to be admitted, reserving the right to exclude that evidence, if necessary, at a later time. At the end of both the presentation of Foster’s case and of all the evidence, ACG presented its original and renewed motions for a judgment as a matter of law. The trial court denied the original motion, but noted ACG’s objection and took the case under advisement as regards the renewed motion. Eventually the trial court issued an order essentially stating that it admitted into evidence the items contested in ACG’s motions, denying ACG’s motion to exclude, and finding that Foster was entitled to workers’ compensation benefits for a permanent total disability. ACG now appeals. We affirm.

ACG raises two main issues on appeal:

(1) Whether the trial court erred in admitting into evidence certain medical records; and,
(2) whether the trial court erred in allowing into evidence the testimony of Foster’s vocational expert.

I.

ACG contends that the trial court erred in admitting into evidence certain medical records. Specifically, it argues that the trial court erred in admitting into evidence medical records offered by Foster in lieu of personal testimony that his doctors and psychologists might have given at trial, when such medical records, as ACG argues, constitute inadmissible hearsay, admission of which it contends violates § 25-5 — 81(f)(4), AIa.Code 1975, Rule 44(h), Ala. R. Civ. P., and Rule 702, Ala. R. Evid.

The Alabama Workers’ Compensation Act (hereinafter “the Act”) provides that an appellate court’s review of the proof and its consideration of other legal issues shall be without a presumption of correctness. King Power Equipment, Inc. v. Robinson, 111 So.2d 723, 724-24 (Ala.Civ. App.2000), citing § 25-5-81(e)(l), Ala.Code 1975.

A.

ACG contends that certain medical records constitute inadmissible hearsay. ACG specifically argues that after Foster filed his lawsuit, his attorney sent him to three doctors and two psychologists to get their opinions on the extent of his alleged disability, and that the trial court improperly allowed to be entered into evidence medical reports from these evaluations without its requiring the doctors and psychologists who compiled the reports at issue to testify at trial. Essentially, ACG argues that these medical reports were improperly admitted into evidence because they constitute inadmissible hearsay. Although the doctors and psychologists who compiled the reports were not deposed and did not testify at trial, Foster sought to admit their reports into evidence and included them, as follows, in his proposed witness list:

“2. Robert F. Allen, M.D., by certified records....
“3. Paul Van Wyk, Ph.D., by certified records....
“4. Walid W. Freij, M.D., by certified records....
“5. Philip Golomb, M.D., by certified records....
“7. Donald Blanton, Ph.D., by certified records....”

(C. 18.) The purpose of Foster’s inclusion of these reports in his proposed exhibits at trial was because these reports were relied on, in part, by another of Foster’s witnesses, Dr. Mike McClanahan. Dr. McClanahan, a vocational expert, testified at trial that he assigned Foster a vocational disability rating based on both his evaluation of the medical reports submitted to him by the aforementioned three doctors and two psychologists and on the basis of his own personal evaluation of Foster.

Before we can answer the question whether the disputed medical records constitute hearsay, we must first determine whether they were properly certified, as alleged by Foster in his proposed witness list, and admitted into evidence. Pertaining particularly to matters of discovery in workers’ compensation cases, § 25 — 5—81(f), Ala.Code, 1975, states, in pertinent part:

“(f) Discovery. Methods of discovery shall be determined and established in rules promulgated by this amendatory act and the rules established by the Alabama Rules of Civil Procedure.... Additionally, the following rules of discovery shall apply to workers’ compensation cases:
“(4) Certified sealed copies of records of medical treatment and charges therefor, whether from a physician, hospital, clinic, or other medical provider, shall be authenticated in accordance with the Alabama Rules of Civil Procedure, Rule 44(h), without further need for authenticating testimony....”

Rule 44(h), Ala. R. Civ. P., states, in pertinent part:

“(h) Business Entries. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, occurrence, or event, if it was made in the regular course of any business, profession, occupation or calling of any kind, and it was the regular course of the business, profession, occupation or calling to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter....”

Regarding the certification of the medical reports at issue, the trial transcript reveals the following colloquy:

“[ACG’s trial counsel]: [Golomb’s report] ... consists of a one-page certification that does not meet the requirements of [Ala. R. Civ. P.] 44(h). All [the report] says is, ‘I hereby certify that the attached is a true and correct copy of the medical records kept on file in my office.’ Says nothing about made or kept in the regular course of business whatsoever, unlike some of the other certifications offered by [Foster]. And attached to that front page is three pages of records, one of which is marked a physical capacities evaluation, and then there is two pages of appears to be handwritten notes....
“... [Exhibit] 2 consists of a one-page certification that more tracks the Rule 44(h), comparative to [Golomb’s report], with a three-page report attached....
“... [A]t least as to [the Freij, Van Wyk, and Golomb reports], the certifications themselves do not authenticate the records as required by [§ 25 — 5—81(f)(4)] and Rule 44(h). They don’t purport to even remotely track the language as required to authentication. So, as to those exhibits, they have not been authenticated, and because we don’t believe those are business records within the business records exception to hearsay rule, we would contend that all of these [medical records] have not been authenticated....
“... [The certification on the Golomb report] says a true and correct copy of the medical records kept on file in my office. That’s the whole certification, if you want to call that a certification.... Dr. Allen himself signed a certification ... that tracks [the certification language in] Rule 44(h).”

(R. 21-23, 27-29.) Looking to the certification language used on the face of the exhibits, themselves, we determine that the language stated on some of the exhibits does not comport with the requirements of § 25 — 5—81 (f)(4) or Rule 44(h), Ala. R. Civ. P. On the cover of plaintiffs exhibit 1, the independent medical evaluation conducted by Dr. Freij on July 20, 1999, appears the following attempted certification language: “I hereby certify that the attached is a true and correct copy of the medical records kept on file in said office.” The attempted certification language that appears on the cover sheets of plaintiffs exhibit 4 (psychological evaluation conducted by Dr. Paul Van Wyk) and plaintiffs exhibit 6 (the physical capacities evaluation of Dr. Philip Golomb) exactly copies the language appearing on the cover sheet of plaintiffs exhibit 1. Because none of the language on any of these documents reference that these reports were compiled in the regular course of business and at a time consistent with the regular course of business, we conclude that their certifications fail and they were improperly admitted into evidence. See § 25 — 5—81 (f)(4) and Rule 44(h), Ala. R. Civ. P.

However, on several of the exhibits sought to be admitted by Foster into evidence, the language appears to comply with § 25 — 5—81 (f)(4) and Rule 44(h), Ala. R. Civ. P. Plaintiffs exhibit 1(A), another independent medical evaluation by Dr. Freij, this one conducted on November 23, 1999, states on its cover page:

“I hereby certify and affirm in writing that the attached is a true and complete copy of the records regarding treatment of Rayfield Foster, which are kept in the office of Walid W. Freij, M.D., in my custody and control. I further certify that I am the legal custodian and keeper of the records. The attached records were made in the regular course of business and it was in the regular course of business for such records to be made at the time of the events, transactions, or occurrences to which they refer, or within a reasonable time thereafter.”

(Plaintiffs exhibit 1(A).) Plaintiffs exhibit 2 (the independent medical examination report of Dr. Robert Allen, conducted on January 14, 1999), plaintiffs exhibit 2(A) (the independent medical evaluation conducted by Dr. Allen on June 28, 1999), and plaintiffs exhibit 3 (psychological evaluation conducted by Dr. Donald Blanton on November 23, 1999) contain essentially the same certification language. Therefore, from a cursory look at the linguistics of the certifications, it would appear that these medical reports were indeed properly certified.

Despite the foregoing, we must conclude that plaintiffs exhibits 1(A), 2, and 3 were improperly admitted into evidence. Section 25-5-81(f)(4) contains two distinct requirements — certification and seal. Although these reports appear to contain the proper certification language, they do not appear to be sealed. Therefore, we must conclude, as a procedural matter, that plaintiffs exhibits 1(A), 2, and 3 were all improperly admitted into evidence.

However, one exhibit — plaintiffs exhibit 2(A) (the independent medical examination conducted by Dr. Allen on June 28, 1999) — escapes unscathed. This medical report is the one piece of evidence Foster presented at trial that manages to satisfy all of the requirements — both certification and seal — of § 25-5-81(f)(4) and Rule 44(h), Ala. R. Civ. P. Therefore, as a procedural matter, the trial court properly admitted plaintiffs exhibit 2(A) into evidence.

B.

ACG contends, as a substantive matter, that the trial court improperly admitted Foster’s exhibits into evidence because they constitute inadmissible hearsay. We reiterate our decision that the only exhibit offered by Foster which passes procedural muster for proper certification and seal is exhibit 2(A). ACG specifically contends, as it applies to that one medical report, that it constitutes inadmissible hearsay because: (1) the report was prepared in anticipation of litigation, thereby violating the business records exception to the hearsay rule; and, (2) the report was compiled by a physician who was not qualified, under Rule 702, Ala. R. Evid., before the trial court as an expert witness.

ACG contends that Dr. Allen’s medical report, plaintiffs exhibit 2(A), was prepared in anticipation of litigation, thereby violating the business records exception to the hearsay rule.

