author:
PER CURIAM. SEE, Justice
      LYONS, Justice JOHNSTONE, Justice HARWOOD, Justice

text:
    WINNER INTERNATIONAL CORPORATION v. COMMON SENSE, INC.
    1011745.
    Supreme Court of Alabama.
    May 9, 2003.
    T. Louis Coppedge and Thomas J. Butler of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.

      J. Gusty Yearout of Yearout & Traylor, P.C., Birmingham, for appellee.
   PER CURIAM.

Common Sense, Inc., sued Winner International Corporation, alleging fraud, conversion, and breach of contract arising out of Winner’s alleged failure to properly market and sell a product developed by Common Sense under an exclusive license agreement between the two corporations. At the close of all the evidence in the case, the circuit court granted Winner’s motion for a judgment as a matter of law as to Common Sense’s fraud and conversion claims. The jury returned a verdict for Common Sense in the amount of $376,565.14 on the breach-of-contract claim. Winner filed a renewed motion for judgment as a matter of law, or, in the alternative, a motion for new trial; the circuit court denied the motion. The trial court entered a judgment on the jury verdict and Winner appealed as to the judgment on the breach-of-contract claim.

In its appeal, Winner claims that the circuit court committed reversible error by erroneously allowing evidence of a separate lawsuit to be admitted as character evidence or as “pattern-and-practice” evidence on the fraud claim. Winner also claims that, after entering a judgment as a matter of law for Winner on the fraud claim, the circuit court committed reversible error by allowing the jury to consider what it says is irrelevant evidence presented to prove the fraud claim in the context of the breach-of-contract claim and by failing to give a limiting jury instruction regarding the use of that evidence on Common Sense’s breach-of-contract claim. We reverse the judgment as to the breach-of-contract claim and remand the case.

Facts

Charles Wigley, Rodney Tittle, and others formed Common Sense, Inc., an Alabama corporation, after conceiving the idea for the “Door Club,” a floor-mounted doorstop designed to prevent home break-ins. Winner, a Pennsylvania business trust, was formed by James Winner, Jr., in 1985 for the purpose of selling security products. In an effort to obtain help in the marketing and sale of the Door Club, Wig-ley contacted Winner, and in 1992 the two corporations entered into an exclusive license agreement, pursuant to which Winner had the exclusive right to manufacture, market, and sell the Door Club. For each sale and delivery of a Door Club to a customer, Common Sense was to receive a royalty of $1.00. The duty to exercise good faith and due diligence was expressly stated in the license agreement:

“The Licensee shall in good faith and with due diligence conduct all manufacturing, marketing and the other operations respecting the invention in accordance with the best business customs of its industry.”

After a couple of years of marketing efforts, the Door Club was not selling well. In 1996, the officers of Common Sense, unconvinced that Winner was paying it all the royalties it was due, became concerned that Winner might not be dealing with Common Sense in good faith. They sent an accountant to study Winner’s sales records for the Door Club.

As evidence of Winner’s violation of its duty of good faith and due diligence, Common Sense presented evidence indicating that Winner missed an opportunity to sell approximately 300,000 Door Clubs in 1998. At that time and while this action, filed in 1996, was pending, a liquidator on the West Coast approached Winner and showed an interest in purchasing Winner’s entire inventory of the Door Club for between five and seven dollars per item. Winner contends that the production cost of a Door Club was approximately the same as the tentative offer stated by the West Coast liquidator and that, to avoid selling at a loss, Winner contacted Common Sense’s counsel to see if Common Sense would reduce its royalty from $1.00 to $.50 for that particular purchase only. Common Sense would not accept a royalty payment lower than that required by the license agreement, and the West Coast liquidator apparently lost interest in the sale.

In 1993, James E. Winner, Jr., and a Winner employee began working on a modified door lock, for which Winner’s patent attorney had assigned a file number. In 1994, James E. Winner, Jr., and the employee applied for a patent on the modified door lock. The patent was approved on February 13, 1996. Although the license agreement required Winner to notify Common Sense of such activities, Winner never contacted Common Sense about its work on the patent for the new product. Common Sense contends that these facts indicate Winner’s attempt to produce a door lock to compete with the Door Club in violation of the license agreement and that, therefore, they are evidence of Winner’s bad faith. John F. Hornbostel, Jr., vice president, secretary, and general counsel for Winner, reviewing the license agreement in court, testified that Common Sense would have been entitled to the patent on the modified door lock. Common Sense alleged that in a prior deposition, Mr. Hornbostel had taken the position that the new patent would belong to Winner.

Winner ceased advertising the Door Club after Common Sense filed this action. In 1996, after Common Sense had become suspicious of Winner’s accounting for the sales of the Door Club, an accountant for Common Sense visited Winner’s headquarters in Sharon, Pennsylvania, to review its sales records. According to Common Sense, Winner’s representative refused to produce some of those documents, which Common Sense argues also was in violation of the license agreement. According to Common Sense, a Winner representative also told Common Sense’s accountant that Common Sense was not entitled to royalties for international sales of the Door Club.

Common Sense called Mr. Hornbostel as its first witness. During direct examination, Common Sense’s counsel offered into evidence a preliminary injunction that had been entered in Lawman Armor Corporation v. Winner International (“Lawman Armor”), a patent-infringement action filed against Winner in 2001. By offering the preliminary injunction into evidence, Common Sense was attempting to demonstrate a pattern and practice of fraud on the part of Winner. Winner immediately objected. Winner had filed a motion in limine before trial, seeking to exclude any evidence of the Lawman Armor lawsuit, and the circuit court had assured Winner that when that issue was raised, it would require Common Sense to introduce any evidence of that lawsuit with the requisite proffer and would consider the motion in limine at that time. During cross-examination of Mr. Hornbostel by Winner’s counsel, Winner presented evidence it contends shows that the Lawman Armor lawsuit is distinctly different from the action filed by Common Sense. Winner argued to the circuit court that Lawman Armor failed the test for pattern-and-practice evidence of fraud. The trial court denied Winner’s motion.

At no time during trial did Common Sense contend that the evidence relating to the Lawman Armor lawsuit was being offered for anything other than evidence of a pattern and practice of fraud. During closing argument, after the trial court had granted Winner’s motion for judgment as a matter of law as to the fraud claim, Common Sense’s counsel argued that evidence of the Lawman Armor lawsuit was evidence of motive and intent to act in bad faith with respect to the license agreement. Winner’s counsel orally argued that such pattern-and-practice evidence was relevant only as to the fraud action and requested a limiting instruction to that effect. The trial court did not instruct the jury that the Lawman Armor evidence was, once the fraud claim had been disposed of, being used for the purpose of proving bad faith with respect to the license agreement, nor did the circuit court instruct the jury to ignore that evidence once it had entered a judgment as a matter of law for Winner on the fraud claim.

Winner filed posttrial motions for a judgment as a matter of law and for a new trial based on alleged errors on the part of the trial judge. First, Winner claimed that the judge erred by allowing the introduction of the evidence relating to the Lawman Armor lawsuit. Second, Winner claimed that the trial court erred to reversal by not instructing the jury to ignore that evidence in its deliberations on the breach-of-contract claim. Winner moved for a judgment as a matter of law or, in the alternative, a new trial. The trial court denied the motion.

Standard of Review

With respect to other acts of wrongdoing, the rule relating to the introduction of pattern-and-practice evidence is:

“The basic intent of Rule 404(b) is to exclude collateral character evidence, which ordinarily is likely to prejudice the jury and confuse the issues. However, this Court has long held that evidence of past unrelated acts, so-called pattern-or-practice evidence, may be admissible in certain circumstances when fraud is alleged.”

Morris v. Laster, 821 So.2d 923, 926 (Ala.2001).

Regarding jury instructions, this Court has said:

“It is a basic tenet of Alabama law that ‘a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, ... and the [trial] court’s failure to give those instructions is reversible error.’ Alabama Farm Bureau Mut. Ins. Service, Inc. v. Jericho Plantation, Inc., 481 So.2d 343, 344 (Ala.1985). (Citations omitted.) ‘It is the duty of the trial judge to educate the jury on the law of the case.’ Grayco Resources, Inc. v. Poole, 500 So.2d 1030, 1033 (Ala.1986). As the Court in Grayco observed:
“ ‘It is the inescapable duty of the trial judge to instruct the jurors fully and correctly on the applicable law of the case, and to guide, direct and assist them toward an intelligent understanding of the legal and factual issues involved in their search for the truth.’
“Id. (Citations omitted.)”

Volkswagen of America, Inc. v. Marinelli, 628 So.2d 378, 384-85 (Ala.1993).

“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”

Rule 105, Ala.R.Evid.

As for Winner’s motion for new trial,

“ ‘Whether to grant or deny a motion for new trial rests within the sound discretion of the trial court, and this Court will not reverse a ruling in that regard unless it finds that the trial court’s ruling constituted an abuse of that discretion.’ “Without a showing of such an abuse, the trial court’s ruling must be affirmed.’ ”

New Plan Realty Trust v. Morgan, 792 So.2d 851, 355 (Ala.2000) (citation omitted).

Analysis

Winner contends that even if the evidence of the Lawman Armor lawsuit was relevant to prove a pattern and practice on Winner’s part of attempting to defraud companies of their patents, it became totally irrelevant and unfairly prejudicial once the trial court entered a judgment as a matter of law for Winner on the fraud claim. At that point, Winner argues, that evidence became improper evidence of a collateral wrong or act against a third party, and, in accordance with Rules 105 and 404(b), Ala.R.Evid., the trial court should have instructed the jury not to consider that evidence.

Common Sense argues that the Lawman Armor evidence was relevant both to show a pattern and practice of fraud and to show motive and intent on the breach-of-contract claim on the question whether Winner was dealing in bad faith in violation of the license agreement and that, even if the trial court did err by not instructing the jury to ignore the Lawman Armor evidence, the error was harmless because even without that evidence there was substantial evidence of a breach of contract by Winner.

