author: MURDOCK, Judge.

text:
    Anna H. HENDERSON and Michael T. Henderson, individually and as executors of the estate of Donald R. Henderson, deceased v. Joe Allen DUNN and Trice Nelson.
    2991235.
    Court of Civil Appeals of Alabama.
    Nov. 16, 2001.
    Rehearing Denied May 16, 2003.
    Certiorari Denied Aug. 15, 2003 Aabama Supreme Court 1021421.

      Guy Y. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellants.
    Bruce N. Wilson of Wilson & Drinkard, Grove Hill, for appellees.
   MURDOCK, Judge.

This case involves a boundary-line dispute between landowners Donald Henderson and Anna Henderson (husband and wife) and their son, Michael Henderson, on the one hand, and their neighbors, Joe Allen Dunn and his mother, Trice Nelson (hereinafter referred to collectively as “Dunn”), on the other hand.

Before the events giving rise to this case, one of Dunn’s predecessors in title, Richard C. Jones, owned a large tract of land lying within Section 23, Township 13 North, Range 7 East, in Wilcox County. As to that portion of the Jones property at issue in this case, the southern boundary of Jones’s property was coterminous with the southern boundary of the northeast quarter of the southeast quarter of Section 23. The Hendersons’ property lay immediately to the south of the Jones property, within the southeast quarter of the southeast quarter of Section 23. The Jones and Henderson tracts were contiguous, being separated by the boundary line separating the northeast quarter of the southeast quarter of Section 23 from the southeast quarter of the southeast quarter of Section 23. Both the Jones and Henderson tracts had as their eastern boundary the Alabama River.

Also before the events at issue in this case, a dam constructed on the Alabama River created a lake (known as Lake Dan-nelly) that flooded portions of both the Jones and the Henderson properties. As a result, a peninsula was created that was bordered on the east by the Alabama River and on the . north and west by a slough constituting part of Lake Dannelly. The peninsula, which generally runs north and south, was located partially in the northeast quarter of the southeast quarter of Section 23 and partially- in the southeast quarter of the southeast quarter of Section 23. Thus, the northern portion of the peninsula was part of the Jones property, but was cut off from the remainder of the Jones property by the aforementioned slough. The southern portion of the peninsula was part of the Henderson property.

In 1980, William R. Goodman purchased the northern portion of the peninsula from Jones. In 1981, Goodman constructed on the peninsula a house for use as a weekend retreat. In 1985, Goodman conveyed his property to Richard Wright, who used the house as his primary residence. In 1990, Wright conveyed this property to Joe Allen Dunn and Trice Nelson, who also used the property as their primary residence.

The Hendersons obtained a survey in 1996 that revealed that Dunn’s house had been built on the Hendersons’ property. On October 2, 1998, the Hendersons sued to eject Dunn from their property, alleging that they had obtained title to the parcel of property by a deed recorded in the Probate Court of Wilcox County in 1956. In their complaint, the Hendersons offered to pay Dunn the fair market value of the house (less the rents and profits owed) if Dunn could demonstrate that the house had been erected on their land by mistake. The Hendersons further sought to enjoin Dunn from the use of a roadway through their land that he used to access a public road.

Dunn answered by averring that he and his predecessors in title had since 1981 maintained a residence on the property up to an old fence line located south of the house in question, and had maintained actual, continued, open, notorious, and hostile possession of the property up to that line. Dunn therefore asserted a counterclaim against the Hendersons, seeking title to the disputed property on the theory of adverse possession.

The trial court conducted a hearing at which ore tenus testimony was taken. On June 7, 2000, the trial court entered a judgment denying the Hendersons’ claim for ejectment and vesting title to the disputed property in Dunn, based on the theory of adverse possession. On June 14, 2000, the Hendersons filed a motion requesting the trial court to rule on their claim seeking to enjoin Dunn from using a private roadway through their land, or, in the alternative, to certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. On July 7, 2000, the trial court entered a supplemental order denying the requested injunctive relief and granting Dunn an easement by necessity in the existing roadway. The Hendersons appealed to the Supreme Court. That court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

It is well established that when a trial court, after ore tenus proceedings, enters a judgment setting a boundary line between coterminous landowners, that judgment is presumed correct if it is supported by credible evidence. Valentine v. Ireland, 580 So.2d 581 (Ala.1991). Further, the presumption of correctness that attaches to the findings of fact made by the trial court when it hears ore tenus testimony is particularly strong in adverse-possession cases. Lilly v. Palmer, 495 So.2d 522 (Ala.1986). In an adverse-possession case, the party asserting a claim to the property through adverse possession must show by clear and convincing evidence that there was “actual, hostile, open, notorious, exclusive, and continuous” possession for the statutory period. Grooms v. Mitchell, 426 So.2d 820, 822 (Ala.1983).

Alabama recognizes two types of adverse possession: (1) statutory adverse possession pursuant to § 6-5-200, Ala. Code 1975, and (2) adverse possession by prescription. Sparks v. Byrd, 562 So.2d 211 (Ala.1990). Specifically,

“ ‘Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).’ ”

562 So.2d at 214 (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980) (emphasis omitted)). Further, our Supreme Court has consistently held that boundary disputes between coterminous landowners are hybrid types of adverse possession subject to a unique set of requirements and a period of adverse possession of only 10 years, even if none of the three additional elements described in § 6-5-200 is present. E.g., Sashinger v. Wynn, 571 So.2d 1065 (Ala.1990); Johnson v. Brewington, 435 So.2d 64 (Ala.1983).

On appeal, the Hendersons argue that the trial court erred in vesting title to the disputed property in Dunn on the theory of adverse possession because, they say, Dunn had purchased the disputed property in 1990 and this action was filed in 1998— two years short of a 10-year holding period. Specifically, the Hendersons claim that the trial court erred in allowing Dunn to “tack” his adverse possessory interest in the property to that of his predecessors in interest. Citing Smith v. Cherry, 684 So.2d 1322 (Ala.Civ.App.1996), as authority, the Hendersons claim that Alabama law prevents proof of a claim through adverse possession by “tacking” when the interest in the disputed property is not specifically conveyed by deed. We do not read Smith v. Cherry to stand for such a broad proposition. Rather, we construe that case to mean that, absent a clear conveyance of the disputed property in the deed, there must be some other evidence of intent to convey the disputed property. Further, this court in Smith v. Cherry, indulging the presumption in favor of the trial court, simply reviewed the record to determine whether credible evidence supported the trial court’s judgment.

The “tacking” principle that the Hendersons have challenged was clarified by our Supreme Court in Watson v. Price, 356 So.2d 625 (Ala.1978). The Watson court stated:

“Because the application of the tacking principle is confusing under our present case law, we deem it appropriate to restate the principle and articulate the rationale for the rule. For the purpose of effecting title by adverse possession, where all the traditional elements are present, tacking of periods of possession by successive possessors is permitted against the coterminous owner seeking to defeat such title, unless there is a finding, supported by the evidence, that the claimant’s predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant’s predecessor in title. We perceive no logical or practical reason why the application of the privity of possession rule permitting tacking should be dependent upon whether the claimant’s immediate grant- or possessed the disputed property for more or less than the statutory period.”

356 So.2d at 627.

In Mardis v. Nichols, 393 So.2d 976 (Ala.1981), Watson was cited with approval:

“The rule established in Watson is based upon the rationale that ‘[the] transfer of the possession alone is sufficient to create the privity for [the] purpose [of tacking of adverse possession periods], and written evidence of the transfer is not necessary when the property is held by the transferee under the claim of the first entryman.’ ”

393 So.2d at 979 (quoting Holt v. Adams, 121 Ala. 664, 25 So. 716 (1898)). We cannot say that the trial court erred in tacking the time that Dunn had adversely possessed the disputed strip to the time that the strip had been adversely possessed by his predecessors in interest.

In reviewing the propriety of the trial court’s ruling on Dunn’s claim of title to the disputed strip of property by adverse possession, we look to see if that ruling is supported by credible evidence. Smith, 684 So.2d at 1324. The record reflects that both Robert Jones, the property owner who conveyed the parcel upon which Dunn’s house is situated to William Goodman, and Goodman himself testified that they believed a fence erected by the Henderson family, probably shortly after World War II, was the coterminous boundary. The Hendersons claim that the true boundary is the government quarter-section line, as surveyed.