Rule 801(c), Ala. R. Evid., states that “hearsay” is defined in pertinent part as a “statement, other than one made by the declarant while testifying at trial, ... offered in evidence to prove the truth of the matter asserted.” Dr. Allen’s medical report constitutes hearsay because it is a statement offered out of court. Rule 802 states that hearsay is not admissible except as provided in the enumerated exceptions to the hearsay rules, as listed in the Alabama Rules of Evidence. Rule 803, which lists the exceptions, states, in pertinent part:

“The following are not excluded by the hearsay rule, even though the de-clarant is available as a witness:
“(4) Statements for Purposes of Medical Diagnosis or Treatment.
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

Plaintiffs exhibit 2(A), the medical report on the follow-up examination conducted by Dr. Allen, appears to constitute a statement made for medical diagnosis or treatment, as defined by Rule 803(4). The report, dated June 28, 1999, states that Foster, who worked for 22 years as a pressman for Sullivan Graphics, was injured in the course of his employment on August 18, 1997, when a trap door on the catwalk ladder on which he was working swung open and threw him off balance. (See plaintiffs exhibit 2(A).) The report states that although at the time of this incident Foster felt a pulling sensation in his left side, he kept working anyway. The next day he began to suffer from stiffness, pain, and pressure in his lower back with radiation to his left leg. A company doctor examined Foster and prescribed to him several days of rest. Foster’s injury was eventually evaluated by other doctors, each of whom returned Foster to work. However, Foster, himself, eventually stopped working. He developed left foot drop and had a myelogram and CT scan performed, which indicated a large disc herniation to the left of the midline at the L5-S1 level. The report stated that surgery was performed by Dr. Randolph George on November 20, 1997, and that Dr. George’s medical report indicated that a large extruded disc fragment completely filled the left L5-S1 neural for-amen. Prior to surgery a second opinion was given by a neurologist.

Dr. Allen’s report states that after the surgery, Foster continued to complain of pain, including soreness in his hamstring and groin muscles, frequency in urination, decreased sexual function, constipation with rectal bleeding, parethesias in the left leg, and burning, stinging and cramping in his left great toe. A postoperative myelo-gram and CT scan on November 20, 1998, indicated resolution of the disc herniation. Since the injury Foster suffered from weight gain due to inactivity and profound depression, which was evaluated by a psychologist.

The report also details Foster’s medical history, including surgical history, and the results of his examination by Dr. Allen. Dr. Allen’s report also repeats the findings of a functional capacities evaluation conducted on February 19, 1998, at the Center for Occupational Rehabilitation and Evaluation, Inc., in Birmingham, which indicated that Foster’s physical capabilities should be limited to lifting, pushing, pulling, and carrying only loads as heavy as 50 pounds and on an occasional basis only. The report concludes with Dr. Allen’s impressions from the evaluation he conducted:

“1. Traumatic lumbar disc herniation to the left at the L5-S1 level on 08/18/97, caused by an injury at work. Disc herniation was significant and resulted in left foot drop. Patient was surgically treated and has residual symptoms of pain and muscle weakness with clinical findings of muscle weakness, loss of pertinent reflex and sensory deficits in the left leg. These neurological deficits are in all likelihood permanent and limit his functions. Specifically, he is limited in regard to lifting, bending, stooping, ear-rying, walking, sitting, crouching, kneeling, climbing, working at heights and also has symptoms of sexual dysfunction, bladder and bowel irregularities.
“2. Depression, secondary to job and social losses, and chronic pain.
“3. Past history of right lumbar surgery, fully recovered by his estimate, and without residual impairments from the 1988 injury or surgery.”

(Plaintiffs exhibit 2(A).) We conclude that Dr. Allen’s medical report constitutes a statement made for purposes of medical diagnosis or treatment, describing Foster’s medical history, past and present symptoms, pain, sensations, and the inception or general character of the cause or external source thereof, as defined in Rule 803(4). Therefore, as a cursory matter under Rule 803(4), plaintiffs exhibit 2(A) appears to be hearsay that is admissible under an exception.

However, ACG specifically objects to the admission of Dr. Allen’s medical report on basis of the grounds stated in Rule 803(6). Subsection (6) of Rule 803, the so-called “business records exception,” states, in pertinent part, that the following items are admissible, even if they constitute hearsay:

“(6) Records of Regularly Conducted Activity. A ... report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and it was the regular practice of that business activity to make the ... report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of the information or the method or circumstances of preparation indicate lack of trustworthiness.... ”

The comments to Rule 803(6) state:

“Not only must the record be relevant to regularly conducted business, but it must be shown that the generation of such a record is a regularly conducted activity of the business. It is this latter requirement that has caused courts to exclude certain records made solely in anticipation of, and in preparation for, pending litigation. See, e.g., United States v. Kim, 595 F.2d 755, 761 (D.C.Cir.1979).”

(Emphasis added.)

We first note that according to the case action summary, Foster filed his case on April 8, 1999. Plaintiffs exhibit 2(A), the medical examination report of Dr. Allen, is dated June 28, 1999 — almost three months after he first filed his complaint. See plaintiffs exhibit 2(A). Furthermore, in support of its motion in limine, ACG submitted to the trial court a copy of Foster’s deposition, in which he admitted that although he visited Dr. Allen on a number of occasions after he had back surgery in 1997 and although he paid for his consultations through his wife’s insurance, he was referred to Dr. Allen by his own attorney. Although Dr. Allen’s report constitutes a statement “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof’ and, according to its certification, constitutes a report of conditions, opinions, or diagnoses, made the day of the examination by Dr. Allen, certified by the custodian of records within one day thereafter, allegedly kept in the course of regularly conducted medical business, in the regular practice of medical evaluators to make such report, all as shown by the certification of the custodian of records and the sealing thereof by a notary public, we are not as convinced that the source of the information does not indicate a lack of trustworthiness in the sense that it has been prepared solely in anticipation of, and preparation for, litigation. See Rule 803(4) and (6), and comments to Rule 803(6). Given the fact that the date of Dr. Allen’s evaluation and Foster’s own testimony that it was his attorney who sent him to Dr. Allen for consultation, we cannot conclusively say that plaintiffs exhibit 2(A) was not prepared in anticipation and preparation for the lawsuit Foster filed against ACG. Thus, we conclude that Dr. Allen’s medical report constitutes inadmissible hearsay; the trial court erred in admitting plaintiffs exhibit 2(A) into evidence. However, in light of our conclusion as to the second issue, below, we determine that the trial court’s admission of Dr. Allen’s medical report — as well as its admission of plaintiffs exhibits 1, 1(A), 2, 3, 4, and 6 — into evidence constitutes harmless error. Rule 45, Ala. R.App. P., states in pertinent part:

“No judgment shall be reversed or set aside, nor new trial granted in any civil ... case on the ground of ... the improper admission ... of evidence, ... unless in the opinion of the court to which the appeal is taken ..., after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected the substantial rights of the parties.”

Our review of the record indicates that because, as we determine below, Dr. McClanahan, despite his partial reliance on the inadmissible medical reports in evaluating Foster’s condition and presenting his testimony, has sufficient personal knowledge of Foster’s situation to justify the admission into evidence of his testimony, we do not believe that the admission into evidence of the inadmissible medical reports referenced above “probably injuriously affected the substantial rights of the parties.”

Because we conclude that Dr. Allen’s medical report constitutes inadmissible hearsay and because his report was the only testimony of his sought to be admitted at trial, we need not discuss whether he was properly qualified as an expert witness under Rule 702, Ala. R. Evid.

II.

Despite our resolution of the foregoing issue, we must still determine if, as ACG contends, the trial court erred in allowing into evidence the testimony of Foster’s vocational expert, Dr. McClana-han. Specifically, ACG argues that the decision to allow into evidence the testimony of Foster’s vocational expert was error because the testimony presented by the expert witness was based on inadmissible medical records offered by Foster. Although we determined, above, that the medical reports, themselves, for various reasons ranging from improper certification and seal to constituting inadmissible hearsay, were improperly admitted into evidence, we must still determine if Dr. McClanahan’s testimony, in which he relied on his evaluation of those medical reports and on his personal evaluation of Foster, was properly admitted into evidence.

