text:
    Swift LUMBER, INC. v. Vernon RAMER. Vernon Ramer v. Swift Lumber, Inc.
    2020297.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.

      Sandy G. Robinson and Jarrod J. White of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Mobile, for appellant/cross-appel-lee Swift Lumber, Inc.
    Gene Warhurst, Jr., Mobile, for appel-lee/cross-appellant Vernon Ramer.
   CRAWLEY, Judge.

Vernon Ramer (“the worker”) was employed as a log-skidder operator by Swift Lumber, Inc. (“the company”). On April 28, 2000, the worker was injured when the skidder he was operating lurched forward and the seat dislodged, causing his right knee to strike a metal plate under the dashboard of the skidder. The worker was sent to Dr. Jonathen Yoder; Dr. Yo-der referred the worker to Dr. Gilbert Holland. Dr. Holland ordered an MRI of the worker’s knee. The MRI results revealed that the worker had a torn medial meniscus and torn anterior cruciate ligament (“ACL”). The MRI report also indicated that the worker had a torn medial collateral ligament (“MCL”) and that the tear was “without associated edema consistent with subacute or chronic injury.” Dr. Holland surgically repaired the worker’s ACL on October 18, 2000.

The worker continued to have problems with his knee, so he chose to seek further treatment; he selected Dr. William Crot-well from a panel of four physicians selected by the company. See Ala.Code 1975, § 25-5-77(a). Dr. Crotwell treated the worker for his torn MCL with conservative therapy; when the worker did not improve, Dr. Crotwell performed surgery on March 15, 2001. The worker reached maximum medical improvement (“MMI”) on September 10, 2001. Dr. Crotwell assigned the worker a 25% physical-impairment rating to the right lower extremity and a 10% impairment rating to the body as a whole.

After a trial at which the worker and Elbert Glenn Brown, the company’s compliance manager, testified, the trial court entered a judgment awarding the worker benefits of $256.57 per week for 200 weeks and awarding the worker’s attorney $7,697.10 as an attorney fee. The company appeals, arguing that the trial court’s judgment is not supported by substantial evidence of medical causation; that the trial court erred by awarding the worker 200 weeks of benefits for the loss of use of his leg when the uncontroverted medical evidence established that the worker had only a 25% impairment to his leg; that the trial court erred by awarding an amount of weekly compensation exceeding the statutory maximum of $220; and that the trial court erred in failing to deduct the attorney fee from the benefits awarded to the worker. The worker cross-appeals; he argues that the trial court erred by not determining that his injury, though to a scheduled member, should not be limited to compensation under the schedule because, he argues, pain and arthritis caused by the injury extends beyond his knee to his hip and lower back.

Our review of this case is governed by the Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq., which states in pertinent part: “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25-5-81 (e)(2). Therefore, this court “will view the facts in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). Further, a trial court’s finding of fact is supported by substantial evidence if it is “supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and Ala.Code 1975, § 12-21-12(d)). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25-5-81(e)(1); see also Ex parte Trinity Indus., 680 So.2d at 268.

The company’s first argument is that the worker failed to present substantial evidence of medical causation because, it argues, the worker presented no evidence establishing that his injuries were caused by his work-related accident. The company points out that Dr. Crotwell could not rule out whether the worker’s MCL tear was in fact an old injury that preexisted the work-related accident. Although the company concedes that medical causation can, in appropriate instances, be proven by lay testimony, see Ex parte Price, 555 So.2d 1060, 1062 (Ala.l989)(holding that a trial court was permitted to fix a worker’s physical-disability rating at a percentage greater than the percentage assigned by the worker’s physician), the company argues that the worker’s testimony similarly fails to connect his injuries to his work-related accident.

According to the company, the MRI report indicated that the tear to the MCL was old. As noted above, the MRI report stated that the tear was “without associated edema consistent with subacute or chronic injury.” That phrase, says the company, indicates that the tear was not caused by the worker’s knee striking the dashboard of the skidder but, instead, preexisted the work-related accident. Dr. Crotwell’s deposition testimony, which was presented as an exhibit at trial, indicates that he reviewed the MRI and the MRI report during his treatment of the worker. When questioned about whether, based upon his review of the actual MRI, he believed the MCL tear was old, Dr. Crot-well explained that he did not think one could tell if the tear was old or new from the MRI, just that a tear existed. He also testified that edema was not always present with such an injury. The company points out that Dr. Crotwell answered in the negative when questioned about whether he could, to a reasonable degree of medical certainty, rule out whethfer the worker had an old or preexisting injury to the MCL.

In addition, the company argues that the worker never testified that his current problems, including pain and swelling in his right knee and pain through his right leg, right hip, and lower back, were linked to his work-related accident. The company points out that the worker testified that his problems were caused by arthritis. Neither the worker nor Dr. Crotwell testified directly that the arthritis the worker suffered was a result of the work-related accident.

However, á reading of the worker’s testimony reveals that the worker testified that he had not suffered any knee problems or any of the pain he described in his leg and hip before the work-related injury. He answered, in response to the question whether his arthritis pain was related to the workplace injury, “Yeah. Because there wasn’t nothing wrong with me before I got hurt.” Dr. Crotwell did testify that the MCL tear was consistent with an accident like that in which the worker was injured; he assigned the worker an impairment rating based on the worker’s ACL tear, MCL tear, and the arthritis in his knee.

Our supreme court has explained that:

“[L]ay testimony may combine with medical testimony to supply th[e] requisite proof [of medical causation]; and that the medical testimony, when viewed in light of lay evidence, may amply sup-' port the medical causation element without the expert witness’s employing any requisite language. It is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test finds its application.”

Ex parte Price, 555 So.2d at 1063. Viewing the evidence in the light most favorable to the trial court’s judgment, see Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996), we cannot disagree with the trial court’s determination that the worker’s knee injury, including the MCL tear and the arthritis, was caused by the worker’s work-related accident. The MCL tear, according to Dr. Crotwell, was consistent with the type of accident the worker reported to him, as was the worker’s continued disability despite the surgeries and physical therapy. The worker testified that he had not suffered any problems with his knee or leg prior to the work-related accident.

Although we have determined that the trial court’s determination that the worker was entitled to benefits is supported by substantial evidence, we must reverse the award based upon the other arguments raised by the company. The judgment awarding the worker benefits for the total loss of use of his leg is not supported by substantial evidence; moreover, the trial court’s award exceeds the statutory cap, and the trial court erroneously failed to properly compute and deduct from the worker’s benefits the lump-sum attorney fee.

As the company argues, the trial court’s award of 200 weeks of benefits corresponds to the compensation awardable for the loss or loss of use of a leg. However, Dr. Crotwell assigned a 25% impairment rating to the worker’s right lower extremity and indicated that although the worker was restricted from excessive walking or standing, lifting more than 25 pounds, and excessive kneeling, squatting, twisting, turning, or torquing of his knee the worker was capable of working within those restrictions. Dr. Crotwell never testified that the worker had lost the entire use of his right leg.

The company correctly argues that an injury to a member that results in less than a total loss of use of the member is compensated “at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss.” Ala.Code 1975, § 25-5-57(a)(3)d. Thus, according to the company, the worker would not be entitled to 200 weeks of benefits, the amount of benefits awarded for the loss of or the loss of use of the entire leg pursuant to § 25-5-5(a)(3)a.l6, but would only be entitled to 25% of 200 weeks, the amount corresponding to the percentage of loss of use of the leg suffered by the worker. See Dowdell, 808 So.2d at 39-40 (affirming an award of 20% of the 43 weeks of benefits the schedule provided for the loss of an entire finger when the worker only lost, according to the trial court, 20% of the finger); hoggins v. Mallory Capacitor Co., 344 So.2d 522 (Ala.Civ.App.1977) (holding that a 40% impairment to the left leg entitled a worker to 70 weeks of benefits (at the time, the loss of a leg entitled a worker to 175 weeks of benefits)).

As the worker points out, a trial court is not necessarily bound by the impairment rating assigned by a worker’s doctor. Compass Bank v. Glidewell, 685 So.2d 739, 741 (Ala.Civ.App.1996). In Glidewell, this court affirmed a trial court’s assignment of a 34% impairment rating as opposed to a 22% impairment rating assigned by the worker’s doctor; in doing so, we held that a trial court, in determining a worker’s physical-disability rating, is not bound by the impairment rating assigned by the worker’s doctor. Glidewell, 685 So.2d at 741. The trial court in Glidewell explained in its judgment that it had observed the worker and had determined, based on that observation, that the worker had suffered a greater impairment than 22%. Id. In discussing its determination, the trial court in Glidewell noted that it was prohibited from considering vocational-disability testimony pursuant to Ala.Code 1975, § 25-5-57(i), because the worker had returned to work at the same or at a greater wage than he had earned before the injury. Id. We affirmed the trial court’s determination, stating that it was the trial court’s duty to determine the extent of a worker’s disability and that the trial court was permitted to consider all the evidence and its own observations in making that determination, provided that the trial court did not consider evidence of vocational disability when determining the worker’s physical-impairment rating. Id.

