author: HARWOOD, Justice.

text:
    BANKAMERICA HOUSING SERVICES, a DIVISION OF BANK OF AMERICA, FSB v. Robert LEE. GreenPoint Credit, LLC, f/k/a GreenPoint Credit Corp. v. Letha Witherspoon. GreenPoint Credit, LLC, f/k/a GreenPoint Credit Corp. v. LaSonya Dudley. GreenPoint Credit, LLC, f/k/a GreenPoint Credit Corp. v. Antoine Parnell. GreenPoint Credit, LLC, f/k/a GreenPoint Credit Corp. v. Bernice King.
    1010324 through 1010327 and 1010504.
    Supreme Court of Alabama.
    April 26, 2002.

      George M. Ritchey, Gregory S. Ritchey, and Richard S. Walker of Ritchey & Rit-chey, P.A., Birmingham, for appellants.
    Garve Ivey, Jr., of Ivey & Ragsdale, Jasper, for appellees.
   HARWOOD, Justice.

I. Introduction

Robert Lee (case no. 1010324), Letha Witherspoon (case no. 1010325), LaSonya Dudley (case no. 1010326), Antoine Parnell (case no. 1010327), and Bernice King (case no. 1010504) are the plaintiffs in these cases. (For ease of reference, each case will hereinafter be referred to by the respective plaintiffs name, e.g., “the Lee case,” “the Witherspoon case,” etc.) In each case, the respective plaintiff purchased a manufactured home or a mobile home from a seller, and the transaction was financed by either GreenPoint Credit, LLC (hereinafter referred to as “Green-Point”) (the Witherspoon case, the Dudley case, the Parnell case, and the King case), or by BankAmerica Housing Services, a division of Bank of America, FSB (hereinafter referred to as “BankAmerica”) (the Lee case) (“GreenPoint” and “BankAmeri-ca” are hereinafter jointly sometimes referred to as “the defendants”). In each transaction, the plaintiff became dissatisfied with the home he or she had purchased and sued the seller, the manufacturer, and the financing company, either GreenPoint or BankAmerica. In his or her complaint, each plaintiff asserted numerous claims, including fraud and breach of fiduciary duty. In each of the underlying transactions, the installment sales contract signed by the plaintiff contained an arbitration agreement. In each of these cases, the defendant financing company, either GreenPoint or BankAmerica, moved to compel arbitration. With the exception of Witherspoon, each plaintiff eventually consented to arbitrate their claims.

In each case, the trial court entered an order compelling arbitration. The defendants now appeal, complaining about certain aspects of those orders, arguing that in each case the order compelling arbitration was improper because it impermissi-bly deviated from the terms of the applicable arbitration provision by changing the contractually prescribed method of selecting the arbitrator and conducting the arbitration.

II. Procedural History

As a foundation for our legal analysis, we set forth the pertinent procedural sequence of events in each case. In the Lee case, the order to compel arbitration was entered on October 18, 2001. The order stated, in pertinent part:

“THIS CAUSE, having come before the Court upon Defendants’ various Motions to Compel Binding Arbitration, and the Plaintiff having consented to arbitration, it is
“ORDERED, ADJUDGED, and DECREED that said motions are due to be granted, as follows, viz:
“1. All claims of the Plaintiff against the Defendants shall be submitted to arbitration;
“2. The Attorneys for the parties are ORDERED to provide to the Court within fourteen (14) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator;
“3. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 90 days;
“4. The fees and expenses of the Arbitration shall be paid equally by the Defendants and in the manner required by the Arbitrator;
“5. The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same;
“6. All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process.”

On November 2, 2001, BankAmerica filed a notice of appeal.

In the Witherspoon case, the initial order to compel arbitration was entered on July 17, 2001. That order stated:

“THIS CAUSE, having come before the Court upon Defendants’ various Motions to Compel Binding Arbitration, and the same having been considered by the Court, it is
“ORDERED, ADJUDGED, and DECREED that said motions are due to be granted and all claims of the Plaintiff against the Defendants shall be submitted to arbitration. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 90 days.
“The fees and expenses of the Arbitration shall be paid'by-the Defendants and in the manner required by the Arbitrator;
“The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same;
“All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process.”

GreenPoint filed a motion to alter, amend, or vacate the order, and Witherspoon filed a motion to extend time. In response, the trial court issued a second order compelling arbitration; that order is the one at issue in this appeal. The trial court’s second order, entered on October 23, 2001, differed from the original order by extending the time for arbitration to be completed by another 90 days, and by adding the following clause:

“The Attorneys for the parties are ORDERED to provide to the Court within fourteen (14) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator.”

On November 2, 2001, GreenPoint filed a notice of appeal from this second order.

In the Dudley case, the order compelling arbitration was entered on October 23, 2001, and provided, in pertinent part:

“THIS CAUSE, having come before the Court upon Defendants’ various Motions to Compel Binding Arbitration, and the Plaintiff having consented to arbitration, it is
“ORDERED, ADJUDGED, and DECREED that said motions are due to be granted, as follows, viz:
“1. All claims of the Plaintiff against Defendants shall be submitted to arbitration;
“2. The Attorneys for the parties are ORDERED to provide to the Court within thirty (30) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator;
“3. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 120 days;
“4. The fees and expenses of the Arbitration shall be paid equally by the Defendants and in the manner required by the Arbitrator;
“5. The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same;
“6. All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process.”

On November 2, 2001, GreenPoint filed a notice of appeal.

In the Parnell case, the order compelling the parties to arbitration was entered on September 7, 2001. That order stated in pertinent part:

“THIS CAUSE, having come before the Court upon Defendants’ various Motions to Compel Binding Arbitration, and the same having been considered by the Court, it is
“ORDERED, ADJUDGED, and DECREED that said motions are due to be granted and all claims of the Plaintiff against the Defendants shall be submitted to arbitration. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 90 days.
“The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same.
“All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process.”

The trial court entered a second order on October 23, 2001, which stated that the parties had appeared before the trial court and had requested an extension of time within which to arbitrate. The second order stated in pertinent part:

“[I]t is ORDERED, ADJUDGED, and DECREED that the parties are granted 120 days within which to arbitrate this matter.
“It is FURTHER ORDERED, the Attorneys for the parties are ORDERED to provide to the Court within thirty (30) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator.”

On November 2, 2001, GreenPoint filed a notice of appeal from this order.

In the King case, the first order compelling arbitration was entered on October 12, 2001. This order stated in pertinent part:

“THIS CAUSE, having come before the Court upon Defendants’ various Motions to Compel Binding Arbitration, and the Plaintiff having consented to arbitration, it is
“ORDERED, ADJUDGED, and DECREED that said motions are due to be granted, as follows, viz:
“1. All claims of the Plaintiff against Defendants shall be submitted to arbitration;
“2. The Attorneys for the parties are ORDERED to provide to the Court within fourteen (14) days of the date of this Order, the name of the arbitrator selected by the parties. Failure to do so shall result in the Court selecting the arbitrator;
“3. All parties shall participate in immediate binding arbitration, and said arbitration shall be concluded within 90 days;
“4. The fees and expenses of the Arbitration shall be paid equally by the Defendants and in the manner required by the Arbitrator;
“5. The parties are hereby ORDERED to notify the Court within ten (10) days from the conclusion of arbitration as to the outcome of the same;
“6. All other matters concerning these proceedings are stayed, and this case shall be transferred to the Administrative Docket pending conclusion of the arbitration process.”

On November 6, 2001, GreenPoint filed its notice of appeal. On November 8, 2001, however, the trial court purported to enter a second order in this case; that order stated, in pertinent part:

“That The Honorable Claud D. Neilson, Retired Circuit Judge, Demopolis, Alabama, be, and he is, hereby appointed as the Arbitrator to conduct an Arbitration Hearing in accordance with the laws and statutes of the State of Alabama.
“The arbitration process is to be concluded on or before January 11, 2002.
“If the arbitration award as awarded by the arbitrator is not performed within ten (10) days after the parties have received notice of the award, the prevailing party shall file a copy with a motion to have it entered as a Judgment of this Court pursuant to the provisions of Sec. 6-6-12, Code of Alabama, 1975.”

III. Legal Analysis

We first turn to GreenPoint’s appeal in the Parnell case. Parnell asserts that GreenPoint’s appeal is untimely, and is due to be dismissed.