We reiterate that the Act provides that an appellate court’s review of the proof and its consideration of other legal issues shall be without a presumption of correctness. Robinson, supra, citing § 25-5-81(e)(1), Ala.Code 1975. In regard to the effect of the admission of testimony based on inadmissible hearsay, in Nor, Inc. v. Smith, 519 So.2d 534, 535-36 (Ala.Civ.App.1987), this Court held that in a workers’ compensation case, the employer’s argument that a vocational expert’s testimony regarding his opinion of the worker’s loss of earning capacity which was based in large part on his personal examination of the worker, but also on inadmissible medical testimony, was without merit. In Dutton v. Saginaw Div., General Motors Corp., 634 So.2d 597 (Ala.Civ.App.1994), Saginaw contended that the trial court erred in allowing into evidence both portions of the vocational expert’s deposition containing opinion testimony concerning the worker’s vocational disability and the vocational expert’s written reports because, as it argued, some of the sources on which the vocational expert based his opinion and reports had not been entered into evidence. Those sources upon which he relied in part included a medical report compiled by another physician, a physical capacities evaluation compiled by another clinic, and a computer program, none of which were admitted into evidence. This Court held that Saginaw’s argument failed because the vocational expert stated in his deposition that he also relied on two interviews, each lasting approximately one hour, he personally conducted with the worker. We reiterated that at the discretion of the trial court, expert witnesses may be allowed to testify based in part on hearsay. Dutton, supra, quoting E & S Facilities, Inc. v. Precision Chipper Corp., 565 So.2d 54, 68 (Ala.1990). Therefore, we concluded that it was within the trial court’s discretion to allow into evidence both the opinion testimony contained in the vocational expert’s deposition and his report, which reflected that opinion.

Our review of the record indicates that although part of the basis of Dr. McClana-han’s testimony regarding his opinion as to Foster’s vocational disability rating consisted of medical records which we have decided constitute inadmissible hearsay, his testimony is still admissible. Dr. McClanahan testified during trial that in addition to reviewing the medical reports compiled by Foster’s other physicians, he himself spent about one hour interviewing Foster and helping him complete a nine-page vocational interview form, as well as conduct a three and one-half hour comprehensive vocational evaluation on Foster on a day when he was in pain. Included in this comprehensive evaluation is academic and vocational testing, using the Wide Range Achievement Test (Third Division) and the Kaufman’s Brief Intelligence Test, a personal assessment via the Wonderlic Test, a dexterity assessment employing the Sage System Scale, a depression assessment via the Zung Depression Self-Rating Scale, and a Visual Analogue Pain Rating Scale assessment. Dr. McClana-han testified that Foster tested on the “lower end” of the average I.Q. range with a score of 91, and slightly below average on the dexterity assessment. Dr. MeCla-nahan stated that he found the dexterity assessment score odd in light of Foster’s history of past work, most of which involved intensive hand, finger, and upper extremities exercises, but reasoned that this low score was consistent with Foster’s experience with long-term pain. The Zung analysis indicated that Foster suffers from severe to extreme depression; although this test was administered by Dr. McClanahan, he stated that such findings were also consistent with the psychological analyses conducted by Dr. Blanton and Dr. Van Wyk. Dr. McClanahan stated that Foster scored levels of five to seven (with zero being an absence of pain and ten being excruciating pain) on the Visual Analogue Pain Rating Scale assessment. He explained that a rating of five indicates a moderate level of pain and that a level of seven or higher (which Foster complained of occasionally) is considered to be occupationally debilitating due to the effect extreme pain has on one’s concentration, persistence and pace. Dr. McClanahan stated that Foster informed him that at one time he contemplated suicide as a result of the pain he suffered from his injury.

Dr. McClanahan testified that when he asked Foster during his interview what Foster, himself, thought was a reasonable (not maximum) level of physical activity for him, considering his pain, Foster answered sitting for 30 minutes, standing for 10 minutes, walking 400 yards, driving 45 minutes, lifting 15 to 20 pounds, and climbing one to two flights of stairs. Foster informed him that crouching, kneeling, stooping, crawling, and reaching overhead were all very painful to him. During cross-examination, Dr. McClanahan was asked if, in making his determination of Foster’s vocational disability rating, he was relying on the information contained in the medical reports of psychologists who examined Foster for just a few hours before rendering their evaluation of his condition, Dr. McClanahan answered that he considered those reports and found them to be credible in light of his own evaluation of Foster. Dr. McClanahan specifically testified that Foster’s own comments on his condition constitutes one of several “significant” factors on which he based his opinion.

Dr. McClanahan was questioned about medical evaluations by some physicians which, when interpreted by Dr. McClana-han, revealed that Foster was capable of doing physical labor greater than that of which he informed Dr. McClanahan, but he stated that these conflicting test results would not change his opinion as to Foster’s level of vocational disability. Dr. McCla-nahan was also asked why he dismissed certain diagnoses offered by other physicians, including that of Dr. Randolph George, Foster’s primary treating physician, in favor of those upon which he based in part his opinion as to Foster’s vocational disability rating. Dr. McClanahan explained that the unfavorable diagnoses did not appear to be consistent with his interpretation of Foster’s MRIs, X-rays, and CAT scans. Dr. McClanahan stated that although Foster displays the intelligence to be retrained, and that the moderate level of pain he experiences most of the time is not vocationally disabling, his ability to be retrained for a different job function would depend on what type of retraining he would have to undergo and how much pain it would cause him. Dr. McCla-nahan testified that it was his opinion that Foster needed to reduce the level of pain he was currently experiencing before he could truly benefit from retraining. He further stated that Foster’s ability to be gainfully re-employed depended on him recovering enough physically to endure a normal work schedule. Dr. McClanahan testified that his opinion that Foster is 100% vocationally disabled is influenced by Foster’s having to lie down due to pain for three to four hours a day during the hours of 8 A.M. to 5 P.M.

As was the case in Smith, the record in this case reveals that Dr. McClanahan’s testimony was based in part on his personal evaluation of Foster. Furthermore, the mere fact that the medical reports on which Dr. McClanahan relied in part in forming his opinion were not admitted into evidence should not prevent the admission of his testimony, which was also based on his personal evaluation of Foster. See Dutton, supra. Thus, the trial court’s decision to allow Dr. McClanahan to testify, even though his testimony was partly based on hearsay, does not constitute an abuse of discretion. See Dutton, supra, quoting E & S Facilities, Inc., supra.

III.

In conclusion, we determine that the trial court erred in improperly admitting into evidence plaintiffs exhibits 1, 4, and 6 because they were not properly certified. The trial court further erred in admitting into evidence plaintiffs exhibits 1(A), 2, and 3 because although those documents were properly certified, they were not sealed in accordance with the requirements of § 25-5-81(f)(4). Despite the fact that plaintiffs exhibit 2(A) is the only exhibit to meet the requirements of both proper certification and seal, the trial court erred in admitting that document into evidence because the record indicates that it constitutes inadmissible hearsay for its failure to meet all of the requirements for admission under the business records exception to the hearsay rule. Despite the foregoing, we conclude that the admission into evidence of plaintiffs exhibit 2(A) — as well as plaintiffs exhibits 1, 1(A), 2, 3, 4 and 6 — constitutes harmless error, because notwithstanding Dr. McClanahan’s reliance on Dr. Allen’s medical report in formulating his own opinion as to the level of Foster’s vocational disability, the record reveals that he demonstrated enough independent judgment regarding his own evaluation of Foster to justify the admission of his testimony into evidence.

AFFIRMED.

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

THOMPSON and MURDOCK, JJ., dissent.

MURDOCK, Judge,

dissenting.

The evidence presented by the employee to support his claim of total permanent disability in this workers’ compensation case included written reports containing expert-opinion testimony from three medical doctors and two psychologists whom the employee consulted after filing his lawsuit. The trial court admitted each of these reports into evidence over valid hearsay and related objections of the employer and, in its judgment, clearly indicated that it had relied upon the reports and found them persuasive. The employee also called as a witness at trial a vocational expert who based his opinion in part on those written reports.

The employer introduced the deposition testimony of the employee’s treating physician and called as witnesses at trial a physical therapist, two vocational experts, and an occupational therapist. This evidence tended to show that the employee was not disabled and, thus, conflicted with the evidence introduced by the employee.

In Odell v. Myers, 52 Ala.App. 558, 295 So.2d 413 (Ala.Civ.App.1974), we said:

“It is the rule, in a case at law tried without a jury that admission of illegal evidence over objection requires a reversal unless the remaining evidence is without conflict and sufficient to support the judgment. Pfingstl v. Solomon, et al., 240 Ala. 58, 197 So. 12; Robinson v. Solomon Bros. Co., 229 Ala. 137, 155 So. 553.
“We have before us several instances of admission of illegal evidence over strong objection with specifically stated grounds.... The remaining evidence is not without conflict and we are bound to the conclusion that the trial court considered at least some of the admitted illegal evidence. The influence such consideration had on the court’s finding of fact and conclusions of law is an unknown quantity. We do not believe a judge sitting as a trier of fact should be permitted to consider illegal evidence any more than should a jury. Our belief in this principle is greatly strengthened in this case by the several instances of admission of illegal evidence admitted over specific and extended objection. In view of the ... presumption ... that the court considered illegal evidence, because of overruling of objections, Bessemer Theatres v. City of Bessemer; 261 Ala. 632, 75 So.2d 651, it is our opinion that the judgment of the court should be reversed and the case remanded for a new trial and judgment free from influence of illegal evidence.”

52 Ala.App. at 562, 295 So.2d at 415.

The only appreciable difference between Odell and the present case is that in Odell this court presumed that the trial court had considered the illegal evidence. In the present case, the trial court expressly stated in its judgment that it had considered the illegal evidence.

Accordingly, I must respectfully dissent. In my opinion, this case must be remanded for a new trial.

THOMPSON, J., concurs.