We conclude, however, that the evidence in this record is simply insufficient to support a conclusion that the worker has lost the use of his entire leg. The worker did testify that he suffers pain in his right knee, right leg, right hip, back, and left leg, and that he also has numbness in his right hand, presumably from his use of a cane. However, the worker did not say that he was unable to use his right leg; nor did he describe his pain as debilitating or testify that, because of his pain, he was unable to perform basic life activities or hobbies he once enjoyed. Likewise, Dr. Crotwell’s deposition testimony did not indicate that the worker’s injury had effectively rendered the worker’s entire leg useless. See Dowdell v. Vermont American Corp., 808 So.2d 36, 39 (Ala.Civ.App.2001) (“Thus, under Alabama law, compen sation for the loss of only part of a phalanx may be awarded as if the entire phalanx had been lost where the remaining part of that phalanx is, for all practical purposes, not usable.”); see also Ex parte Puritan Baking Co., 208 Ala. 373, 94 So. 347 (1922).

In addition, unlike the well-explained judgment in Glidewell, the judgment in the present case does not assign the worker any physical-impairment rating, does not mention the physical-impairment rating assigned by Dr. Crotwell, and does not indicate that observation of the worker had any impact on the determination of the physical-impairment- rating. Instead, the judgment focuses on what the trial court perceived to be the difficulty the worker will face in seeking vocational retraining. The judgment states that the worker is illiterate, can only write his name, cannot perform arithmetic, and has only a grammar-school education. It concludes that “based on the court’s findings of fact, the court finds that the [worker] is entitled to recover from the [company] for workers’ compensation benefits.” The company argues that these statements indicate that the trial court considered vocational disability in determining the worker’s physical-impairment rating, which is not an appropriate consideration in cases involving injuries to a scheduled member. See Ex parte Drummond Co., 837 So.2d 831, 834-35 & n. 8 (Ala.2002) (overruling those cases cited in note 8 that had held evidence of vocational disability permitted an injury to be compensated outside the schedule). If the trial court did allow the worker’s vocational disability to affect its determination of the worker’s physical-disability rating, the trial court erred.

The trial court’s award of 200 weeks of benefits is not supported by substantial evidence. Dr. Crotwell assigned a 25% physical-impairment rating to the worker’s right lower extremity. None of the testimony offered by the worker was sufficient to serve as a basis for a 100% physical-impairment rating. The trial court’s judgment made no mention of a physical-impairment rating, and the court appeared to focus on the worker’s vocational disability, which is not a permissible consideration in a case involving an injury to a scheduled member. Thus, we conclude that the trial court’s award of 200 weeks of benefits to the worker must be reversed. On remand, the trial court is instructed to award benefits based upon the percentage of loss of use of the right leg the worker’s injury has caused.

The company also argues that the trial court erred in awarding an amount of compensation that exceeds the statutory maximum of $220 per week. See Ala.Code 1975, § 25-5-68(a). Section 25-5-57(a)(3)f. clearly states that the compensation for the loss or loss of use of a scheduled member is subject to the statutory cap on weekly benefits as enumerated in § 25-5-68(a). The trial court awarded the worker $256.57 in weekly benefits. That amount is in excess of the statutory maximum and is in error. On remand, the trial court is instructed to make an award not to exceed the statutory maximum.

Finally, the company challenges the trial court’s award of a $7,697.10 attorney fee to the worker’s attorney. As the company correctly explains, the trial court was required to reduce the worker’s award to its present value, compute the 15% attorney fee, reduce the award by that fee, and then recompute the weekly amount due the worker. See Ex parte St. Regis Corp., 535 So.2d 160, 162 (Ala.1988). The trial court failed to properly compute the worker’s attorney fee. Therefore, on remand, the trial court is instructed to recompute the attorney fee based on the principles set out in Ex parte St. Regis Corp.

The worker cross-appeals, arguing that the trial court erred by determining that his injury did not extend to other parts of his body and, therefore, determining that it should not be compensated outside the schedule. He bases this argument on his testimony at trial that he suffers pain in other parts of his body. Our supreme court indicated recently that an injury involving debilitating pain may, in some circumstances, be a basis for compensating that injury outside of the schedule. See Ex parte Drummond Co., 837 So.2d at 836 n. 11. However, as we noted above, the testimony involving the worker’s pain was vague and undeveloped. The worker did not testify that the pain was debilitating, that it interfered with his daily activities, or that, despite medication, he continued to suffer severe pain. We do not read note 11 in ⅛ parte Drummond Co. as being a basis for this court to determine that the pain described by the worker in this case as accompanying his injury is alone sufficient to permit compensation outside the schedule. In fact, our supreme court in Ex parte Drummond Co. overruled cases that awarded compensation outside the schedule for “pain, swelling, and discoloration.” Id. at 834-35 & n. 5 (overruling A.M.R. Servs. v. Butler, 697 So.2d 472 (Ala.Civ.App.1997); Gold Kist, Inc. v. Casey, 495 So.2d 1129 (Ala.Civ.App. 1986); Republic Steel Corp. v. Kimbrell, 370 So.2d 294 (Ala.Civ.App.1979); and Richardson Homes Corp. v. Shelton, 336 So.2d 1367 (Ala.Civ.App.1976)). Accordingly, we affirm the trial court’s determination that the worker’s injury was to a scheduled member and did not extend to other parts of his body.

APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CROSS-APPEAL — AFFIRMED.

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


source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    Thomas W. ALLEN and Jean K. Allen v. Yvonnda STEPHENS.
    2020363.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.
    Roderick K. Nelson and Taffi S. Stewart of Spain & Gillon, L.L.C., Birmingham, for appellants.
    William S. Halsey III, Birmingham, for appellee.
   YATES, Presiding Judge.

Yvonnda Stephens sued Thomas W. Allen and his wife, Jean K. Allen, on September 5, 2000, alleging negligence and wantonness and seeking to recover damages for injuries she sustained while on the premises of certain real property owned by the Allens and leased to their son, Fred Allen. The Allens answered on October 24, 2000.

On April 16, 2001, the Allens moved for a summary judgment, which the trial court denied on December 5, 2001. The Allens renewed their motion for a summary judgment on May 10, 2002; the trial court denied the renewed motion for a summary judgment on June 24, 2002.

On June 12, 2001, Stephens amended her complaint to add Fred Allen and his roommate, Jeffrey Cullifer, as defendants. Cullifer did not answer the complaint, and a default judgment was entered against him on November 20, 2001.

The case proceeded to trial against the Alens and their son Fred. At the close of Stephens’s case, the Allens moved for a preverdict judgment as a matter of law (“JML”) as to both the negligence claim and the wantonness claim. The trial court granted the motion as to the wantonness claim, but it denied the motion as to the negligence claim. The Alens renewed their motion for a preverdict JML at the close of all the evidence, which the trial court denied. On October 3, 2002, the jury returned a verdict in favor of Stephens and against the Allens and Fred in the amount of $15,800. The trial court entered a judgment on the verdict on October 7, 2002. On November 4, 2002, the Allens moved the court for a postverdict JML, or, in the alternative, for a new trial. The trial court denied the Allens’ postjudgment motion on October 19, 2002; the Allens appeal.

The Allens argue on appeal that the trial court erred in denying their motion for a JML. The standard of review for a motion for a JML, under the current version of Rule 50, Ala. R. Civ. P., is the same as the standard for review of a motion for a directed verdict and a motion for a JNOV under Rule 50 as it read before the October 1, 1995, amendment. See Montgomery Coca-Cola Bottling Co., Ltd. v. Golson, 725 So.2d 996 (Ala.Civ.App.1998).

Our supreme court has stated:

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830 (Ala.1999).

The evidence, when viewed in a light most favorable to Stephens, indicates the following: The Allens purchased a house located at 3529 Eighth Avenue South in Birmingham in January 1997. Before purchasing the house, the Allens inspected it and determined that certain repairs needed to be made to the house. The Allens repaired the roof, the gutters, and the back porch, and they also painted the house. The house has a concrete driveway that leads from the street to the rear of the house. The driveway is on a slight upgrade. Approximately halfway up the driveway, and on the right side of the driveway as you face the house from the street, the concrete is cracked and uneven with an elevation change of approximately three to five inches.