The record in the Parnell appeal shows that an order compelling arbitration was entered on September 7, 2001. Although the parties did not contest that order, the record indicates that the parties subsequently petitioned the trial court for an extension of time within which to arbitrate. In response, the trial court on October 23 entered the order compelling arbitration, which incorporated the September 7 order and added the points that are at issue in this case. Although Parnell argues that the September 7 order was the order from which the 42-day period for appeal pursuant to Rule 4(d), Ala. R.App. P., began to run, the briefs of the parties show that it is only the newly added features of the second order, regarding the selection of the arbitrator and imposing a deadline for the completion of the arbitration process, that are the subject of this appeal. Because GreenPoint appealed within 42 days of the October 23 order, the appeal is properly before us. j

The record in each case shows that the respective plaintiffs signed a “Retail Installment Contract, Security Agreement, Waiver of Trial by Jury and Agreement to Arbitration or Reference or Trial by Judge Alone” (hereinafter referred to as the “installment contract”) in the course of purchasing their respective manufactured or mobile homes. Each installment contract contained arbitration provisions that were identical in all pertinent respects, stating:

“Arbitration of disputes and waiver of jury trial
“a. Dispute resolution. Any controversy or claim between or among you and me[] or our assignees arising out of or relating to this contract or any agreements or instruments relating to or delivered in connection with this Contract, including any claim based on or arising from an alleged tort, shall, if requested by either you or me, be determined by arbitration, reference, or trial by a judge as provided below. A controversy involving only a single claimant, or claimants who are related or asserting claims arising from a single transaction, shall be determined by arbitration as described below. Any other controversy shall be determined by judicial reference of the controversy to a referee appointed by the court or, if the court where the controversy is venued lacks the power to appoint a referee, by trial by a judge without a jury, as described below. You and I agree and understand that we are giving up the right to trial by jury, and there shall be no jury whether the controversy or claim is decided by arbitration, by judicial reference, or by trial by a judge.
“b. Arbitration. Since this contract touches and concerns interstate commerce, an arbitration under this Contract shall be conducted in accordance with the United States Arbitration Act (Title 9, United States Code), notwithstanding any choice of law provision in this Contract. The Commercial Rules of the American Arbitration Association (‘AAA’) also shall apply. The arbitrators) shall follow the law and shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s). The award of the arbitrator(s) shall be in writing and include a statement of reasons for the award. The award shall be final. Judgment upon the award may be entered in any court having jurisdiction, and no challenge to entry of judgment upon the award shall be entertained except as provided by Section 10 of the United States Arbitration Act or upon a finding of. manifest injustice.”

It is to be noted that each of the installment contracts incorporated by reference the Commercial Arbitration Rules of the American Arbitration Association (hereinafter “the AAA”). This Court has concluded that such statements of incorporation by reference are sufficient to include the incorporated material. See Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33 (Ala.1998)(contract between seller and buyer declared that disputes were to be resolved through binding arbitration according to the AAA’s Commercial Arbitration Rules; therefore, the agreement incorporated the language of the Commercial Arbitration Rules regarding the resolution of disputes); Universal Underwriters Life Ins. Co. v. Dutton, 736 So.2d 564 (Ala.1999)(retail installment contract and security agreement that incorporated buyer’s order also incorporated that document’s arbitration provision). Consequently, the reference to the AAA’s Commercial Arbitration Rules (hereinafter referred to as “the Rules”) in the arbitration provisions at issue is sufficient to make those rules applicable to the parties. The Rules contain specific procedures for filing a claim and choosing arbitrators, as well as provisions for the payment of administrative costs. In pertinent part, the Rules state:

“R-4 Initiation under an Arbitration Provision in a Contract
“(a) Arbitration under an arbitration provision in a contract shall be initiated in the following manner:
“i. The initiating party (the ‘claimant’) shall, within the time period, if any, specified in the contract(s), give to the other party (the ‘respondent’) written notice of its intention to arbitrate (the ‘demand’), which demand shall contain a statement setting forth the nature of the dispute, the names and addresses of all other parties, the amount involved, if any, the remedy sought, and the hearing locale requested.
“ii. The claimant shall file at any office of the AAA two copies of the demand and two copies of the arbitration provisions of the contract, together with the appropriate filing fee as provided in the schedule included with these rules.
“iii. The AAA shall confirm notice of such filing to the parties.
“(b) A respondent may file an answering statement in duplicate with the AAA within 15 days after confirmation of notice of filing of the demand is sent by the AAA. The respondent shall, at the time of any such filing, send a copy of the answering statement to the claimant. If a counterclaim is asserted, it shall contain a statement setting forth the nature of the counterclaim, the amount involved, if any, and the remedy sought. If a counterclaim is made, the party making the counterclaim shall forward to the AAA with the answering statement the appropriate fee provided in the schedule included with these rules.
“(c) If no answering statement is filed within the stated time, respondent will be deemed to deny the claim. Failure to file an answering statement shall not operate to delay the arbitration.
“(d) When filing any statement pursuant to this section, the parties are encouraged to provide descriptions of their claims in sufficient detail to make the circumstances of the dispute clear to the arbitrator.
“R-13 Appointment from Panel
“If the parties have not appointed an arbitrator and have not provided any other method of appointment, the arbitrator shall be appointed in the following manner:
“(a) Immediately after the filing of the submission or the answering statement or the expiration of the time within which the answering statement is to be filed, the AAA shall send simultaneously to each party to the dispute an identical list of names of persons chosen from the panel. The parties are encouraged to agree to an arbitrator from the submitted list and to advise the AAA of their agreement.
“(b) If the parties are unable to agree upon an arbitrator, each party to the dispute shall have 15 days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the AAA. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the AAA shall invite the acceptance of an arbitrator to serve. If the parties fail to agree on any of the persons named, or if acceptable arbitrators are unable to act, or if for any other reason the appointment cannot be made from the submitted lists, the AAA shall have the power to make the appointment from among other members of the panel without the submission of additional lists.
“(c) Unless the parties have agreed otherwise no later than 15 days after the commencement of an arbitration, if the notice of arbitration names two or more claimants or two or more respondents, the AAA shall appoint all the arbitrators.
“R-40 Extensions of Time
“The parties may modify any period of time by mutual agreement. The AAA or the arbitrator may for good cause extend any period of time established by these rules, except the time for making the award. The AAA shall notify the parties of any extension.
“R-51 Administrative Fees
“As a not-for-profit organization, the AAA shall prescribe an initial filing fee and a case service fee to compensate it for the cost of providing administrative services. The fees in effect when the fee or charge is incurred shall be applicable.
“The filing fee shall be advanced by the party or parties making a claim or counterclaim, subject to final apportionment by the arbitrator in the award.
“The AAA may, in the event of extreme hardship on the part of any party, defer or reduce the administrative fees.
“R-52 Expenses
“The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the arbitration, including required travel and other expenses of the arbitrator, AAA representatives, and any witness and the cost of any proof produced at the direct request of the arbitrator, shall be borne equally by the parties, unless they agree otherwise or unless the arbitrator in the award assesses such expenses or any part thereof against any specified party or parties.”

This Court’s review of an order granting a motion to compel arbitration is de novo. See W.D. Williams, Inc. v. Ivey, 777 So.2d 94 (Ala.2000); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999). 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).

The defendants assert three issues that may be subsumed under the general argument that the trial court’s order compelling arbitration materially and erroneously altered the terms of the arbitration agreements to which the parties had agreed. Specifically, the defendants assert: (1) that the trial court erred in ordering the parties to choose an arbitrator within a specified time, failing which the trial court would choose the arbitrator (which it did in the King case); (2) that the trial court erred by ordering the defendants to pay all arbitration fees and expenses; and (3) that the trial court erred by ordering arbitration to take place within a specified time.

The plaintiffs respond that the orders compelling arbitration should be affirmed because, they argue, the orders are pursuant to the trial court’s authority to enter such orders as are necessary to enforce and administer an order compelling arbitration and the trial court could have determined that certain portions of the Rules (such as the portions dealing with the fees and expenses of arbitration) were unconscionable under the circumstances of this case. The plaintiffs argue that the trial court could properly modify those portions of the Rules to prevent any unfairness to the parties.

The plaintiffs rely on Mangiafico v. Street, 767 So.2d 1103 (Ala.2000), for the proposition that a trial court, in ordering arbitration, may properly impose and enforce requirements for the parties to follow in the arbitration process. In Mangiafico, the trial court ordered the plaintiffs to initiate arbitration within 30 days of the order, or it would dismiss the action with prejudice. Later, the trial court dismissed the action because the plaintiffs had failed to initiate arbitration proceedings within the deadline set by the trial court’s order. This Court held that the trial court did not abuse its discretion in dismissing the action because the trial court had the authority “‘to manage its affairs in order to achieve the orderly and expeditious disposition of cases.’ ” Mangiafico, 767 So.2d at 1105 (quoting Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala.1989)). Unlike the situation in Mangiafico, where the trial court issued an order to manage the litigation before it on a point not addressed in the arbitration provision, the trial court in this case did not simply require that the parties initiate arbitration by a specified time, but rather required that the arbitration process itself, once initiated, be completed within a specified time; that the arbitrator be named within a specified time, or else the court would select the arbitrator itself; and that the costs of the arbitration proceeding be paid by the defendants.

When a trial court compels arbitration, it must do so in a manner consistent with the terms of the arbitration provision. See Ex parte Cappaert Manufactured Homes, 822 So.2d 385, 387 (Ala.2001) (“[section] 5 [of the Federal Arbitration Act] mandates that the method set forth in the arbitration agreement be followed”); Southern Energy Homes Retail Corp. v. McCool, 814 So.2d 845 (Ala.2001)(trial court directed to vacate its order because it failed to compel arbitration in a manner consistent with the terms of the agreement between the parties); Ex parte Dan Tucker Auto Sales, supra (trial court erred in assigning administrative fees of arbitration to the defendant when the Rules of the AAA provided for the relief of a party in the event of hardship). A trial court’s order compelling arbitration that changes the terms of the arbitration provision will be reversed when

“it appears that the trial court, although it ordered the parties to arbitrate, failed to compel arbitration in a manner consistent with the terms of [the] arbitration provision.”

McCool, 814 So.2d at 849.