The trial court based its ruling in favor of Dunn on his claim of adverse possession on the following findings of fact and conclusions of law:

“In February, 1981, Goodman began construction of a house on the property in question. There is no dispute that the house is located south of the south line of the NEy4 of the SEy4. Therefore, the house is located in the SE}4 of the SEfc and not in the NE/4 of the SE}& and not on the property as described in the deed. According to ... Plaintiffs’ exhibit 10, the north corner of the deck attached to the house was approximately 68 feet south of that line.
“Goodman used the house primarily as a camp house or weekend retreat until he conveyed the property on November 21, 1985, to Richard Wright. Wright lived in this home as his primary residence until he conveyed the property on August 17, 1990, to Joe Allen Dunn and Trice Nelson, the Defendants in this case. Mr. Dunn and his family have resided in the house and on the property adjacent thereto as well since the time of their purchase. Mr. Jones, Mr. Goodman, Mr. Wright, Mr. Dunn and George Fendley, a friend of Richard Wright, all testified as to the existence of a fence located just south of the house built by Goodman; Goodman testified that this was the boundary shown to him by Jones when he purchased the property. While the witnesses’ descriptions as to the exact location of the fence varied, they all testified that the fence or remnants thereof were present. Each of the property owners Jones, Goodman, Wright, and Dunn, have claimed ownership to this old fence line.
“There is a dispute as to the purpose of the fence. Jones claims that this was the boundary line fence erected by the Plaintiffs’ predecessor in title indicating the boundary between the Jones and Henderson property. The Plaintiffs, while not admitting the fence even exists, apparently argued that if it did exist it was only a fence around an old pond or to hold livestock but that it was never intended as a boundary line fence. For purposes of this decision the Court does not have to resolve that dispute.
“The Plaintiffs and the Defendants are coterminous landowners. The Defendants are claiming ownership of the disputed property which is that property located south of the property per the deed description and north of the old fence line which intersected the peninsula in the SEj4 of the SEy4. The Defendants claim ownership of this disputed portion by adverse possession.
“To prevail on their claim of adverse possession, the Defendants must prove open, notorious, hostile, continuous, and exclusive possession of the disputed property for ten years. Adverse possession by a coterminous landowner is a form of statutory adverse possession. They need not show adverse possession for the twenty-year prescriptive period nor are they required to prove a deed, color of title to the property, annual listings for taxation or descent or devise from a predecessor in title in order to maintain their claim. The law is well established by the courts of this state as set forth in Johnson v. Brewington, 435 So.2d 64 (Ala.1983), and Mardis v. Nichols, 393 So.2d 976 (Ala.1981). There can be no clearer evidence of adverse possession than that shown by the Defendants and their predecessors in title. A house was constructed and lived in for seventeen years prior to this suit being brought.”

We find the trial court’s ruling on Dunn’s claim of title to the property on the theory of adverse possession to be supported by substantial evidence.

The Hendersons also claim that because Dunn offered to purchase the property after the Hendersons obtained the 1996 survey that prompted the present action but before the action was actually filed, he is now precluded from asserting his claim of adverse possession to the property. We are not persuaded by their argument. The trial court determined, and substantial evidence supports the determination, that title to the disputed strip of property had, by way of adverse possession, already vested in Dunn at the time he made the offer of purchase. Therefore, the offer of purchase could not have prejudiced Dunn’s claim to property that he already legally possessed; under such circumstances, the offer of purchase may be construed as an attempt to buy peace or to avoid litigation. See Crowden v. Grantland, 510 So.2d 238 (Ala.1987).

Finally, the Hendersons argue that the trial court erred in concluding that Dunn held an easement by necessity across the Hendersons’ property. The Hendersons contend that easements by necessity require a “conveyance from a common owner” or grantor and that there was no such common grantor in this case. We agree.

In Bull v. Salsman, 435 So.2d 27 (Ala. 1983), our Supreme Court explained:

“A common law way of necessity is a type of easement by implication and ‘rests on the implication that the parties intended and agreed to provide for such a way.’ Sayre v. Dickerson, 278 Ala. 477, 491, 179 So.2d 57 (Ala.1965). For such an implication to arise, there must have been an original grantor who impliedly granted an easement across his remaining lands to the purchaser of the land-locked parcel. Therefore it has been stated that ‘[ojriginal unity of ownership of the dominant and servient tenements is always required for an easement of necessity.’ Helms v. Tullis, 398 So.2d 253, 255 (Ala.1981), see also, Burrow v. Miller, 340 So.2d 779 (Ala.1976); Sayre v. Dickerson, supra; Hamby v. Stepleton, 221 Ala. 536, 130 So. 76 (1930).”

435 So.2d at 29.

Dunn in effect responds by arguing that there is a “conveyance” from a common grantor in this case because, he says, he acquired his property from the Hendersons, albeit by adverse possession. However, as discussed above, Dunn defends the trial court’s judgment regarding the land on which his house is situated by contending that his dispute with the Hendersons is a dispute only over the boundary line of property he and his predecessors acquired from Jones (and that, therefore, he prevails in that dispute by showing only 10 years of adverse possession without also having to show any of the three elements outlined in § 6 — 5—200(a)). Dunn cannot have it both ways. Either this case involves a boundary-line dispute and an adverse-possession claim related to a parcel of property that Dunn and his predecessors acquired from Jones, or it involves a claim by Dunn to a separate parcel of land as to which the Hendersons can be viewed as the “grantors.”

We are affirming the trial court’s ruling as to the title to the property upon which Dunn’s house is located based on Dunn’s theory that this case involves a boundary-line dispute. If we were instead to view Dunn as acquiring a wholly separate parcel of property by way of adverse possession from the Hendersons, the opinion of our Supreme Court in McCallister v. Jones, 432 So.2d 489 (Ala.1983), would suggest that we must require Dunn to prove either 20 years of adverse possession, rather than 10, or one of the three additional elements outlined in § 6-5-200. See also Johnson v. Brewington, 435 So.2d 64 (Ala. 1983) (citing McCallister); Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616 (Ala.1980). Onr acceptance of the view that this case is merely a dispute over the boundary line of the parcel of land that Dunn’s predecessors acquired from Jones is antithetical to the premise upon which Dunn must argue for an easement by necessity — that he has acquired a separate parcel of land from the Hendersons, thus enabling him to satisfy the common-grant- or rule.

Moreover, as noted in the above-quoted passage from Bull, an easement by necessity “ ‘rests on the implication that the parties intended and agreed to provide for such a way.’ ” 435 So.2d at 29 (quoting Sayre, 278 Ala. at 491, 179 So.2d at 70). The evidence in this case does not support such an implication. We cannot conclude that, in a case where a party claiming an implied easement across the land of another must premise that claim on an acquisition of his property from that other party by adverse possession, that the owner of the property across which the easement would run can be considered a “grantor whom impliedly granted an easement across his remaining lands” for the benefit of the property wrested from him by adverse possession.

Accordingly, while we affirm the judgment of the trial court with respect to the boundary-line dispute between Dunn and the Hendersons, we must reverse the trial court’s judgment insofar as it recognizes an easement by necessity in favor of Dunn.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Donald Henderson died after the trial court had entered its judgment, and this court allowed the substitution of his estate as a party on appeal.

      . Dunn’s predicament regarding access to his property derives from the fact that that property, being at the end of a peninsula, was "landlocked” at the time Dunn's predecessors in title acquired it from Jones. The fact that Dunn now prevails in a boundary-line dispute with the Hendersons, thus adjusting the southern boundary of that property, does not give Dunn any greater claim to an easement across the adjacent property of the Hendersons. In other words, from "the beginning,” Dunn and his predecessors, Goodman and Wright, have "needed” an easement (or some similar right) across the Hendersons' property in order to have access over land to a public road. This "necessity” does not exist, and is no greater or lesser a necessity, as a result of the adjustment of Dunn's southern boundary line that we recognize today.

      . Dunn makes no claim in this case for condemnation of a right of way by necessity pursuant to Ala.Code 1975, § 18-3-1 et seq.'


source: Caselaw Access Project

author:
PITTMAN, Judge.
      CRAWLEY, Judge,

license: Public Domain

text:
    Robert WEAVER and Frances Weaver v. KIMBERLY-CLARK CORPORATION.
    2991238.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2001.

      Bruce J. McKee and Nolan E. Awbrey of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    H.L. Ferguson, Jr., and K. Claire White of Ferguson, Frost & Dodson, Birmingham, for appellee.
   PITTMAN, Judge.