The Allens leased the house to their son Fred in February 1997. The crack in the driveway existed at the time the Allens purchased the house, and the Allens and Fred were aware of the crack at the time they entered into the lease agreement. The term of the lease was from February 1, 1997, to February 1, 1999; Fred was required to pay the Allens $600 per month under the terms of the lease. The lease agreement contained the following provision:

“12. Maintenance and Repair. Lessee will, at his sole expense, keep and maintain the leased premises and appurtenances in good and sanitary condition and repair during the term of this lease and any renewal thereof. In particular, Lessee shall keep the fixtures in the house or on or about the leased premises in good order and repair; keep the furnace clean; keep the electric bells in order; keep the walks free from dirt and debris; and, at his sole expense, shall make all required repairs to the plumbing, range, heating, apparatus, and electric and gas fixtures whenever damage thereto shall have resulted from Lessee’s misuse, waste, or neglect or that of his employee, family, agent, or visitor. Major maintenance and repair of the leased premises, not due to Lessee’s misuse, waste, or neglect or that of his employee, family, agent, or visitor, shall be the responsibility of Lessor or his assigns. Lessee agrees that no signs shall be placed or painting done on or about the leased premises by Lessee or at his direction without the prior written consent of Lessor.”

Jean and Fred both testified at the trial that it was the Allens who were responsible for doing any “major repairs” to the premises. Fred never requested that the driveway be repaired, and the Allens never undertook to repair the driveway. After the term of the lease expired, Fred began leasing the house from the Allens on a “month-to-month” basis.

In May 1999, Cullifer moved into the house with Fred. Fred and Cullifer decided to have a yard sale on May 27, 2000. The items sold in the yard sale belonged to Fred and Cullifer. The Allens sold no property in the yard sale and derived no benefit from it. Fred and Cullifer did not ask the Allens for permission before having the yard sale, and the Allens had no knowledge of the yard sale until approximately seven days after it had occurred. Fred advertised the yard sale by placing an ad in the newspaper and by posting signs in the neighborhood.

Kenneth Tinsley, who was Stephens’s boyfriend at the time, attended the yard sale on the morning of May 27, 2000, and noticed a sofa that he thought Stephens might be interested in purchasing. Tins-ley returned to the yard sale with Stephens in the early afternoon so that Stephens could look at the sofa. Stephens wore clogs with no heel straps to the yard sale. Stephens and Tinsley parked on the street and walked up the left side of the driveway to the rear of the house. Stephens testified that two vehicles were parked in the driveway as they approached the house. The left side of the driveway is relatively smooth and even. The right side of the driveway, which as stated above is cracked and uneven, was obscured from the view of Stephens and Tinsley by the vehicles parked in the driveway. Stephens and Tinsley met Cullifer at the rear of the house, negotiated the purchase of the sofa, and began walking back down the right side of the driveway towards their vehicle. Stephens and Tinsley were escorted down the driveway by Cullifer. Stephens testified that she stepped on the cracked, uneven portion of the driveway and fell, breaking her foot. She stated that she was not looking down; rather, she was looking “straight ahead” when she fell.

Both Stephens and Tinsley testified that they immediately observed the cracked, uneven portion of the driveway after Stephens fell. Stephens testified that the cracked, uneven portion of the driveway was not obscured by leaves and debris. She further stated that, although the area of the driveway where she fell was covered in the shadows of an automobile and an adjacent tree, those shadows did not hide the condition of the driveway. However, both Stephens and Tinsley stated that the crack in the driveway was not noticeable and that the driveway would have appeared level to someone walking down it from the house toward the street. Photographs contained in the record indicate that the condition of the driveway is readily noticeable to someone viewing the driveway from the street; however, the photographs also indicate that the cracked, uneven portion of the driveway is substantially less noticeable to someone viewing the driveway from the house.

The rule with regard to landlord liability for injuries sustained as a result of defects on the premises owned by the landlord was discussed by our supreme court in Uhlig v. Moore, 265 Ala. 646, 93 So.2d 490 (1957). Our supreme court stated:

“There are two general rules concerning the liability of a landlord in cases of this type. Each is stated in our leading case on this subject, Morgan v. Sheppard, 156 Ala. 408, 47 So. 147, 148 [ (1908) ]. First, the rule as to third persons generally, or strangers, is:
“ ‘... When, however, the premises are out of repair at the time of letting, in particulars which the landlord is bound as regards third persons not to allow, the landlord is liable for injuries sustained by a third person from such want of repair. The reason for the rule seems to be that in such a case the dangerous condition of the premises constitutes a nuisance, and the liability of the landlord results from his leasing premises upon which a nuisance exists.... ’
“This rule does not apply as to the tenant, his servants, guests, or others entering under his title. As to them, in the absence of a covenant to repair, or keep in repair, the landlord is only liable for injuries resulting from latent defects, known to him at the time of the leasing, and which he conceals from the tenant. Morgan v. Sheppard, supra.”

Uhlig, 265 Ala. at 649, 93 So.2d at 492. The supreme court has further commented on the applicable law as follows:

“In Anderson v. Robinson[, 182 Ala. 615, 62 So. 512 (1913),] this court stated:
“ ‘In the case of Morgan v. Sheppard, 156 Ala. 403, 47 So. 147 [ (1908) ], this court by the present writer, discussed the obligation and liability between landlord and tenant, their duties and liability to each other as well as to third persons, and it was there stated, among other things, in speaking of the liability of a landlord for injuries caused by defects in the premises to the tenant, his family, servants, or guests, as distinguished from third persons: “The rule, however, of the liability of the landlord for renting premises in such a dangerous condition as to constitute a nuisance, does not exist in favor of the tenant, his servants, guests, or others entering under his title.... As to them, in the absence of a covenant to repair, he is only liable for injuries resulting from latent defects, known to him at the time of the leasing, and which he conceals from the tenant.... If the defect is obvious at the time of the letting, the tenant takes possession of the premises as he found them, and the landlord would not be liable for injuries resulting from said obvious defects to the tenant, his family, servants, or guests.” It may be true that in stating the rule we were overcautious in confining it to cases in which there was no covenant to repair, but we did not hold that such a covenant would change the rule of liability, and expressly pretermitted the question further on in the opinion in dealing with count four of the complaint in said case. In the case at bar, however, some of the counts set up a covenant to repair when the lease was made and as a part of the consideration of same, but it seems from the great weight of authority that said covenant does not increase the liability of the landlord or change the rule above set forth as to his liability in tort to the tenant, his family, servants, or guests for injuries caused by virtue of defects in the rented premises. In other words, it seems settled by the weight of authority that the landlord is not liable in tort for injuries to said class, whether there be a covenant to repair or not, unless the defects existed at the time of the letting, were known to him, and which he concealed from the tenant.... ’
“... Anderson extended Morgan to hold that a landlord cannot be liable to a tenant, his family, servants or guests for injuries caused by virtue of defects in the rented premises unless the defects were in existence at the time of the letting, were known to the landlord, and concealed from the tenant.”

Cohran v. Boothby Realty Co., 379 So.2d 561, 563-64 (Ala.1980).

The caselaw clearly creates two potential classes of plaintiffs and corresponding duties of the landowner to those classes of plaintiffs: (1) a landowner will be liable to third persons or strangers injured upon the premises by a defect that existed at the time of the lease;, and (2) a landowner will be liable to the “tenant, his servants, guests, or others entering under [the tenant’s] title” for injuries caused by latent defects existing on the premises at the time of leasing that are known to the landlord and that he conceals from the tenant. Uhlig, 265 Ala. at 649, 93 So.2d at 492. Accordingly, the inquiry to be made is whether Stephens was a “third person” or “stranger” upon the land owned by the Allens and leased to Fred on the day of the incident, or whether she was a “servant, guest, or other” entering the premises under Fred’s title on the day she was injured.