We conclude that when the trial court ordered the parties to arbitrate their claims, certain of the terms it imposed, instead of simply managing the litigation, as the plaintiffs assert, materially affected the arbitration process itself in ways contrary to the procedhres expressly prescribed by the Rules. The trial court’s orders compelling arbitration, in conflict with the Rules, (1) required each respective arbitration to be completed within a set time frame; (2) stated a deadline for selecting an arbitrator, in default of which the trial judge would select the arbitrator; and (3) ordered the defendants to pay the fees and expenses, as opposed to being paid by the respective parties. As to these aspects of an arbitration, the Rules prescribe specific mechanisms and procedures with which the trial court’s special provisions are at variance. Thus, we conclude that the trial court erred when it mandated mechanisms and procedures inconsistent with the mechanisms and procedures set out in the Rules. See McCool, supra (a petition for a writ of mandamus was granted where the trial court erred in compelling arbitration in a manner inconsistent with the terms of the arbitration provision in the parties’ contract); Dan Tucker Auto Sales, supra (petition for a writ of mandamus was granted where the trial court erred in directing the defendant to pay an arbitration filing fee, when the agreements between the parties provided otherwise). Accordingly, we hold that the trial court erred in modifying those procedures.

We now turn to the plaintiffs’ argument that the trial court could have, without so noting in its order, found portions of the Rules to be unconscionable, and in so finding, could have elected to fashion an appropriate remedy in its order. The plaintiffs rely on Harold Allen’s Mobile Home Factory Outlet, Inc. v. Butler, 825 So.2d 779 (Ala.2002), to support this argument. In Butler, the plaintiff signed an arbitration agreement that accorded the defendant seller the sole right to choose the arbitrator, the only limitation on that right being that “no arbitrator may be selected by the SELLER who shall have provided legal representative services to or for the SELLER at any time.” 825 So.2d at 781. The trial court held that this clause, which gave the defendant alone the right to select the arbitrator, with no input from the buyer, was unconscionable. Based on § 5 of the Federal Arbitration Act (hereinafter referred to as “the FAA”), the trial court appointed an arbitrator for the parties. In this Court’s review of the trial court’s actions, we concluded that the trial court acted properly when it looked to § 5 of the FAA for guidance in fashioning a remedy. That section of the FAA provides:

“If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.”

9 U.S.C. § 5.

The trial court selected an arbitrator on the basis that the selection method provided by the agreement was invalid and that § 5 provided that it was the court’s duty to select an arbitrator in the absence of valid direction in the arbitration agreement. Because the portion of the arbitration agreement providing for the selection of arbitrators was found to be unconscionable and therefore invalid, the arbitration agreement no longer provided for the selection of arbitrators. Under those circumstances, this Court determined that the trial court had acted properly under the FAA by selecting an arbitrator for the parties.

In these cases, the plaintiffs’ analogy to Butler does not fit, because there is no evidence in the record that the trial judge concluded that any portion of any of the arbitration agreements was unconscionable. Although the plaintiffs argue that “[i]t is clear that the trial court found the selection process to be unconscionable,” nothing in the trial court’s orders suggests the court considered that issue, much less what role that issue might have played. In the instant cases, the trial court, unlike the court in Butler, made no reference whatsoever to unconscionability in any of its orders, and the record otherwise contains no support for an inference that the trial court determined that any portions of the Rules were indeed unconscionable.

We recognize that a properly preserved issue and argument might well establish unconscionability with respect to the imposition of excessive filing fees and arbitration costs on a claimant, when considered in the full context of the particular claimant’s situation, including the claimant’s financial resources. In these cases, however, the respective plaintiffs have failed to adequately and properly present such an issue in their briefs, particularly with respect to the hardship that any payment of filing fees or costs as required by the Rules might impose on that particular plaintiff. As the United States Supreme Court stated in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 91-92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000):

“We have held that the party seeking to avoid arbitration bears the burden of establishing that Congress intended to preclude arbitration of the statutory claims at issue. See Gilmer [v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)]; [Shearson/American Express, Inc. v.] McMahon, [482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987)]. Similarly, we believe that where, as here, a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs. Randolph did not meet that burden. How detailed the showing of prohibitive expense must be before the party seeking arbitration must come forward with contrary evidence is a matter we need not discuss; for in this ease neither during discovery nor when the case was presented on the merits was there any timely showing at all on the point.”

Furthermore, Rule 28, Ala. R.App. P., requires that appellants and appellees include specific types of information in their briefs. Rule 28 states, in pertinent part:

“(a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:
“(5) An argument (The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on) ...
“(b) Brief of the Appellee. The brief of the appellee shall conform to the requirements of subdivision (a)(l)-(5), except that a statement of the case, the issues, or facts need not be made unless the appellee is dissatisfied with the statements of the appellant.
“(e) References in Briefs to the Record. References in the briefs to the record on appeal shall be to the appropriate page numbers of the record on appeal. If reference is made to a page of the clerk’s record, the reference shall be preceded by the letter ‘C.’ If a reference is made to a page in the reporter’s transcript, then the reference shall be preceded by the letter ‘R.’ If reference is made to evidence, it shall be made to the pages of the clerk’s record or reporter’s transcript at which the evidence was identified, offered, and received or rejected.”

Compliance with Rule 28 is not optional. In McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992), this Court observed:

“In Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984), the court stated: ‘Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor [our] function to perform all of the legal research for an appellant.’ See Henderson v. Alabama A & M University, 483 So.2d 392 (Ala.1986)(quoting Gibson with approval).
“Furthermore, we cannot, based on undelineated propositions, create legal arguments for the appellant. Spradlin v. City of Birmingham, 601 So.2d 76 (Ala.1992).”

See also Connerly v. Connerly, 523 So.2d 461 (Ala.Civ.App.1988)(an appellant’s citations to general propositions of law not specifically applicable to the issues presented by the appeal do not meet the requirements of Rule 28, Ala. R.App. P.).

The entire argument presented by each plaintiff with regard to the unconscionability of arbitration conducted pursuant to the Rules consists of the following pertinent facts. We have omitted the references to pages in the record where the argument appears, and we have summarized in footnotes what appears on the referenced pages. In the Lee case, the appellee’s brief states, in pertinent part: (1) “She set out in her complaint that the arbitration contemplated would be unconscionable, and that the contract at issue was an ‘adhesion contract,’ or a contract to which she had no input,” and also “the trial court obviously considered her complaint specifically concerning the unconscionability of the provisions of the AAA”; and (2) “In this case, the plaintiff would be required to pay the AAA an additional $4,000.00 just as administrative fees to begin the process.”

In the Dudley case, the appellee’s brief states, in pertinent part: (1) “The trial court obviously considered her allegations concerning adhesion contracts and her count for declaratory judgment as to un-conscionability”; (2) “The trial court obviously considered her complaint specifically concerning the unconscionability of the provisions of the AAA”; and (3) “In this case, the plaintiff would be required to pay the AAA an additional $750.00 just as administrative fees to begin the process.”

In the Witherspoon case, the appellee’s brief states, in pertinent part: (1) “She set out in her complaint that the arbitration contemplated would be unconscionable, and that the contract at issue was an ‘adhesion contract,’ or a contract to which she had no input”; (2) “The trial court obviously considered her complaint specifically concerning the unconscionability of the provisions of the AAA”; and (3) “In this case, the plaintiff would be required to pay the AAA an additional $4,000.00 just as administrative fees to begin the process.”

In the King case, the appellee’s brief states, in pertinent part: (1) “She set out in her complaint that the arbitration contemplated would be unconscionable, and that the contract at issue was an ‘adhesion contract,’ or a contract to which she had no input”; (2) “The trial court obviously considered her allegations concerning adhesion contract and her count for declaratory judgment as to unconscionability”; and (3) “In this case, the plaintiff would be required to pay the AAA an additional $750.00 just as administrative fees to begin the process.”

Unconscionability relating to the payment of filing fees and other costs of arbitration is not an issue in the Parnell case, because the trial judge’s orders in that case never addressed the payment of these fees and costs. Accordingly, Parnell had no occasion to discuss in his brief uncon-scionability as a possible justification for the shifting of the payment of any fee or cost. We note that in the Lee, Wither-spoon, Dudley, and King cases, the respective plaintiffs fail to discuss or reference in their briefs any part of the record that might have a bearing on the financial situation of any plaintiff and also fail to show that the required fees and costs of arbitration might place a genuine hardship on that plaintiff. Under these circumstances, this Court will not assume that the trial court considered unconscionability and that the trial court consequently based its orders upon that consideration.

Accordingly, we affirm the orders insofar as they compelled arbitration, but we reverse the portions of those orders specifically requiring the allocation of fees and costs among the defendants and specifically describing the means for the selection of arbitrators. We remand the causes for the trial court to enter orders compelling arbitration consistent with the provisions in the respective installment contracts.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . This Court has consolidated these cases for appeal because they arise from substantially similar facts and pose the same legal issues. See Rule 3(b), Ala. R.App. P. ("Appeals may be consolidated by order of the appellate court upon its own motion.... ”).

      . While many of the plaintiffs refer to Green-Point as GreenPoint Credit Corp., we note that it is now known as GreenPoint Credit, LLC.

      . The arbitration provision in the Lee appeal differs only to the extent that the opening sentence refers to any controversy or claim between or among "you and I....”

      . Although the parties have not argued the issue, we note that the expedited procedures of the AAA's Commercial Arbitration Rules may apply to some of the appellees. However, the application of these expedited procedures would not alter our analysis of the issues raised by the parties.

      . This time was within 30 days in the Dudley case and the Parnell case and within 14 days in the remaining cases.