The Lawman Armor lawsuit was a patent-infringement action against Winner by a competitor in the market of automotive brake locks. The acts complained of against Winner in Lawman Armor occurred in 2001, nine years after Winner and Common Sense entered into the license agreement and five years after the filing of this action by Common Sense. Rule 404(b), Ala.R.Evid., states:

“(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive [or] intent....”

Unlike Common Sense’s fraud and breach-of-contract claims against Winner, Lawman Armor was a patent-infringement case; it involved no allegations of fraud or breach of contract. The parties in Lawman Armor were not parties to a contract; rather, they were competitors. In that case, representatives of a competing company charged Winner with patent infringement, alleging that Winner intended to make a competing product and then coerce the competitor into giving Winner an exclusive license agreement to sell the competitor’s product.

Common Sense presented evidence indicating that not long after Winner became aware of Common Sense’s Door Club and without informing any representative of Common Sense, Winner began to make a modification to the Door Club and filed a patent application for that invention. Common Sense theorized at trial that Winner intended to create a competing product, to market Common Sense’s Door Club just enough to create name recognition for the product, and then to market its own invention — the modification — and drive Common Sense’s Door Club from the market.

Without addressing whether the evidence of the Lawman Armor lawsuit would have been admissible in the fraud action, we believe the circuit court erred in admitting that evidence in the trial of the breach-of-contract claim. Common Sense never argued, until the end of trial, that it intended to use that evidence as proof of its breach-of-contract claim. Once Winner received a judgment as a matter of law in its favor on the fraud claim, the Lawman Armor preliminary injunction was no longer relevant, and it was error not to instruct the jury of that fact. See Rule 105, Ala. R.Evid.

In spite of Common Sense’s arguments to the contrary, the admission of the Lawman Armor evidence was not harmless error. The evidence of the preliminary injunction in Lawman Armor was the linchpin of Common Sense’s breach-of-contract case against Winner. During direct examination of its first witness, counsel for Common Sense questioned him about Lawman Armor. In fact, the evidence of the Lawman Armor lawsuit was arguably the only evidence that tied together the evidence of a breach of contract by Winner to indicate that Winner might have secretly intended to undermine Common Sense’s patent. We do not view the other contract violations by Winner to be so overwhelming that the jury had no choice but to rule in Common Sense’s favor. Lawman Armor was so important to Common Sense’s case that, even after the trial court entered a judgment as a matter of law for Winner as to the fraud claim, and in response to Winner’s motion to exclude the Laioman Armor evidence from the jury’s consideration, Common Sense changed its argument to claim that that evidence was relevant for proving that Winner had acted in bad faith. The fact that the Lawman Annor evidence may have been admissible in a fraud action does not necessarily make it admissible in a breach-of-contract action. Rule 105, Ala.R.Evid. The Laioman Armor case was still essential to Common Sense in its attempt to prove that Winner as a business was of a “bad character,” the very improper purpose Rule 404(b), Ala. R.Evid., was devised to prohibit.

Conclusion

The trial court erred in admitting the Laioman Armor evidence in the trial of Common Sense’s breach-of-contract claim against Winner. Its admission was prejudicial to Winner. Rule 404(b), Ala.R.Evid. Therefore, the trial court exceeded its discretion in not properly instructing the jury that the evidence of the Lawman Armor lawsuit should not be considered in the breach-of-contract action, as required by Rule 105, Ala.R.Evid. We reverse the circuit court’s judgment as to the breach-of-contract claim and remand the case for the trial court to hold a new trial on the breach-of-contract claim, at which evidence of the Lawman Armor lawsuit will not be admitted.

REVERSED AND REMANDED.

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

SEE, LYONS, and WOODALL, JJ., concur specially.

JOHNSTONE and HARWOOD, JJ., dissent.

SEE, Justice

(concurring specially).

I concur. I write only to note that whatever may be the vitality of Penn & Co. v. Smith, Grainger & Cantrell, 104 Ala. 445, 18 So. 38 (1895), I agree with Justice Lyons that this case is distinguishable from it.

LYONS, Justice

(concurring specially).

The dissenting opinion of Justice Har-wood relies upon Penn & Co. v. Smith, Grainger & Cantrell, 104 Ala. 445, 18 So. 38 (1894), as authority for allowing the admission of evidence of Winner’s having been enjoined in patent-infringement litigation brought by the manufacturer of a product different from the product that is the basis of this action. The patent-infringement litigation was brought several years after this action was filed. As I read Penn & Co., it allows evidence of contemporaneous circumstances giving rise to an ulterior motive, even if that evidence shows evil intent. In Penn & Co., the buyer of flour had the right to reject the shipment if the shipment failed to correspond to samples that had been displayed to the buyer before the sale. The buyer rejected the shipment, and the seller sold it to a third party at a loss. The seller sued the buyer and, in addition to offering evidence indicating that the shipment was compatible with the sample, the seller also offered evidence of a decline in the price of flour between the time the order was placed and the time of shipment. This evidence was offered to show an ulterior motive on the buyer’s part for not accepting the shipment. Such conduct would establish breach of the duty to act in good faith implied in all contracts. Penn & Co. in effect holds that the buyer, by denying that the shipment was compatible with the sample, opened the door to proof of other contemporaneous circumstances that might motivate the buyer to assert the incompatibility, thereby attacking his credibility. Of course, absent evidence by the seller that the flour shipped was compatible with the sample, evidence of declining flour prices alone would not establish a breach of contract.

Common Sense sued Winner, alleging that Winner had breached its duty of good faith and due diligence in marketing Common Sense’s Door Club. Winner denied liability, stating that the real reason for the disappointing sales was customer dissatisfaction. By denying liability, Winner, under Penn & Co., opened the door to evidence attempting to show that it had an ulterior motive for not diligently marketing the Door Club. Common Sense did just that, offering evidence of Winner’s clandestine efforts to obtain a patent for a modified product that would perform the same function as the Door Club. According to Common Sense, Winner’s failure to market the Door Club was motivated not by customer dissatisfaction, but by Winner’s desire to compete with the Door Club with its own product. This evidence, even if it showed evil intent, is admissible under Penn & Co. Common Sense’s evidence of Winner’s attempts to introduce a competing product is the equivalent of the seller’s evidence of falling prices in the flour market in Penn & Co. Both evidentiary offerings negate the position taken by the party denying liability, thereby attacking that party’s credibility.

The Lawman Armor injunction order related to Winner’s activities in connection with a third party that manufactured a product unrelated to the Door Club and with whom Winner did not have a relationship comparable to the one it had with Common Sense. Allowing the introduction of the Lawman Armor injunction order injected into the case matters unrelated to proof by Common Sense of contemporaneous circumstances that would give rise to a finding that Winner had an ulterior motive, a finding that would undermine Winner’s defense that the sales of the Door Club were not as expected because of customer dissatisfaction with the product.

We could expand the rule of Penn & Co. to allow the admission of pattern-and-practice evidence supportive of a claim that a party acted with an ulterior motive that is inconsistent with dealing in good faith. Thus, in Penn & Co., the seller, in addition to offering evidence of falling prices in the flour market, could offer, if available, evidence of the buyer’s rejection during a declining market of shipments of sugar or cotton or corn in unrelated transactions with third parties on the same ground of incompatibility with the samples the buyer had been shown. Of course, if we expand the rule of Penn & Co. so as to recognize the admissibility of pattern-and-practice evidence in contract actions, we should expressly overrule Western Union Telegraph Co. v. Rowell, 153 Ala. 295, 45 So. 73 (1907), in which this Court held as follows:

“In actions ex contractu (for the breach of a contract) the motive or intent of the defendant will not in general be considered. 12 Am. & Eng. Ency. Law, 20, and notes 5 and 6 to the text; 13 Cyc. div. (F) 113; International Ocean Telegraph Co. v. Saunders, 32 Fla. 434, 14 South. 148, 21 L.R.A. 810 [(1893)]; Field on Damages, § 94; 3 Parsons on Cont. 180; Lawson, Cont. § 463. The only exception to the rule seems to be in actions for breach of contract of marriage.”

153 Ala. at 309, 45 So. at 78. While motive is an expressly recognized exception to the preclusion of evidence of other acts in Rule 404(b), Ala. R. Evid., settled principles of contract law justify withholding the application of Rule 404(b) to this action, which sounds solely in contract. See Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186 (10th Cir.1997), in which the trial court’s refusal to allow evidence under Rule 404(b), Fed.R.Evid., indicating that Enron frequently breached its contracts was upheld. The court in Unit Drilling observed: “The probative value of the [pattern-and-practice] evidence was not great because Enron’s motive is not at issue in a breach of contract case.” Id. at 1194 (emphasis added).

Once we recognized a field of operation for pattern-and-practice evidence relating to dealings with third parties in contract actions, we could not logically limit the admissibility of such evidence to only those contract actions in which the agreement expressly requires performance in good faith, as is the case in the contract before us. An express covenant of good faith merely states what is otherwise implied. See Tanner v. Church’s Fried Chicken, Inc., 582 So.2d 449, 451 (Ala.1991), in which this Court held: “ ‘The good faith clause in the present Contract has the same effect and operation as the obligation of good faith that is implied in all contracts under common law and in sales contracts under Alabama’s UCC.’ ” (Quoting the trial court’s order and agreeing with its holding.) Moreover, an obligation to perform in good faith is “ ‘directive rather than remedial and [is] not actionable absent an identifiable breach in the performance of specific terms of the contract.’ ” Id. Justifying the admissibility of pattern- and-practice evidence based on the obligation of good faith inherent in all contracts, an obligation that in itself is not actionable, offers the potential for far greater mischief than justice. I therefore cannot subscribe to the admissibility of pattern-and-practice evidence in contract actions grounded upon the alleged failure to perform pursuant to either the express or implied obligation to act in good faith.