      . Although the report indicates that the injury occurred on August 18, 1997, it actually occurred on August 22, 1997.

      . Dr. McClanahan testified that his assessment of Foster’s IQ conflicted with Dr. Blan-ton's assessment, which indicated that Foster suffers from mild-range mental retardation. (R. 149-150.)

      . I therefore cannot conclude, as the majority does, that the admission of these reports into evidence was harmless error.


source: Caselaw Access Project

author: PER CURIAM. HARWOOD, Justice JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte AMERICAN COLOR GRAPHICS, INC. (In re American Color Graphics, Inc. v. Rayfield Foster).
    1010180.
    Supreme Court of Alabama.
    May 24, 2002.

      Barry V. Frederick and William D. Jones III of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for petitioner.
    Oscar H. Hale, Jr., and Ashley Hale Rives of Hale & Associates, Montgomery, for respondent.
   PER CURIAM.

This case concerns the nature and extent of an on-the-job back injury Rayfield Foster sustained while he was working for American Color Graphics. The Court of Civil Appeals affirmed the trial court’s judgment finding that Foster had suffered a permanent total disability under the Workers’ Compensation Act. American Color Graphics, Inc. v. Foster, 838 So.2d 374 (Ala.Civ.App.2001). We reverse.

Facts

Rayfield Foster injured his back on August 22, 1997, while working at American Color Graphics (“ACG”); he had worked for ACG for over 20 years. As a result of the injury, Foster received temporary disability benefits for 28 weeks. Foster sued ACG on April 7, 1999, seeking permanent disability benefits. The issue at trial concerned the nature and extent of Foster’s disability.

A CAT scan performed after the injury revealed a large herniated disk in Foster’s back. Dr. Randolph George, a neurosurgeon, performed surgery to repair the herniated disk. Over the next several months Foster made several visits to Dr. George, complaining of pain in his left leg and other places, but Dr. George was unable to pinpoint a medical reason for the pain; he determined that Foster was capable of working again. Physical therapist Vicki Patrick performed a functional-capacity evaluation of Foster in February 1998 and concluded that Foster could perform a “limited medium level of work” at that time. An occupational therapist, Joe Willard, performed another functional-capacity evaluation on Foster in February 1999; the result of that evaluation was a finding that Foster fit “very well within the medium to even heavy work classification.”

After he filed the underlying action, Foster visited Dr. Walid Freij, Dr. Robert Allen, and Dr. Philip Golomb, all of whom concluded that Foster was physically incapable of working. He also visited two psychologists, Dr. Paul Van Wyk and Dr. Donald Blanton; based on one visit, they each found Foster to be too depressed to work. Each of these physicians and psychologists prepared reports on their evaluations of Foster; those reports were submitted to the court.

Before trial, ACG filed a motion in li-mine to prevent Foster from introducing into evidence the records of the three doctors and two psychologists Foster visited after he filed this action, as well as the testimony of Foster’s vocational expert, on the grounds that that evidence constituted inadmissible hearsay. The trial court reserved ruling on the motion in limine until the evidence was offered at trial. At trial, ACG again objected to the introduction of the evidence, but the trial court allowed the evidence to be admitted, reserving the right to exclude it, if necessary, at a later time.

At the conclusion of Foster’s case-in-chief and again at the conclusion of all of the evidence, ACG presented an original and a renewed motion for a judgment as a matter of law. The trial court rejected the first motion, but took the renewed motion under advisement. Eventually, however, the trial court issued an order admitting the evidence and finding that Foster had suffered a permanent total disability for which he was entitled to workers’ compensation benefits.

Foster’s attorney presented the findings of the doctors and psychologists who had evaluated Foster in the form of certified records, not through testimony. Foster’s vocational expert, Dr. Michael McClana-han, testified at trial. Foster’s attorney asked Dr. McClanahan to express his opinion about Foster’s disability based upon those certified records.

The Court of Civil Appeals held that the trial court erred in admitting those medical records, but nonetheless in a 3-2 decision affirmed the trial court’s finding that Foster was entitled to permanent-total-disability benefits, concluding that the admission of the records was “harmless error.” 838 So.2d at 384. The Court of Civil Appeals explained that result by saying that Dr. McClanahan “demonstrated enough independent judgment regarding his own evaluation of Foster to justify the admission of his testimony into evidence.” 838 So.2d at 384.

ACG contends that the Court of Civil Appeals’ affirmance of the trial court’s holding that Foster is entitled to permanent-total-disability benefits conflicts with that court’s decision in Odell v. Myers, 52 Ala.App. 558, 295 So.2d 413 (1974), because ACG believes that the Court of Civil Appeals did not properly weigh the evidence after it held that the medical records offered by Foster should not have been admitted. Specifically, it argues that Odell held that a reversal is required where illegal evidence is improperly admitted, unless the remaining evidence is without conflict and supports the trial court’s holding. See Odell, 52 AlaApp. at 562, 295 So.2d at 415. In this case, the remaining evidence did contradict the finding that Foster had suffered a permanent disability, ACG contends, and consequently, the Court of Civil Appeals should have reversed the trial court’s judgment in favor of Foster.

In support of its holding, the Court of Civil Appeals cited Rule 45, Ala. RApp. P. Rule 45 provides:

“No judgment may be reversed or set aside, nor new trial granted in any civil ... case on the ground of ... the improper admission ... of evidence, ... unless in the opinion of the court to which the appeal is taken ..., after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected the substantial rights of the parties.”

The Court of Civil Appeals stated that it did not believe the admission of the inadmissible evidence “ ‘probably injuriously affected the substantial rights of the parties,’ ” because it believed that Dr. McCla-nahan had “sufficient personal knowledge of Foster’s situation to justify the admission into evidence of his testimony.” 838 So.2d at 381.

Analysis

Initially, we note that the Alabama Workers’ Compensation Act, § 25-5-50 et seq., Ala.Code 1975, provides that an appellate court’s review of the proof and consideration of other legal issues in a workers’ compensation case shall be without a presumption of correctness. See § 25 — 5—81(e)(1), Ala.Code 1975. The Court of Civil Appeals found that the trial court’s admission of the medical records prepared by the three doctors and two psychologists Foster’s attorney sent Foster to was error. The Court of Civil Appeals concluded that several of the records were not properly certified according to § 25-5-81 (f), Ala.Code 1975, and Rule 44(h), Ala. R. Civ. P. See American Color Graphics, 838 So.2d at 384. It found other of the records inadmissible because they were not sealed, as is required by § 25-5-81(f)(4). 838 So.2d at 384. One of the medical records was properly certified and sealed, but it failed to qualify under the “business-records exception” of the hearsay rule, Rule 803(6), Ala. R. Evid., because the court found that it appeared to have been prepared solely in anticipation of litigation. American Color Graphics, 838 So.2d at 384. We find no fault with these conclusions by the Court of Civil Appeals.

Aside from those records, Foster’s only other evidence of permanent total disability was the testimony of Dr. McClana-han, who relied for the most part on the improperly admitted medical records to form his opinion. The record shows that Dr. McClanahan’s testimony that Foster was totally disabled was not based on his independent findings. He never provided that testimony without referring to the medical records that had been erroneously admitted into evidence, nor did he express an independent opinion on Foster’s disability status based upon his evaluation of Foster. Moreover, Dr. McClanahan is not a medical doctor, a psychologist, or a psychiatrist. He holds a Ph.D. degree in rehabilitation services; thus, he was not qualified to render an expert medical opinion as to the extent of Foster’s disability, nor did Foster claim at trial that Dr. McClanahan was qualified to do so. All of the tests performed by Dr. McClanahan, with the exception of the dexterity test, were in the form of surveys and questionnaires; he did not administer any tests to determine Foster’s medical condition. For that information, Dr. McClanahan consulted the inadmissible medical reports.

The Court of Civil Appeals cited Nor, Inc. v. Smith, 519 So.2d 534 (Ala.Civ.App.1987), and Dutton v. Saginaw Division, General Motors Corp., 634 So.2d 597 (Ala.Civ.App.1994), as support for its finding that a vocational expert’s testimony is admissible even though the expert relies on some material not in evidence as the basis for his or her opinion, so long as the opinion is also based upon the expert’s own evaluation of the worker. The Court of Civil Appeals explained in detail the evaluation Dr. McClanahan performed on Foster, as well as the conclusions he purportedly drew from it, 838 So.2d at 382-84, and found his testimony sufficient to render his partial reliance on the inadmissible records to be harmless.

This conclusion, however, ignores the trial court’s interpretation of Dr. McClanahan’s testimony. The trial court explicitly stated that Dr. McClanahan’s opinion that Foster was 100% disabled was “based on Dr. McClanahan’s review of [Foster’s] medical records,” that is, those records the Court of Civil Appeals determined to be inadmissible evidence. The trial court’s order clearly relied solely on the inadmissible evidence together with Dr. McClanahan’s testimony in determining that Foster had suffered a permanent total disability. For example, the trial court observed that Foster “introduced numerous reports and medical records concerning his work-related injury. Specifically, those records and reports considered by Dr. McClanahan in developing his opinions were submitted into evidence. The Court finds these records and reports quite compelling." (Emphasis added.) The trial court’s reliance on this evidence precludes the possibility that its admission was harmless error.