This case was transferred to this court by the Supreme Court pursuant to Ala. Code 1975, § 12-2-7(6). The plaintiffs Robert Weaver and Frances Weaver appeal from a summary judgment in favor of the defendant Kimberly-Clark Corporation.

The facts of this case are few and uncontested. Mr. Weaver was an employee of Kimberly-Clark for approximately 32 years. On March 27, 1997, Kimberly-Clark sold its Coosa Pines pulp and paper mill to U.S. Alliance Coosa Pines Corporation (hereinafter “U.S. Alliance”). Weaver was employed at the Coosa Pines mill before, during, and after the sale. On April 8, 1997, Weaver was injured at the Coosa Pines mill when a handrail gave way and he fell. He received workers’ compensation benefits from U.S. Alliance.

On May 6, 1998, the Weavers sued Kimberly-Clark and several other defendants for damages incidental to Weaver’s accident. After some discovery was conducted, Kimberly-Clark moved for a summary judgment. The trial court held a hearing on the motion and granted it; the court delayed entering a final judgment for 60 days, to allow the Weavers time to present any additional evidence to the trial court. At the next hearing on the matter, the trial court made the summary judgment in favor of Kimberly-Clark final, under the provisions of Rule 54(b), Ala.R.Civ.P. The Weavers appeal from that summary judgment.

The Weavers argue that Kimberly-Clark cannot invoke the exclusivity provision of the Workers’ Compensation Act because Kimberly-Clark and Weaver were not in an employer-employee relationship at the time of the accident. Kimberly-Clark argues that the exclusivity provision should apply because Kimberly-Clark and Weaver were in an employer-employee relationship at the time of the alleged negligence that led to the injury. Both sides admit in their appellate briefs to this court that the question is a novel one and that there is no controlling Alabama caselaw on it.

The exclusivity provision of the Alabama Workers’ Compensation Act is found in §§ 25-5-52 and -53, Ala.Code 1975, and provides, in pertinent part: Section 52:

“Except as provided in this chapter, no employee of any employer subject to this chapter ... shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.”

Section 53:

“The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee ... by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer’s employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment.”

The Weavers point to three cases that they allege buttress their argument that Kimberly-Clark cannot avail itself of the exclusivity provisions quoted above. The first is Duvon v. Rockwell Int'l, 116 Wash.2d 749, 807 P.2d 876 (1991), which the Weavers assert stands for the proposition that at the time of Duvon’s injury, there was no employer-employee contract. The Weavers quote only a one-paragraph synopsis of the case by Professor Larson in 2A A. Larson, The Law of Workmen’s Compensation 12-17, § 65.13 (1993). However, we have reviewed the case in its entirety and are unpersuaded by it. The Supreme Court of Washington, in a one-sentence analysis, rejects the argument of the former employer based simply on the fact that the “respondent was not the petitioner’s employee when the accident took place.” 116 Wash.2d at 754, 807 P.2d at 878. We accord this opinion no weight, given its complete lack of legal reasoning. The Weavers also cite Konken v. Oakland Farmers' Elevator Co., 425 N.W.2d 302 (Minn.Ct.App.1988), for the proposition that the former employer, Konken, was a third-party who was subject to a common-law claim. Again, the Weavers give us the one-paragraph summary of the case given by Professor Larson in his treatise. Our own review of Konken shows that the majority of its reasoning concerned the operation of the third-party-tortfeasor section of the Minnesota workers’ compensation statute. The relevant portion of the statute states, “If an injury ... is caused under circumstances which created a legal liability for damages on the part of a party other than the employer ... legal proceedings may be taken ... against the other party....” Minn.Stat. § 176.061, subd. 5 (1986). The court in Konken looked to another case to define the difference between an “employer” and a “person other than the employer”:

“Under the Minnesota Act the employer is liable without fault but is immune from the common law action. On the other hand, a ‘person other then the employer’ is liable to the employee only if at fault and has available to him all common law defenses. The scheme of the compensation act is reciprocity. As long as the employer is stripped of his common law defenses and is liable without fault, he is subject only to the exclusive statutory liability. A third person, other than the employer’s compensation insurer, is subject to no burdens of the act and consequently, under the scheme of reciprocity, is entitled to no benefits of the act.”

Modjeski v. Atwell, Vogel & Sterling, Inc., 309 F.Supp. 119, 124 (D.Minn.1969). The Minnesota court held that Oakland (Konken’s former employer) was a “party other than the employer” and that the exclusive-remedy provision was inapplicable. We will reserve our comments on the analysis of the Minnesota court until after we review the case cited in support of Kimberly-Clark’s position.

Kimberly-Clark argues that the exclusivity provision should apply because Kimberly-Clark and Weaver were in an employer-employee relationship at the time of the alleged negligence that led to the injury. It cites Fields v. Jantec, Inc., 317 Or. 432, 857 P.2d 95 (1993), for the proposition that a former complying employer should be offered the protection of the immunity clause of the workers’ compensation statute because of the overall nature of the statute and its intent. The Oregon Supreme Court in Fields analyzed the Oregon statutes and found the same lack of specific language involving a complying former employer as we are faced with in the instant case. It then examined the legislative history and the intent of Oregon’s workers’ compensation statutes. It analyzed its own third-party-negligence statutes and the intent behind those statutes and the results those statutes dictate, and pointed out that “a current complying employer may not be held liable in negligence for a workplace injury, even if the negligence occurred before the relevant employment relationship began.” 317 Or. at 441, 857 P.2d at 99. It then noted that it was being asked “to apply a corollary principle: that a prior complying employer whose alleged negligence is at issue should not be liable in negligence if the alleged negligence occurred during, and in the course and scope of, the former complying employment, even if the workplace injury occurs after the employment relationship with that employer ends.” 317 Or. at 441, 857 P.2d at 99. The Oregon Supreme Court noted: “When the parties are covered by the act, the rights of a covered [employee] are based upon the contract between the employee, the employer and the state. And the rights and remedies provided by the act are exclusive.” 317 Or. at 442, 857 P.2d at 100, quoting Shoemaker v. Johnson, 241 Or. 511, 407 P.2d 257 (1965). It completed its analysis of the question before it by stating:

“An employer who complied fully with its statutory obligations to its employees has fulfilled its part of the bargain entirely. .Under ordinary contract principles, a party who has fulfilled its part of the bargain entirely is entitled to performance by the other parties to the contract. The legislative quid pro quo should, therefore, apply with respect to a later-occurring workplace injury if the alleged negligence occurred during, and in the course and scope of, the former complying employment and if, for that reason, the worker’s compensation remedy would have been exclusive had the same injury occurred during the complying employment.
“The opposite rule would have anomalous results. Two employees who are otherwise situated identically could recover different amounts depending solely on whether the employer of one of them had changed ownership. Another anomaly is that a complying employer whose employee suffered no workplace injury at all during the entire course of employment would be liable for damages, while a complying employer whose employee suffers a substantial workplace injury during the course of employment would not be liable for damages. Finally an employer who has sold its business and ceased employing workers would be faced with uncertain future liability for workplace injuries that have not yet occurred. ...”

Fields, 317 Or. at 442, 857 P.2d at 100. Based on the above, the former complying employer was held to be protected from common-law liability with respect to the alleged negligence that occurred during, and in the course and scope of, the former complying employment.

We now return to the Minnesota Supreme Court case of Konken and its implications for our case. In its use of the quoted material from Modjeski, it simply ignores the unique status of a complying fonher employer. It speaks of employers and third parties and whether the various described entities are entitled to benefits of the act based on whether they are presently subjected to the burdens of the act. The complying former employer is neither strictly a current employer nor strictly a third party, but instead occupies a unique status as one who has been subject to the burdens of the act, yet, by the Minnesota Supreme Court’s estimation, has suddenly lost what should have been the benefits of the act, namely, protection from common-law liability. It is for those reasons that we reject the rationale of the Konken case.