The main opinion concludes that the trial court “exceeded its discretion in not properly instructing the jury that the evidence of the Laioman Armor lawsuit should not be considered in the breach-of-contract action.” 863 So.2d at 1093. Winner’s motion for a limiting instruction was excessively broad in that it sought to disregard matters in addition to evidence regarding other lawsuits, some of which I consider admissible. For example, the motion for a limiting instruction requested that the jury be instructed that evidence concerning modifications to the Door Club patent was not relevant to the breach-of-contract claim. I therefore cannot conclude that the trial court erred to reversal in overruling the motion for a limiting instruction.

However, the motion for a limiting instruction is not the only basis -upon which Winner preserved error. Although I agree with Justice Johnstone and Justice Harwood as to the problem with error preservation in connection with the admissibility of the pattern evidence as to the fraud claim, the record reflects that counsel for Winner, after the fraud claim had been eliminated, by a separate oral motion requested that the exhibit relating to the Lawman Armor lawsuit “be withdrawn from going back to the jury” on the ground that it “only goes to pattern and practice of fraudulent behavior.” Counsel for Winner argued, “If it’s pattern and practice evidence, only pattern and practice is a fraud.” Continuing, counsel for Winner stated, “If the fraud case is gone, there’s no pattern and practice evidence that should be admitted.” After further colloquy, the trial court stated, ‘Well, I’m going to charge the jury as to the law on breach of contract and the exhibit is going to stay. They are admitted. They are there.” I consider the foregoing sufficient to constitute a denial of the oral motion to exclude the exhibit dealing with the Lawman Armor lawsuit and thereby to preserve error with respect to consideration by the jury of matters relating to the Lawman Armor lawsuit in the context of the breach-of-eontract claim.

I therefore concur specially.

WOODALL, J., concurs.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. Winner has not preserved reversible error. Therefore, I respectfully submit that we should affirm.

First, Winner did not effectively object to the Lawman Armor lawsuit evidence. At trial, Winner did not object to the offer of the order issued in Lawman Armor until after that order had already been admitted into evidence by the judge in the case now before us. After the trial judge overruled that tardy objection, Winner did not move to strike that exhibit. Thereafter, practically all of the findings adverse to Winner in that Lawman Armor exhibit were read into evidence through Winner’s vice president, secretary, and general counsel Mr. Hornbostel testifying as an adverse witness before the jury, either without any objection, or without any stated grounds for an objection, or without any statement of the grounds argued before us on this appeal, or with only a tardy objection. Any error by the trial court in overruling any few apt and timely objections was rendered harmless and therefore not reversible, Rule 45, Ala. R.App. P., by the prior or subsequent admission of evidence to like effect without apt and timely objection. Green v. Standard Fire Ins. of Alabama, 398 So.2d 671 (Ala.1981); Schoen v. Schoen, 271 Ala. 156, 123 So.2d 20 (1960).

Second, Winner did not request an appropriate limiting instruction. The Lawman Armor evidence was admissible for two- independent reasons- — first, to prove pattern and practice for the fraud claim, and, second, to prove motive and intent to violate the express good-faith provisions of Winner’s contract with Common Sense. The law did not require the trial judge to articulate his reasons for admitting the evidence and did not limit him to any reason he did articulate. “The trial court has no legal duty in Alabama to state its reasons for any ruling on evidence that it makes....” C. Gamble, McElroy’s Alabama Evidence § 428.01 (5th ed.1996). In fact, in the case before us, the trial judge articulated both reasons- — the first during the introduction of evidence, and the second during the closing arguments. After the trial judge granted Winner’s motion for a judgment as a matter of law on the fraud claim, the Lawman Armor evidence was still probative on the bad faith issue of the contract claim. Yet the only instruction Winner requested on this topic was that the jury disregard the Lawman Armor evidence for all purposes. Because Winner was not entitled to such an instruction, the trial judge did not err in refusing it. Winner did not request that the trial judge instruct the jury to limit its consideration of the Lawman Armor evidence to the bad faith issue of the contract claim. Therefore, as Rule 105, Ala. R. Evid., expressly requires a party seeking a limiting instruction to request it, the trial judge did not err in omitting to issue one to this effect.

HARWOOD, J., concurs.

HARWOOD, Justice

(dissenting).

I concur in Justice Johnstone’s dissent, but write additionally in dissent as follows:

The breach-of-contract claim asserted by Common Sense was not premised solely on objectively ascertainable facts relating to concretely defined contract terms. Rather, the “Duties of Licensee,” set forth in paragraph 6 of the “Exclusive License Agreement” entered into by Common Sense as “Licensor” and Winner as “Licensee,” lists three specific things Winner “covenant[ed] and agree[d]” it would do. Two are pertinent to Common Sense’s present breach-of-eontract claim:

“(a) The Licensee shall in good faith and with due diligence conduct all manufacturing, marketing, and other operations respecting the Invention in accordance with the best business customs of its industry.
“(b) The Licensee shall use its best efforts to promote sales of the Invention.”

At trial, Common Sense presented evidence of various acts or omissions on Winner’s part relating to matters covered by their license agreement, which Common Sense contended Winner did, or left undone, in bad faith and for its own interest in derogation of the interests of Common Sense. Winner, on the other hand, presented competing evidence in an attempt to show that its true motive and intent in each instance was benign and that each of its challenged acts and omissions was attended by only good faith.

As Justice Lyons notes in his special writing, this Court held in Tanner v. Church’s Fried Chicken, Inc., 582 So.2d 449, 451 (Ala.1991), that the breach of a contractual duty of good faith is not actionable “ ‘absent an identifiable breach in the performance of the specific terms of the contract.’ ” 582 So.2d at 451. As this Court further explained in Lake Martin!Alabama Power Licensee Ass’n, Inc. v. Alabama Power Co., 601 So.2d 942, 945 (Ala.1992):

“This Court has explicitly held that there is no good faith contractual cause of action, Tanner v. Church’s Fried Chicken, [582 So.2d 449 (Ala.1991)]; Government Street Lumber Co. v. Am-South Bank, [553 So.2d 68 (Ala.1989)]; that means that bad faith is not actionable absent an identifiable breach in the performance of specific terms of the contract. There is no identifiable breach in the performance of the specific terms of the license agreement by Alabama Power; and there is no contractual cause of action for breach of an implied duty of good faith that nebulously hovers over the contracting parties, free from the specific terms of the contract.”

The jury in this case was called upon to determine whether, in any particular instance, Winner had conducted its activities “in good faith and with due diligence,” and/or had used its “best efforts.” The concepts of “good faith,” “due diligence,” and “best efforts,” linked evidentially by Common Sense to “specific terms of the [license agreement]” and so argued to the jury by Common Sense, required the jury to assess the subjective issue whether Winner’s motives and intentions were as Winner claimed, or as Common Sense portrayed them. Thus, certain aspects of the breach-of-contract claim rendered relevant evidence tending to show the motive and intent with which Winner acted in those matters.

In its briefs to this Court, Winner does not assert that Common Sense’s breach-of-contract claim, implicating the contractual duty of good faith, fails to state a cause of action upon which relief could be granted, or otherwise was not a viable, legally cognizable claim. Rather, it argues only, as it restates in its reply brief, that “intent is not and has never been an essential element of a claim for breach of the contractual duty of good faith”; that Common Sense has failed to state how evidence concerning the Lawman Armor ease “is relevant to Winner’s motive and intent in its breach of a contractual duty of good faith”; that the Lawman Armor lawsuit “is in no way probative of plaintiffs claim for breach of the contractual duty of bad faith”; and that “[t]here is no correlation between the actions of Winner in the Lawman Armor case and any intent or motive to breach the contractual duty of good faith in the present case.”

As Justice Johnstone explains, no error was preserved with regard to the challenged admission into evidence of the Lawman Armor preliminary-injunction order. Therefore, Winner’s first issue on appeal, phrased by it as “[w]hether the Circuit Court committed reversible error by erroneously allowing the admission” of that order, must be answered in the negative. (Emphasis supplied.) Winner’s statement of the remaining issue on appeal is phrased as whether the court committed reversible error “[1] by allowing the jury to consider [in determining the breach-of-contract claim] irrelevant evidence of fraud and [2] by failing to give a limiting jury instruction regarding Plaintiffs fraud claim once a [judgment as a matter of law] on Plaintiffs fraud claim was granted in favor of Winner?” The first part of this issue is addressed in Justice Johnstone’s dissent. .The second part, relating to the trial court’s failure to give a limiting instruction once, the fraud claim was eliminated from the case, forms the basis of the reversal ordered by the main opinion. That opinion concludes, without citation to authority, that once the fraud claim was stricken, the Lawman Armor order “was no longer relevant.” 863 So.2d at 1093. Given the highly subjective nature of the breach-of-contract claim, I respectfully disagree.

“The motive inducing a party to a breach of contract will not involve him in liability for exemplary or punitive damages. If there is a breach, the law fixes the measure of recovery, and whether the breach was accidental, or willful and intentional, is not material. 2 Sedg. Dam. (8th Ed.) § 603. But when the causes producing the breach are a matter of inquiry; when the party in default justifies it for a particular cause or reason, and the existence of that cause of reason is the matter of dispute, the evidence of the existence of another cause to which the default may be attributed, though it may involve him in an evil intent, is relevant and admissible. Relevant and admissible, not to fix a liability for damages beyond the legal standard, but for- the purpose of ascertaining what was the real cause of the default.”