ACG argues that in this type of situation, Odell commands a reversal by the appellate court because the trial court relied on inadmissible evidence in making its decision. In Odell, the trial court found that an employee had sustained a 35% permanent partial disability. The trial included, in the words of the Court of Civil Appeals, “several instances of admission of illegal evidence over strong objection with specifically stated grounds.” Odell, 52 Ala. App. at 562, 295 So.2d at 415. The Court of Civil Appeals determined that

“[t]he remaining evidence is not without conflict and we are bound to the conclusion that the trial court considered at least some of the admitted illegal evidence. The influence such considerations had on the court’s finding of fact and conclusions of law is an unknown quantity. We do not believe a judge sitting as a trier of fact should be permitted to consider illegal evidence any more than should a jury. Our belief in this principle is greatly strengthened in this case by the several instances of admission of illegal evidence admitted over specific and extended objection.”

Id.

In this context, the Court of Civil Appeals stated:

“It is the rule, in a case at law tried without a jury that admission of illegal evidence over objection requires a reversal unless the remaining evidence is without conflict and sufficient to support the judgment. Pfingstl v. Solomon, et al, 240 Ala. 58, 197 So. 12 [ (1940) ]; Robinson v. Solomon Bros. Co., 229 Ala. 137, 155 So. 553 [ (1934) ].”

Id. (Emphasis added.) The Court of Civil Appeals reversed the judgment of the trial court and remanded that case for a new trial.

In opposition to Foster’s evidence, ACG presented the testimony of Foster’s treating physician, Dr. Randolph George; vocational expert Ralph Richards; physical therapist Joe Willard; and occupational therapist Gary Scoggins. All of the evaluations performed by these witnesses concluded that Foster was capable of returning to work and that he had not sustained a permanent disability. Thus, the evidence presented by ACG contradicted the evidence presented by Foster. While Dr. McClanahan’s testimony can be viewed as presenting some evidence of disability, it is certainly not sufficient to support the trial court’s finding in the face of the contrary evidence.

Even so, we need not determine which party presented the more reliable evidence. It is only necessary to observe that the evidence upon which the trial court based its decision was erroneously admitted, a fact which calls that decision into question. Once the inadmissible evidence is excluded, the only remaining evidence that supports Foster’s position is Dr. McClanahan’s testimony and evaluation. Yet he never independently concluded that Foster was permanently disabled; therefore, that evidence is far from sufficient to support the judgment of the trial court. Thus, the prudent course, as Odell reminds us, is to reverse the trial court’s judgment and remand the case for a new trial, free from influence of the illegal evidence. Therefore, we reverse the judgment of the Court of Civil Appeals and remand the case to that court for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, BROWN, WOODALL, and STUART, JJ., concur.

LYONS and HARWOOD, JJ., concur specially.

JOHNSTONE, J., concurs in the rationale in part and concurs in the judgment.

SEE, J., recuses himself.

HARWOOD, Justice

(concurring specially).

I concur fully with the main opinion. I write specially to address an issue to which Rayfield Foster devotes 24 pages of the “Argument” section of his brief — the admissibility of the medical records and reports at issue in this case. Over the course of those two dozen pages, Foster argues that the various records and reports in question were in fact properly admitted and considered by the trial court. This argument presented to this Court in this certiorari proceeding ignores the procedural obstacle presented to our review of the issue by the fact that the Court of Civil Appeals expressly held in its September 28, 2001, opinion that all of the reports and records were inadmissible for one reason or another and that their admission into evidence by the trial court was error. The Court of Civil Appeals went on to hold, however, that the error was rendered harmless, based on its analysis of the bases and content of the testimony of Dr. Michael McClanahan, Foster’s vocational expert.

Foster understandably did not apply to the Court of Civil Appeals for rehearing as to its findings and rulings concerning the inadmissibility of all of those records and reports, because he was the prevailing party and only “[a] party who has not prevailed may apply for a rehearing.” Rule 40(a), Ala. R.App. P. Likewise, procedurally Foster was not in a position to “cross-petition” this Court for a writ of certiorari to the Court of Civil Appeals concerning its rulings as to evidentiary admissibility because his status after the September 28, 2001, opinion of the Court of Civil Appeals affirming the trial court’s ruling in his favor was such that he did not qualify for any of the limited grounds for petitioning for the writ of certiorari specified by Rule 39(a)(l)(A)-(E), Ala. R.App. P. Thus, because of the procedural strictures of Rule 39, he cannot now challenge the findings and holdings of the Court of Civil Appeals declaring all of the records and reports in question to have been improperly admitted by the trial court, and those findings and holdings by the Court of Civil Appeals constitute the law of the case.

Accordingly, it is not within the scope of our review on this petition of American Color Graphics, Inc., for a writ of certiora-ri to assess independently and to determine the admissibility of those records and reports. Therefore, the starting point of our analysis in this case is necessarily that all of the records and reports at issue were improperly admitted into evidence by the trial court and were therefore ineligible for use as a foundation for Dr. McClanahan’s various opinions predicated upon them and were likewise ineligible for independent consideration by the trial court.

LYONS, J., concurs.

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the judgment).

But for one exception, I concur in the main opinion, which reverses the judgment of the Court of Civil Appeals and remands this cause. I respectfully except to the holding that “We find no fault with these conclusions by the Court of Civil Appeals” (in its analysis of the admissibility of various exhibits introduced by the plaintiff over the defendant’s objections). I respectfully do find fault with the conclusion and rationale of the Court of Civil Appeals in its analysis of the admissibility of one of these exhibits, Plaintiffs Exhibit 2(A), Dr. Allen’s medical report.

The plaintiff offered Exhibit 2(A) as an exception to the hearsay rule as defined by Rule 803, Ala. R. Evid., in either subsection (4) (“Statements for Purposes of Medical Diagnosis or Treatment”) or subsection (6) (“Records of Regularly Conducted Activity”). The Court of Civil Appeals expressly finds and holds that Exhibit 2(A) fulfills the criteria for admissibility as an exception to the hearsay rule as defined by the aforesaid Rule 803(4) (“Statements for Purposes of Medical Diagnosis or Treatment”). Yet the Court of Civil Appeals finds and holds the exhibit to be inadmissible because it does not also fulfill the criteria of aforesaid Rule 803(6) (“Records of Regularly Conducted Activity”).

This analysis is wrong. Evidence which entirely fulfills the criteria for one exception to the hearsay rule is admissible, irrespective of whether it fulfills the criteria for still other exceptions to the hearsay rule. Reeves v. King, 534 So.2d 1107, 1112 (Ala.1988) (“‘[I]t must be borne in mind that there are numerous exceptions to the hearsay rule and that an utterance, while not properly admitted under one exception, may very well be admitted under another.’ ” (quoting Yates v. Bair Transport, Inc., 249 F.Supp. 681, 684 (S.D.N.Y.1965))).

Moreover, I do not agree with the opinion of the Court of Civil Appeals that Exhibit 2(A) was prepared in anticipation of litigation and therefore was unqualified to be an exception to the hearsay rule as defined by Rule 803(6) (“Records of Regularly Conducted Activity”). The only evidence cited by the Court of Civil Appeals for its conclusion that Exhibit 2(A) was prepared in anticipation of litigation is that, after the plaintiff filed suit, his lawyer referred him to Dr. Allen, the author of the exhibit, who had previously treated the plaintiff. From this limited evidence, the Court of Civil Appeals concludes that the exhibit, Dr. Allen’s report, is untrustworthy as a record kept in the regular course of Dr. Allen’s profession to memorialize his own acts and observations performed in the regular course of his profession. This conclusion is an untenable aspersion on all physicians and an unjust infringement of the treatment rights and litigation rights of all injured litigants.

I agree, however, with the other conclusions by the Court of Civil Appeals that the other exhibits were inadmissible. Yet I disagree with that court that the error by the trial court in admitting the inadmissible exhibits was harmless. Therefore, I concur in the main opinion, subject to the exception I have already explained, that this cause must be reversed and remanded.

      . Foster's attorney referred him to each of the doctors and psychologists whose report was submitted into evidence. With the exception of Dr. Robert Allen, whom Foster saw once before filing his complaint in this action, his first visit to each one of those doctors was after the action had been filed.


author: PITTMAN, Judge.

text:
    AMERICAN COLOR GRAPHICS, INC. v. Rayfield FOSTER.
    2000044.
    Court of Civil Appeals of Alabama.
    June 28, 2002.

      Barry V. Frederick and William D. Jones III of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for appellant.
    Oscar H. Hale, Jr., Patrick Brett Hale, and Ashley Hale Rives of Hale & Associates, Montgomery, for appellee.
   On Remand from the Supreme Court

PITTMAN, Judge.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. In compliance with the Supreme Court’s' opinion of May 24, 2002, in Ex parte American Color Graphics, Inc., 838 So.2d 385 (Ala.2002), the judgment of the trial court is reversed and the cause is remanded to the trial court for a new trial consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: MURDOCK, Judge.

text:
    Joji KANAZAWA v. Linda F. WILLIAMS.
    2001229.
    Court of Civil Appeals of Alabama.
    June 21, 2002.
    Ralph D. Gaines III and Jackie H. Trimm of Gaines, Wolter & Kinney, P.C., Birmingham, for appellant.