It has long been held that the Alabama Workers’ Compensation Act should be liberally construed to accomplish its beneficent purpose. See, .e.g., Hypeco, Inc. v. Hawkins, 641 So.2d 802 (Ala.Civ.App.1994); Hilyard Drilling Co. v. Janes, 462 So.2d 942 (Ala.Civ.App.1985); Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370 (1973); Baggett Transp. Co. v. Holderfield, 260 Ala. 56, 68 So.2d 21 (1953). However, our courts have also fre quently limited the scope of the above-stated general rule. See, e.g., United States Steel Corp. v. Baker, 266 Ala. 538, 97 So.2d 899 (1957) (holding that the court cannot extend the statute beyond its legitimate scope); Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967) (holding that liberality of construction does not mean that the rule as to the measure of proof, or the sufficiency of the evidence, is different from the rule in ordinary cases); Ford v. Mitcham, 53 Ala.App. 102, 298 So.2d 34 (1974) (holding that liberality of construction should not proceed to such a point as to amount to judicial legislation). In par ticular, we note our Supreme Court’s holding in Carraway Methodist Hospital v. Pitts, 256 Ala. 665, 670, 57 So.2d 96, 100 (1952), wherein it stated: “Practically all courts are agreed that there should be accorded to the workmen’s compensation law a broad and liberal construction. But it is also agreed that this law does not mean one thing when it is to the advantage of an employee so to maintain, and something else when an employer invokes the protection of the law in his favor.” Here we are presented a question regarding the scope and intent of the exclusivity provision of the Workers’ Compensation Act, and, specifically, whether a former complying employer is an “employer” within the meaning of that provision. A court’s fundamental duty in interpreting a statute is to determine the legislative intent by examining the language used in the statute, as well as the policy to be promoted and the ends sought by the application of the statute. Scott Paper Co. v. Taylor, 728 So.2d 632 (Ala.Civ.App.1997), citing Ex parte Holladay, 466 So.2d 956 (Ala.1985). In 1992, the Legislature amended large portions of Alabama’s old Workmen’s Compensation Act; the amendments included renaming it the Alabama Workers’ Compensation Act. The Legislature stated its intent in amending the act, as follows, in Act No. 92-537, § 1, Ala. Acts 1992:

“The Alabama Workers’ Compensation Act is remedial in nature and should be liberally construed to effectuate the intended beneficial purposes. However, even a liberality of construction does not abrogate the measure of proof or sufficiency of evidence.
“It is also the intent of the Legislature in adopting this workers’ compensation scheme to address difficulties in the current scheme that are producing a debilitating and adverse effect on the state’s ability to retain existing industry and attract new industry. The Legislature finds that the current Workmen’s Compensation Law of Alabama and other means of compensation or remedy for injury in the workplace [have] unduly increased cost to employers in the state, driven away jobs, and produced no concomitant benefit.”

See the “Code Commissioner’s notes” to Ala.Code 1975, § 25-5-1. The stated intent of the Legislature is clear and unambiguous. It “modified the compensation statutes due to concerns regarding the ability of companies to operate profitably under the previous statutory scheme.” Ross v. Ellard Constr. Co., 686 So.2d 1190, 1193 (Ala.Civ.App.1996).

The adoption of a rule by which a former complying employer falls within the exclusivity provision of §§ 25-5-52 and -53 of the Workers’ Compensation Act is clearly the correct conclusion to be reached, both under the reasoning of the Oregon Supreme Court in Fields and the intent of the Legislature in its adoption of the 1992 amendments to the Act. We have previously held that the Workers’ Compensation Act is contractual in nature. See Harris v. National Truck Service, 56 Ala.App. 350, 354, 321 So.2d 690, 693 (Ala.Civ.App. 1975), and Owens v. Ward, 49 Ala.App. 293, 295, 271 So.2d 251, 253 (Ala.Civ.App. 1972). This determination is consistent with the reasoning of the court in Fields, whereby a former complying employer had fulfilled its statutory obligations to its employees and was entitled to performance by the other parties to the contract. However, even more important is the fact that the adoption of this rule comports with the clear and unambiguous intent of the Legislature, as voiced in its 1992 amendments to the Workers’ Compensation Act. This holding plainly follows the “fundamental rule ... that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained.” Holladay, 466 So.2d at 960, citing Shelton v. Wright, 439 So.2d 55 (Ala.1983).

Based upon the facts of this case and the authority cited herein, we affirm Kimberly-Clark’s summary judgment.

AFFIRMED.

THOMPSON and MURDOCK, JJ„ concur.

YATES, P.J., and CRAWLEY, J., dissent.

CRAWLEY, Judge,

dissenting.

Based on the authority of Konken v. Oakland Farmers' Elev. Co., 425 N.W.2d 302 (Minn.App.1988), a Minnesota decision construing exclusivity provisions substantially identical to Alabama’s, I respectfully dissent. See also Hull v. Aurora Corp. of Illinois, 89 A.D.2d 681, 454 N.Y.S.2d 39 (1982); and Duvon v. Rockwell Int'l, 116 Wash.2d 749, 807 P.2d 876 (1991).

Although the majority criticizes Konken, Hull, and Duvon for offering only a cursory analysis of the issue, my review of those cases convinces me that the Minnesota, Illinois, and Washington courts conducted the correct — though admittedly brief — inquiry: Does a former employer fit within the definition of “employer” found in the Workers’ Compensation Act?

In Konken, the Minnesota court concluded that a former employer is not an “employer” because the definition of “employer” (“any person who employs another to perform a service for hire”) is cast in the present tense, and a former employer is, therefore, a “person other than the employer” against whom a third-party action can be maintained. 425 N.W.2d at 305. The Alabama definition of “employer” is, like the Minnesota definition, also cast in the present tense. See § 25-1-20(2), Ala.Code 1975 (defining “employer” as “any person employing 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, including any agent of that person”). The Alabama Workers’ Compensation Act, like the Minnesota Act, also contains exclusivity provisions limiting a worker’s remedies as against his employer, see §§ 25-5-52 and 25-5-53, Ala.Code 1975, but not as against third parties, or “partfies] other than the employer,” see § 25-5-ll(a), Ala.Code 1975.

In Konken, the Minnesota court, quoting the New York Supreme Court, Appellate Division, stated:

“In this common law action brought for injuries sustained [after the sale of assets], [the former employer] and its related business entities stand as third parties rather than as employers in relation to plaintiff and thus cannot use the fortuity of a prior employment relationship as a basis for invoking the [exclusive-remedy provision].”

Konken, 425 N.W.2d at 305-06 (quoting Hull, 89 A.D.2d at 682, 454 N.Y.S.2d at 40).

The fact that I would reverse the summary judgment for the former employer does not indicate that I have any opinion regarding Kimberly-Clark’s liability to the Weavers. It indicates only that I believe the Weavers are not barred by the exclusivity provisions of the Workers’ Compensation Act from suing Kimberly-Clark, because Kimberly-Clark is a “party other than the employer.” See § 25-5-ll(a), Ala.Code 1975.

YATES, P.J., concurs.

      . The third case cited, Hull v. Aurora Corp. of Illinois, 89 A.D.2d 681, 454 N.Y.S.2d 39 (N.Y.App.Div.1982), is a two-paragraph case with no analysis other than to declare the former employer a third party. Therefore, no detailed discussion of that case is necessary here.


author: JOHNSTONE, Justice.

text:
    Ex parte Robert WEAVER and Frances Weaver. (In re Robert Weaver and Frances Weaver v. Kimberly-Clark Corporation).
    1010582.
    Supreme Court of Alabama.
    June 27, 2003.

      Bruce J. McKee and Nolan E. Awbrey of Hare, Wynn, Newell & Newton, Birmingham, for petitioners.
    H.L. Ferguson, Jr., and Stacy L. Moon of Ferguson, Frost & Dodson, Birmingham, for respondent.
   JOHNSTONE, Justice.

The petitioners now before us, Robert Weaver and Frances Weaver, sued Robert’s former employer Kimberly-Clark Corporation and other defendants for negligently or wantonly installing, maintaining, or repairing a catwalk and its handrail in a pulp and paper mill while Kimberly-Clark owned the mill and employed Robert and, by such negligence or wantonness, causing Robert’s injury, which occurred after Robert’s employment with Kimberly-Clark had terminated and after Kimberly-Clark’s ownership of the mill, the site of the injury, had terminated. Robert was injured in a fall caused by the failure of the handrail, which “gave way.”