Penn & Co. v. Smith, Grainger & Cantrell, 104 Ala. 445, 449-50, 18 So. 38, 40 (1894). (Although Penn & Co. is of ancient vintage, it has never been questioned or overruled.) As Justice Johnstone points out, the limiting jury instruction requested by Winner would have required the jury to disregard the Lawman Armor evidence totally. That case, like some of the alleged bad-faith aspects of the present case, involved an attempted use by Winner of a competing patent to provide an “end run” around an existing patent. In both instances, Winner’s patent attorney, Robert Vickers, was recruited to design the second-generation patent. Accordingly, although a limiting instruction restricting narrowly the use for which the jury might consider the Lawman Armor order already in evidence might have been appropriate, the trial judge could have rejected a blanket instruction prohibiting any consideration of it without committing reversible error.

      . Common Sense presented evidence at trial indicating that Winner’s production costs may have been closer to three dollars.

      . But see Penn & Co. v. Smith, Grainger & Cantrell, 104 Ala. 445, 18 So. 38 (Ala. 1894), for the proposition that evidence of evil intent would be admissible if Winner sought to justify its default "for a particular cause or reason, and the existence of that cause or reason is the matter of dispute....” 104 Ala. at 449, 18 So. at 40. Nevertheless, the admission of the Lawman Armor evidence went too far by allowing not merely evidence of motive but evidence of motive based on actions not contemporaneous with the alleged breach by Winner, involving Winner’s contract with a third party.


source: Caselaw Access Project

author: PITTMAN, Judge. MURDOCK, Judge, YATES, Presiding Judge,

license: Public Domain

text:
    Ex parte ALABAMA POWER COMPANY. (In re Ed McCormick v. Alabama Power Company).
    2011231.
    Court of Civil Appeals of Alabama.
    May 2, 2003.

      William P. Cobb II of Balch & Bingham, L.L.P., Montgomery; Aaron L. Dettling of Balch & Bingham, L.L.P., Birmingham; and George K. Elbrecht, Monroeville, for petitioner.
    Max Cassady of Cassady & Cassady, P.C., Evergreen; and Philip J. Sanchez IV, Monroeville, for respondent.
    Robert A. Huffaker and P. Keith Licht-man of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Medical Association of the State of Alabama.
   PITTMAN, Judge.

Alabama Power Company (“the employer”) petitions for a writ of mandamus directing the Monroe Circuit Court to vacate its order permitting Ed McCormick (“the employee”) to videotape a functional-capacities evaluation (“FCE”) ordered by a physician in a pending workers’-compensation action involving the parties. For the reasons stated herein, we grant the employer’s petition and issue the writ.

We discern the following pertinent facts from the exhibits to the employer’s petition and the employee’s response. The employee filed a civil action in the Monroe Circuit Court against the employer in August 2001, seeking benefits under the Alabama Workers’ Compensation Act (“the Act”) based upon three alleged workplace injuries — to his knee, his right shoulder, and his left shoulder in 1994, 1995, and 1999, respectively. Dr. Richard D. Meyer, an authorized orthopedic surgeon to whom the employee had been referred for evaluation and treatment for the 1999 left-shoulder injury, was asked to give an opinion concerning the extent of the employee’s physical impairment resulting from that injury. On September 13, 2001, in response to that request, and as a means of diagnosing what treatments and work restrictions would be medically necessary, Dr. Meyer prescribed an FCE for the employee, which Dr. Meyer described as being “generally relied upon by physicians in [his] field of practice as impartial, objective measurements of a patient’s physical abilities and limitations.” According to Dr. Meyer’s medical records, Dr. Meyer concluded that “[i]t would ... be reasonable to go ahead and get an FCE, certainly looking at the coefficients of variance and see if we cannot find something that [the employee] would be capable of returning to work [sic].”

In response to Dr. Meyer’s recommendations, the employer attempted to schedule an FCE for the employee on four separate occasions during September and October 2001 with Rehab Associates, an occupational and industrial physical-therapy provider with locations nationwide; however, the employee failed or refused to attend each appointment scheduled by employer. Instead, the employee procured an FCE from another provider and presented a report from that FCE to Dr. Meyer at an appointment on December 13, 2001. However, Dr. Meyer, after reviewing the report of that FCE, opined that based upon his observations of the employee’s upper-body mass and strength, he had “some doubts as to the validity” of that FCE; he also noted that he would wait to see a report of “the FCE ordered by the worker’s comp carrier” before expressing an opinion concerning the employee’s impairment.

On January 17, 2002, the employee filed a motion for an order permitting the videotaping of the FCE prescribed by Dr. Meyer. In that motion, the employee averred that the trial court had the discretion to allow the videotaping of a discovery deposition and contended that there was no reason why an FCE should not also be videotaped. The employee did not attend an FCE scheduled at Rehab Associates for January 21, 2002, four days after he filed his motion. In response to the employee’s motion, the employer submitted an affidavit of Tony Bridges, a physiologist and certified disability examiner working at Rehab Associates. Bridges stated that Rehab Associates had a policy of not allowing the videotaping of FCEs and opined, among other things, that “it [was] critical to the success of [an] FCE that it be conducted in an environment where outside influences and distractions are minimized” and that allowing an FCE to be videotaped “would compromise the integrity of the valuation and its results.”

On March 25, 2002, the trial court conducted a hearing on the employee’s motion; that court then entered an order stating that the FCE could be videotaped. The employer filed a motion on April 19, 2002, requesting that the trial court revisit its decision to allow the FCE to be videotaped. In support of its motion, the employer submitted an affidavit of Dr. Meyer in which he stated that he had prescribed an FCE for medical and rehabilitative purposes and opined that videotaping the FCE “would render it more of an adversary tool for litigation purposes” and would “seriously undermine the reliability of the result of the FCE.” After conducting a hearing on May 29, 2002, at which the employer’s case-management nurse testified, the trial court entered an order on August 22, 2002, denying the employer’s motion, concluding that the evidence submitted by the employer was not persuasive and opining that “the courts of this state shoüld have at least one opportunity to actually observe what actually occurs” at an FCE because, that court said, “[t]he FCE is such an important process in de-' termining the functional capacity of an injured worker.”

Pursuant to Rule 21, Ala. R.App. P., the employer filed its petition for a writ of mandamus in this court on September 17, 2002, requesting that this court issue a writ of mandamus directing the trial court to vacate its orders of March 25, 2002, and August 22, 2002, and requiring the employee to undergo an FCE, which would not be videotaped, at a facility chosen by the employer, as ordered by Dr. Meyer. This court has jurisdiction pursuant to § 12-3-10, Ala.Code 1975, affording this court exclusive appellate jurisdiction to issue extraordinary writs in workers’-compensation actions, and we have solicited briefs from the parties concerning the issues raised in the petition. In the absence of any objection by the employee in his responsive brief, we deem the employer’s petition in this case to have been filed within a reasonable time, as required by Rule 21(a), Ala. R.App. P. Compare Ex parte Troutman Sanders, LLP, [Ms. 1011812, Feb. 21, 2003] — So.2d - (Ala.2003) (dismissing a mandamus petition filed 79 days and 45 days, respectively, after original entry of two orders aggrieving the petitioner where the issue of the timeliness of the petition was properly challenged by the respondents).

The core issue raised by the employer’s petition is whether a trial court, in a worker’s-compensation action, may impose conditions upon conducting an FCE that conflict with those prescribed by an employee’s treating physician. Although certain Alabama cases have addressed issues involving disputes arising directly between an employer and an employee regarding the necessity of particular medical treatment or examinations, the question raised in this case is one of first impression in Alabama, and neither the parties nor amicus curiae have provided authority directly on point.

Section 25-5-77(a), Ala.Code 1975, a portion of the Act, provides, among other things, that an employer of an injured worker shall timely pay for that worker’s “reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, [and] medical and surgical supplies ... as the result of an accident arising out of and in the course of the employment.” See also § 25-5-77(h). That duty to pay is accompanied under the Act by a corresponding power in the employer to exercise considerable control over the medical care for which it must pay, including the right to choose the employee’s physician in the first instance and the right to compel the injured employee to submit to an examination by that physician at all reasonable times. See § 25-5-77(a) and (b), Ala.Code 1975. Although the Act provides that the employee may advise the employer if he or she is dissatisfied with the physician designated by the employer, the employee’s remedy in such a circumstance is to select another physician from a panel or list of available physicians (usually four) specified by the employer. See § 25-5-77(a), Ala.Code 1975. Whether designated in the first instance by the employer or chosen by the employee from a so-called “panel of four” provided by the employer, the selected physician becomes the employee’s authorized treating physician under the Act.

Of course, the physician is empowered under the Act to treat the employee for so long as is reasonably necessary and to refer the employee to other medical providers for reasonably necessary treatment. See, e.g., Hudson Indus. v. Harrell, 484 So.2d 1099 (Ala.Civ.App.1986); Blue Bell, Inc. v. Nichols, 479 So.2d 1264 (Ala.Civ.App.1985). However, the Act specifies certain other roles that an authorized physician must perform. Section 25-5-77(b) states that the authorized physician shall, upon written request of either the employer or employee, “furnish ... a written statement of his or her professional opinion as to the extent of the [employee’s] injury and disability.” Moreover, that physician “may be required to testify as to any knowledge obtained by him or her in the course of the treatment or examination as the treatment or examination related to the injury or the disability arising therefrom.” Id. These additional roles specified by the Legislature indicate that the duty of the authorized physician is to simultaneously further two objectives of the Act: making the employee as well as possible and assessing the extent to which the employee is capable of earning a living after a workplace injury. As the Minnesota Supreme Court stated, construing the medical-benefits provision of that state’s workers’-eom-pensation laws (upon which our Act was originally based), “[w]hile the ‘primary purpose of medical care and treatment is to return the employee, as nearly as possible, to his or her preinjury state of wellness,’ a ‘secondary’ aim of medical care and treatment is a return to work.” Monteith v. Dobbs Pro Staff, 538 N.W.2d 691, 692 (Minn.1995) (quoting Langa v. Fleischmann-Kurth Malting Co., 481 N.W.2d 35, 37 (Minn.1992)); accord, Ex parte Wal-Mart Stores, Inc., 794 So.2d 1085, 1088 (Ala.2001) (quoting City of Auburn v. Brown, 638 So.2d 1339, 1340 (Ala.Civ.App.1993), quoting in turn 2 Arthur Larson, The Law of Workmen’s Compensation § 61.12.(b) (1989), and noting Act’s goal of “achieving the maximum standards of rehabilitation”).