Relying upon Great Atlantic & Pacific Tea Co. v. Traylor, 239 Ala. 497, 195 So. 724 (1940), Stephens argues that because she had never previously been on the premises where the incident occurred she was a “stranger” or “third person” and that the Allens were liable to her because they leased the premises to Fred with the driveway being in a state of disrepair. Stephens’s reliance upon Traylor is misplaced. In Traylor, Great Atlantic & Pacific Tea Co. (“Great Atlantic”) owned a building in which it operated a grocery store. Great Atlantic leased a portion of the building to a tenant for use as a meat market. Great Atlantic and the owner of the meat market had no business affiliation and shared no financial interests. Great Atlantic owned a sign advertising its business, which extended across the sidewalk. Great Atlantic agreed to allow the tenant to attach a sign advertising the meat market to the bottom of its sign advertising the grocery store. A pedestrian walking along the sidewalk was injured when the tenant’s meat market sign fell. The evidence indicated that the sign fell because the frame on Great Atlantic’s grocery sign, to which the meat market sign was attached, had partially decayed. Applying the rale that a landlord will be liable to a third person for injuries suffered that were caused by dangerous conditions existing upon the premises at the time of the lease, our supreme court affirmed a judgment in favor of the pedestrian and against Great Atlantic. Traylor, supra. In overruling Great Atlantic’s application for a rehearing, the supreme court stated:

“The case of Morgan v. Sheppard, 156 Ala. 403, 407, 47 So. 147 [ (1908) ], brings out clearly the distinction in the duty of a landlord to the tenant, his family, employees and customers on the one hand, and to strangers to them both on the other. And so do the authorities generally hold. Liability to the tenant and his privies is on one principle ... and to strangers on another.”

Traylor, 239 Ala. at 501, 195 So. at 727. The supreme court apparently treated the pedestrian walking along the sidewalk as a stranger or third person because he was not the tenant’s family member, employee, or customer, and it concluded that Great Atlantic was liable to him because the premises contained a dangerous condition at the time it was leased to the tenant. Traylor, supra.

Unlike the pedestrian in Traylor, Stephens was a customer or business invitee of Fred’s because she was on the premises to confer a material and commercial benefit upon him, i.e., she attended a yard sale to inquire about and ultimately purchase a sofa from Fred. See Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158 (Ala.1997). Therefore, she entered the premises under Fred’s title and the Allens can be liable to her only for her injuries resulting from latent defects that were known to them at the time of the leasing and that they concealed from Fred. Uhlig, supra. The evidence indicates that both the Allens and Fred were aware of the condition of the driveway at the time they entered into the lease agreement. No evidence was presented that indicates that the Allens endeavored to conceal the condition of the driveway from Fred at the time of the lease. Accordingly, we conclude that the trial court erred in not granting the Allens’ motion for a JML. We therefore reverse the judgment and remand the case for the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

      . At the time the incident giving rise to the complaint occurred, Stephens was unmarried. Stephens later married Kenneth Tins-ley, a witness to the incident, and changed her name to Yvonnda Stephens Tinsley. Because the pleadings and the notice of appeal use Stephens's maiden name, we will refer to her as "Stephens.”

      . Fred Allen elected to proceed pro se.

      . Fred Allen is not a party to this appeal.

      . That October 1, 1995, amendment to Rule 50 changed the terminology relating to what had been known as a "motion for a directed verdict” and a "motion for a judgment notwithstanding the verdict.”

      .References to the right side or the left side of the driveway will be made as if the reader is standing in the street and facing the house.


author: PITTMAN, Judge.

text:
    Virginia R. TRAVIS v. Francis Edwin TRAVIS.
    2020566.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.

      Benjamin E. Pool, Montgomery, for appellant.
   PITTMAN, Judge.

Virginia R. Travis (“the former wife”) appeals from an amended judgment of divorce entered on remand after the trial court’s original judgment had been reversed by this court. The former wife and Francis Edwin Travis (“the former husband”) were divorced on January 10, 2002, after a marriage of nearly 18 years. This court previously related the facts in this case and discussed the applicable law in Travis v. Travis, 849 So.2d 177 (Ala.Civ.App.2002) (^‘Travis I ”).

On remand, the trial court held an ore tenus proceeding on February 12, 2003. On the same date, the trial court made an entry on the case action summary sheet awarding the former wife 25% of the former husband’s future stock options and reserving the issue of periodic alimony. The former wife filed a timely appeal from that judgment. Subsequently, the former wife requested leave from this court to file a Rule 60(b), Ala. R. Civ. P., motion in the trial court; that motion was granted. On April 14, 2003, the former wife filed her Rule 60(b) motion; that motion was denied two days later.

The former wife now raises one central issue: whether the trial court’s amended judgment fully complies with this court’s opinion in Travis I. “The issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues.” Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (citing Murphree v. Murphree, 600 So.2d 301 (Ala.Civ.App.1992)). Moreover, on remand, “ ‘the trial court’s duty is to comply with the appellate mandate “according to its true intent and meaning, as determined by the directions given by the reviewing court.” ’ ” Ex parte Jones, 774 So.2d 607, 608 (Ala.Civ.App.2000) (quoting Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala. Civ.App.1983), quoting in turn Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983)).

In Travis I, this court concluded that “the combination of the wife’s low income and lack of assets together with the trial court’s failure to award alimony renders the judgment inequitable.” 849 So.2d at 182. That conclusion was based, in part, on the disparity between the former husband’s and the former wife’s salaries and on the fact that the former wife had been ordered to pay the outstanding mortgage debt, all annual property taxes and insurance premiums, and any upkeep costs for the marital residence until the youngest child reaches the age of 19. We do not consider the award to the former wife of 25% of the former husband’s future stock options (options that his employer offered in lieu of retirement benefits) to be a sufficient award of an asset to overcome the former wife’s present need for alimony.

Generally, “ ‘[wjhen the mandate is not clear, the opinion of the court should be consulted.’ ” Ex parte Jones, 774 So.2d at 608 (quoting Walker, 441 So.2d at 982). We recognize, however, that the opinion in Travis I failed to give specific instructions to the trial court. While the trial court, on remand, awarded the former wife a quarter of the former husband’s future stock options, that award does nothing to assist the former wife in meeting her present monthly expenses. At the time of the divorce, the parties possessed only one substantial asset, the marital residence, which the trial court ordered to be sold at the time the youngest child reaches age 19; that asset, therefore, is also of no immediate benefit to the former wife in meeting her current expenses. The inequity in the divorce judgment that we determined to exist in Travis I cannot be overcome by a mere award of stock options and a reservation of jurisdiction to award periodic alimony.

. Because of the former wife’s lack of present assets with which to pay her monthly expenses, some of which the trial court itself imposed, we conclude that the former wife is entitled to an award of periodic alimony under the facts and circumstances of this case. See, e.g., Russell v. Russell, 844 So.2d 1215 (Ala.Civ.App.2002). As to that issue, the judgment is reversed and the cause is remanded for the trial court to award the former wife an equitable amount of periodic alimony.

The former wife argues that the trial court erred in failing to award her an attorney fee. Alabama caselaw is clear that “[t]he award of an attorney fee in a divorce case is within the sound discretion of the trial court and will not be reversed except for an abuse of discretion.” Brasfield v. Brasfield, 679 So.2d 1091, 1095 (Ala.Civ.App.1996); see also Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). Nevertheless, it is also well settled that “in determining whether to award an attorney fee, the trial court should consider the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation.” Grice v. Grice, 673 So.2d 772, 776 (Ala.Civ.App.1995). As noted in Travis I, the former wife alleged and attempted to prove adultery on the part of the former husband; the trial court specifically found that there was “ ‘insufficient evidence of adultery’ ” and granted the divorce on incompatibility grounds. 849 So.2d at 181. Because the trial court determined that the parties should be divorced with no fault apportioned as to the breakdown of the relationship, we cannot say that requiring each party to be responsible for his or her own attorney fee was error on the part of the trial court.

Reviewing this case in light of the factors set forth in Grice, we conclude that the trial court did not abuse its discretion when it declined to award the wife an attorney fee. The former wife’s request for an award of an attorney fee on appeal is granted in the amount of $1,000.

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

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


author: THOMPSON, Judge.

text:
    B.S.L. v. S.E.
    2020569.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.

      Jay M. Ross and Betsy M. Turner of Ross & Jordan, P.C., Mobile, for appellant.
    Alvin F. Harris, Sr., of Lane & Harris, Saraland; and V. A1 Pennington, Mobile, for appellee.
   THOMPSON, Judge.