      Tom Payne, Montgomery, for appellee.
   MURDOCK, Judge.

In December 1998, Linda Faye Williams filed a complaint in the Montgomery Circuit Court against Joji Kanazawa, alleging that she had been injured as a result of an automobile accident that occurred in January 1997 and that Kanazawa’s negligence and/or wantonness had caused her injuries. The Montgomery County sheriff attempted service of process on Kanazawa in December 1998 at Kanazawa’s former Montgomery residence. The “No Service Notice” returned to the trial court by the Montgomery County sheriffs office stated that Kanazawa was not served; the notice bore the notations “Party Moved” and “Moved to Japan.” Williams then filed a motion for service by publication pursuant to Rule 4.3(c), Ala. R. Civ. P. Attached to that motion was an affidavit of Williams’s counsel stating that Kanazawa was a “resident adult citizen of the State of Alabama” and that Kanazawa had “concealed himself so that ... [pjrocess in this cause cannot be served on him.” The trial court granted Williams’s motion and ordered that service be by publication in the Montgomery Independent, a newspaper of general circulation in Montgomery County.

After publication had taken place, Williams filed a motion for the entry of a default judgment. On July 13, 2000, the trial court entered an entry of default against Kanazawa. On July 17, 2000, the trial court held a hearing concerning William’s damages and entered a default judgment against Kanazawa in the amount of $37,500 plus court costs. Thereafter, by letter dated October 2, 2000, Williams made a demand on Integon Insurance Company (“Integon”), Kanazawa’s liability-insurance carrier, for payment.

On December 5, 2000, legal counsel for Integon, on behalf of Kanazawa, filed a motion to set aside the default judgment pursuant to Rule 60(b), Ala. R. Civ. P., alleging that the trial court lacked in per-sonam jurisdiction over Kanazawa and that the default judgment was, therefore, void. Attached to that motion was an affidavit of Kanazawa’s former landlord stating that Kanazawa had come to Montgomery from Japan in late 1993 or early 1994 to attend Auburn University in Montgomery and that Kanazawa had returned to Japan in mid-1998 after completing his studies. On January 11, 2001, the trial court entered an order setting aside the default judgment as “void for lack of personal jurisdiction due to improper service”; that order granted Williams “leave to attempt service over [Kanazawa], who resides in Japan, under the terms of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, as required by Alabama law” (“the Hague Convention”).

On February 12, 2001, Williams filed a “motion to set aside” the January 11, 2001, order relieving Kanazawa from the default judgment. Williams sought the reinstatement of the default judgment, alleging, among other things, that “[njo credible proof was adduced ... that [Kanazawa] was ... a Japanese citizen and is not avoiding the jurisdiction of this court.” On August 9, 2001, the trial court granted Williams’s motion to reinstate the default judgment, stating that it had found “sufficient evidence and facts” to vacate its January 11, 2001, order. Kanazawa appeals.

Kanazawa contends that the trial court erred in reinstating the default judgment because, he claims, the default judgment was void for lack of in personam jurisdiction. Kanazawa contends that where service of publication is improper a judgment is void for lack of in personam jurisdiction and that Rule 4.3(c), Ala. R. Civ. P., requires more than conclusory assertions of a defendant’s avoidance of service, citing Webster v. Cetinkaya, 638 So.2d 834 (Ala.1994); Vaughan v. O’Neal, 736 So.2d 635 (Ala.Civ.App.1999); and Gross v. Loewen, 522 So.2d 306 (Ala.Civ.App.1988).

Rule 60(b), Ala. R. Civ. P., provides: “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void.”

“Rule 60(b)(4), Ala. R. Civ. P., provides relief from a final judgment where the court that rendered it lacked jurisdiction over the subject matter or over the parties. The denial of relief under Rule 60(b) is within the discretion of the trial court and will not be disturbed on appeal absent evidence of abuse of discretion. However, when the grant or denial of relief depends on the validity of the judgment, abuse of discretion is not the appropriate standard of review. If the judgment is valid it must stand; if it is void, it must be set aside.

State ex rel. Dep’t of Human Res. v. Curran, 716 So.2d 1196, 1200 (Ala.Civ.App.1997) (emphasis added; citations omitted).

Rule 4.3, Ala. R. Civ. P., governs service by publication.

“This rule applies as follows:

“(1) To a claim historically equitable involving property under the control of the court (e.g., administration of an estate, interpleader, partition) or marital status which said claim has heretofore been deemed appropriate for service by publication where the identity or residence of a defendant is unknown or, where a resident defendant has been absent from that defendant’s residence for more than thirty days since the filing of the complaint and the method of service by publication in such instances is not specifically provided by statute; and,
“(2) To a claim, whether legal or equitable, against a defendant who avoids service of process as described in sub-paragraph (c) of this rule.
“This rule does not supersede specific procedure for publication as set forth in certain statutes governing special proceedings (e.g., attachment, in rem action to quiet title) and, in such proceedings, the specific statutory procedure for publication and all other requirements appearing therein shall govern except to the extent that subparagraph (b) of this rule may be applicable. In no event shall an in personam judgment be entered on service by publication except as provided in subparagraph (c) of this rule.”

Rule 4.3(a), Ala. R. Civ. P. Service by publication in the present case was attempted pursuant to Rule 4.3(a)(2), i.e., on the defendant who allegedly had avoided service of process. We further note, therefore, that subparagraph (c) of Rule 4.3, upon which the operation of Rule 4.3(a)(2) depends, provides for service by publication “[w]hen a resident defendant avoids service.”

In Webster, supra, the parties were involved in an automobile accident in Montgomery County. The defendant, Cetinka-ya, was an officer in the Air Force of the Republic of Turkey who was training at a military base in Montgomery when the automobile accident occurred. After Cet-inkaya completed his training, he was ordered to return to Turkey. Unable to locate Cetinkaya, the plaintiff, Webster, attempted service by publication. The trial court dismissed the action, finding that it lacked in personam jurisdiction over the defendant and that service by publication would not be proper. The Alabama Supreme Court agreed:

“Webster’s reliance on Rule 4.3[, Ala. R. Civ. P.J to effect service of process by publication is mistaken. Cetinkaya has not ‘avoided’ service, but has merely obeyed the authorities of his country and returned there after completing his tour of duty in Alabama. The Comment to Rule 4.3 offers further explanation:
“ ‘Note that more than mere inability to find the defendant is required because of the use of the term “avoidance” of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publication, substantial constitutional questions may be posed by the obtaining of an in personam judgment by publication.’
‘We need not determine whether Cet-inkaya was a resident of Alabama, either at the time of the accident or when Webster sued; it does not matter to our resolution of the issues presented. Because Cetinkaya did not actively avoid Webster’s attempts to perfect service of process, but merely followed the orders of his superiors in the Turkish Air Force, service of process by publication under Rule 4.3 was improper as a matter of law.”

Webster, 638 So.2d at 836.

In this case, the affidavit of Kanazawa’s former landlord establishes that Kanazawa had returned to Japan as he and his parents had originally planned upon completing his studies at Auburn University in Montgomery. The affidavit further establishes that Kanazawa remained at his Montgomery residence in this country for approximately 18 months following the automobile accident and that he left that address to return to Japan several months before the lawsuit was filed. Although on appeal Williams attacks the credibility of the affidavit, she did not lodge any objections to the affidavit in the trial court. We conclude that the affidavit of Kanazawa’s former landlord demonstrated that Kana-zawa did not attempt to avoid service, but that he merely returned to Japan after attaining his educational goals.

Williams contends that the affidavit of Kanazawa’s former landlord did not establish that Kanazawa was not a resident of Alabama, and, she argues that the burden should be on Kanazawa to establish that he was not a resident of Alabama. However, in order for a plaintiff to properly resort to service by publication under Rule 4.3(c) with respect to an historically legal claim, such as Williams’s tort claim, the defendant must be a “resident” of Alabama and “avoiding] service.” See Rule 4.3(c), Ala. R. Civ. P. Ünder Alabama law, the burden is on the plaintiff who is seeking service by publication to show that the defendant has avoided service, a burden that must be met by more than “mere eonclusory assertions.” Vaughan, 736 So.2d at 638 (emphasis omitted); see also Gross, 522 So.2d at 308. In this case, we conclude that the eonclusory assertions made by Williams’s legal counsel in counsel’s affidavit that Kanazawa had attempted to avoid service are insufficient as a matter of law.

For the foregoing reasons, the August 9, 2001, judgment of the trial court is reversed, and the cause is remanded for the trial court to reinstate its previous judgment allowing Williams leave to serve Ka-nazawa under the terms of the Hague Convention.

The motion to strike filed by Kanazawa is denied.

REVERSED AND REMANDED.