Kimberly-Clark moved for a summary judgment on the ground that the exclusivity provisions of the Workers’ Compensation Act, § 25-5-52 and § 25-5-53, Ala. Code 1975, barred the Weavers from suing Kimberly-Clark. After a hearing, the trial court entered summary judgment in favor of Kimberly-Clark but stayed entry of the judgment for 60 days to allow the Weavers to present evidence and to show cause why the judgment should not become final. The Weavers filed a memorandum of law in opposition to the summary judgment motion. While, in replying to the Weavers’ opposition memorandum, Kimberly-Clark contended that the memorandum was untimely and insufficient, Kimberly-Clark did not move to strike it. After considering the Weavers’ opposition memorandum, the trial court “vacate[d] the finality of the judgment” and scheduled a hearing on the summary judgment motion. After the hearing, the trial court made its order granting summary judgment in favor of Kimberly-Clark final and appeal-able pursuant to Rule 54(b), Ala. R. Civ. P.

The Court of Civil Appeals affirmed the judgment of the trial court. Weaver v. Kimberly-Clark Corp., 871 So.2d 814 (Ala. Civ.App.2001). Relying on Fields v. Jantee, 317 Or. 432, 857 P.2d 95 (1993), the Court of Civil Appeals held that Kimberly-Clark was entitled to invoke the exclusivity provisions of the Alabama Workers’ Compensation Act, § 25-5-52 and § 25-5-53, Ala.Code 1975, because Kimberly-Clark was Robert’s employer at the time of the alleged negligence or wantonness although not at the time of Robert’s injury.

The Weavers have petitioned us for a writ of certiorari, which we have granted, to review the judgment of the Court of Civil Appeals. The Weavers present a question of first impression: whether “a former employer of an injured former employee can avail itself of [the] Workers’ Compensation [Act] exclusivity immunity when an employee-employer relationship existed at the time of the defendant/former employer’s negligent act, but not at the time of the injury to the plaintiff/former employee.” (Weavers’ brief, p. 1.)

The first argument to us by Kimberly-Clark is that a procedural default by the Weavers before the trial court justifies its entry of summary judgment. Kimberly-Clark argues that the Weavers did not oppose the motion for summary judgment with factual evidence as ordered by the trial court but opposed the motion for summary judgment only with authorities and argument on the law. Kimberly-Clark further argues that this Court, therefore, should strike the opposition the Weavers filed before the trial court.

This argument by Kimberly-Clark fails for two reasons. First, because a moving party’s entitlement to summary judgment depends not only on the absence of a genuine issue of material fact but also on the propriety of judgment as a matter of law, Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala.1999), the Weavers were entitled to rely on the impropriety of summary judgment as a matter of law. Second, Kimberly-Clark failed to move to strike the Weavers’ opposition before the trial court. “Our review is limited to the issues that were before the trial court — an issue raised on appeal must have first been presented to and ruled on by the trial court.” Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992). Therefore, this Court will proceed to analyze the issue of first impression presented by this petition for the writ of certiorari.

“On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil appeals.” Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996).

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Economic & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 688 So.2d 419 (Ala.1996). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

Ex parte Kraatz, 775 So.2d 801, 803 (Ala. 2000).

“The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So.2d 719 (Ala. 1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says. IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala.1992).”

Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996). “Sections of the Code-dealing with the same subject matter are in pari materia. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each.” Locke v. Wheat, 350 So.2d 451, 453 (Ala. 1977) (citations omitted). “Courts must liberally construe the workers’ compensation law ‘to effectuate its beneficent purposes,’ although such a construction must be one that the language of the statute ‘fairly and reasonably’ supports.” Ex parte Dunlop Tire Corp., 706 So.2d 729, 733 (Ala.1997) (quoting Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala. 1985)). Accord Ex parte Taylor, 728 So.2d 635, 637 (Ala.1998), and Yates v. United States Fid. & Guar. Ins. Co., 670 So.2d 908, 909 (Ala.1995).

The exclusivity provisions of the Workers’ Compensation Act, § 25-5-52 and § 25-5-53, provide, in pertinent part, respectively:

“Except as provided in this chapter, no employee of any employer subject to this chapter, nor the personal representative, surviving spouse, or next of kin of the employee shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.”

§ 25-5-52 (emphasis added).

“The rights and remedies granted in this chapter to' an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer’s employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer; the cause of which accident or occupational disease originates in the employment. ...”

§ 25-5-53 (emphasis added).

Section 25-5-1(4) defines an “employer,” in pertinent part, as “[e]very person who employs another to perform a service for. hire and pays wages directly to the person.” Section 25-5-1(5) defines an “employee,” in pertinent part, as “every person in the service of another under any contract of hire, express or implied, oral or written, including aliens and also including minors who are legally permitted to work under, the laws of this state.” Section 25-5-ll(a) permits an employee to sue a third party for injuries sustained by the employee in his or her employment:

“(a) If the injury or death for which compensation is payable under Articles 3 or 4 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not the party is subject to this chapter, the employee, or his or her dependents in case of death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and at the same time, may bring an action against the other party to recover damages for the injury or death, and the amount of the damages shall be ascertained and determined without regard to this chapter.” (Emphasis added.)

“Our Workers’] Compensation Laws were adopted from those of Minnesota and the Minnesota construction of them laws is of persuasive value to this court.” Eley v. Brunner-Lay Southern Corp., 289 Ala. 120, 125, 266 So.2d 276, 281 (1972). In dissenting from the main opinion in Weaver v. Kimberly-Clark Corp., supra, Judge Crawley succinctly stated the rationale and the holding of the Minnesota Court of Appeals in Konken v. Oakland Farmers' Elevator Co., 425 N.W.2d 302 (Minn.Ct.App.1988):

“[T]he Minnesota court concluded that a former employer is not an ‘employer’ because the definition of ‘employer’ (‘any person who employs another to perform a service for hire’) is cast in the present tense, and a former employer is, therefore, a ‘person other than the employer’ against ivhom a third-party action can be maintained. [Konken v. Oakland Farmers' Elevator Co.,] 425 N.W.2d [302] at 305 [(Minn.Ct.App.1998)]. The Alabama definition of ‘employer’ is, like the Minnesota definition, also cast in the present tense. See § 25-1-20(2), Ala.Code 1975 (defining ‘employer’ as ‘any person employing 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, including any agent of that person’). The Alabama Workers’ Compensation Act, like the Minnesota Act, also contains exclusivity provisions limiting a worker’s remedies as against his employer, see §§ 25-5-52 and 25-5-53, Ala.Code 1975, but not as against third parties, or ‘partpes] other than the employer,’ see § 25-5-11(a), Ala.Code 1975.
“In Konken, the Minnesota court, quoting the New York Supreme Court, Appellate Division, stated:
“ ‘In this common law action brought for injuries sustained [after the sale of assets], [the former employer] and its related business entities stand as third parties rather than as employers in relation to plaintiff and thus cannot use the fortuity of a prior employment relationship as a basis for invoking the [exclusive-remedy provision].’
“Konken, 425 N.W.2d at 305-06 (quoting Hull [v. Aurora Corp. of Illinois ], 89 A.D.2d [681,] at 682, [454 N.Y.S.2d 39,] at 40 [(1982)]).”

871 So.2d at 820 (emphasis added). See also Duvon v. Rockwell Int'l, Inc. 116 Wash.2d 749, 807 P.2d 876 (1991).

In Fields v. Jantec, Inc., 317 Or. 432, 857 P.2d 95 (1993), the Oregon Supreme Court adopted a contrary and minority view that a former employer who had complied with its statutory duty of maintaining workers’ compensation insurance, whether self-insurance or carrier-provided-insurance, O.R.S. § 656.017 (1993), “has fulfilled its part of the bargain” of its contractual relationship with a formerly covered employee. 317 Or. at 442, 857 P.2d at 100. Because the Oregon Legislature had adopted “ ‘a form of strict liability requiring employers, regardless of fault, to compensate employees for injuries arising out of and in the course of employment ... [and requiring] employees ... [to] abandon any common law right of action against their employers,’ ” the Oregon Supreme Court concluded that a former employer who had been a “complying employer” should be protected from common-law actions for alleged negligence that had occurred during the former employment. Fields, 317 Or. at 441, 857 P.2d at 99 (quoting McGarrah v. SAIF, 296 Or. 145, 160-61, 675 P.2d 159 (1983)).