      . The Lee record addresses only adhesion contracts and fraud on these pages.

      . Here the Lee record includes a table showing various filing fees and the case-service fee. The costs are apparently scaled according to the size of the claim involved.

      . The cited pages of the Dudley record refer only to fraud allegations by the plaintiff.

      . Here, the Dudley record includes a table showing various filing fees and the case-service fee. The costs are apparently scaled according to the size of the claim involved.

      . The part of the record cited in the Wither-spoon case reveals only allegations of fraud and civil conspiracy.

      . Again, there is no mention of unconsciona-bility in the record at the pages cited by the plaintiff.

      . This cite refers only to a claim of fraud against the manufacturer of the home purchased by Witherspoon. It does not mention any kind of fees or other costs of arbitration.

      . The plaintiffs do not cite to the record for this proposition.

      . We do not reach the issue of the directions by the trial court that arbitration be completed within a specified period because our consideration of that issue is premature. The trial court's orders do not state any particular consequence that would attend the failure of the parties to meet the respective deadlines imposed in that regard, and the record does not establish that those deadlines will necessarily conflict with the Rules.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    W.L. WILLIAMS, Jr., et al. v. NORTH ALABAMA COURT REPORTING SERVICE.
    2991382.
    Court of Civil Appeals of Alabama.
    Sept. 28, 2001.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1010143.

      David A. Sullivan, Birmingham; and W.L. Williams, Jr., Birmingham, for appellants.
    Tommy Drake, Cullman, for appellee.
   MURDOCK, Judge.

This appeal presents a single principal legal question: when may an attorney be liable for nonpayment of the costs of a transcript prepared by a court-reporting service?

The record reveals that David A. Sullivan (“the attorney”) represented W.L. Williams (“the client”) in proceedings before the United States Merit Systems Protection Board (“the MSPB”) during September 1997. After a 16-hour hearing had taken place, and the presiding administrative law judge had solicited briefs, counsel for the United States Equal Employment Opportunity Commission (“EEOC”) contacted Toby Chambers, an employee of North Alabama Reporting Service (“the court-reporting service”), who had made a record of the hearing, and requested a transcript of the hearing. Chambers then telephoned the attorney’s office; the attorney’s secretary told him that the attorney was “not available.” Chambers then asked the attorney’s secretary whether the attorney would like to have a transcript. The secretary asked Chambers to wait a moment, placed Chambers’s telephone call on “hold,” and asked the attorney whether he wanted a transcript. The attorney told the secretary that he did want a transcript, and she in turn informed Chambers.

Employees of the court-reporting service then prepared and sent an 801-page transcript of the hearing to the attorney, who testified that he “threw it in a box somewhere” and that he “probably” did so “because I knew we were going to get a transcript from the [MSPB].” At the same time, a bill for the services of the court-reporting service was sent to the attorney; however, the attorney did not pay that bill. After a year had passed without payment, the owner of the court-reporting service sent a “rebill.” The owner then telephoned the attorney to request payment; the attorney directed the owner of the court-reporting service to send a bill to the client because, he said, the client was also an attorney in private practice and would “get the bill paid.” However, neither the attorney nor the client paid the bih.

In December 1998, the court-reporting service brought a civil action against the attorney and the client in the CuUman County District Court, seeking $3,264 plus interest for services rendered pursuant to an implied contract. The attorney and the client moved for a change of venue to Jefferson County, which the court-reporting service opposed on the stated basis that the defendants had “submitted to” venue in Cullman County. The case was transferred to the Jefferson County District Court, which entered a judgment in favor of the court-reporting service and against both defendants for $3,470.32. The defendants appealed to the Jefferson County Circuit Court; on that appeal, the court-reporting service amended its complaint to assert a claim under the Alabama Litigation Accountability Act (“ALAA”). The court-reporting service moved for a summary judgment, but the trial court did not rule on the summary-judgment motion. The attorney moved for a summary judgment, arguing that he had no liability to the court-reporting service; the trial court denied that motion and later denied the attorney’s motions seeking reconsideration of that denial and challenging the court’s subject-matter jurisdiction.

The implied-contract claim was then tried before a jury; the court denied the attorney’s motions for a judgment as a matter of law made before the trial began, at the close of the court-reporting service’s case, and at the close of all the evidence (see Rule 50, Ala. R. Civ. P.). The jury rendered a verdict in favor of the court-reporting service and against the attorney and assessed damages of $801; however, the jury rendered a verdict in favor of the client. After the trial court had entered a judgment on that verdict, the court-reporting service filed a motion to assess costs and to award fees under the ALAA, and the defendants moved to alter, amend, or vacate the judgment; however, these motions were denied. The attorney appeals.

The attorney has identified seven issues in his appellate brief. The principal issue, however, is whether the attorney was properly held to be subject to liability to the court-reporting service. The attorney states that he acted as a simple agent for a disclosed principal, citing Petrando v. Barry, 4 Ill.App.2d 319, 124 N.E.2d 85 (1955), for the proposition that he should not be held liable on a contract that, he says, he made “for his client,” where he made no express pledge of personal responsibility. The court-reporting service disputes the “disclosure” element, reiterating that the attorney simply replied “yes” when asked if he wanted a copy of the MSPB transcript.

Our own review of the authorities in this area reveals that Petrando, which held an attorney not liable to a printer for the costs of briefs and other documents filed in connection with appellate proceedings, does not represent the unanimous view of modern American law on this point. Indeed, the “attorney as simple agent” approach of Petrando has undergone considerable criticism. For example, 11 years after Petrando was decided, the Supreme Judicial Court of Massachusetts considered a case more factually similar to this one, stating the issue as “the liability of a lawyer for the stenographic report of testimony ordered by him without explicit agreement with the reporter in a case to which his client is a party.” Burt v. Gahan, 351 Mass. 340, 341, 220 N.E.2d 817, 818 (1966). The Massachusetts court addressed that issue as follows:

“In the consideration of this case one must not lose sight of the obvious fact that the defendant was trial counsel for a party to the petition.... While in a broad sense counsel may be an agent and his client a principal, there is much more involved than mere agency. The relationship of attorney and client is paramount, and is subject to established professional standards. In short, the attorney, and not his client, is in charge of litigation, and is so recognized by the court. As was said in Judd & Detweiler, Inc. v. Gittings, 43 App. D.C. 304, 310-311 [D.C.Cir.1915], which concerned the printing of briefs on appeal: ‘The attorney usually determines what steps are to be taken in his client’s interest, and the acts of the attorney in the conduct of litigation are binding upon the client. We therefore deem the just and equitable rule of law thus established to be that, in the absence of express notice to the contrary, court officials and persons connected, either directly or indirectly, with the progress of the litigation, may safely regard themselves as dealing with the attorney, instead of with the client. This applies not only to obligations incurred by the attorney for actual costs attending the litigation, but to the necessary expenses of attorneys, including the printing of briefs, which are not chargeable as costs in the case.’ To similar effect, see Monick v. Melnicoff, 144 A.2d 381 ([D.C.1958]); Heath v. Bates, 49 Conn. 342, 344-346 [1881]; Trimmier v. Thomson, 41 S.C. 125, 128, 19 S.E. 291[, 292 (1894) ]; Cocks v. [Bruce] Searl [ & Good], 21 T.L.R. 62 [K.B. Div.1904].”

351 Mass. at 342-43, 220 N.E.2d at 818-19. Burt then acknowledged Petrando as representing “a contrary view of the question,” but deemed it to be “less persuasive,” noting that “[t]here is no hardship in the rule we adopt, as it would be a simple matter for the attorney to exclude himself from liability by a statement to that effect.” 351 Mass. at 343, 220 N.E.2d at 819.

Since Burt was decided, a number of courts in our sister states have agreed with its reasoning, in factually similar contexts. E.g., McCullough v. Johnson, 307 Ark. 9, 11-12, 816 S.W.2d 886, 888 (1991) (agreeing that the Burt view “reflects the trend by taking into account modern litigation practices ... [by] allowing] court reporters to confidently regard themselves as dealing with the attorney, not the client” in the absence of a disclaimer); see also Joseph M. Perillo, The Law of Lawyers’ Contracts Is Different, 67 Fordham L.Rev. 443, 471 (1998) (collecting authorities and noting that “the modern approach is to hold the lawyer liable to ... court reporters[] and other litigation-support providers unless the lawyer makes it clear at the time the provider is retained that the provider must look only to the client”). As the Indiana Court of Appeals noted just two years ago, “it is only fair that an attorney with superior legal knowledge who actively seeks another’s services in connection with litigation bear the burden of clarifying his intent regarding payment.” Boesch v. Marilyn M. Jones & Assocs., 712 N.E.2d 1061, 1063 (Ind.Ct.App.1999) (also involving court-reporting service).

We believe that the approach outlined in these authorities comports with longstanding Alabama law regarding the relationship between attorneys and their clients:

“The power of an attorney is not coequal, co-extensive, or the equivalent of that of the client. He is, as has been said in numerous decisions of this court, a special agent, limited in duty and authority to the vigilant prosecution or defense of the rights of the client. He can enter into no bargains or contracts, though he may make agreements in writing touching the course of proceedings in pending suits, or the issue or return of executions on judgments he may have obtained, which will bind the client, unless he has specially authorized, or subsequently ratified them.”

Robinson v. Murphy, 69 Ala. 543, 547 (1881); accord, Birmingham Elec. Co. v. Cochran, 242 Ala. 673, 8 So.2d 171 (1942).