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

      . For a discussion of the Hague Convention, see Rivers v. Stihl, Inc., 434 So.2d 766 (Ala. 1983).


author: YATES, Presiding Judge. CRAWLEY, Judge,

text:
    Sidney E. ETHEREDGE, Jr. v. Tammy Etheredge WHEAT.
    2000187.
    Court of Civil Appeals of Alabama.
    June 21, 2002.

      Kelli D. Taylor-Etheredge, Mobile, for appellant.
    Tammy K. Etheredge Wheat, pro se.
   YATES, Presiding Judge.

These parties have previously been before this court. See Etheredge v. Etheredge, 730 So.2d 245 (Ala.Civ.App.1999) (Etheredge I”).

We note the following procedural and factual history from Etheredge I:

“The trial court divorced the parties on May 27, 1994. Pursuant to an agreement of the parties incorporated into the final judgment of divorce, the court, among other things, awarded the mother custody of the parties’ minor child, with visitation to the father; ordered the father to pay $487 per month in child support; ordered the mother to provide hospitalization insurance and ordered the father to pay all the child’s medical bills, including any doctor, dental, or drug bills not covered by insurance, as well as any deductibles; and ordered that should the parties agree on private education for the child the costs of tuition, books, and uniforms shall be shared equally between the parties.
“On January 12, 1998, the father petitioned the court, seeking a modification of the visitation schedule. On March 2, 1998, the mother answered the father’s petition and cross-petitioned for a rule nisi, asking the court, among other things, to hold the father in contempt for his refusal to pay certain medical expenses. On that same day, the mother petitioned the court, seeking a modification of the father’s child support obligation and alleging a material change in circumstances. The mother also alleged that the father had been ordered to pay one-half of the child’s private school tuition, pursuant to the divorce judgment; that the tuition is due on the first day of each month; and that the father has refused to pay the tuition on the first of each month. The mother sought an order from the court requiring the father to pay the child’s tuition on the first of each month. On March 19, 1998, the mother amended her cross-petition for a rule nisi, asking the court, among other things, to hold the father in contempt for his refusal to pay one-half of the child’s private school tuition.
“Following a proceeding at which ore tenus evidence was presented, the court, on August 27, 1998, entered an order increasing the father’s support obligation to $629 per month, and making that increase retroactive to March 1998; requiring the father to reimburse the mother $78.28 for medical expenses she had incurred; awarding the mother $1,455 for part of the costs of private-school tuition she had paid; and denying the mother’s additional request for private-school tuition.”

Id. at 246-47.

The record on appeal in Etheredge I contained CS-42 Child Support Guidelines Forms completed by both parties and filed with the trial court. The record also contained the mother’s properly completed CS-41 Child Support Obligation Income Statement/Affidavit Form. However, the record did not contain a properly completed CS-41 form for the father. Additionally, the record did not contain a CS-42 Child Support Guidelines Form completed by the trial court. We noted that Rule 32(E), Ala. R. Jud. Admin., mandates the filing of standardized Child Support Guidelines Forms and Child Support Obligation Income Statements/Affidavits and that the “ ‘parties must complete and file accurate Child Support Obligation Income Statement/Affidavit Forms and the trial court must also file a fully completed and signed Child Support Guidelines Form.’ ” Id. at 247, quoting Lo Porto v. Lo Porto, 717 So.2d 418, 421 (Ala.Civ.App.1998).

This court reversed the trial court’s judgment insofar as it related to the award of child support and remanded the case with directions for the trial court to complete and file a CS-42 Child Support Guidelines Form. This court also ordered the father to complete and file a signed CS-41 Child Support Obligation Income Statement/Affidavit Form reflecting his financial circumstances at the time the child-support calculation is made. We further noted that if on remand the trial court deviated from the child-support guidelines in setting a support obligation, it must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. Etheredge I.

Following remand, the mother, on August 23, 1999, petitioned the court for a rule nisi, asking the trial court to find the father in contempt. She alleged that the father had refused to pay the $629 monthly child support ordered by the court on August 27, 1998; that when this court remanded the case in Etheredge I for the trial court to make specific findings, it did not set aside the support award of $629 per month; that the father had failed to establish a supersedeas bond pending the appeal; that the father had refused to pay the 2% commission fee due on the child-support payments as ordered by the trial court; and that the amount of the arrear-age, according to the accounts clerk’s office, was $1,237.37 before the trial court’s ruling of August 27,1998.

On September 10, 1999, the father petitioned the court for a rule nisi, asking the court to hold the mother in contempt for violating the visitation schedule set forth in the divorce judgment. On December 1, 1999, the father moved the court for an expedited hearing on his petition for a rule nisi. On December 11, 1999, the trial court entered an order appointing a guardian ad litem to represent the interests of the parties’ minor child.

On June 30, 2000, the mother amended her petition for a rule nisi, alleging that the father had failed to pay the arrearage owing at the time of the August 1998 order and that he also had refused to pay certain dental bills he was ordered to pay in the original divorce judgment.

Following a hearing on August 1, 2000, the trial court, on August 9, 2000, entered an order, among other things, awarding the mother $554 monthly child support, plus an additional $75 per month to be applied toward private-school tuition for the minor child, plus a “commission” on the award; awarding the mother $5,349.79 representing child-support and private-school-tuition arrearage since March 1998; and finding the father in contempt for failing to pay child support as ordered by the court on August 27, 1998. On September 6, 2000, the father moved the trial court to alter or amend its judgment; the father specifically requested a hearing on the arrearage issue. The trial court amended its judgment insofar as it related to an attorney-fee award, and it denied all other relief. The father appealed.

The trial court failed to comply with this court’s directive in Etheredge I; the record on appeal again failed to contain a CS-42 form completed by the trial court and a CS-41 form completed by the father. Additionally, the court again deviated from the guidelines by requiring the father to pay an additional $75 per month for private-school tuition without making the required findings pursuant to Rule 32(A)(ii). Therefore, this court, on January 2, 2002, remanded the case to the trial court to give that court 21 days in which to accept the necessary forms from the parties and so the court could complete a CS-42 form. On remand, the father completed a CS-41 form and a new CS-42 form based on wage information as of January 2002. The mother filed with the trial court a CS-42 form that had been prepared in July 1999. The mother did complete a new CS-41 form; however, it was based on income information from 1998 and 1999, and, therefore, was not current. The trial court did not complete a CS-42 form and made no findings with regard to its deviation from the guidelines. The trial court simply attached the above-mentioned forms to a copy of this court’s order on remand and filed those documents with this court.

This court, on April 2, 2002, again remanded the case and ordered the trial court to accept, within 21 days, the necessary forms from the parties based on current wage information. The trial court was again ordered to complete a CS-42 form and to make the findings required by Rule 32(A)(ii). On remand, the mother completed a new CS-41 form based on current wage information. The trial court, once again, did not complete a CS^42 form nor make the findings required by Rule 32(A)(ii).

The father argues on appeal that the trial court erred in modifying his support obligation from $487 per month to $629 per month ($554 support obligation plus additional $75 for private-school tuition), because, he says, the mother failed to prove a material change in circumstances. This court believes that another remand would be pointless; therefore, based on the most recent CS-41 and CS-42 forms and income documentation provided by the parties, this court will calculate the father’s monthly support obligation and will further determine whether a modification of the support award was warranted. We initially note that:

“A child support order may be modified only where there is a change in circumstances that is material and continuing. The burden of proving such changed circumstances that would justify a modification of the prior child support order rests with the party seeking the modification. The decision whether to modify a prior support order is within the discretion of the trial court, and this court will not reverse the trial court’s determination on that issue absent a clear showing of an abuse of discretion.
“Rule 32[(A)(3)(b)], Ala. R. Jud. Admin., creates a rebuttable presumption that an existing child support obligation should be modified where the difference between the present obligation and that indicated by the guidelines in Rule 32 is greater than 10 per cent. The trial court may modify a support obligation where the 10 per cent variation is not present, but where there has been a material change in the parties’ circumstances. ‘The party seeking a modification in that situation, however, does not have the benefit of the rebuttable presumption.’ ”

Beavers v. Beavers, 717 So.2d 373, 376 (Ala.Civ.App.1997) (citations omitted).

The father’s CS-41 and CS-42 forms (based on a check stub from his employer Morris Concrete Company) submitted to the trial court in January 2002 indicate a monthly gross income of $3,883. This represents a decrease in the father’s monthly gross income as indicated by the parties’ CS-42 forms prepared in June and August 1998. The mother’s CS-41 form (based on a check stub from her employer Kimberly Clark Corporation) submitted to the trial court in April 2002 indicate a monthly gross income of $4,540. This represents an increase in the mother’s monthly gross income as indicated by the mother’s CS-42 and CS-41 forms prepared in June 1998 and the father’s CS-42 form prepared in August 1998. Computing the father’s monthly support obligation in accordance with the formula set forth in the CS^2 form, and using $3,883 as the father’s monthly gross income, and $4,540 as the mother’s monthly gross income, this court determines that the father’s monthly support obligation is $460. This amount is less than the $554 monthly obligation of the father as determined by the trial court and is actually less that the father’s current support obligation of $487. We note that the $554 established by the trial court was based on income information that is now approximately three and one-half years old — this is the precise reason this court has sought to obtain current CS-41 and CS-42 forms and current wage information from the parties. Accordingly, we conclude that the trial court’s award of $554 per month in child support is due to be reversed.