This is the third time these parties have been before this court. B.S.L. (“the mother”) and S.E. (“the father”) have one child, S.D.E. (“the child”), who was born June 11, 1993. The relevant history of this case is set forth in this court’s opinion on the second appeal concerning these parties:
“The parties never married. At the time of the [January and May 2001] hearing[s] in this matter, the child was seven years old. On June 29, 1994, the trial court issued an order, based on the agreement of the parties, establishing the father’s paternity, awarding the mother primary custody of the child, awarding the father reasonable visitation, and ordering the father to pay child support.
“On May 19, 1999, the father filed a motion seeking immediate custody of the child. The trial court denied that motion and, treating the motion as one for a determination of dependency of the child, set a hearing for July 19, 1999. The trial court then entered an order postponing the July hearing, granting the father pendente lite custody of the child, and granting the mother visitation. On February 18, 2000, the parties entered into an agreement expanding the mother’s visitation, pending a final hearing. On January 23, 2001, May 8, 2001, and May 9, 2001, the trial court held hearings and received ore tenus evidence (hereinafter referred to as ‘the hearings’). On May 16, 2001, the trial court entered a judgment in which, among other things, it awarded custody of the child to the father. The trial court’s May 16, 2001, judgment did not find the child to be dependent. The mother appealed. B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App.2002) (‘B.S.L. I’).
“In its May 16, 2001, judgment, the trial court made a number of specific findings of fact. Among those findings of fact, the trial court found that the standard set forth in Ex parte McLendon, 455 So.2d 868 (Ala.1984), did not apply to the case; that the mother, by her own admission, was not a fit parent at the time the father filed his May 19, 1999, petition for a modification of custody; and that at the time of the hearings, both parents were fit and proper parents. The trial court’s May 16, 2001, order states that the trial court ‘specifically reject[ed] joint legal custody as a result of the evidence which [was] presented which show[ed] a great deal of animosity between the parties and an unwillingness to compromise or set aside petty disputes.’
“In B.S.L. I, this court concluded that the hearings related to the issue of custody rather than to the issue of dependency, and, thus, the trial court should have applied the appropriate custody standard. B.S.L. I, 826 So.2d at 892. Because the mother had been awarded primary custody in the trial court’s June 29, 1994, order, this court concluded that the standard set forth in Ex parte McLendon, supra, was the appropriate standard to apply to the facts of the case. B.S.L. I, 826 So.2d at 892. Thus, this court concluded in B.S.L. I that the trial court in its May 16, 2001, judgment erred in applying the best-interest standard rather than the more stringent standard set forth in Ex parte McLendon, supra, in modifying its custody order as it relates to the child. This court reversed the trial court’s May 16, 2001, judgment and remanded the case for the trial court to apply the McLendon standard to the facts of the case. B.S.L. I, 826 So.2d at 892. On remand, the trial court, on April 4, 2002, entered an order finding that the father had met the standard set forth in Ex parte McLendon, supra, awarding custody of the child to the father, awarding the mother standard visitation, and ordering the mother to pay child support of $227 per month. The mother appealed].
“The trial court’s judgment based on evidence received ore tenus is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Ex parte Byars, 794 So.2d 345 (Ala.2001); Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This ‘presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.’ Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). However, when a trial court improperly applies the law to the facts, the trial court’s judgment is not entitled to a presumption of correctness on appeal. Laminack v. Laminack, 675 So.2d 479 (Ala.Civ.App.1996).
“The trial court’s April 4, 2002, order states, in pertinent part:
“ ‘2. The court does find that circumstances changed from the rendition of [the] order on June 29, 1994, until the filing date of the petition for change of custody filed by the father herein on May 19, 1999, in that, the mother became unfit and at the time of the filing of this petition, May 19, 1999, she was an unfit parent due to her chronic addiction to, and abuse of, alcohol and drugs.
“‘3. The court does find further changed circumstances, in that, the child’s custody was awarded pendente lite to the father pending final hearing herein for a period well in excess of two (2) years, and that the child bonded with the father during that time.
‘“4. On the basis of all the evidence presented, and the changed circumstances found by the court, the court does find that it would materially promote the best interest of the child if her custody was awarded to her father, and that said change and the benefits therefrom far outweigh any inherent disruption as a result of change in custody and, therefore, it is in the best interest of the child that custody be awarded to the father.
“ ‘5. The court does further find that because of the length of time the child lived with the father under the pendente lite order, the inherent disruption presumed by law, in fact, does not exist in these circumstances.’ ”

B.S.L. v. S.E., 849 So.2d 182, 183-85 (Ala.Civ.App.2002) (plurality opinion) (“B.S.L. II”).

In B.S.L. II, the mother argued that the trial court erred in finding that the length of time the child had been in the father’s custody pursuant to the trial court’s pen-dente lite custody order relieved the father of his obligation to demonstrate, pursuant to the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), that the benefits o'f the proposed change in custody would outweigh the disruptive effects of that change. This court agreed with the mother’s argument, finding that the award of pendente lite custody to the father did not alleviate his burden of presenting sufficient evidence to warrant a change of custody under the standard set forth in Ex parte McLendon, supra. B.S.L. II, supra. See also B.S.L. v. S.E., 826 So.2d 890, 893 n. 1 (Ala.Civ.App.2002)(“B.S.L. I ”)(“a pendente lite custody order does not shift the burden of proving the custody-modification standard set forth in McLendon from the father”). Therefore, this court reversed the trial court’s judgment and remanded the case for the trial court to properly apply the standard set forth in Ex parte McLendon. B.S.L. II, supra.

On remand, the trial court entered a judgment on March 12, 2003, that, among other things, again awarded custody to the father. In that judgment, the trial court determined that a change in custody would serve the child’s best interests and that the benefits of the change in custody would offset the inherent disruption caused by the custody change.. The mother timely appealed.

This court granted the mother’s motion to incorporate the records from the previous two appeals into the record for this third appeal. The record, as it currently exists on appeal in this matter, indicates the following. The mother was 37 years old at the time of the 2001 hearings in this matter. The mother had three children and had been married twice. The mother’s first marriage was to G.S.; that marriage lasted from 1983 until 1987. The mother and G.S. had one child, A.S., who was fourteen years old at the time of the hearings in this matter. The mother testified that, following her marriage to G.S., she was involved in a relationship with S.S. from 1989 until 1991. One child, L.L., was born of the mother’s relationship with S.S.; L.L. was 8 years old at the time of the hearings in this matter.

The mother and father’s relationship was brief. The mother and the father began living together in the spring of 1992. The parties separated in early 1993; at that time, the mother was approximately four months pregnant with the child. The child was born after the dissolution of the parties’ relationship. The mother married J.L. in August 1995. The mother and J.L. had been married six years at the time of the hearings in this matter. The mother testified that J.L. adopted L.L. in 1997.

The mother testified that the father was physically and verbally abusive during the time the parties lived together. The father admitted that on one occasion he punched a hole in the wall of the parties’ apartment during an argument with the mother. The mother testified that the father would often have his friends over to the parties’ apartment to play poker and that during that time he would drink alcohol and smoke marijuana. The mother testified that the father drank to excess during the time the parties lived together. According to the mother, she drank alcohol on occasion during the time the parties lived together but she never became intoxicated. The mother stated that she and the father often argued about his behavior.

Two of the father’s friends testified on the father’s behalf. One friend testified that he had visited with the father and the mother two or three times during the time they lived together and that he had never observed the father use illegal drugs, smoke, drink alcohol, play card games, or lose his temper. The other friend testified that he visited the parties’ apartment 15 to 20 times while the parties lived together and that he also had never obseryed the father use illegal drugs, smoke, drink alcohol, or physically or verbally abuse the mother or her children.

The child was born on June 11, 1993, following the parties’ separation. The mother testified that from the time of the parties’ separation until the child was eight months old the father was not involved in the child’s life. The mother testified that when the child was eight months old she left a picture of the child with one of the father’s friends and that after that the father contacted her. The trial court’s June 29, 1994, order awarded the father four weeks of summer visitation, one week of Christmas visitation, and alternate weekend visitation with the child. The mother testified that from June 1994 until June 1999 the father exercised only his alternate weekend visitation.

The mother testified that she and her current husband own their own home and that, at the time of the hearings, they had lived in the same residence for seven years. The mother testified that from 1997 until August 1999 she owned and operated her own cleaning business. The mother testified that, at the time of the hearing, she was working full-time for an electrical-supply company earning $9 per hour.

The mother admitted that for a time she had had some involvement with illegal drugs. She testified that she first tried cocaine in October 1998. The mother stated that from October 1998 until May 1999 she used cocaine six or seven times. The mother testified that she hid her drug and alcohol use from her friends and family. The mother testified that on the occasions that she used cocaine the children were with J.L. or the maternal grandmother. The mother testified that she would drive into the woods at night alone when she used cocaine. The mother stated that her cleaning business required her to work at night and that when she left her home in order to use cocaine she would tell J.L. that she was going to work.