After the Court of Civil Appeals released its opinion in the case before us, the Illinois Court of Appeals addressed the issue of whether a former employer of a subsequently injured former employee is entitled to the exclusivity immunity of the Illinois Workers’ Compensation Act. Hunter v. Southworth Prods. Corp., 333 Ill.App.3d 158, 266 Ill.Dec. 676, 775 N.E.2d 238 (2002). In Hunter, ExxonMobil Corporation purchased and installed a hydraulic lift table in one of its plants. ExxonMo-bil subsequently hired Jeffrey Hunter to work as an electrician in the plant. Approximately nine months later ExxonMobil sold the plant to Tenneco Packaging, Inc. After the sale of the plant, Hunter continued working at the plant for Tenneco. Shortly thereafter, while Hunter was performing maintenance on the lift table, it killed him by collapsing on him. Hunter’s widow sued the manufacturer of the lift table. The manufacturer filed a third-party action against ExxonMobil and Tenneco. ExxonMobil pleaded the exclusivity immunity of the Illinois Workers’ Compensation Act as a defense and asserted it in a motion for summary judgment. The trial court denied the motion for summary judgment, and ExxonMobil appealed the denial.

Expressly rejecting the rationale of Fields, supra, the Illinois Court of Appeals held that the Illinois Legislature could have expressly limited the exposure of former employers under the Illinois Workers’ Compensation Act, but did not do so. The Illinois Court of Appeals held that a former employer is not an “employer” as defined in the Illinois Workers’ Compensation Act and thus is not “entitled to protection of the exclusivity provision of the [Workers’ Compensation] Act.” Hunter, 333 Ill.App.3d at 165, 266 Ill.Dec. 676, 775 N.E.2d at 243.

6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 100.01[3], p. 100-6 (2002), states that “[t]he controlling fact in establishing exclusiveness [of the remedy] is the relationship of the parties at the time of occurrence of the injury. Their relationship at other times, such as the time of the employer’s [injury-causing] misconduct or the time of bringing the suit, is immaterial.” (Footnote omitted; emphasis added.)

An essential element of the exclusivity immunity of § 25-5-52 is that the injury be “occasioned by an accident ... proximately resulting from and while [the employee is] engaged in the actual performance of the duties of his or her employment” with the employer. Likewise, an essential element of the exclusivity immunity of § 25-5-53 is that the “injury ... is due to an accident ... while [the employee is] engaged in the service or business of the employer.” The timing and circumstances of Robert’s accident and injury do not satisfy either essential element. Robert’s injury was not “occasioned by an accident ... proximately resulting from and while [Robert was] engaged in the actual performance of the duties of his ... employment” with Kimberly-Clark. § 25-5-52. Nor was Robert’s “injury ... due to an accident ... while [Robert was] engaged in the service or business of’ Kimberly-Clark. § 25-5-53. Therefore, the claim of immunity by Kimberly-Clark does not meet the express requirements of either § 25-5-52 or § 25-5-53. The argument by Kimberly-Clark that it was Robert’s employer at the time of its alleged negligence or wantonness is not enough to satisfy all of the express requirements of either section for the exclusivity-immunity-

The language of the exclusivity provisions read together with the definitions of “employer” and “employee” do not “ ‘fairly and reasonably’ support[]” an interpretation that these statutes protect former employers from actions by former employees for injuries sustained after the termination of the employer-employee relationship. Ex parte Dunlop Tire Corp., 706 So.2d at 733 (quoting Ex parte Beaver Valley Corp., 477 So.2d at 411). Thus, we agree with Minnesota Court of Appeals, the Illinois Court of Appeals, and L. Larson in rejecting the claim of immunity in such a case. Konken, supra, Hunter, supra, and 6 Larson, Larson’s Workers’ Compensation § 100.03[3]. Accordingly, we reject the interpretation adopted by the Oregon Supreme Court in Fields, supra. Consequently, we reverse the judgment of the Court of Civil Appeals and remand the case for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

SEE, J., dissents.

LYONS, J., recuses himself.


author: PITTMAN, Judge.

text:
    Robert WEAVER and Frances Weaver v. KIMBERLY CLARK CORPORATION.
    2991238.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2003.
    Bruce J. McKee and Nolan E. Awbrey of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    H.L. Ferguson, Jr., and K. Claire White of Ferguson, Frost & Dodson, Birmingham, for appellee.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

The Alabama Supreme Court has reversed this court’s November 30, 2001, judgment and has remanded the case. Ex parte Weaver, 871 So.2d 820 (Ala.2003). In compliance with the Alabama Supreme Court’s opinion, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

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


author: PITTMAN, Judge. YATES, Presiding Judge,

text:
    Clifton Mark CREEL v. Patricia Ann CREEL.
    2010249.
    Court of Civil Appeals of Alabama.
    Aug. 9, 2002.
    Rehearing Denied Sept. 27, 2002.
    Certiorari Quashed Aug. 29, 2003 Alabama Supreme Court 1020140.

      Clifford W. Hardy, Jr., Bessemer, for appellant.
    John C. Rockett, Bessemer, for appellee.
   PITTMAN, Judge.

Clifton Mark Creel and Patricia Ann Creel divorced in 1996. The divorce judgment awarded the mother sole physical custody of the three children born of the marriage. In 1999, the father filed a petition to modify custody, requesting sole physical custody of all three children. Following the presentation of ore tenus evidence,. the trial court granted the father’s petition in part, awarding the father sole physical custody of the two older children and allowing the mother to retain sole physical custody of the youngest child. The father filed a postjudgment motion. The trial court vacated the prior judgment, heard additional ore tenus evidence, and again awarded the father sole physical custody ' of the two older children and the mother sole physical custody of the youngest child. The father filed a postjudgment motion, which the trial court denied. The father appeals.

The father first argues that the trial court erred by not awarding him sole physical custody of the youngest child. The father argues that he satisfied the burden established by Ex parte McLendon, 455 So.2d 863 (Ala.1984), to modify a prior custody judgment. To satisfy the McLendon standard, the father must prove a material change of circumstances since the last custody judgment that materially promotes the children’s best interests and welfare. Id. Furthermore, the benefits of the change in custody must outweigh the disruption caused by uprooting the children. Id.

The father argues that a change in custody of the youngest child from the mother to him would materially promote the child’s best interests because, he argues, the mother’s parenting skills have deteriorated to an almost dangerous level. The father presented ewdence through his testimony, the testimony of neighbors, and the testimony of the older children indicating that the mother has dangerous mood swings, that she yells at the youngest child, and that she physically threatens the child and others. The father also presented evidence indicating that the mother has “wild” parties at her house involving excessive alcohol and sex.

The mother presented evidence, through her testimony, the testimony of other neighbors, and the testimony of friends that she is a conscientious and effective parent to the youngest child. The mother testified that she and the two older teenage children have difficult relationships. The mother presented evidence that contradicts the father’s evidence of her allegedly “bad” and dangerous conduct. Therefore, based on the trial court’s resolution of this conflicting evidence, we conclude that the trial court did not err by allowing the mother to retain custody of the youngest child.

The father next argues that the trial court erred by not finding the mother in contempt for her failure to have the former marital residence insured for a three-month period. It is completely within the trial court’s discretion either to find or not to find a party in contempt. See Cavender v. State Mut. Ins. Co., 748 So.2d 863, 868 (Ala.1999); and Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994).

The original divorce judgment awarded the mother possession of the marital residence until certain contingencies occur (none of which have occurred). Upon the occurrence of the earliest contingency, the marital residence is to be sold and the proceeds of the sale divided evenly between the father and the mother. The divorce judgment ordered the mother to pay “the mortgage, insurance, and taxes on the home as they come due.” It is undisputed that the mother allowed the homeowner’s insurance on the marital residence to lapse for a three-month period; however, before the time of the trial, the mother had obtained coverage for the residence. Therefore, we conclude that the trial court did not err by not finding the mother in contempt.

The father lastly argues that the trial court erred by awarding attorney fees to the mother. The judgment states:

“Based on the income of the parties and their present financial situations the [father] shall pay to the [mother’s] attorney the sum of $1,500.00 for her attorney’s fee, said sum not reflecting the true value of the services he rendered which would actually be in the range of some $4,425.00.”

A trial court’s judgment regarding attorney fees is presumed correct and will not be reversed on appeal unless the judgment is not supported by the evidence. Hewitt v. Hewitt, 285 Ala. 516, 234 So.2d 283 (1970). The trial court is given much discretion in determining an appropriate award of attorney fees because of its “own knowledge and experience as to the value of the legal services performed.” Hammond v. Hammond; 500 So.2d 27, 29 (Ala. Civ.App.1986).