In this case, there is no evidence that the client specifically authorized or ratified the attorney’s conduct in requesting a transcript, while there was evidence from which the jury could have concluded that the attorney, before or at the time he indicated to the court-reporting service that he wanted the transcript, did not advise the court-reporting service that it was not to look to him for payment. Accordingly, we conclude that the trial court properly denied the attorney’s motions before, during, and after trial directed to this issue.

We briefly address the remaining issues raised by the attorney. While the attorney correctly notes that federal regulations provide for the MSPB to obtain transcripts from private court-reporting agencies and for parties in a proceeding before the MSPB to request transcripts directly from the MSPB for $.20 per page, and claims that that fact divested the trial court of jurisdiction, no authority has been cited that would prohibit a court-reporting service and an attorney from making other arrangements for preparation and delivery of transcripts of MSPB proceedings, much less that the federal regulations would “super-preempt” a state-law implied-contract claim. The attorney did not object to the contents of the trial court’s charge to the jury after it was given; thus, he has waived any objection to the court’s instructions. Rule 51, Ala. R. Civ. P.; Milliken v. South Realty Co., 628 So.2d 928, 931 (Ala.Civ.App.1993). Moreover, although the attorney contends that the jury’s verdict must have been based upon allegedly improper “custom and practice evidence,” we note that the complaint alleged a breach of (and the jury was charged concerning the characteristics of) an implied contract, which may, under Alabama law, arise from custom and trade usage. Freeman v. First State Bank of Albertville, 401 So.2d 11, 12 (Ala.1981). We further conclude that we are precluded from addressing the issue whether the evidence before the jury was sufficient to support its award of $801 (which we note precisely equals $1.00 for each page of the transcript prepared by the court-reporting service) because the attorney did not assert that ground in his postjudgment motion. See Najor v. Pensacola Pools, Inc., 607 So.2d 294, 295 (Ala.Civ.App.1992). Likewise, the attorney never asserted to the trial court that he was entitled to relief from the judgment, based upon an alleged “fraud upon the court” that he asserts in this court. An appellate court will not reverse a judgment based upon an error not asserted in the trial court. See Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992).

In light of the foregoing facts and authorities, the trial court’s judgment based upon the jury verdict in favor of the court-reporting service is due to be affirmed.

AFFIRMED.

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

      . As we must do, we have read the record in a light most favorable to the verdict of the jury in this cause. See Delchamps, Inc. v. Bryant, 738 So.2d 824, 831 (Ala.1999).

      . This entity is also referred to in the record as "North Alabama Reporting Service, L.L.C.,” "North Alabama Reporting Services,” and "North Alabama Court Reporting Service.”

      . The attorney later called Chambers and requested audiotapes of the hearing; Chambers made copies of the tapes and sent them to the attorney, along with a bill for $90. That bill was paid by the attorney three months later.


author: CRAWLEY, Judge.

text:
    D & N TRUCKING, L.L.C. v. Janet BREWER and John Brewer.
    2000431.
    Court of Civil Appeals of Alabama.
    Oct. 12, 2001.
    Rehearing Denied Feb. 8, 2002.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1010994.
    Charles Ali Everage and James W. Garrett, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    Jeffrey G. Tickal and James T. Gullage of Gullage & Tickal, L.L.P., Opelika, for appellees.
   CRAWLEY, Judge.

The sole question presented in this case is whether the trial court erred in granting Janet Brewer and John Brewer, husband and wife, a new trial based on the failure of D & N Trucking, L.L.C., to comply with the trial court’s discovery order and on the Brewers’ claim to have newly discovered evidence. We conclude that the trial court erred in granting the Brewers’ motion for a new trial, and we reverse and remand.

I. Facts

The underlying facts of the Brewers’ claim are based upon a motor-vehicle accident involving Janet Brewer. Mrs. Brewer’s vehicle was struck by a log that fell from a D & N Trucking log truck, after the log hit a bridge overpass. Immediately after the accident, Williams and Mrs. Brewer drove their vehicles to the side of the road to await the arrival of the authorities.

Officer Joseph Hillyer, the police officer who prepared the accident report, testified that he examined the truck and trailer at the site of the accident, and that he issued no citations for safety violations such as improperly securing the logs or faulty cables on the trailer. Officer Hillyer saw that the remaining load on the trailer was adequately secured and allowed D & N Trucking’s tractor-trailer to leave the accident scene. The driver, Robert Williams, drove from the accident site to the lumberyard, which was closed when he arrived with the load. Thomas Nick Lamb, one of the owners of D & N Trucking, testified that he went to the accident scene and when he went to the lumberyard to examine the trailer after leaving the accident scene, he was unable to determine which trailer had been involved in the accident. Nick Lamb stated “the trailer had done been unloaded and it was three or four trailers sitting there, and there wasn’t any cables broken on the trailers, so you couldn’t have no way to tell which trailer it was.”

The Brewers sued D & N Trucking, alleging, as to Mrs. Brewer, that she had suffered psychological injuries as a result of the accident, and, as to Mr. Brewer, claiming loss of consortium. The Brewers alleged in their amended complaint that D & N Trucking had caused the accident by failing to properly maintain the truck and/or trailer involved in the accident. The evidence produced during discovery and trial proceedings established the identity of the tractor involved in the accident, but the trailer from which the log fell was never identified.

On January 9, 2000, the trial court entered an order directing D & N Trucking to produce, within 15 days, a number of items, including maintenance records on the tractor for 4 years before the date of the accident up until the time that certain repairs were complete and maintenance records on the trailer for 1 year before the accident until certain repairs were complete, including all parts and labor used for such repairs and routine maintenance records. On June 20, 2000, the Brewers moved the trial court for sanctions against D & N Trucking for failure to comply with the discovery order. The trial court held a hearing on June 23, 2000. During the hearing, the Brewers moved for judgment in their favor, as a sanction, because, they claimed, D & N Trucking had not complied with the trial court’s order compelling it to produce the maintenance records on the trailer. The trial court denied their request, because, it said, D & N Trucking claimed that the maintenance records on the trailer did not exist.

II. Trial-Court Proceedings

The trial-court proceedings began with jury selection on October 23, 2000. The trial lasted for three days. Nick Lamb, D & N Trucking’s last witness, testified that he knew the whereabouts of the repair records on 12 trailers belonging to D & N Trucking. Nick Lamb testified that all of the maintenance records on the 12 trailers were located in the glove compartment of each tractor. Upon determining that the documents that had been sought actually existed, the trial court offered to interrupt the proceedings to allow the parties to travel to D & N Trucking’s premises to obtain the needed documents. In response, the Brewers’ attorney declined the court’s offer, stating that he was in the middle of his cross-examination; he further indicated that the production of these records so late in the trial would be of little use to him. The trial court replied, “Okay.” The Brewers’ attorney continued to address D & N Trucking’s failure to produce the maintenance records, saying, “So, if he doesn’t have them, he doesn’t have them. Let’s just go on. It’s not going to do us any good for this trial.”

On October 26, 2000, the jury returned a verdict for the Brewers and awarded $25,000 in compensatory damages; it awarded no punitive damages. On November 21, 2000, the Brewers filed a motion for a new trial, or, in the alternative, for an additur, stating that the verdict was against the weight of the evidence and that defendants should be sanctioned for noncompliance with discovery.

On December 20, 2000, the trial court held a hearing on the Brewers’ post-judgment motion. The trial court stated in open court that in order to find the jury verdict inadequate, it would have to invade the province of the jury, and it was not willing to do that. The trial court did, however, order a new trial as a way of sanctioning D & N Trucking for noncompliance with its discovery order, which the trial court found to be willful. The trial court stated, in part, in its order:

“A hearing was held on Plaintiffs Motion for a New Trial on December 20, 2000.... As a part of the Motion for New Trial, the Plaintiff asked for sanctions for Defendant’s failure to comply with discovery orders of the Court. As sanctions, the Plaintiff asked that their Motion for a New Trial be granted. The hearing primarily dealt with, among other things, the failure of the Defendant to provide maintenance records of the trailer involved in the accident.
“Previously the Court had held hearings regarding what records should be produced for trial. On June 7, 2000, the court issued an order. Paragraph 1C of said Order stated that ‘the Defendant has 15 days from the date of this Order to produce ... the maintenance records for four years before the accident and until the repairs were complete, and maintenance records for the trailer for one year before the accident until the repairs were complete, including all parts, labor for such repairs including all routine maintenance records.’ ... On June 21, 2000, the Defendant filed a reply ... [in which it stated that] ‘D & N Trucking, L.L.C., has submitted its maintenance records to Plaintiff as requested.’ ...
“At the trial of this case, there was conflicting evidence between Derrick Lamb and Nick Lamb, who were the two principals of D & N Trucking, as to what records existed. Nick Lamb testified that the inspection reports for the trailers are kept at the Shop.... At that time a hearing was held outside the presence of the jury. During this hearing the Court explored whether or not the requested records had been provided to the Plaintiffs. During this hearing the Attorney for the Defendant stated that there was no possible way to identify the trailer involved in the accident. ...
“For the hearing on December 20, 2000, a subpoena was issued to Derrick Lamb to produce the maintenance records of the trailers. At said hearing Derrick Lamb brought maintenance records for the trailer belonging to D & N Trucking. Included in these records were the maintenance records for the trailer involved in the accident. The witness’s explanation for not previously producing the records was that he was not sure which trailer was involved in the accident; however, he also stated that D & N Trucking owned only approximately twelve (12) trailers.
“It is the Court’s finding that the Court’s Orders regarding the conducting of discovery were violated. The Plaintiffs’ counsel should have been informed that maintenance records regarding the trailers of the company did exist and should have been given an opportunity to inspect the maintenance records. The existence of these records may have led to other admissible evidence which could have impacted on the jury’s verdict.
“IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the Plaintiffs’ Motion for a New Trial and Motion for Sanctions is granted and as an appropriate remedy the court GRANTS the Plaintiffs Motion for a New Trial. The other grounds set forth in the Plaintiffs motion for a New Trial are denied.