Although the Act does not define the term “functional capacity evaluation,” an FCE may properly be defined as “a systematic comprehensive assessment” of one’s “overall strength, mobility, endurance and capacity to perform physically-demanding tasks, such as standing, walking, lifting, crouching, stooping or bending, climbing or kneeling.” 20 C.F.R. § 220.11 (2002) (federal regulation governing the determination of disability under the Railroad Retirement Act); see also Ala. Admin. Code R. 480-5-5-02(29) (Department of Industrial Relations regulation defining an FCE as a “[pjrocess to evaluate the injured worker’s functional and/or vocational status”). While an employer, in certain circumstances, might properly seek an FCE as a discovery tool to determine an employee’s residual vocational capacity under the authority of Rule 35, Ala. R. Civ. P., which governs physical examinations of parties to civil actions, the FCE under review in this case is not governed by Rule 35. Rather, the FCE at issue has been ordered by the employee’s treating physician, Dr. Meyer, as an aid to his treatment and evaluation of the employee’s claimed workplace injury.

The medical records of Dr. Meyer attached to the employer’s mandamus petition indicate that on September 13, 2001, Dr. Meyer prescribed studies on the employee’s right side to identify the possible cause of sudden and intermittent pain reportedly radiating down the employee’s right arm. Dr. Meyer also noted that the employee had a strong deltoid muscle, strong external rotators, and strong biceps, and exhibited no intrinsic weakness in his hand; however, he opined that there was nothing that could be done surgically to improve the employee’s condition. Dr. Meyer noted that “[i]t would also be reasonable to go ahead and get an FCE ... and see if we cannot find something that he would be capable of returning to work [sic ]” and added that he would allow the employer’s nurse to specify an appropriate place for the FCE to be conducted.

In an affidavit filed in support of the employer’s motion requesting that the trial court vacate its order allowing the videotaping of the FCE Dr. Meyer had prescribed, Dr. Meyer stated, in pertinent part:

“3. As part of my duties as [the employee’s] treating physician, I have been asked to render an opinion as to the physical impairment, if any, suffered by [the employee] as a result of his left shoulder injury. I am routinely asked to render such opinions. One of the diagnostic tests I ordinarily rely upon in making such determinations is a functional capacity evaluation, or FCE. Properly-conducted FCE[s] are generally relied upon by physicians in my field of practice as impartial, objective measurements of a patient’s physical abilities and limitations.
“4. I have prescribed a non-videotaped FCE for [the employee].
“5. I prescribed the FCE for [the employee] for medical purposes, including determining if (and what) additional treatment is needed for [the employee] and determining what restrictions are medically necessary for [the employee]. Further, I prescribed the FCE for rehabilitative purposes, for the purpose of determining if (and what) rehabilitation or work is appropriate for him.
“6. Based upon my personal review of [the employee’s] medical condition, it is my opinion that an FCE is particularly appropriate for his type of injury. Because the subjective complaints of pain are very difficult to accurately review and those are the chief complaints of [the employee], I believe that there is a particular need to have an FCE that is not videotaped.
“7. Based upon my treatment of [the employee], my review of the medical records relating to my treatment of him, my medical reasons for prescribing an FCE in this situation, and my understanding and appreciation for the most effective way to conduct an FCE, it is not only my opinion that videotaping any FCE is likely to compromise the reliability of the results obtained and jeopardize the medical purposes for conducting the test, it is also my opinion that this particular FCE should not be videotaped ....
“8. I understand that [the employee] has asked that his FCE be video-recorded. In my opinion, making a videotape of the FCE would seriously undermine the reliability of the result of the FCE. I request FCE[s] to aid me in forming medical opinions. In my opinion, videotaping an FCE would render it more of an adversary tool for litigation purposes, rather than a diagnostic tool for my own medical purposes. This, in my opinion, diminishes the scientific validity of the test. In forming medical opinions, I would not knowingly rely on an FCE that had been videotaped.”

Although we recognize the role that, pursuant to § 25-5-77(a), trial courts properly fill with respect to deciding matters concerning medical services proposed to be rendered where there is an active dispute between an employer and an employee regarding the necessity and value of particular services, there is no dispute in this case that an FCE was prescribed and that an FCE is an integral component of Dr. Meyer’s ongoing treatment and assessment of the employee. Cf Monteith, 538 N.W.2d at 692 (noting that treating physician would not revise earlier disability estimate without a new FCE and holding that cost of new FCE was payable by employer as a “reasonably required medical service”). Rather, the dispute between the parties concerns solely the manner in which the FCE will be conducted. According to the affidavit of the employee’s authorized treating physician in this case, the trial court’s order permitting the videotaping of the FCE would render it untrustworthy, especially in light of the subjective nature of the symptoms of which the employee has complained. In other words, if the trial court’s order is permitted to remain in force, the FCE will be of little or no value to the physician who prescribed it.

Under the particular circumstances of this case, where an injured employee’s authorized treating physician has expressly directed the employee to undergo an FCE so that the physician may fulfill his duties of treating the employee and assessing any disability the employee may have, the trial court should not have mandated that that FCE be administered in a manner contrary to the directions of the authorized treating physician. In intruding into the medical discretion of Dr. Meyer, the trial court went beyond its authority to decide disputes governing the necessity of particular medical services in workers’-compensation actions. The trial court is therefore instructed to vacate its order permitting the videotaping of the FCE prescribed by Dr. Meyer and is instructed to direct the employee to present himself for an FCE at the facility designated by Dr. Meyer.

PETITION GRANTED; WRIT ISSUED.

CRAWLEY and THOMPSON, JJ., concur.

MURDOCK, J., concurs in the result.

YATES, P.J., dissents.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached by the majority. Based on the statute governing this matter, however, I would not frame the issue presented by this petition as whether the trial court may require that the examination of the employee be conducted in a manner contrary to the manner prescribed by the authorized treating physician. WTiether the particular examination at issue — that is, an unvideotaped functional capacity evaluation (“FCE”)— should be allowed to go forward, is not dependent, solely or per se, on whether the authorized treating physician under § 25-5-77(a), Ala.Code 1975, has prescribed it. Rather, the test for whether an examination prescribed by the authorized treating physician, or requested by the employer, may be conducted is whether the test, as so prescribed or requested, is “reasonable.” Section 25-5-77(a) contemplates the provision of “reasonably necessary medical and surgical treatment and attention, physical rehabilitation,” etc. (emphasis added). Section 25-5-77(b) requires an injured employee to “submit to examination by the employer’s physician at all reasonable times.” (Emphasis added.) Moreover, § 25-5-77(b) states that if an injured employee “refuses to comply with [a] reasonable request for examination, or refuses to accept the medical service or physical rehabilitation, which the employer elects to furnish,” the right to compensation under the Act shall be suspended. (Emphasis added.) In the present case, I do not see substantial evidence in the record to support the conclusion that the particular examination at issue — an unvideo-taped FCE — is not reasonable as a matter of law.

In her dissent, Presiding Judge Yates observes that “[t]he main opinion relies primarily upon the testimony of Dr. Meyer that the videotaping of the FCE would render the FCE unreliable.” 863 So.2d at 1109 (Yates, P.J., dissenting). Judge Yates then concludes:

“However, we note that the trial court has wide discretion in the review of evidence in a workers’ compensation case and is not bound by particular medical evidence. Tallassee Super Foods v. Hepburn, 819 So.2d 63 (Ala.Civ.App. 2001). The trial court considered all of the evidence presented and determined in a well-reasoned order that McCormick was entitled to have the FCE videotaped.”

863 So.2d at 1109 (Yates, P.J., dissenting).

While the testimony of Dr. Meyer, which was presented by the employer, is certainly probative as to the issue of whether it would be reasonable or unreasonable to videotape the FCE, it is important to emphasize that it was not the employer’s burden of proof to show that conducting the FCE without videotaping it was reasonable. Rather, it was the employee’s burden of proof to show that conducting the FCE without videotaping it was unreasonable. As noted, the employee did not offer sufficient evidence to sustain that burden.

With respect to the issue of trial-court discretion, if this case involved a discovery dispute under Rule 35, Ala. R. Civ. P., then the trial court would have had discretion to control the manner in which that discovery was to be conducted, a discretion the court does not possess under the provisions of § 25-5-77. See Ex parte Wal-Mart Stores, Inc., 729 So.2d 294, 296 (Ala.1999) (quoting Napier v. McDougal, 601 So.2d 446, 447 (Ala.1992), and noting that a trial court has “ ‘broad and considerable discretion in controlling the discovery process and in making rulings on all matters pertaining to discovery,’ ” and holding that the trial court did not abuse its discretion in its ruling on a Rule 35 motion); cf. Ex parte Wisconsin Physicians Serv. Ins. Corp., 800 So.2d 588, 592 (Ala.2001) (acknowledging a trial court’s “broad latitude in matters pertaining to discovery” and its discretion to decide whether a deposition should be videotaped). If this were a discovery dispute, the employee’s argument that there was a reason for the trial court’s decision would be apposite. But the examination in question is one to be conducted under the provisions of § 25-5-77(a) and/or § 25-5-77(b), and the question therefore is not whether the examination chosen by the court (i.e., a videotaped FCE) is reasonable, but whether the examination prescribed by the physician and requested by the employer (i.e., an FCE without videotaping) is reasonable. While an unvideotaped examination obviously is not the type of examination the trial court would choose, there is insufficient evidence in the record to support the conclusion that it is not a reasonable choice by the physician and the employer. Under the applicable statute, therefore, the trial court was without authority to enter its order.