The evidence indicates that the mother’s income is substantially less than the father’s income. Also, the mother successfully defended the father’s petition to modify custody of the youngest child, and as explained above, this court is affirming the trial court’s judgment regarding the custody of the youngest child. Therefore, we conclude that the trial court’s award of approximately' one-third the value of the mother’s attorney’s legal services was not an abuse of discretion.

Therefore, we affirm the trial court’s judgment.

The mother’s request for attorney fees on appeal is denied.

AFFIRMED.

CRAWLEY, J., concurs.

THOMPSON, J., concurs in the result.

YATES, P.J., concurs in part and dissents in part.

YATES, Presiding Judge,

concurring in part and dissenting in part.

I concur in the award of custody of the two teenagers to the father; however, I believe the father met the McLendon standard as to the five-year-old, as well.

Following an ore tenus hearing, and by stipulation of the parties, the court changed custody of the two teenage children to the father. They had previously left the mother’s home, on their own, and moved in with their father. The trial court left sole custody of the five-year-old daughter with the mother.

Several witnesses presented disturbing evidence against the mother, the most compelling coming from the two older children of the parties. Both testified that the court should award custody of their younger sister to their father. The daughter, age 16, testified that her mother was a cocktail waitress, that she “was always out at night,” that she drank alcohol to excess, and that she was quick-tempered and degrading toward the daughter and her siblings. The daughter stated that her mother “is always hollering. Sometimes it turns into physical ... [S]he is always shaking and hollering. Either she is frustrated from work ... or something somebody else has done.”

She described one incident where her mother threw the younger child onto the bed because the child “didn’t want to go to bed ... [then] she came in there hollering at me.” She further testified as to occasions when her mother had not properly fed and cleaned the younger child and had sent her to bed without eating.

The daughter described instances where her mother would have male visitors in the home, and in “the bed” while she and the younger child were present. She further testified that once she went into her mother’s bedroom and saw “condoms all over the floor.” The daughter testified to a change in her sister’s personality since she and her brother left the mother’s home and described her as appearing “confined,” “depressed,” and “afraid.”

The son, age 15, testified that he was afraid of his mother, and that she was verbally abusive toward him and his sisters. He gave numerous examples of living in constant chaos with his mother, and he characterized her as unstable with profound mood swings. He further testified that his mother had severely spanked his little sister with a spatula for wetting the bed. As a result of this incident, the neighbors reported the mother to law enforcement.

The son testified that after his older sister had moved to the father’s home, he had taken over as caregiver of his younger sister. He further stated that he had to wake his mother each morning so that he could be ready to catch the school bus on time, and that he “never ate breakfast.” He went on to testify that since he went to live with his father, “I get to eat breakfast now ... dad drops me off at school every morning. I make it to school and go to class.” He testified that his father was stable and consistent and that he expects him to pick up after himself and to make good grades. He stated that he and his older sister were now happy. Although he testified that his mother does not abuse his younger sister as badly as she had his older sister, he is still very concerned about her well-being.

After a thorough review of the record, I find that the father met the McLendon standard in this case, and that it would be in the best interests of these children not to be separated. It is well settled that “Alabama case law does not favor a custody judgment that separates siblings.” Hannan v. Hannan, 676 So.2d 1340, 1342 (Ala.Civ.App.1996), citing Jensen v. Short, 494 So.2d 90 (Ala.Civ.App.1986).

It is understandable that the trial court wanted to give this mother “a chance” to raise her younger child successfully. However, the evidence indicates that in so doing, the trial court may have left the younger child in a volatile and hazardous environment, possibly jeopardizing her physical safety and emotional well-being.

I would reverse the trial court’s judgment as to the younger child; therefore, I dissent on that point.


author: THOMPSON, Judge.

text:
    In re ADOPTION OF J.C.P.
    2010594.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2002.

      George A. Monk of Brooks, Harmon & Monk, L.L.C., Anniston, for M.P.
    Submitted on M.P.’s brief only.
   THOMPSON, Judge.

J.C.P. (“the child”) was found dependent by the juvenile court in a March 21, 2001, order; custody of the child was awarded to G.W. and B.W. (hereinafter referred to collectively as “the adoptive parents”). On September 17, 2001, G.W. and B.W. filed a petition in the Probate Court of Calhoun County (hereinafter “the trial court”) seeking to adopt the child. In that petition, the adoptive parents stated that to their knowledge, consents to the adoption of the child and relinquishments of the child for adoption were required of K.B. (“the mother”) and M.P., who claims to be the child’s natural father. In support of their petition, the adoptive parents filed the mother’s consent to, or relinquishment for, adoption, the mother’s affidavit, and the mother’s waiver of notice, all dated August 8, 2001.

On September 17, 2001, the probate court entered an interlocutory order of adoption, granted custody to the adoptive parents, set a dispositional hearing, and ordered the adoptive parents to serve notice of the adoption petition, pursuant to § 26-10A-17, Ala.Code 1975. The record indicates that M.P. was served with notice on January 15, 2002, and that a copy of the petition for adoption was attached to the notice. On February 26, 2002, at 9:56 a.m., a little more than one hour before the scheduled hearing, M.P. filed a motion contesting the adoption, asserting only that he had not consented to the adoption of the child. On February 28, 2002, the probate court entered an order granting the adoptive parents’ petition for adoption. On March 5, 2002, M.P. filed a postjudgment motion; that motion was denied by operation of law. M.P. appealed.

The limited record on appeal indicates that the child was born on December 28, 1999; that the mother and M.P. never married; and that the adoptive parents have maintained custody of the child since March 2001. No father is listed on the child’s birth certificate. The March 21, 2001, dependency order lists M.P. as the father of the child. A “Post Placement Report” dated February 4, 2002, is also included in the record. That report states that “[t]he birth father of the child is M.P.”

On February 28, 2002, the trial court entered an order stating, in pertinent part,

“This above styled cause is now properly before the court for disposition; and it now appears that due and proper notice of these proceedings has been perfected; and that all requisites of law have been met; and
“The court being satisfied from clear and convincing evidence adduced that the facts alleged in said petition are true; that the adoptee has been in the actual physical custody of the [adoptive parents] for a period of sixty days or more; that the [adoptive parents] are suitable to be the parents of [the child] and they desire to establish a parent/child relationship with the [child]; that the best interest of the [child] will be served by granting the petition.... ”

On appeal, M.P. asserts that the trial court erred in failing to hold a hearing on his postjudgment motion. In his post-judgment motion, M.P. alleged that the notice he received on January 15, 2002, was inherently ambiguous. Section 26-10A-17, Ala.Code 1975, provides, in pertinent part:

“(a) Unless service has been previously waived, notice of pendency of the adoption proceeding shall be served by the petitioner on:
“(1) Any person, agency, or institution whose consent or relinquishment is required by Section 26-10A-7, unless service has been previously waived;
“(2) The legally appointed custodian or guardian of the adoptee.
“(3) The spouse of any petitioner who has not joined in the petition.
“(4) The spouse of the adoptee.
“(5) The surviving parent or parents of a deceased parent of the adop-tee.
“(6) Any person known to the petitioners as having physical custody, excluding licensed foster care or other private licensed agencies or having visitation rights with the adoptee under an existing court order.
“(7) The agency or individual authorized to investigate the adoption under Section 26-10A-19.
“(8) Any other person designated by the court.
“(9) Department of Human Resources.
“(10) The father and putative father of the adoptee if made known by the mother or otherwise known by. the court unless the court finds that the father has given implied consent to the adoption, as defined in Section 26-10A-9.
“(b) The notice shall specifically state that the person served must respond to the petitioner within 30 days if he or she intends to contest the adoption. A copy of the petition for adoption shall be delivered to those individuals or agencies in subdivisions (a)(2) through (a)(10). Any notice required by this chapter may be served on a natural parent prior to birth.”

(Emphasis added.)

M.P. does not dispute that he received notice of the adoption proceedings on January 15, 2002. He argues, however, that the notice he received was ambiguous. That notice stated:

“Please take notice that a petition for adoption in the above-styled matter has been filed in said court by the petitioner named below and that the 26th day of February, 2001[sic], at 11:00 a.m. has been set for a hearing on the same in said court at the Calhoun County administrative building in Anniston, Alabama. Please be advised that if you intend to contest this adoption my [sic] must file a written response within thirty (30) days hereof with counsel for said petitioner, whose name and address are shown below and with the clerk of the said court. A copy of the petition for adoption is attached to this notice as required by statute.
“Done this the 15th day of Jan[uary], 2002.”