D & N Trucking timely appealed from this order. On appeal, it contends that the trial court erred in granting a new trial.

III. Waiver

The trial court’s judgment states that it offered to continue the trial proceedings in an attempt to cure any prejudice the delay in producing the maintenance records had caused, but the Brewers’ attorneys declined its offer. Once it became apparent, through the testimony of Nick Lamb, that the sought-after maintenance records did exist, the trial court clearly attempted to cure any prejudice to the Brewers by offering a continuance to allow the Brewers’ attorney to examine the records. In response to this offer, the Brewers’ attorney responded as follows:

“We talked about this. Judge, I — I really don’t need them to go on. I don’t need them to go on and continue my cross. If they want to bring him back and introduce some records tomorrow in their case for this trailer, I will just ask him why he didn’t bring them to the — • but I am not going to harp on it anymore.”

In response to this statement from the Brewers’ attorney, the trial court answered “Okay.” The Brewers’ attorney continued to address D & N Trucking’s failure to produce the maintenance records saying “So, if he doesn’t have them, he doesn’t have them. Let’s just go on. It’s not going to do us any good for this trial.”

The Brewers’ attorney continued his cross-examination of the final witness, and the trial proceedings were concluded. We hold that the Brewers’ attorney waived any error pertaining to D & N Trucking’s failure to provide the maintenance records on the trailer by declining the trial court’s offer of a continuance for the purpose of examining the records and determining their relevance to the case. See e.g., Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997) (party waived right to challenge juror with hearing problem by failing to inquire whether jurors were physically able to serve; the court held that the party must diligently test jurors as to their qualifications and could not simply sit back and invite error); Ex parte Eaton, 675 So.2d 1300, 1301 (Ala.1996) (holding that “plaintiffs should not have been allowed to oppose [defendant’s] motion for mistrial, gamble on the verdict of the jury, and then, after being disappointed with the verdict, move for a new trial on the same grounds they had previously opposed”); Cody v. Louisville & Nashville R.R., 535 So.2d 82 (Ala.1988) (the trial court held that by declining its offer to reinstruct the jury on proximate cause, the party prevented it from curing an error in the instruction and waived any right to challenge the error on appeal); and Wal-Mart Stores, Inc. v. Robbins, 707 So.2d 284 (Ala.Civ.App.1997) (holding that defendant who refused court’s offer of a continuance could not complain of prejudice from amendment to complaint).

We reverse the order of the trial court granting a new trial and remand the case for the trial court to reinstate the judgment on the jury verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in the result.

      . Although the record is unclear on this matter, we presume the repairs to the tractor and the trailer referred to were those necessitated by the accident.

      . Derrick Lamb had testified earlier that the company owned 13 trailers at the time of trial.

      “*It should be noted that during the trial the Court indicated that based on the conflicting testimony the Court will grant a short continuance of the trial to allow the Attorneys to go and search for the rqcord. However, this request was declined by the Attorneys.”


text:
    Nancy Malone COOKS and Floyd Cooks, Jr. v. BENDER SHIPBUILDING AND REPAIR COMPANY, INC., et al.
    2000695.
    Court of Civil Appeals of Alabama.
    Nov. 16, 2001.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1010583.

      John W. Parker, Mobile, for appellants.
    A. Clay Rankin III and Douglas W. Fink of Hand Arendall, L.L.C., Mobile, for appellees.
   CRAWLEY, Judge.

On May 14, 1998, Nancy Malone Cooks (the “worker”) was injured while working as a welder on a ship being built by Bender Shipbuilding and Repair Company, Inc. The worker was employed at the time by Yarbrough Machinery/American Industrial Marine. Yarbrough, however, had assigned her to work at Bender. The worker filed a claim for compensation under the Longshore Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., against Yarbrough and sued Bender and two coemployees, Winfield McClintock and Jerry Webber (hereinafter referred to collectively as the “eoemployees”), alleging negligence and wantonness; her husband, Floyd Cooks, Jr., also sued Bender, alleging a loss of consortium.

Bender and the coemployees filed a joint motion for a summary judgment. Bender asserted that it was immune from tort liability pursuant to 33 U.S.C. § 905(a), the exclusivity provision of the LHWCA, because, it argued, the worker was a “borrowed servant.” The coemployees asserted similar immunity under 33 U.S.C. § 933(i), which provides that compensation under the LHWCA is the exclusive remedy for injuries caused by the negligent acts of coemployees. The trial court entered a summary judgment for Bender and the coemployees on all claims. The worker appealed to the Alabama Supreme Court, which transferred the case to this court, pursuant to Ala.Code 1975,12-2-7(6). She argues that the trial court erred by determining, as a matter of law, that she was a borrowed servant.

We review a summary judgment de novo; we apply the same standard as applied by the trial court. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P.; see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the non-movant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038. “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); see Ala.Code 1975, § 12-21-12(d). See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999); West, 547 So.2d at 871, and Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989), for further discussion of the application of the summary-judgment standard.

This court has considered the ..application of the “borrowed-servant” doctrine before, incidentally, in a case involving Bender. See Jarrell v. Bender Shipbuilding & Repair Co., 681 So.2d 1092 (Ala.Civ.App.1996). In Jarrell, this court explained the exclusivity provision of the LHWCA:

“The LHWCA, at 33 U.S.C. § 905, precludes a personal injury action against any employer who complies with the LHWCA. Just as Ala.Code 1975, § 25-5-53, provides that workers’ compensation benefits are the exclusive remedy for injuries received in a work-related accident, the LHWCA provides, in 33 U.S.C. § 905(a), that an injured worker may not maintain a tort action against his employer for any negligence of the employer giving rise to the injury; the injured worker’s exclusive remedy is under the LHWCA. In International Paper Co. v. Murray, 490 So.2d 1234 (Ala.Civ.App.1985), aff'd in part, rev’d in part on other grounds, Ex parte Murray, 490 So.2d 1238 (1986), this court noted:
“ ‘The LHWCA was adopted in 1927 as a federal compensation plan for maritime workers, and was patterned after existing state workers’ compensation laws.... The LHWCA is a workmen’s compensation statute similar to our own, where employers have “relinquished their defenses to tort actions in exchange for limited and predictable liability.” ’
“490 So.2d at 1236 (quoting Morrison Knudsen Constr. Co. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 461 U.S. 624, 103 S.Ct. 2045, 76 L.Ed.2d 194 (1983)).”

Jarrell, 681 So.2d at 1094.

If the worker is not a “borrowed servant” of Bender, Bender and the coem-ployees have no tort immunity. However, if the worker is a “borrowed servant” of Bender, it, as an employer, and the coem-ployees are entitled to tort immunity under the LHWCA. To determine if a person is a “borrowed servant,” the federal courts apply the following nine-factor analysis:

“(1) Who had control over the employee and the work he was performing, beyond mere suggestion of details for cooperation?
“(2) Whose work was being performed?
“(3) Was there an agreement, understanding, or meeting' of the minds between the original and the borrowing employer?
“(4) Did the employee acquiesce in the new work situation?
“(5) Did the original employer terminate his relationship with the employee?
“(6) Who furnished tools and place for performance?
“(7) Was the new employment over a considerable length of time?
“(8) Who had the right to discharge the employee?
“(9) Who had the obligation to pay the employee?”

Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 616-17 (5th Cir.1986) (citing Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969)). Although some factual issues, if disputed, may require resolution by a trier of fact, whether a person is a borrowed servant is a question of law for the court. Theophile v. Trinity Indus., Inc., 977 F.Supp. 782, 784 (E.D.La.1997).

The worker’s deposition testimony supports the trial court’s conclusion that there exist no genuine issues of material fact and that the worker is a borrowed servant as a matter of law. She testified that she was directly supervised in her work by Bender employees, not by Yar-brough personnel, and that she was performing welding for Bender on its premises. Although she testified that she brought some tools from Yarbrough, she admitted that many of the tools and the welders she used on the job at Bender were Bender’s property. She also testified that she would return to Yarbrough only to retrieve items from her locker and to pick up her paycheck. We conclude, then, that the first two, the fifth, and the sixth of the nine factors weigh heavily in favor of Bender.

The third factor, whether there was an agreement, understanding, or meeting of the minds between Yarbrough and Bender, is not clear from the record. The worker did testify that Yarbrough habitually assigned its workers to work at other shipyards besides its own. However, she stated that she did not know what, if any, agreement Bender may have with Yar-brough. Thus, we conclude that this factor is neutral.

The fourth factor, the employee’s acquiescence in the new work situation, is the factor about which there exists the most dispute. The worker testified that she complained to her supervisor at Yarbrough about her new assignment several times. However, she stated that after she was told that “she was needed at Bender’s right now” she reported for duty there daily until the date of the accident. “Showing up for work” without objection at the borrowing employer’s facility has been equated with acquiescence. See Theophile, 977 F.Supp. at 785. The worker, however, did complain about her assignment at Bender. Accordingly, we conclude that the worker’s complaints were sufficient to prevent acquiescence, and we determine that this factor weighs in her favor.