YATES, Presiding Judge,

dissenting.

Because I do not believe that Alabama Power is entitled to the relief sought, I must respectfully dissent from the main opinion.

Alabama Power seeks a writ of mandamus directing the Circuit Court of Monroe County to vacate its order permitting McCormick to videotape a functional capacities evaluation (“FCE”) ordered by his treating physician in a pending workers’ compensation case. The issue raised by this petition appears to be one of first impression. We note that a writ of mandamus is an extraordinary writ and will issue only when “(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (AJa.2000).

McCormick’s authorized treating physician, Dr. Richard D. Meyer, ordered an FCE for McCormick; the FCE was scheduled to be done at Rehab Associates. McCormick moved the court for an order allowing the FCE to be videotaped. In opposition to McCormick’s motion, Alabama Power presented the affidavits of Dr. Meyer and Tony Bridges, a physiologist employed at Rehab Associates. Dr. Meyer stated that he had prescribed an FCE for medical and rehabilitative purposes and that videotaping the FCE would “seriously undermine the reliability of the result of the FCE” and “would render it more of an adversary tool for litigation purposes.” Bridges stated that Rehab Associates has a policy against videotaping FCEs and stated that “it [was] critical to the success of [an] FCE that it be conducted in an environment where outside influences and distractions are minimized” and that allowing an FCE to be videotaped “would compromise the integrity of the valuation and its results.”

Following a hearing, the trial court entered an order allowing McCormick to videotape the FCE. The trial court stated in its order:

“1) The use of a videotape camera to document procedure and events is now common throughout the United States. Commercial retail stores routinely videotape customers and employees. Highly complex medical surgical procedures are frequently shown on educational channels on television. Courts routinely allow the videotaping of the most important of legal proceedings. Indeed, since at least 1991, Alabama Courts have been governed by the Alabama Rules For Using Videotape Equipment to Record Court Proceedings. (See generally, Ala. R.U.V.E.).
“(2) The Court notes that the use of FCE evidence is now commonplace in workers’ compensation cases. The Court commonly hears depositions read into evidence diming which the authorized treating physician defers to the FCE for the purpose of establishing the functional capacity of the injured worker. In this manner, the expert opinion of the FCE facility regarding the injured worker’s functional ability frequently becomes the expert opinion of the authorized treating physician. For instance, in Ex parte Wal-Mart Stores, Inc., 794 So.2d 1085 [, 1086 (Ala.2001) ], the Alabama Supreme Court quoted the following medical note from a physician who questioned the sincerity of his or her patient based on an FCE reporting ‘inconsistencies throughout the test’ and ‘magnified illness behavior’:
“ ‘ASSESSMENT/PLAN: At this point, we will get this information to Wal-Mart and they can help determine her job position. There was evidence of inconsistencies throughout the test as noted in the functional capacity evaluation. She also scored 12/16 on the Waddell’s questionnaire which is in the maximum range for magnified illness behavior. It is possible that greater lifting capabilities are possible and this could be evaluated at a later date. She is at maximum medical improvement with a 3% impairment rating tó the body as a whole.’
“See also, Bess v. Waffle House, Inc., [824 So.2d 783 (Ala.Civ.App.2001) ] (‘Dr. Stinson testified in his deposition that he assigned Bess a three percent impairment rating because of the many inconsistencies in the FCE.’); Labinal, Inc. v. Alphord, 767 So.2d 362[, 364 (Ala.Civ. App.2000) ] (‘Mark Mashburn, a physical therapist, performed a functional-capacity evaluation on Alphord on April 11, 1997.... Dr. Robinson testified that he agreed with and “signed off’ on the impairment rating and the restrictions assigned to Alphord by Mashburn.’) [;] [BrumettJ v. Everywhere Trucking Co., 741 So.2d 1086[, 1090 (Ala.Civ.App. 1999) ] (‘Joseph M. Miller, a licensed professional counselor in Florida, testified by deposition that he had performed a functional capacity evaluation. ... He also stated in his functional capacity evaluation that Brumett “exhibited symptom exaggeration behavior [and that he] passed only 19/38 validity criteria during the functional capacity evaluation, 50%, which suggests voluntary sub-maximal effort.” ’); Sprinkle v. Baldwin Pole Leasing, 733 So.2d 444 [, 445 (Ala. Civ.App.1999) ] (‘Sprinkle participated in a functional capacities evaluation, which showed that he could perform jobs requiring light to medium duty. His treating physician agreed with that assessment.’); Lindsey v. Watson Van Lines, 722 So.2d 774[, 776 (Ala.Civ.App. 1998) ] (‘Lindsey’s primary treating physician, Dr. Robert Bradley, testified in his deposition that a functional capacity evaluation conducted on Lindsey showed that he was not using his best effort in performing the tests making up the evaluation.’); Southern Lifestyle Homes v. O’Rear, 628 So.2d 645[, 647 (Ala.Civ. App.1993) ] (‘Dr. Sherrill referred O’Rear to TriCare Rehabilitation Center (TriCare) for a “functional capacities evaluation” to determine his suitability for a work-hardening program. Dr. Andrew Rozsa, a clinical psychologist and director of TriCare, testified that O’Rear performed poorly on functional [capacities] evaluations administered at TriCare. However, Dr. Rozsa stated that he felt O’Rear was poorly motivated and had not put forth maximum effort. Dr. Rozsa said that while he did not believe O’Rear was malingering, he felt that he was engaging in “symptom magnification.” ’).
“3) The reliability of FCE findings is thus of paramount importance in workers’ compensation cases. Residual functional ability is a core issue, if not the core issue, in a workers’ compensation case. The actual FCE examination itself — being the basis of the functional limitations — purports to be the truth-finding process of the worker’s true functional capacity. The importance of the FCE, standing alone, was almost enough to reverse a trial court’s ore tenus finding of permanent and total disability in a recent case:
“ “Wal-Mart argues that the trial court erred in determining that Baker was permanently and totally disabled. Although this court might not have reached the same result, given the evidence regarding Baker’s submaxi-mal efforts and symptom magnification on the FCE tests, we cannot say that the trial court erred.’ [Wal-Mart Stores, Inc. v. Baker, 751 So.2d 519 (Ala.Civ.App.1999) ].
“4) Ultimately, however, the judiciary of the State of Alabama conducts the final truth-finding process. To that end, the Court is not persuaded by the defendant Alabama Power’s argument that the videotaping process will cause the plaintiff to give less than truthful effort, more effort, or any different effort than the plaintiff will give at an FCE that is not videotaped. The cliche that a picture paints a thousand words, while worn to the threads, is appropriate. The FCE is such an important process in determining the functional capacity of an injured worker, it seems that the Courts of this State should have at least one opportunity to actually observe what actually occurs.
“5) Finally, it should be noted that Alabama Power filed an affidavit from the FCE facility. The affidavit from the FCE facility is not persuasive. It sets forth no medical reason why the FCE should not be videotaped. It communicates no logical analysis of why an FCE should not be videotaped.
“6) Alabama Power also filed an affidavit from the company physician authorized by Alabama Power. The affidavit of both makes a conclusory assertion that the FCE should not be videotaped. In a workers’ compensation matter, a trial court is not bound by the opinions of expert witnesses, even if the testimony of those witnesses is uncontroverted. Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala.1985). The affidavit executed by the physician does not pertain to medical treatment to be rendered by that physician, nor medical treatment to be rendered by any facility. An FCE is primarily an assessment of functional capacity, and, in this instance, would not be conducted within the confidential confines of the physician-patient relationship.
“7) At the last hearing on this issue, the defendant Alabama Power appeared in Court with its case management nurse. The plaintiff called the case management nurse as an adverse witness and cross-examined her regarding her involvement, if any, in the FCE process. Alabama Power claimed privilege with respect to some of her conversations with Alabama Power’s attorney.
“8) In reaching the decision to allow the FCE to be videotaped, the Court has considered on an ore tenus basis the testimony of the Alabama Power case management nurse. The Court finds that her ore tenus testimony, standing alone or considered with the affidavit of the physician, is not sufficient to prohibit a videotape of the FCE process.”

The main opinion relies primarily upon the testimony of Dr. Meyer that the videotaping of the FCE would render the FCE unreliable. However, we note that the trial court has wide discretion in the review of evidence in a workers’ compensation case and is not bound by particular medical evidence. Tallassee Super Foods v. Hepburn, 819 So.2d 63 (Ala.Civ.App.2001). The trial court considered all of the evidence presented and determined in a well-reasoned order that McCormick was entitled to have the FCE videotaped. I believe that Alabama Power has failed to demonstrate that it has a clear legal right to the relief sought; therefore, I dissent.

      . "Our Workmen’s Compensation Laws were adopted from those of Minnesota and the Minnesota construction of their laws is of persuasive value.” Eley v. Brunner-Lay

        Southern Corp., 289 Ala. 120, 125, 266 So.2d 276, 280-81 (1972).