The mother testified that in May 1999 she became aware that she suffered from a cocaine and alcohol addiction. According to the mother, in May 1999, before she received the father’s May 19, 1999, petition to modify custody of the child, she contacted the Mobile Infirmary regarding treatment for her addiction, but the hospital would not accept her health insurance. The mother testified that she voluntarily entered the Bradford Parkside facility in Birmingham (hereinafter “Bradford”) on June 25, 1999, in order to seek treatment for her drug and alcohol addiction. The mother testified that the inpatient program at Bradford lasted three weeks; that she completed the program in July 1999; and that she remained in an outpatient aftercare program at the time of the hearings in this matter.

The mother testified that one week before she entered Bradford, she contacted the father and asked if he would keep the child while she sought treatment. The mother testified that she and the father agreed that the father would return the child to the mother when she completed her three-week inpatient treatment at Bradford. The father acknowledged that around June 25, 1999, he agreed to care for the child while the mother sought treatment and to return the child to the mother when she returned from the three-week'inpatient program. The father admitted, however, that he failed to honor his agreement with the mother by not returning the child to her.

The mother stated that she has not used drugs or consumed alcohol since her treatment at Bradford. The mother testified that while at Bradford she was diagnosed with bipolar disorder and that she takes lithium and Remeron to treat that disorder. The mother testified that, since completing her inpatient treatment at Bradford, she has participated in Alcoholics Anonymous meetings and Cocaine Anonymous meetings, that she visits a psychiatrist once per month, and that she submits to random drug testing. The mother also testified that she currently acts as a sponsor to other individuals who are entering recovery at Bradford and that she speaks with both the families of individuals battling drug and alcohol addictions and the individuals themselves.

Dr. James Suess, a clinical psychologist who, at the time of the hearings, had practiced for 23 years, testified on behalf of the mother. Dr. Suess testified that he first had contact with the mother in October 1999, following her treatment at Bradford. Dr. Suess stated that he had a total of 17 counseling sessions with the mother, five sessions with the child, and a few sessions with the mother’s other two children and J.L. Dr. Suess testified that the mother never missed a counseling appointment with him.-

Dr. Suess testified extensively regarding the numerous tests he performed on the mother and his conclusions regarding those tests. Dr. Suess testified that, after performing the tests, he concluded that the mother did not have an addictive personality, but that she had been “medicating a bipolar disorder with drugs and alcohol.” Dr. Suess opined that as long as the mother kept taking her medication and maintained contact with her mental-health counselors the mother’s bipolar disorder would not affect her ability to properly parent the child.

Dr. Suess testified that the tests indicated that the mother had an average to high fluid IQ, that she acknowledged her drug and alcohol problem, and that she did not show signs of depression. Dr. Suess stated that, overall, the tests indicated that the mother was a dedicated mother who was aware that she had made mistakes. According to Dr. Suess, the mother was a fit and proper parent to have primary custody of the child.

Anthony Washington, the director of adult outpatient treatment at Bradford, testified on behalf of the mother. Washington stated that he began working with the mother on July 19, 1999, when she entered Bradford’s aftercare group program. Washington testified that the aftercare group meets one evening per week for one and one-half hours, that he had worked with the mother for nearly two years, and that the mother had rarely missed a meeting. Washington testified that when she did have to miss a meeting the mother called and notified Bradford in advance. Washington stated that to his knowledge the mother had not used alcohol or drugs since her inpatient treatment at Bradford. Washington confirmed that, during the time he worked with the mother, she had voluntarily spoken with other Bradford patients about her addiction and her recovery.

The mother testified that the child had always made all A’s in school. The mother entered copies of awards the child received for scholastic achievement from 1997 until the time of the hearings. The mother testified that while she had custody of the child she appropriately cared for the child and assisted the child with her homework. The mother testified that the father had not informed her of the child’s school activities from July 1999 until the time of the hearings. The mother testified that she initiated contact with one of the child’s teachers and that she receives information about the child’s grades, conduct, and progress in school from that teacher. According to the mother, she had experienced difficulties exercising visitation while the father had pendente lite custody of the child.

A.S., the child’s half sister, testified at the hearings. A.S. testified that she was 14 years old, that she was in the ninth grade, and that she made all A’s and B’s in school. According to A.S., she was six or seven years old during the time the mother and the father lived together. A.S. testified that while the parties lived together the father lost his temper and raised his voice at the mother. She also stated that she had observed the father while he was intoxicated and that he drank to excess primarily on the weekends. A.S. testified that on one occasion she observed the father punch a hole in the wall of the parties’ apartment when he became upset with the mother. A.S. stated that on another occasion the father became upset and threw L.L.’s and her toys and L.L.’s playpen out of the apartment and that that event had frightened her.

A.S. testified that, even before the mother entered Bradford, the mother cared for the children appropriately. According to A.S., the mother washed their clothes, helped them with their homework, and was involved in their school activities. A.S. testified that until the mother informed her she was not aware that the mother had suffered from an alcohol and drug addiction. A.S. also testified that she had not observed her mother consume any alcohol since she had returned from Bradford. AS. stated that when they were at their mother’s house she and the child watched movies together and that she would read books to the child. A.S. testified that the child was happy when she visited with the mother and that sometimes the child would cry when she had to return to the father.

G.S., the mother’s former husband, testified that the mother was a good mother. G.S. testified that during his marriage to the mother he had observed the mother consume alcohol but that he had never seen the mother become intoxicated.

V.L., a business acquaintance of the father’s, testified that he attended a New Year’s Eve party (hereinafter “the party”) on December 31, 2000, and that the mother was present at the party. According to Y.L., he did not know the mother’s identity until the father, who was also present at the party, pointed her out to him. V.L. testified that at the party he observed the mother sitting at a large table with a group of friends and that he was seated two tables away from the mother. V.L. testified that during the party he observed the mother with a Miller Lite beer can in her hand and that he observed her take one drink out of the can. V.L. did not see the mother consume any other alcohol during the evening. V.L. testified that during the party he had a brief, two-minute conversation with the mother. V.L. stated that he could smell alcohol when he was standing near the mother and her friends and that he thought the mother was intoxicated. V.L. admitted that he had also consumed alcohol during that evening.

V.L. testified that he had a camcorder with him during the party and that he filmed the mother and her friends for a few minutes. V.L. testified that the videotape he recorded during the party did not depict the mother consuming alcohol. V.L. explained that he did not videotape the mother taking the drink of beer because the battery on his camcorder had died. V.L. testified that he no longer had the videotape that depicted the party. According to V.L., the week before he testified at the hearings he gave the videotape to the father.

The father testified that he also attended the party. The father testified that he watched the mother during the night of the party and that he never observed her consume any alcohol. According to the father, he had V.L.’s videotape and that the videotape did not depict the mother consuming alcohol. The father did not attempt to enter the videotape into evidence at the hearings.

Five friends of the mother’s testified on her behalf; those individuals’ friendships with the mother varied in length between 2 and 12 years. Four of the mother’s friends testified that they had attended the party and that they were seated at the same table with the mother during the party. All four individuals testified that the mother did not consume any alcoholic beverages during the evening, that she consumed only a soda and sparkling grape juice, and that she was the designated driver for the evening. Four of the mother’s friends testified that on the occasions that they socialized with the mother during their friendship, they had never observed the mother intoxicated or drinking excessively. The friends stated that they had not observed the mother consume any alcohol since she had completed her treatment at Bradford.

J.L., the mother’s current husband, testified that the mother had not used drugs or consumed alcohol since she was released from Bradford. J.L. stated that the mother did not consume any alcohol at the party.

The father testified that he had worked for the same employer for one year and eight months and that he generally worked 50 hours per week. The father testified that he married K.E., his current wife, on January 28, 2000, and that, at the time of the hearings, he and K.E. were expecting a child. The father stated that K.E. also had a four-year-old son from a previous marriage. According to the father, at the time of the hearings in this matter, he, K.E., her four-year-old son, and the child lived together in a mobile home. The father testified that the child has her own bedroom in the mobile home.

The father stated that he was involved in the child’s school activities. The father testified that during the time he has had custody of the child the paternal grandmother has taken the child to and retrieved her from school. The father explained that he picks the child up from the paternal grandmother’s house when he has finished work.

The father admitted that while the child was in his custody the child did not wear a helmet when she rode her bicycle and that she only sometimes wore a helmet when she rode an all-terrain vehicle (“ATV”). The father testified that on one occasion the child fell off the ATV while the ATV was being driven by the neighbor’s 14-year-old son; the father stated that the child was not wearing a helmet on that occasion. The father testified that the child was no longer allowed to ride the ATV unless the father was driving.