Also at issue is factor seven — whether the worker’s employment at Bender was over a considerable length of time. The worker worked for Bender from April 17, 1998, to the date of the injury on May 14, 1998. The worker testified that, although she reported for duty, she was often sent home because Bender had nothing for her to do. Although she did not work for Bender for a considerable amount of time, the fact that the injury occurred early in the worker’s employment does not require us to conclude that this factor weighs in her favor. In fact, other courts have looked to whether there was an expectation of continued employment. Theophile, 977 F.Supp. at 785. The worker testified that she would work at Bender until Yar-brough instructed her to return to work at Yarbrough or to report elsewhere. Accordingly, we conclude that this factor is neutral.-

The record reveals little evidence concerning the eighth factor — which company had the right to discharge the worker. As stated above, the worker indicated that she would continue working for Bender until Yarbrough instructed her otherwise. The worker did not state that Bender could not fire her from its employ; however, neither did Bender present evidence that it could. This factor, then, weighs in the worker’s favor.

The ninth and final factor — who was obligated to pay the worker — weighs in favor of Bender. The worker testified that Yar-brough cut her paycheck but clearly stated that Bender would pay Yarbrough for her services. Bender provided an affidavit from Billy Wiik, its personnel manager, in which he stated that the worker’s pay was based on time records maintained by Bender. See Theophile, 977 F.Supp. at 785 (stating that borrowed employee was paid based on time cards maintained by the borrowing employer).

After considering the nine factors first outlined in Ruiz, we conclude that, because five of the nine factors clearly weigh in favor of Bender, two factors are neutral, and two factors weigh in favor of the worker, the trial court properly determined that the worker was a borrowed servant and properly entered a summary judgment for Bender and the coemployees.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . Section 905(a) reads in part: “The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife....” Thus, Bender is immune from suit on the derivative loss-of-consortium claim as well.

      . Both parties argue the application of the test for determining “borrowed-servant” status first outlined in Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969).


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Rex D. REID and Donna Reid.
    2000241.
    Court of Civil Appeals of Alabama.
    Nov. 16, 2001.
    Rehearing Denied Feb. 15, 2002.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1011045.

      Mark R. Ulmer and Andrew S. McDavid of Ulmer, Hillman, Ballard & Nikolakis, P.C., Mobile, for appellant.
    Frederick P. Gilmore and Wyman 0. Gilmore, Jr., of Gilmore Law Office, Grove Hill, for appellees.
   CRAWLEY, Judge.

Rex D. Reid and Donna Reid sued State Farm Mutual Automobile Insurance Company, alleging breach of contract. State Farm answered and filed a motion for a summary judgment on the grounds that the Reids had not allowed it a reasonable time to investigate their claims, pursuant to Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala.1991). The trial court denied the motion. As indicated by State Farm’s notice of appeal, State Farm appeals from the trial court’s order denying its summary-judgment motion.

An appeal ordinarily lies only from the entry of a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249 (Ala.1990). An order denying a summary judgment is interlocutory and is generally nonappealable. Mancil v. Jeffreys Steel Co., 532 So.2d 1262 (Ala.Civ.App.1988); Nationwide Prop. & Cas. Ins. Co. v. DPF Architects 792 So.2d 369 (Ala.2001); and Ex parte Rizk, 791 So.2d 911 (Ala.2000); but see Rule 5, Ala.R.App. P. (allowing appeal of interlocutory orders by permission).

APPEAL DISMISSED.

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

MURDOCK, J., concurs in the result.


author: PITTMAN, Judge.

text:
    COLLINS SIGNS, INC. v. Vernon SMITH.
    2991355.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2001.
    Rehearing Denied Feb. 8, 2002.

      Harry P. Hall II of Lewis, Brackin, Flowers & Hall, Dothan, for appellant.
    Gregory B. McCain, Dothan, for appel-lee.
   PITTMAN, Judge.

Collins Signs, Ine., the employer, appeals a trial court’s award of workers’ compensation benefits to a former employee, Vernon Smith. Smith was employed with Collins Signs on June 1, 1999, when he attempted to move a large Kmart sign that blocked his passage through a doorway. When he did so, the dollies on which the sign was resting remained stationary and the sign moved off the dollies, hitting his left shoulder, knocking him to the ground, and falling on top of him.

The only issue on appeal is whether Smith was impaired by illegal drugs at the time of the accident so to preclude recovery of workers’ compensation benefits. See § 25-5-51, Ala.Code 1975. In its judgment, the trial court held:

“Based on the evidence, this Court finds that marijuana being in Mr. Smith’s system was a contributing cause to this accident but not the sole cause or proximate cause of said accident. The Court further finds that the K-Mart sign was not properly mounted and not properly handled by Mr. Smith when he attempted to move the sign and these reasons were the proximate cause of the accident.”

(C. 295.) The trial court entered a judgment in favor of Smith and against Collins Signs in the amount of $6,799.00, which amount constitutes temporary total disability benefits for 19 weeks and permanent partial benefits for a 7% impairment to Smith’s lower extremity.

The standard of review in a workers’ compensation case is firmly established. The Workers’ Compensation Act is to be liberally construed to accomplish its beneficent purpose, and doubts must be resolved in favor of the employee. See Bethea v. Bruno’s, Inc., 741 So.2d 1090, 1093 (Ala.Civ.App.1999). “In 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.” See § 25-5-81(e)(1), Ala.Code 1975. “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81(e)(2).

This Court has previously held that an employer who raises § 25-5-51 as a defense to an action seeking workers’ compensation must “prove that the worker’s impairment from illegal drugs, as conclusively determined by the [Department of Transportation] drug test, proximately caused the injury” for the injury not to be compensable. Ross v. Ellard, Construction, 686 So.2d 1190, 1193 (Ala.Civ.App.1996). Smith’s drug test results were duly authenticated and admitted at trial below. Deposition testimony by Dr. Charles Thomas Huber, chief toxicologist for the Alabama Reference Laboratories, which analyzed Smith’s urine sample, was admitted regarding the procedures and results of Smith’s drug test. Dr. Huber stated that the threshold for a positive urine test for marijuana is 15 nanograms per milili-ter. Smith’s sample showed a level of 470 nanograms per mililiter, a level over 30 times the threshold amount.

Collins Signs argues that, under Ross, its burden is to prove by substantial evidence that Smith’s impairment from illegal drugs was a proximate, but not necessarily the sole, cause of his injuries. It is undisputed that Smith tested positive for marijuana; therefore, he is conclusively presumed to have been impaired by illegal drugs. See § 25-5-51. The burden is on Collins Signs to prove the impairment was a proximate cause of Smith’s injury. See Flowers Specialty Foods v. Glenn, 718 So.2d 1137, 1138 (Ala.Civ.App.1998).

The general rule in Alabama regarding proximate cause is that an act is the proximate cause of an injury if the injury is the natural and probable consequence of the negligent acts which an ordinarily prudent person ought reasonably to foresee would result in injury. See Blue Water Catfish, Inc. v. Hall, 667 So.2d 110, 113 (Ala.Civ.App.1995). In the judgment, the trial court refers to Smith’s drug use as a “contributing cause” to Smith’s injury. A contributing cause is relevant only in reviewing a medical-causation case. See Ex parte Vongsouvanh, 795 So.2d 625 (Ala.2000); Ex parte Valdez, 636 So.2d 401 (Ala.1994). However, Smith’s injuries were not caused by a medical condition, but by an on-the-job accident. Therefore, the trial court’s reference to “contributing cause” is incorrect.

Also in the judgment, the trial judge appears to equate proximate cause with sole cause. This is an incorrect statement of the law. The long-standing rule in Alabama is “if two causes operate at the same time to produce a result which might be produced by either, they are concurrent causes, and in such case each is a proximate cause.” Shepherd v. Gardner Wholesale, Inc., 288 Ala. 43, 47, 256 So.2d 877, 880 (1972) citing Birmingham Ry., Light & Power Co. v. Ely, 183 Ala. 382, 391, 62 So. 816, 819 (1913). Furthermore, an act or omission does not have to be the sole proximate cause, but only a proximate cause of the injury. See Kyle v. Selma Medical Ctr. Hosp., Inc., 534 So.2d 589, 591 (Ala.1988). If Smith would not have been injured by the falling sign but for the drug-induced impairment, then the drug use was a proximate cause of the injury.

Collins Signs cites two medical articles introduced by Smith as corroboration of its argument that Smith’s illegal drug use was a proximate cause of his injuries. One article stated:

“Both alcohol and cannabis were found to increase reaction time and increase the number of initially incorrect responses .... Emergency response behavior was impaired by cannabis..-. .Short-term psychomotor and cognitive effects related to the use of cannabis include impaired memory, altered perception of the passage of time, and impaired performance in a wide variety of tasks.”

(C. 307-08.)

Smith testified he knew that company policy required that two employees move large signs like the one that fell on him. He also testified that while he was moving the sign he could not tell that the sign was falling, even though he had both hands on the sign. Even when a coworker warned him that the sign was falling, he did not run clear of the falling sign, but tried to hold the sign up by himself. Smith agreed during cross-examination that if he had known that the sign was falling, he probably would have been able to avoid being injured.