      . As this court noted recently: "In most cases, an employee will not have a right to medical treatment not recommended by either the initial or second authorized physician. However, where an employee has received recommendations from both the initial and the second authorized treating physicians in accordance with the procedures outlined in § 25-5~77(a), and the employee is able to prove that the treatment recommended by the authorized physicians does not fall within the parameters of what would be ‘reasonably necessary' to treat his or her injury or illness,” he or she may be able to obtain judicial relief. Ex parte Southeast Alabama Medical Center, 835 So.2d 1042, 1046 n. 4 (Ala.Civ.App.2002) (citations omitted). For examples of cases discussing what may be required in order to prove that a given examination or treatment is not reasonable, see Jimoco, Inc. v. Smith, 777 So.2d 716 (Ala.Civ.App.2000); Health Care Authority of City of Huntsville v. Henry, 600 So.2d 324 (Ala.Civ.App. 1992); Avondale Mills v. Tollison, 52 Ala.App. 52, 289 So.2d 621 (1974); Elbert Greeson Hosiery v. Ivey, 472 So.2d 1049 (Ala.Civ.App. 1985); Gulf States Steel Co. v. Cross, 214 Ala. 155, 106 So. 870 (1926).


author: CRAWLEY, Judge.

text:
    DAIRYMAN’S SUPPLY COMPANY, INC. v. Gerry TEAL.
    2011014.
    Court of Civil Appeals of Alabama.
    May 2, 2003.

      Scott M. Roberts and W. Scott Brower of Roberts & Fish, P.C., Birmingham, for appellant.
    Daniel B. King of King & King Attorneys, P.C., Gadsden, for appellee.
   CRAWLEY, Judge.

Gerry Teal (“the worker”) sued Dairyman’s Supply Company, Inc. (“the company”), seeking workers’ compensation benefits. The trial court awarded benefits based upon its finding that the worker had suffered two on-the-job injuries resulting in a 30% permanent partial disability. In the same action, the worker also sued a third-party defendant, alleging a tort claim. The company moved to “sever [the third-party claim], for the purposes of trial.” The circuit court granted the company’s motion to sever “for trial purposes only,” and directed that the workers’ compensation claim be tried first in a bench trial and that the third-party claim then be tried to a jury. The company appealed to this court from the circuit court’s award of workers’ compensation benefits.

Considering the substance rather than the form of the motion entitled a “motion to sever,” and the trial court’s relief granted on that motion, we concluded that the trial court actually had ordered separate trials in this case pursuant to Rule 42(b), Ala. R. Civ. P., rather than a severance of claims pursuant to Rule 21, Ala. R. Civ. P. See Key v. Robert M. Duke Ins. Agency, 340 So.2d 781 (Ala.1976); Walker County Petroleum Council, Inc. v. Walker County, 368 So.2d 862 (Ala.1979); Seybold v. Magnolia Land Co., 372 So.2d 865 (Ala.1979); and Interstate Truck Leasing, Inc. v. Bender, 608 So.2d 716 (Ala.1992)(overruled on other grounds, State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834 (Ala.1998)). The pendency of the third-party claim meant that the circuit court’s order declaring the worker to be 30% permanently and partially disabled was not a final judgment. Accordingly, this court, on March 20, 2003, reinvested the circuit court with jurisdiction for 14 days for the purpose of entering a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. On March 31, 2003, the circuit court entered an order certifying the judgment as final pursuant to Rule 54(b).

While employed as a truck driver with the company, the worker was injured in four work-related accidents. On March 4, 1998, and January 28, 1999, the worker injured his lower back. On June 21, 1999, the worker again injured his lower back when a strap broke while he was tightening a load on a truck. He suffered herniated discs at the L-4 and L5-S1 levels.

On February 7, 2000, the worker reached maximum medical improvement, was assigned a 5% physical-impairment rating, and was released to return to work with certain restrictions. Following his return to work, the worker had another on-the-job accident on August 1, 2000, when 2000 pounds of metal roofing fell on him. He suffered a herniation or rupture of the cervical discs at the C-3-4 level, as well as injuries to his chest and sternum. After a period of recuperation, the worker returned to work at a wage greater than his pre-injury wage.

At trial, the parties stipulated that the only issue was the extent of the worker’s physical impairment as a result of his on-the-job accidents. Following a hearing, the trial court determined that the worker had sustained a 30% permanent partial disability as a result of the June 21, 1999, injury to his back, and that he had also sustained a 30% permanent partial disability as a result of the August 1, 2000, injury to his neck and sternum. The court awarded benefits accordingly.

A judgment rendered by the trial court on April 15, 2002, states the following, among other things, in the section labeled “Findings of Fact”:

“3. The parties stipulated that the only issue for the Court to determine was the extent of [the worker’s] physical impairment as a result of the aforementioned accidents and injuries.
“4. [The worker] is 43 years of age and has a 12th grade education. He finished two years of college and has worked the great majority of his adult life in manual labor-type work, which included working as a paramedic and driving tractor trailers for various companies, including [the company].”

The company filed a postjudgment motion, arguing that paragraph 4 indicates that, in making its disability determination, the trial court impermissibly considered the worker’s age, education, training, and experience — factors that, it claims, are relevant to vocational impairment but not to physical impairment — thereby violating § 25 — 5—57(a)(3)i., .Ala.Code 1975. That subsection states, in pertinent part:

“If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25-5-57(a)(3), an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.”

On May 24, 2002, the trial court denied the company’s postjudgment motion, stating:

“The award, pursuant to Law of Alabama, is for [the worker’s] permanent physical impairments only and the Court did not consider any evidence of vocational disability of [the worker] in entering the Court’s Final Judgment in this [Workers’] Compensation case.”

The company appealed. On October 1, 2002, this court reinvested the trial court with jurisdiction for 21 days for the purpose of entering a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., with respect to its calculation of benefits. On October 16, the trial court entered an amended judgment that omitted the paragraph 4 quoted above and substituted the following:

“8. The parties stipulated the Court is not to consider [the worker’s] vocational disability and the Court has not considered any facts revealed by the evidence with respect to any vocational loss that [the worker] may have.”

The company raises two issues on appeal: whether in reaching its determination the trial court improperly considered evidence of vocational loss and whether the 30% permanent partial disability determination was against the great weight of the evidence.

In support of its argument that the trial court erred in determining the worker’s permanent partial disability rating by considering vocational loss, the company cites Wal-Mart Stores, Inc. v. Reynolds, 794 So.2d 1193 (Ala.Civ.App.2001) (“Reynolds I”), and Wal-Mart Stores, Inc. v. Reynolds, 841 So.2d 1258 (Ala.Civ.App.2002) (“Reynolds II”). In Reynolds I, this court reversed a judgment finding that the worker had an 80% permanent partial disability because, we concluded, the trial court had improperly considered evidence of vocational disability when the worker returned to work at a wage greater than her pre-injury wage. On remand, the trial court stated that it had not intended to base its judgment on vocational evidence; nevertheless, it again determined that the worker had suffered an 80% permanent partial disability. In Reynolds II, this court held that there was not substantial evidence to support the trial court’s finding of an 80% physical impairment.

Reynolds I is distinguishable because in that case the trial court had specifically stated that it “considered Reynolds’s ‘age, education, training, and experience,’ ” 794 So.2d at 1196 (emphasis added) — factors that, this court observed, “are routinely considered with evidence of vocational disability,” id. Here, notwithstanding the fact that the trial court recited some of the same factors in paragraph 4 of its original judgment, paragraph 3 of the same judgment indicates that the trial court was aware that it could not consider those factors. In the present case, the trial court stated in paragraph 3 that “the only issue for the Court to determine [is] the extent of [the worker’s] physical impairment.” Moreover, in response to the company’s post-judgment motion, the trial court specifically stated that it “did not consider any evidence of vocational disability.” Finally, the trial court’s amended judgment omitted the information recited in former paragraph 4 and replaced it with a statement indicating that the court had “not considered any facts revealed by the evidence with respect to any vocational loss that [the worker] may have.”

Reynolds II is distinguishable because, in this case, the trial court’s finding that the worker’s last two injuries resulted in a 30% permanent partial disability was supported by substantial evidence. Although, as the company points out, no physician assigned the worker a physical impairment rating greater than 5%, the trial court was not bound by the physicians’ testimony.

“It is well settled that the trial court has the duty to determine the extent of disability and is not bound by expert testimony in making that determination; yet, in making its determination, the trial court must consider all the evidence, including its own observations, and it must interpret the evidence to its own best judgment. Wolfe v. Dunlop Tire Corp., 660 So.2d 1345 (Ala.Civ.App.1995). Specifically, a trial court is not bound to accept a physician’s assigned impairment rating and is free to make its own determination as to an employ ee’s impairment. Checker’s Drive-In Restaurant v. Brock, 603 So.2d 1066 (Ala.Civ.App.1992).
.. Nothing in § 25-5-57(a)(3)i. can be interpreted to mean that the trial court is bound by the physician’s assigned physical impairment rating and prohibited from considering its own observations with regard to the impairment and then making adjustments to that rating, so long as it does not consider evidence of vocational disability and the disability rating assigned the employee is equal to the physical impairment rating.”

Compass Bank v. Glidewell, 685 So.2d 739, 741 (Ala.Civ.App.1996).

The company argues that “absent consideration of [the worker’s] vocational disability, the trial court could not have reached a decision” that the worker had sustained a 30% permanent-partial-disability rating. We disagree. In making its determination as to the extent of a worker’s disability, the trial court can consider the worker’s subjective complaints of pain. See Michelin North America v. Hamby, 722 So.2d 770, 773 (Ala.Civ.App.1998). The worker testified that he drives a forklift in the company’s warehouse, but, he said, he could not perform that job without narcotic pain medication. He takes 20 milligrams of Oxycontin every 12 hours and 5 milligrams of Oxycontin-IR once every 6 hours as needed for pain. The worker testified that his supervisors allow him to work at his own pace and to sit down or lie down in a back room at work when his pain becomes so severe he cannot continue. The worker’s treating physician testified that the worker’s complaints of pain are consistent with his injuries and that the worker will likely need surgery in the future to repair his herniated and ruptured discs.

The judgment of the circuit court is affirmed.