As for the additional $75 per month in child support awarded by the trial court, we note that the divorce judgment entered in May 1994 provides that “in the event the parties agree on private school for the minor child, the tuition, books, and uniform costs shall be equally divided between the parties.” The child was attending a private school at the time the parties divorced. A dispute arose between the parties over the father’s payment of one-half of the tuition and whether the child should continue in private school. The record of the August 1998 ore tenus hearing indicates that the father paid one-half of the costs of the books, uniforms, and registration fees for the child’s private-school education, but had stopped paying his share of the tuition after the mother filed harassment charges against him. Apparently, the mother has alleged a change in circumstances based on the father’s refusal to pay his one-half of the child’s private-school tuition.

The mother testified that public school was not a suitable alternative because the public school the child would attend is in the opposite direction of the mother’s employer and does not provide child-care for the times before and after school. The record indicates that if the child did not have access to the after-school care associated with the private school, the costs of child-care would increase. The trial court stated in its order of August 27, 1998, that “[i]n light of the request for private school tuition versus higher day care if the children [sic] go [to] public school, the Court is of the opinion that the increase in child support above the guidelines is fair and warranted under the circumstances.” On remand, the trial court entered its order of August 9, 2000, following arguments from counsel, but without receiving additional evidence from the parties, and stated that the father shall pay the mother “an additional $75 per month to be applied towards the private school tuition for the minor.” The trial court made no findings as to why it deviated from the guidelines and awarded the mother an additional $75 per month in child support and has refused on two subsequent remands to make such findings.

The evidence presented in this regard is three and one-half years old, and this court cannot determine from the record before this court whether the child is currently enrolled in private school or public school; whether the additional $75 is currently needed or is being used for childcare costs to offset the increase of such costs if the child is attending public school; and if the child is attending private school, the reasons an additional $75 must be applied to the child’s private-school tuition. Accordingly, we must reverse the trial court’s order awarding an additional $75 per month in child support.

We feel compelled to address the father’s argument in his appellate brief that the trial court failed to comply with the orders of this court by failing to obtain and file the necessary forms required by Rule 32, Ala. R. Jud. Admin. While the trial court has failed to obtain the necessary forms in this case, the father attempts to lay the blame for his failure to complete and file his CS-41 Child Support Obligation Income Statement/Affidavit on the trial court. However, it is the father’s responsibility to complete his own CS-41 form. “[T]he parties must complete and file accurate Child Support Obligation Income Statement/Affidavit Forms.” Ether-edge I, 730 So.2d at 247, quoting Lo Porto, 717 So.2d at 421. The father failed to comply with the orders of this court on its initial remand of this case; it is rather disingenuous for the father to blame the trial court for his own lack of initiative in this regard.

The father also argues that the trial court erred in failing to grant him a hearing on his postjudgment motion regarding the arrearage issue. The “denial of a post-judgment motion without a hearing is reversible error if the movant requested a hearing and harmful error is found.” Knight v. Knight, 739 So.2d 507, 509 (Ala.Civ.App.1999). It appears from the transcript of the hearing that the father was provided a partial printout of the accounts clerk’s record and that the trial court relied upon this partial record in determining the arrearage owed. Subsequent to the hearing the father obtained a complete record from the accounts clerk’s office, which, he says, indicates that the amount of the arrearage reflected in the trial court’s order is incorrect. The father specifically stated in his postjudgment motion that the “Accounts Clerk’s computations are incorrect and have overstated the amount of arrearage and defendant requests an opportunity to be heard so that evidence can be presented to rebut the amount of the arrearage reported by the Accounts Clerk’s office.” However, the father has presented this court with no evidence or explanation as to why a complete copy of the printout could not have been obtained by him before the date of trial. Accordingly, we find no error here.

The father next argues that the trial court erred in finding him in contempt for failing to pay child support as ordered on August 27, 1998. The determination whether a party is in contempt is committed to the sound discretion of the trial court. Coleman v. Coleman, 628 So.2d 698 (Ala.Civ.App.1993). Under Rule 62, Ala. R. Civ. P., and Rule 8(c), Ala. R.App. P., a supersedeas bond must be posted in order to stay the execution of a judgment pending appeal. The purpose of a supersedeas bond is to maintain the status quo of the parties pending an appeal. Ex parte Lumbermen’s Underwriting Alliance, 662 So.2d 1133 (Ala.1995). The su-persedeas bond ensures that the party who has obtained a judgment will not be prejudiced by a stay of execution of the judgment pending the final determination of an appeal. Id.; see also State ex rel. B.G. v. J.F.P., 721 So.2d 213 n. 6 (Ala.Civ.App. 1998) (holding that the defendant in an action brought pursuant to § 26-17-1 et seq., Ala.Code 1975, may file a supersede-as bond to stay enforcement of a child-support order during the pendency of appeal to the circuit court).

The father failed to file a superse-deas bond pending the appeal from the trial court’s August 27, 1998, order; therefore, the judgment was not stayed, and he was required to pay child support as ordered by the trial court. Accordingly, we cannot say that the trial court abused its discretion in finding the father in contempt for failing to pay child support as ordered by the trial court on August 27, 1998.

The father further argues that the trial judge in this case should be removed from the case, because, he says, the trial judge blatantly disregarded this court’s previous orders and, therefore, the judge’s impartiality is called into question. While this may be the case, a motion to recuse must be addressed to the judge whose ability to hear the case is being challenged. Greene v. City of Montgomery, 677 So.2d 794 (Ala.Crim.App.1995). The father filed no motion in the trial court addressed to the trial judge seeking recusal; therefore, we will not consider this argument on appeal.

Accordingly, the trial court’s judgment is affirmed as to the denial of the father’s postjudgment motion and the finding of contempt. As for the issue of child support, the judgment is reversed and the trial court is ordered on remand to enter a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

CRAWLEY and THOMPSON, JJ., concur in the result.

CRAWLEY, Judge,

concurring in the result.

I must concur in the result because this court, in reversing the trial court’s judgment in Etheredge v. Etheredge, 730 So.2d 245, 247 (Ala.Civ.App.1999) (“Etheredge I ”), required the father to submit a CS-41 form based on income information “at the time the child support calculation is made.” I concurred in the opinion in Etheredge I. Neither party sought review of, or in any other way challenged, this court’s judgment in Etheredge I. Thus, the requirement that the trial court recalculate child support based on current income figures has become law of the case. See Ex parte Jones, 774 So.2d 607, 608 (Ala.Civ.App. 2000) (quoting Walker v. Carolina Mills Lumber, 441 So.2d 980, 982 (Ala.Civ.App.1983)). However, upon consideration, I have determined that this court erred by requiring that updated income information be used.

In August 1998, at the time of the hearing on the modification petition, the parties in this case submitted CS-42 forms containing differing income amounts. In August 2000, after this court reversed the child-support award because the record did not contain-a CS-41 form on behalf of the father or a CS-42 form completed by the court, see Etheredge I, 730 So.2d at 247, the trial court again awarded child support based on the income figures reflected in the mother’s CS-42 form. This court remanded this case twice more, in January 2002 and in April 2002, each time ordering the trial court to complete a CS-42 form and to order the parties to complete CS-41 forms. This court’s April 2002 order specifically required the parties to submit current income figures.

Based on those current figures, we now reverse the trial court’s judgment, which I now believe was properly based upon the parties’ respective incomes in 1998. In my opinion, the above-quoted statement in Etheredge I and in our April 2002 remand order mistakenly required the parties to submit updated information when we were concerned with whether the original child-support calculation complied with the child-support guidelines. In effect, this court is compelling a modification of the original child-support judgment instead of reviewing the original judgment. However, in light of Etheredge I and our previous remand orders, I am constrained to concur in the result.

      . In Etheredge I, this court did affirm the trial court’s award of $1,455 in favor of the mother, which represented the amount of private-school tuition owed by the father, and an award $78.28 in medical expenses owed by the father.

      . This award is the same amount awarded by the court on August 27, 1998. Both parties state in their appellate briefs that the trial court informed them in an off-the-record discussion that it intended to award the same amount of support to the mother as it had awarded in its order of August 27, 1998.

      . This is the only hearing at which the court received evidence from the parties.

      . We do note that the transcript of the August 1, 2000, hearing indicates that the father's counsel states in his argument to the court that the child has continued in private school; however, we also note that the arguments of counsel are not evidence. See Fountain Finance, Inc. v. Hines, 788 So.2d 155 (Ala. 2000).

      . The fact that this court has subsequently reversed that portion of the trial court's order increasing the father's support obligation does not require a reversal of the trial court’s finding of contempt nor a reimbursement to the father of the support paid as ordered by the court in its judgment modifying the father’s support obligation. The father simply failed to file a supersedeas bond, and, therefore, failed to stay the enforcement of the child-support order.