The father testified that the mother exercised all of her court-ordered visitation during the pendency of his petition and that she always timely returned the child following her exercise of visitation. The father stated that the mother loved the child but that he did not think that the mother should have primary custody of the child because, by her own admission, she had suffered from a drug and alcohol addiction and because V.L. had observed her take a drink of a. beer at the party. According to the father, at the time of the hearings, he did not have a problem with the mother having custody of the child; however, the father stated, he was worried that the mother would return to using drugs in the future. The father admitted to drinking alcohol, but he stated that he does not drink to excess.

The maternal grandmother testified that the mother and the child love one another and that the mother and the child have a good relationship. The maternal grandmother testified that the child has a good relationship with J.L., the child’s stepfather, and with A.S. and L.L., the child’s half sisters. According to the maternal grandmother, a few months before the hearings she observed a photograph of the child and the father. The maternal grandmother testified that there was a dead deer in the background of the photograph and that the child had blood smeared on her cheeks. The maternal grandmother testified that she questioned the child about the incident and that the child told her that she did not enjoy the incident. The father admitted smearing the dead deer’s blood on the child’s cheeks. The father stated that the child was six years old at the time he placed the deer blood on her cheeks and that he did not think that there was anything wrong with placing the blood of a dead animal on the child’s cheeks.

The mother argues on appeal that the father failed to meet the burden set forth in Ex parte McLendon, 455 So.2d 863, necessary to justify a change in custody, and, thus, she argues, the trial court erred in awarding the father custody of the child. When there has been a previous judgment granting custody to one parent, or if one parent has given up legal custody, then custody will be changed only if the parent seeking modification proves that there has been a material change in circumstances since the prior judgment, that the child’s best interest will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, 455 So.2d at 866. “[A] change of custody from one parent to another is not a decision to be made lightly. On the contrary, it may be granted only where the evidence discloses an obvious and overwhelming necessity for change of custody.” Glover v. Singleton, 598 So.2d 995, 996 (Ala.Civ.App.1992); see also Ex parte Peppers, 703 So.2d 299, 302 (Ala.1997). The evidence presented by the parent seeking to modify custody “ ‘must be so substantial as to show an obvious and overwhelming necessity for a change.’ ” B.S.L. I, 826 So.2d at 893 (quoting Vick v. Vick, 688 So.2d 852, 855 (Ala.Civ.App.1997)). “When there are ‘equal advantages and disadvantages to living with either the mother or the [father],’ then moving the child cannot be said to materially promote the welfare of the child.” Trusty v. Newton, 678 So.2d 1173, 1175 (Ala.Civ.App.1996) (quoting Ex parte Couch, 521 So.2d 987, 989 (Ala.1988)).

The father’s own testimony establishes that the sole basis for his petition to modify custody was the mother’s drug and alcohol addiction. The mother admitted that between October 1998 and May 1999 she had used cocaine six or seven times and that she had an alcohol problem. The mother voluntarily committed herself to a treatment facility to address her addictions. The mother testified that she had not consumed alcohol or used drugs since she had completed her inpatient treatment at Bradford, nearly two years before the hearings. Although a friend of the father’s testified that he observed the mother take one drink of a beer at a December 31, 2000, New Year’s Eve party, seven other witnesses, including the father, testified that they did not observe the mother consume any alcohol that evening.

The mother presented evidence that the child’s grades and performance in school remained consistent from 1997 until the time of the hearings. A.S., the child’s 14-year-old half sister, testified that during the time before the mother entered treatment at Bradford the mother properly cared for the children and that she assisted the children with their homework. The mother’s current husband; A.S., the mother’s 14-year-old daughter; the maternal grandmother; and five of the mother’s friends testified that they had never observed the mother use drugs, that they were unaware of the mother’s alcohol and drug addiction until she sought treatment, and that they had not observed her consume alcohol since she had completed her treatment.

The record indicates that the mother quickly recognized her problem, voluntarily sought treatment, and had been successful in her recovery for the two years preceding the hearings. This court recognizes the ore tenus presumption in favor of the trial court’s decision; however, “we are not constrained to affirm a judgment of the trial court when the evidence fails to support the findings upon which that judgment is based.” Sloane v. McQuinn, 836 So.2d 908, 910 (Ala.Civ.App.2002) (citing Andrews v. Andrews, 495 So .2d 688 (Ala.Civ.App.1986)). We conclude that the fa ther failed to present sufficient evidence demonstrating a material change in circumstances since the entry of the trial court’s June 1994 judgment, such that the child’s best interest would be materially promoted by a change in custody and the positive good brought about by the change would more than offset the inherent disruption caused by the change. Thus, we must reverse the trial court’s judgment modifying custody of the child to the father.

The decision of the trial court is reversed, and the cause is remanded for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . The parties stipulated to the fact that Dr. Suess was a qualified expert in the field of child, adolescent, and family psychology.

      . Dr. Suess testified that his first session with the mother was a follow-up session from her treatment with Dr. Harrell, the mother’s psychiatrist at Bradford.

      . K.E., the father’s current wife, testified that she informed the mother of the child’s "major” school events. K.E. stated that she had informed the mother of the child's Thanksgiving play over the telephone. According to K.E., the mother did not attend the play and her„failure to attend upset the child.


author: COBB, Judge.

text:
    Michael Lee WILSON v. STATE.
    CR-01-1775.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.

      Clarence Dortch III, Talladega, for appellant.
    William H. Pryor, Jr., atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   COBB, Judge.

Pursuant to a September 10, 1999, indictment, Michael Lee Wilson was charged with theft of property in the first degree, a violation of § 13A-8-3(b), Ala.Code 1975. This charge is represented by Etowah Circuit Court case number CC-99-1029. Pursuant to an indictment returned on December 13, 1999, Wilson was charged with one count of burglary in the third degree, a violation of § 13A-7-7, Ala.Code 1975, and three counts of theft in the first degree, violations of § 13A-8-3(b), Ala.Code 1975. The Etowah Circuit Court assigned each count under this indictment a separate case number: CC-99-1434.01 through CC-99-1434.04.

Wilson entered guilty pleas to each charge and was sentenced in case no. CC-99-1029, theft of property in the first degree, to 20 years in prison; in case no. CC-99-1434.01, burglary in the third degree, to 10 years in prison; in case no. CC-99-1434.02, theft of property in the first degree, to 20 years in prison; in case no. CC-99-1434.03, theft of property in the first degree, to 20 years in prison; in case no. CC-99-1434.0, theft of property in the first degree, to 20 years in prison. These sentences were to run concurrently with each other and with other sentences previously imposed upon Wilson.

The case action summary sheet in case no. CC-99-1029 reflects that on October 23, 2000, the report on the mental evaluation ordered by William W. Cardwell, Jr., Circuit Judge of Etowah County, on November 24, 1999, and performed by Melissa V. Clinger, a certified forensic examiner, on May 18, 2000, was filed in the circuit court. Among the findings in this evaluation was that Wilson “was only partially oriented.” (Supplement record at 6.) “School records consistently reveal intellectual functioning in the Moderately Mental Retardation range of ability (IQ of 40’s and 50’s on standard measures.)” (Supplement record at 5-6.)

As to Wilson’s competency to stand trial, the report concluded:

“[T]here are barriers due to Mr. Wilson’s current intellectual functioning and knowledge/comprehension that prevent him from serving in the role of defendant at this time. It should be noted that he was very agreeable and eager to please and would often nod in assent when it was questionable whether he truly grasped a concept.... Should he enter a plea bargain, it may be necessary to query the defendant carefully to ensure he fully understands the presented options and their consequences clearly before accepting a plea bargain. Mr. Wilson may require information to be repeated to him several times and/or reworded in more simple language to optimize the chance that he will comprehend it.”

Supplement record at 9.

As a result of the evaluation, Clinger referred Wilson for screening by the Region I Division of the Department of Mental Health and Mental Retardation for assessment. Based on the results of that assessment, Clinger advised Judge Card-well in a letter dated October 10, 2000, that it was her recommendation “that an order be issued charging the Division of Mental Retardation to perform [the training Wilson needed that was specified in the letter.]” (Supplemental record at page 4.) Nothing in the record indicates that any action was taken on Clinger’s recommendation.

The guilty-plea proceedings for all of the above charges began on October 23, 2001, but were continued until February 28, 2002, when they were completed. No reference was made to the mental evaluation at either of the guilty-plea proceedings.

Cases no. CC-99-1434.01, -1434.02, and -1434.03 were addressed during the guilty-plea proceedings held on October 23, 2001. At that time, the trial court referred Wilson to the “Explanation of Rights and Plea of Guilty” form signed by Wilson and his attorney. The trial court inquired of Wilson whether his attorney had gone over the document with him thoroughly and in detail. The trial court also asked Wilson whether his attorney had “explained everything contained in [the document] to [Wilson]” and whether Wilson was “certifying to [the trial court] that [he] underst[oo]d what this is about?” (R. 4-5.) Wilson responded “[y]es, sir,” to all of the trial court’s -questions. (R. 5.) Wilson also responded “yes, sir” when asked whether he understood that he was waiving his right to a jury trial, whether he understood the possible range of sentence, and whether he committed the charged offense. Based on the above, the trial court accepted Wilson’s plea of guilty.