AFFIRMED.

YATES, P.J., and MURDOCK, J., concur.

PITTMAN, J., concurs in the result.

THOMPSON, J., dissents.


author: PITTMAN, Judge. YATES, Presiding Judge,

text:
    SIGN PLEX v. Patrick Howard THOLL.
    2011145.
    Court of Civil Appeals of Alabama.
    May 2, 2003.

      Bennett L. Pugh, Joseph H. Driver, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Robert W. Lee, Jr., and Wendy N. Thornton of Lee & Thornton, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

This is an appeal from a judgment in a workers’ compensation action finding an injury compensable and awarding temporary total disability benefits.

On February 8, 2001, Patrick Howard Tholl (“the employee”) sued Sign Plex (“the employer”) seeking workers’ compensation benefits based upon an accident the employee alleged had occurred in January 1999, while he was in the line and scope of his employment. The employer filed an answer, denying the allegations of the complaint. On July 8, 2002, the trial court held a hearing concerning whether the employee’s injury was compensable under the Alabama Workers’ Compensation Act; that court found the employee’s injury to be compensable and awarded temporary total disability benefits under the Act. On July 12, 2002, the employer filed a motion requesting the trial court to vacate its compensability determination; the trial court denied that motion.

The employer appealed from the trial court’s July 8, 2002, ruling. The employee filed a motion to dismiss the appeal; in the motion he contended that the appeal was not taken from a final judgment. The employer filed a response, citing BE & K, Inc. v. Weaver, 743 So.2d 476 (Ala.Civ.App.1999), as authority for its position that it is entitled to an immediate appeal. This court initially denied the motion to dismiss the appeal. Having had the opportunity to review the record in its entirety, however, we conclude that the employee is correct.

In BE & K, supra, we noted that an appellate court is without jurisdiction to review a matter where no final judgment has been entered. 743 So.2d at 478. We further noted that the determination whether a judgment is final does not depend on the title or label given the judgment; rather, that determination depends on whether the judgment sufficiently ascertains and declares the rights of the parties. Id. at 478-79.

We have recently dismissed appeals in two workers’ compensation cases based upon the failure of the judgment appealed from to sufficiently ascertain and declare the rights of the parties, thereby rendering the trial court’s judgments nonfinal. See USA Motor Express, Inc. v. Renner, 853 So.2d 1019 (Ala.Civ.App.2003); Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003).

In Renner, the employee requested a hearing solely on the issue whether his injury was compensable under the Workers’ Compensation Act. The trial court entered an order finding that the employee’s injury had arisen out of and in the course of his employment and directing the employer to provide medical treatment. The trial court order did not award temporary-total-disability benefits. In Renner, we noted that we had recently held that an order that simply determines compensability without also determining the amount or type of benefits to which an employee may be entitled will not support an appeal, because such an order does not sufficiently ascertain the rights and obligations of the parties as to be a final judgment. See International Paper Co. v. Dempsey, 844 So.2d 1236 (Ala.Civ.App.2002).

In O’Neal, the employee sued both his employers, both former and subsequent, based on injuries he suffered on the job. The trial court scheduled a hearing on the employee’s motion to compel payment for medical services, which in essence sought a determination of which employer was responsible for the employee’s medical expenses. One employer, Homes of Legend, was ordered to pay the employee’s medical expenses, and Homes of Legend appealed. On appeal, we noted:

“This court has held that a workers’ compensation judgment similar to the one presently before this court was sufficiently final to support an appeal in cases in which the trial court reserved jurisdiction to later determine the issue of the worker’s permanent total disability, if any. BE & K, Inc. v. Weaver, 743 So.2d 476 (Ala.Civ.App.1999); Mike Makemson Logging v. Colburn, 600 So.2d 1049 (Ala.Civ.App.1992); Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162 (Ala.Civ.App.1990). However, in those cases, the trial court made findings that the injury was compensable and calculated the disability benefits due at the time the order was entered. In addition, in Ex parte DCH Regional Medical Center, supra, and BE & K, Inc. v. Weaver, supra, the trial courts also ordered that the employer was responsible for the payment for medical treatment related to the worker’s injury.
“In International Paper Co. v. Dempsey, 844 So.2d 1236 (AJa.Civ.App.2002), the employer appealed an order finding that the worker was entitled to medical benefits under the Workers’ Compensation Act and to any workers’ compensation benefits that had accrued until the date of that order; in that order, the trial court reserved ruling on the issue of the worker’s permanent disability, if any. The trial court’s order, however, did not establish the nature of the workers’ compensation benefits due or the amount of benefit that had accrued until the date of the trial court’s order. For that reason, this court concluded that the trial court’s order in that case was distinguishable from the orders this court had concluded in BE & K, Inc. v. Weaver, Mike Makemson Logging v. Colburn, and Ex parte DCH Regional Medical Center were sufficiently final to support an appeal. This court determined that because the trial court’s order did not determine the amount or type of benefits due the worker on the date of the entry of the order, it was not sufficiently final to support an appeal; therefore, we dismissed the appeal. International Paper Co. v. Dempsey, 844 So.2d at 1238.”

855 So.2d 536, 538.

In the instant case, the parties agreed to try only the issue of compensa-bility, and the trial court has adjudicated only the issue of compensability at this stage of the action. The parties stipulated to the employee’s average weekly wage, but failed to list an amount under the heading “TTD” (temporary total disability). The trial court’s order found the employee’s injury compensable, apparently rejecting the statute-of-limitations defense asserted by the employer, and awarded temporary total disability benefits; however, the order did not specify any amount of benefits accrued and owing as of the time of the order.

After a thorough review of the record, we conclude that the trial court’s order resolved only the issue of compensability; it contained no provision pertaining to benefits accrued and payable at the time the order was entered. As we did in Dempsey, we must dismiss the employer’s appeal because the trial court’s order does not “ ‘sufficiently ascertain[] and declare[] the rights of the parties’ ” so as to constitute a final judgment that would support an appeal. 844 So.2d at 1237 (quoting Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162,1164 (Ala.Civ.App.1990)).

Because we have concluded that the appeal must be dismissed as not being from a final judgment, we need not now decide whether the order from which the appeal was taken was or was not correct. However, in entering a final judgment on remand, the trial court should state both its findings of fact and its conclusions of law. See § 25-5-88, Ala.Code 1975. The following is well settled:

“‘Section 25-5-88, Ala.Code 1975, provides that a judgment in a workers’ compensation case “shall contain a statement of the law and facts and conclusions as determined by the [the trial] judge.” ... The purpose of § 25-5-88, Ala.Code 1975, is to “ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts.” Substantial compliance with this requirement is sufficient. “If the trial court’s findings are meager or omissive, this court may look to the record to determine if the trial court’s judgment should be upheld.” However, “[i]f a judgment entered in a [workers’] compensation case fads to include a finding of facts and conclusions of law, the matter must be reversed.”
“ ‘ “Until the trial court makes the required finding of fact and eonclu-sions of law and enters a judgment based thereon, we cannot review its finding and judgment for error.” ’
“Danley v. Dorsey Trailers, Inc., 784 So.2d 1052, 1053-54 (Ala.Civ.App.2000) (citations omitted).”

Cockrum v. Dunlop Tire Corp., 808 So.2d 58, 60 (Ala.Civ.App.2001)(emphasis added).

Of course, because the trial court has not entered a final judgment in this case, § 25-5-88 has not yet come into play. However, had the order presented for review in this case been a final judgment, its compliance with § 25-5-88 would have been questionable; the order contains no findings of fact and conclusions of law and would therefore be subject to challenge for failure to substantially comply with § 25-5-88. Cockrum, 808 So.2d at 60. We address this matter simply to put the trial court on notice that when it ultimately enters a final judgment in this case, that judgment must satisfy the requirements of § 25-5-88, Ala. Code 1975.

APPEAL DISMISSED.

MURDOCK, J., concurs.

YATES, P.J., concurs specially.

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

YATES, Presiding Judge,

concurring specially.

In International Paper Co. v. Dempsey, 844 So.2d 1236 (Ala.Civ.App.2002), the trial court had determined, among other things, that the employee was entitled to “any accrued temporary total and/or permanent partial and/or permanent total compensation benefits accrued.” 844 So.2d at 1236. On appeal, this court concluded that the judgment of the trial court did not sufficiently ascertain the rights and obligations of the parties and that, therefore, it was not final and appealable because it did not “determine the amount or the type of benefits” to which the employee was entitled. 844 So.2d at 1238.

In this case, the trial court determined that the employee was entitled to temporary total disability benefits; however, it did not specify the amount of benefits to which the employee was entitled, as required by Dempsey. The judgment in this case does not sufficiently ascertain the rights and obligations of the parties; it is not a final judgment that would support an appeal. Accordingly, I agree with the main opinion that the appeal is due to be dismissed because it is from a nonfinal judgment.

However, assuming that this court had jurisdiction in this case, I believe that the judgment in this case would be due to be reversed, because the judgment entered does not provide this court with a proper order to review for error. The trial court entered on the case action summary sheet the following order in this case:

“Trial as to the issue of compensability. Both parties are present with their attorney and testimony is taken. The trial Court finds from this that the employer was informed and that the injury was an on the job injury. The Plaintiff is further entitled to temporary total disability benefits until maximum medical improvement is reached.”

The main opinion correctly sets forth the law as it pertains to § 25-5-88, Ala. Code 1975, and states that the trial court’s compliance with § 25-5-88 was “questionable.” To me there is no question that the order is completely deficient and in no way complies with the mandate of § 25-5-88, Ala.Code 1975. Unless the trial court complies with the mandate of § 25-5-88 upon remand, this court cannot review the judgment for error. Cockrum v. Dunlop Tire Corp., 808 So.2d 58 (Ala.Civ.App.2001).