M.P. asserts that the fact that the year in which the hearing was to be held is incorrect and that the word “my” is used in place of the word “you” create ambiguity in the document. Clearly, the two misstatements complained of were merely typographical errors. This court concludes that the notice M.P. received was not inherently ambiguous, nor does it fail to comply with § 26-10A-17(b), Ala.Code 1975. Therefore, the notice M.P. received on January 15, 2002, was effective under § 26-10A-17, Ala.Code 1975, and the trial court did not err in failing to hold a hearing on M.P.’s postjudgment motion.

M.P. also asserts that the trial court erred in failing to grant a hearing on his February 26, 2002, motion contesting the adoption of the child. In that motion, M.P. argued only that he had not consented to the adoption. “It is well settled that adoption is purely statutory, unknown to the common law, and that strict statutory adherence is required.” Ex parte S.C.W., 826 So.2d 844, 849 (Ala.2001). The Alabama Adoption Code provides, in pertinent part:

“(a) Consent to the petitioner’s adoption or relinquishment for adoption to the Department of Human Resources or a licensed child placing agency shall be required of the following:
“(1) The adoptee, if 14 years of age or older, except where the court finds that the adoptee does not have the mental capacity to give consent;
“(2) The adoptee’s mother;
“(3) The adoptee’s presumed father, regardless of paternity, if:
“a. He and the adoptee’s mother are or have been married to each other and the adoptee was born during the marriage, or within 300 days after the marriage was terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation was entered by a court; or
“b. Before the adoptee’s birth, he and the adoptee’s mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and,
“1. If the attempted marriage could be declared invalid only by a court, the adoptee was born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration [of] invalidity, or divorce; or
“2. If the attempted marriage is invalid without a court order, the adoptee was born within 300 days after the termination of cohabitation; or
“c. After the adoptee’s birth, he and the adoptee’s mother have married, or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted'marriage is or could be declared invalid, and
“1. With his knowledge or consent, he was named as the adoptee’s father on the adoptee’s birth certificate; or
“2. He is obligated to support the adoptee pursuant to a written voluntary promise or agreement or by court order; or
“d. He received the adoptee into his home and openly held out the adoptee as his own child;
“(4) The agency to which the adoptee has been relinquished or which holds permanent custody.and which has placed the adoptee for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interests of the adoptee and there is a finding that the agency has unreasonably withheld its consent; and
“(5) The putative father if made known by the mother or is othenoise made known to the court provided he responds xoithin SO days to the notice he receives under Section 26-10A-17(a)(10).”

§ 26-10A-7, Ala.Code 1975 (emphasis added).

M.P. does not assert, and the record does not indicate, that M.P. and the mother ever married or attempted to marry, or that he received the child into his home or held the child out as his own. M.P. does not assert, and the record does not indicate, that M.P. is the presumed father of the child. See § 26-10A-7(a)(3), Ala.Code 1975. Further, the record does not indicate that paternity of the child has been established. Therefore, we conclude that M.P. is the putative father of the child.

Section 26-10A-7(a)(5), Ala.Code 1975, plainly states that a putative father’s consent to an adoption is required only if he responds to the notice of adoption within 30 days. M.P. does not dispute that he received notice of the adoption on January Í5, 2002. M.P. filed his petition contesting the adoption of the child on February 26, 2002, 41 days after receiving notice of the adoption. As Justice Lyons stated in his special concurrence in Ex parte C.V., 810 So.2d 700, 706 (AIa.2001) (Lyons, J., concurring specially):

“The source of our adoption laws is the Alabama Legislature. We do not have before us a case where the law has evolved solely from earlier judicial opinions recognizing certain rights and responsibilities under similar circumstances in an area not governed by a statute or a constitutional provision. Consequently, our latitude is constricted because, when applying principles of statutory construction to those laws regulating adoption, as we must here, we do not have the authority to amend, revise, or rewrite those statutes.”

810 So.2d at 707. M.P. does not dispute that he failed to respond within 30 days of receiving the notice of adoption. Therefore, this court must conclude that, because M.P., the putative father, failed to file a response within 30 days of receiving notice of the adoption proceedings, M.P.’s consent was not required for the adoption of the child. See § 26-10A-7 (a), Ala.Code 1975.

In support of his assertion that the trial court erred in failing to hold a hearing on his February 26, 2002, petition contesting the adoption, M.P. cites § 26-10A-24, Ala. Code 1975. Section 26-10A-24, Ala.Code 1975, provides:

“(a) Whenever a motion contesting the adoption is filed, the court shall set the matter for a contested hearing to determine:
“(1) Whether the best interests of the adoptee will be served by the adoption.
“(2) Whether the adoptee is a person capable of being adopted by the petitioner in accordance with the requirements of this chapter.
“(3) Whether an actual or implied consent or relinquishment to the adoption is valid.
“(4) Whether a consent or relinquishment may be withdrawn.”

(Emphasis added.)

Section 26-10A-24, Ala.Code 1975, does not appear to place the 30-day time limitation of § 26-10A-7(a)(5), Ala.Code 1975, on the filing of a contest petition; however, that section does limit the matters that may be addressed in the hearing of the adoption contest. Therefore, although we have concluded that under the facts of this case, M.P.’s consent to the adoption was not required, see § 26-10A-7(a)(5), Ala.Code 1975, M.P. could have filed a petition beyond the 30 days to contest whether the adoption was in the best interest of the child or “whether the adoptee is a person capable of being adopted by the petitioner in accordance with the requirements of [the Alabama Adoption Code].” § 26-10A-24(a)(l) and (2), Ala.Code 1975.

In his February 26, 2002, petition contesting the adoption, M.P. asserted only that he had not consented the adoption. M.P. did not assert in that petition, nor does M.P. assert on appeal, that the adoption was not in the best interest of the child, or that the child was a person incapable of being adopted. Therefore, there is no relief available to M.P. under § 26-10A-24, Ala.Code 1975. This court concludes that the trial court did not err in failing to hold a hearing on M.P.’s February 26, 2002, petition.

M.P. also argues that his failure to file a response to the adoption petition within 30 days does not conclusively prove that he impliedly consented to the adoption. In support of this assertion, M.P. cites § 26-10A-9, Ala.Code 1975. Section 26-10A-9, Ala.Code 1975, provides:

“A consent or relinquishment required by Section 26-10A-7 may be implied by any of the following acts of a parent:
“(1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.
“(2) Leaving the adoptee without provision for his or her identification for a period of 30 days.
“(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
“(4) Receiving notification of the pen-dency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.”

(Emphasis added.) As previously discussed, pursuant to § 26-10A-7, Ala.Code 1975, M.P.’s consent to the adoption of the child was not required; therefore, this court need not reach the issue whether his actions constituted implied consent for the purposes of § 26-10A-9, Ala.Code 1975.

During the pendency of M.P.’s appeal before this court, the Legislature enacted Act No. 2002-417, Ala. Acts 2002 (hereinafter “the Act”). The Act amended many of the statutory provisions related to adoption and the putative-father registry. Those changes do not affect this court’s analysis with regard to M.P.’s failure to file a response within the proper statutory time frame pursuant to § 26-10A-7, Ala. Code 1975. We note that § 26-10A-7, Ala.Code 1975, as amended by the Act, requires that before his consent to the adoption is required, the putative father, in addition to responding within 30 days to the notice of adoption, must also comply with Alabama’s Putative Father Registry Act, § 26-10C-1 et seq., Ala.Code 1975. Section 2 of the Act states that it is retroactive to January 1, 1997. M.P. does not allege, and the record is devoid of any evidence indicating that M.P. complied with § 26-10C-1, Alabama’s Putative Father Registry Act.

AFFIRMED.

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

CRAWLEY, J., concurs in the result.

MURDOCK, J., dissents.

      . Act No. 2002-417, Ala. Acts 2002, became effective on April 17, 2002, when it was approved by the Governor.

      . Section 26-10A-7(5), Ala.Code 1975, as amended, states that consent is required of “[t]he putative father if made known by the mother or is otherwise made known to the court provided he complies with Section 26-10C-1 and he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10).”


text:
    Ex parte M.P. (In re Adoption of J.C.P.)
    1012260.
    Supreme Court of Alabama.
    Aug. 29, 2003.
    George A. Monk of Brooks, Harmon & Monk, LLC, Anniston, for petitioner M.P.
    Submitted on petitioner’s brief only.
   JOHNSTONE, 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.

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