At the February 28, 2002, proceedings, the trial court addressed case no. CC-99-1029 and case no. CC-99-1434.04 and other charges not relevant to this appeal. After making reference to what had occurred at the October proceedings, the trial court again referred Wilson to the “Explanation of Rights and Plea of Guilty” form signed by Wilson and his attorney and proceeded in a similar manner as at the October proceedings. However, Wilson’s defense attorney stated the following.

“MR. McWHORTER (defense counsel): I just want to say for the record that he assured me he understood all the charges and everything he is charged with and everything he is giving up. He cannot read or write so I explained all that information and the charges in the indictments to him.
“THE COURT: Pretty much word-for-word then?
“MR. McWHORTER: I don’t know word-for-word. I paraphrased. I told him everything he was giving up and all his rights and everything he was charged with and the range of punishment.
“THE COURT: Well, we have already gone through this process last month with some detail with him.
“MR. McWHORTER: I understand.
“THE COURT: Have you got a question?
“THE DEFENDANT: Yes, sir. I want to know when I will get my time sheet.
“THE COURT: Time sheet?
“MR. McWHORTER: We will talk about that later. Okay?”

(R. 24-25.)

The trial court accepted Wilson’s guilty plea following a brief discussion concerning restitution.

As best we can discern, Wilson contends on appeal that he should have been allowed to withdraw his guilty plea for the following reasons: 1) Wilson’s mental deficiencies prevented his knowingly understanding the consequences of pleading guilty and voluntarily doing so; and 2) trial counsel was ineffective because counsel did not exercise due diligence in preparing for trial because counsel did not ascertain whether Wilson was mentally competent to stand trial or to enter a guilty plea.

“Whether a defendant should be allowed to withdraw a guilty plea is a matter within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of that discretion.” Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999), citing Boykin v. State, 361 So.2d 1158, 1160 (Ala.Crim.App.1978).

This Court’s opinion in Blankenship v. State, 770 So.2d 642 (Ala.Crim.App.1999), controls Wilson’s contention that his guilty plea was involuntary because he was not competent to knowingly enter a guilty plea. We quote extensively from Blankenship:

“The appellant, Leslie Orrin Blankenship, appeals from his conviction entered on this guilty plea to murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to life imprisonment.
“The appellant argues that his guilty plea was involuntary because, he says, he was incompetent at the time he entered the plea. In support of his argument, the appellant states that the initial report of the Department of Mental Health and Mental Retardation said that he was incompetent to stand trial. He argues that on the basis of a second report by the Department of Mental Health and Mental Retardation indicating that he was competent to stand trial, the trial court allowed him to enter a guilty plea, without conducting a hearing on the issue of his competency or finding that he was competent to stand trial, as required by Rule 11.6(g) and 11.7(c), Ala.R.Crim.P. There is no evidence in the record that a hearing was held on the issue of the appellant’s competency or that the appellant entered a stipulation as to his competency.
“ ‘Trial of a person who is incompetent violates the due process guarantees. Therefore, when a trial court is faced with facts that create a reasonable and bona fide doubt as to the mental competency of the defendant to stand trial, the trial court must take steps to assure that a reasonable legal determination of competency is reached. In other words, in such situations, the trial court must inquire into the defendant’s competency, generally by conducting a competency hearing.’
“Ex parte Janezic, 723 So.2d 725, 728 (Ala.1997) (citations omitted). Additionally, it is well settled that, in order for a guilty plea to be valid, the trial court must determine that the plea is made voluntarily and intelligently. Therefore, before accepting the plea, a trial court is required to conduct a factual inquiry to determine if the plea is made voluntarily with an understanding of the nature of the charge and of the consequences of the plea. The record of the plea proceedings must affirmatively reflect sufficient facts from which such a determination could be made. Although the trial court’s inquiry on these matters need not follow any particular pattern, the inquiry must be sufficient for the trial court to determine that the defendant understands the charges against him and the consequences of his plea and that the defendant’s plea is voluntary. See Trice v. State, 601 So.2d 180 (Ala.Cr.App.1992).
“Here, the record is silent as to whether the trial court conducted a competency hearing or made any inquiry into the appellant’s competency at the time he entered his plea. An examination of the record reveals that the Department of Mental Health and Mental Retardation initially found that the appellant was incompetent to stand trial; thus, there was a reasonable doubt as to his competency at the time he entered his plea.”

Blankenship v. State, 770 So.2d at 643.

Based on Blankenship, we find that the trial court should have held a competency hearing before denying Wilson’s motion to withdraw his guilty plea. Therefore, this cause is remanded to the trial court with the same directions as in Blankenship:

“This cause is remanded to the trial court for that court to conduct a hearing on the issue of the appellant’s competency at the time he entered his plea. At the competency hearing, the burden of proof is upon the State to show that the appellant was competent at the time he entered his guilty plea. See Lackey v. State, 615 So.2d 145, 152 (Ala.Cr.App.1992) (‘Once the defendant has met his burden of production by presenting evidence that he is incompetent to stand trial, the State must then prove that the defendant is competent.’). The trial court should be able to conduct a meaningful inquiry into the appellant’s competency at the time he entered his plea based upon the psychologist’s finding of competence, the trial court’s observations of the appellant during the guilty plea proceedings, and the observations of the appellant’s attorneys before, during, and after the appellant entered the plea. See Ex parte Janezic, [723 So.2d 725 (Ala.1997) ].
“If the trial court concludes that the appellant was, in fact, competent at the time he entered his plea, it should so state in a written order containing specific findings of fact. Alternatively, if the trial court determines that the appellant was incompetent at the time he entered his plea, it should allow the appellant to withdraw his plea and transfer the appellant to the custody of the Department of Mental Health and Mental Retardation to await further proceedings as to any report of competency.
“We pretermit discussion of additional issues raised by the appellant concerning an ineffective-assistance-of-trial-counsel claim until a return is made to this Court. Due return shall be made with this Court within 65 days of the date of this opinion.”

Blankenship v. State, 770 So.2d at 643-44.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . Wilson also claimed on appeal that the "missing" mental evaluation, attached to Wilson’s brief as exhibit A, constitutes newly discovered evidence entitling Wilson to withdraw his plea. However, pursuant to this Court’s order of February 13, 2003, the circuit court has supplemented the record with the mental evaluation. Thus, this claim is now moot.


author: PATTERSON, Retired Appellate Judge.

text:
    Dale BREWSTER v. STATE.
    CR-02-0073.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Dale Brewster, pro se.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   PATTERSON, Retired Appellate Judge.

The appellant, Dale Brewster, appeals from the circuit court’s summary denial of his postconviction petition filed pursuant to Rule 32, Ala. R.Crim. P. In his petition, he alleged that he failed to appeal his conviction and his 20-year sentence for manslaughter within the prescribed time and that that failure to appeal was without fault on his part. See Rule 32.1(f). He further asserted that his appointed trial counsel was ineffective for failing to follow his instruction, given on the day of sentencing, to appeal his conviction and sentence. The State’s response to Brewster’s petition was a general denial; therefore, the factual allegations of Brewster’s petition must be taken as true. See Scroggins v. State, 827 So.2d 878, 880 (Ala.Crim.App.2001).

The attorney general is correct to ask that this case be remanded for the circuit court to make specific factual findings as to whether Brewster was denied his right to appeal, not because of any fault of his own, but because of ineffective assistance of counsel. Brewster’s allegations, if true, would warrant the relief of an out-of-time appeal. See Wright v. State, 845 So.2d 886 (Ala.Crim.App.2001); Coleman v. State, 740 So.2d 480 (Ala.Crim.App.1998); Cox v. City of Atmore, 677 So.2d 818 (Ala.Crim.App.1996). He is entitled to a factual determination of this question.

Accordingly, this case is remanded to the circuit court for a hearing on Brewster’s allegations. In lieu of an evidentiary hearing, the circuit court may take evidence as provided by Rule 32.9(a). In either event, the circuit court should make specific findings of fact, as required by Rule 32.9(d). If the circuit court holds an evidentiary hearing, the return to remand shall include a transcript of that proceeding. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to remand at the earliest possible time and no later that 56 days from the date of this opinion.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

BASCHAB, J., concurs in the result.