Smith’s testimony is consistent with the article quoted above in that Smith took too long to react to the dangerous situation and he responded incorrectly by remaining in front of the falling sign rather than moving out of the way. If not for his impairment, Smith would have known the sign was falling and probably been able to avoid injury, or he would have moved out of the way once he was warned it was falling rather than try to hold a sign that was too big for one man. These actions confirm the fact that his impairment by marijuana caused his injuries; the marijuana impaired Smith’s ability to react properly in an emergency and it delayed his reaction to a dangerous situation. When he finally did react, Smith’s initial response in trying to hold up the sign was the incorrect reaction.

Smith’s drug-induced impairment affected his ability to follow safety procedures, to perceive a dangerous situation, and to respond appropriately to both the falling sign and his coworker’s warning. The Ross requirement that the impairment of the employee be a proximate cause of the injuries was met. Once the statutory provisions of § 25-5-51 are implicated, then Smith is prohibited from receiving workers’ compensation by operation of the statute.

Smith relies on Flowers Specialty Foods to argue for affirming the trial court’s judgment. In Flowers, as here, the trial court found the employer failed to meet the burden of proof to show the injury was proximately caused by illegal drug use. See Flowers, 718 So.2d at 1138. The trial court held that the cause of the work-related injury was a sprocket that did not have a safety chain; because of the lack of a safety chain the employee’s hand was pulled into the machinery. See generally Flowers. The court concluded that the employee’s drug use had not contributed to the accident, which it determined was caused by an unsafe machine.

In the case now before this Court, the situation is markedly different. First, Smith violated safety procedures by attempting to move a sign that shop policy required two men to move. Second, even though Smith did not perceive that the sign was falling, a coworker did and called out a warning. In his impaired state, Smith did not react properly to the warning. He attempted to hold the sign up instead of moving out of the way. Finally, the trial judge concluded that the combination of the fact that the sign was improperly mounted on the dollies and Smith’s mishandling of the sign proximately caused the accident.

Smith’s injuries were not caused by faulty machinery or by an unsafe workplace. The accident happened, according to the trial judge’s own findings of fact, because Smith failed to follow safety procedures when he attempted to move the Kmart sign and because the sign was not properly mounted on the dollies. Although neither the trial judge nor the parties address this point, Smith testified that he willfully disobeyed shop policy by attempting to move an oversized sign by himself. Willful misconduct that contributes to an injury will also bar the recovery of workers’ compensation benefits under the statute. See § 25-5-51.

Indeed, it is clear from reviewing the record and the final judgment that had Smith not been impaired by illegal-drug use, he probably would not have been injured. Given the evidence that Smith disobeyed shop policy regarding moving large signs at the same time his drug test revealed he had a level over 30 times the threshold amount of marijuana required for a positive reading, it seems reasonably certain that the accident was proximately caused by Smith’s impairment. After carefully examining the record, we conclude that, based on these facts, no reasonable view of the evidence supports the trial court’s award of workers’ compensation benefits to Smith.

This court finds it necessary to address again our standard of review of a workers’ compensation case. The Court of Civil Appeals is authorized to determine whether the trial court’s decision is supported by sufficient evidence, but it is not authorized to independently weigh the evidence. Ex parte Rhea, 807 So.2d 541 (Ala.2001), quoting Ex Parte Golden Poultry Co., 772 So.2d 1175, 1177 (Ala.2000). In limiting our review to the sufficiency of the evidence to support the trial court’s judgment, this court must thoroughly review the record, the testimony, and the exhibits presented to the trial court below. Reading the trial court’s judgment in light of the evidence presented, we cannot agree that the judgment is supported by substantial evidence. See Flowers at 1138.

Because the trial court misapplied the law of causation in reaching its decision and because the judgment is not supported by substantial evidence, the judgment must be reversed and remanded. Because we are reversing the judgment, we do not address Collins Signs’ remaining two arguments on appeal. Futhermore, because we do not address Collins Signs’ final two issues on appeal, we deny Smith’s motion to strike Collins Signs’ argument as to one of those issues.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ., concur in the result.


author: WOODALL, Justice.

text:
    Ex parte Vernon SMITH. (In re Collins Signs, Inc. v. Vernon Smith).
    1010997.
    Supreme Court of Alabama.
    May 3, 2002.
    Gregory B. McCain, Dothan, for petitioner.
   WOODALL, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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

JOHNSTONE, J., dissents.


text:
    MOBILE COUNTY PERSONNEL BOARD and Curtis Robinson v. CITY OF MOBILE.
    2001038.
    Court of Civil Appeals of Alabama.
    April 26, 2002.

      Mylan R. Engel and Edgar P. Walsh of Engel, Walsh & Associates, Mobile, for appellant Mobile County Personnel Board.
    Robert F. Clark and Jan E. Jones of Clark & Deen, Mobile, for appellant Curtis Robinson.
    William R. Lauten, chief asst, city atty., City of Mobile; and Jacqueline M. McCon-aha, Mobile, for appellee.
   CRAWLEY, Judge.

The Mobile County Personnel Board (“the Board”) and Sgt. Curtis Robinson of the City of Mobile Police Department appeal a circuit court’s judgment reversing an order issued by the Board. We reverse.

Robinson was originally suspended without pay for 10 days by the City of Mobile, his employer. The City suspended Robinson after he wrote a letter to the sheriff of Baldwin County criticizing a fellow officer who was being considered for employment by the sheriff. Specifically, Robinson was charged with violating General Order 26.1.5, § 1.06.02 (revealing confidential information) and § 1.06.05 (engaging in statements that are false or made with a reckless disregard for the truth about police department personnel). At the time he wrote the letters, both Robinson and the other officer were working for the Mobile Police Department and Robinson was the other officer’s supervisor. Robinson’s letter was critical of the other officer’s attendance record, his job performance, and his attitude toward minorities, which Robinson indicated was negative.

Robinson appealed his suspension to the Board. The Board ruled that Robinson had violated police department rules but concluded that the 10-day suspension was excessive and reduced it to 3 days. The City appealed to the Mobile Circuit Court, which reinstated the 10-day suspension, holding that the Board’s ruling “was not based on substantial evidence and was contrary to law.”

Robinson appeals and raises two issues. He first argues that the trial court erred when it determined that the Board’s order was not supported by substantial evidence.

“Because the Personnel Board hearing is designated as de novo, the Board acts as the trier of fact. Thus, it is the Board’s duty to reach a determination with regard to any conflicting testimony. The circuit court, in its review of the Personnel Board order, was thus precluded from substituting its judgment for that of the Board.
“So long as there was substantial legal evidence to support the Board’s decision, the circuit court was bound to affirm. We are governed by the same standard; if we conclude that substantial evidence existed to support the Board’s decision, we must uphold it. Substantial evidence is simply categorized as relevant evidence that a reasonable mind would view as sufficient to support a determination.”

City of Mobile v. Mills, 500 So.2d 20, 21 (Ala.Civ.App.1986) (citations omitted).

Robinson does not dispute the validity of the Board’s order with respect to whether he violated police department rules. He challenges only the circuit court’s reinstatement of his original punishment by the City.

The City argues that the evidence did not warrant the Board’s decision to reduce Robinson’s punishment because it is undisputed that some of Robinson’s allegations against the other officer, who was the subject of Robinson’s letter, were not borne out by actual fact. The record indicates, however, that the Board was aware of the factual discrepancies when it determined Robinson’s punishment. Cpt. Phillip Garrett of the Mobile Police Department testified before the Board that he was a member of the police department panel that reviewed the charges against Robinson. Garrett said that when Robinson explained to the panel his reasons for sending the letter, Robinson stated that there had been 10 or 11 citizen complaints against the other officer, but, according to Garrett, only 2 complaints against the officer had been filed with the Department’s internal affairs division, and Robinson produced no documentation to support his claim that there had been 10 or 11 complaints. Garrett also stated that Robinson told the panel that the other officer had taken 27 sick days when, in fact, the roll-call records included duplicate copies, which reflected that the other officer’s use of sick days was “considerably less” than 27 days.

Pursuant to Mobile County Personnel Rule 14.7, the Board has the authority to “rescind, modify, alter or affirm the penalty imposed by the appointing authority, or may impose such additional or different penalty as may be warranted by the evidence adduced at the hearing.” See City of Mobile v. Mills, supra. The circuit court’s review of the Board’s action is very limited.

“[T]he discretionary actions of the board, to wit, the extent or the severity of the punishment are not to be disturbed by the circuit court on review, but if the findings of fact are supported by substantial evidence, such findings shall be upheld and the conclusions or order from such findings shall be upheld unless unlawful or unreasonable.... ”

Grant v. City of Mobile, 50 Ala.App. 684, 689, 282 So.2d 285, 289 (1973).

“It is not within the power of the [circuit] court reviewing the record to supplant the judgment of the Board with its own as to the extent or severity of the punishment. The Board having heard the conflicting evidence sits in judgment as though it were a jury. Its finding is entitled to the same weight as that of a jury.”

Edmondson v. Tuscaloosa County, 48 Ala.App. 372, 377, 265 So.2d 154, 159 (1972) (citation omitted).

Substantial evidence supported the Board’s decision to reduce Robinson’s punishment. The circuit court erred when it substituted its judgment for the Board’s. Because we reverse on this basis, we need not review Robinson’s other ground for reversal.

REVERSED AND REMANDED.

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