author: BROWN, Justice. SEE, Justice

text:
    DECISIONQUEST, INC. v. Robert J. HAYES et al.
    1011391.
    Supreme Court of Alabama.
    May 2, 2003.

      John Martin Galese and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant.
    W. Eugene Rutledge, Birmingham, for appellee Robert J. Hayes.
    J. Gusty Yearout, Birmingham, for ap-pellee Huel Carter.
    Robert B. Roden, pro se.
   BROWN, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App.P.

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

SEE, J., dissents.

WOODALL, J., recuses himself.

SEE, Justice

(dissenting).

I respectfully dissent from the majority’s affirmance without opinion of the trial court’s dismissal of DecisionQuest, Inc.’s, action against Robert B. Roden, Robert J. Hayes, and Huel M. Carter on theories of breach of contract, account stated, and quantum meruit.

DecisionQuest, Inc. (“DQ”), is a trial consulting firm specializing in jury research and trial-defense strategy development. A subsidiary, DQ™, produces trial exhibits. DQ, a California corporation, is a wholly owned subsidiary of Dames & More, Inc., and operates offices in Los Angeles, Houston, New York, Boston, Chicago, Washington, D.C., and Atlanta.

In 1996, Robert B. Roden, Robert J. Hayes, and Huel M. Carter (hereinafter referred to collectively as “the defendants”) were indicted in the State of Alabama for acts arising out of their practice of law while they were shareholders in the law firm, Roden, Hayes & Carter, P.C. Roden was indicted on multiple counts alleging first-degree theft of property, § 13A-8-3, Ala.Code 1975; second-degree theft of property, § 13A-8-4, Ala.Code 1975; and possession of a forged instrument, § 13A-8-6, Ala.Code 1975. Hayes and Carter were each indicted on multiple counts of first-degree theft of property, one count of second-degree theft of property, and one count alleging that they had intimidated a witness, § 13A-10-124, Ala. Code 1975.

On October 29, 1996, the late David Cromwell Johnson, Roden’s criminal defense attorney, contacted Rick Fuentes, DQ’s director of trial consulting services at DQ’s office in Atlanta, about purchasing from DQ a juror profile, defense strategy, and trial exhibits for Roden’s upcoming criminal trial. Fuentes traveled to Birmingham to meet with Johnson and Ro-den, and with Hayes, Carter, and Hayes’s and Carter’s attorneys to discuss the type of trial-support products DQ could create for them. After the meeting, Johnson hired DQ to produce a juror profile and a defense strategy. Johnson faxed DQ instructions to bill Roden directly for DQ’s services at the address of the Roden, Hayes & Carter law firm.

The juror profile describes the attitudes and beliefs of potential veniremembers with respect to a particular case. In order to create the profile in Roden’s case, DQ’s Atlanta office developed a survey instrument designed to collect data from which DQ’s analysts could then construct a model that would explain how potential jurors would evaluate the various issues to be tried by this case. DQ hired the Parker Group, an Alabama vendor, to conduct a telephone survey in Jefferson County using the survey instrument DQ provided. DQ’s Atlanta office analyzed the data it received from the Parker Group and created a profile of the Jefferson County jury pool. DQ produced a written report, and its staff made an oral presentation of results to Johnson, Roden, Hayes, and Carter.

The “trial strategy” recommends the narrative or storyline DQ believes the defense should construct at trial to explain the case to the jury. DQ developed the trial strategy by evaluating how simulated jurors responded to a videotape that presented defense arguments and likely prosecution arguments. DQ first consulted with Roden’s, Hayes’s, and Carter’s attorneys to learn the facts of the case. Using this information, DQ’s Atlanta office produced a trial videotape in which a neutral presenter summarized the best potential arguments for the prosecution and for the defense. DQ hired Focus One in Jackson, Mississippi, to recruit and pay a pool of simulated jurors in Jefferson County for the trial exercise. DQ hired Merida Interactive Information Services, a Pennsylvania company, to provide the equipment and staff to run the trial exercise. On January 10, 1997, two DQ staff members traveled from Atlanta to Birmingham to participate as discussion leaders in the final phase of the trial exercise.

During the trial exercise, the simulated jurors viewed the trial videotape and provided feedback about their reactions to the arguments presented by the prosecution and the defense. The simulated jurors provided much of the feedback in “real time,” using handheld computers to record their immediate reaction to the arguments. After they finished viewing the tape, the simulated jurors deliberated, much as a real jury might, about whether Roden, Hayes, and Carter were guilty. After the deliberations, DQ staff interviewed the simulated jurors about them reactions to some of the specific arguments presented on the tape. The deliberations and interviews were videotaped for subsequent detailed content analysis by DQ staff in Atlanta. After the one-day trial exercise, DQ staff in Atlanta evaluated the simulated jurors’ responses in order to create a trial strategy. DQ staff in Atlanta produced a written report that summarized the jurors’ responses and that outlined DQ’s recommended trial strategy. DQ staff also produced sample trial graphics.

Shortly after DQ completed its evaluation of the trial exercise, three DQ staff members — Rick Fuentes, Bob Minik, and Angela Rose — traveled to Birmingham to present their results. After the presentation, Johnson, Roden, Hayes, and Carter agreed to purchase trial graphics from DQ that could be used to implement the proposed defense strategy. DQ produced the trial graphics at its Houston office and Roden, Hayes, and Carter used the graphics at their trial.

On February 14, 1997, following three weeks of trial in the criminal cases against Roden, Hayes, and Carter, Roden and Hayes pleaded guilty to four misdemeanor charges: obtaining a signature by deception; making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act; misapplication of property; and falsifying business records. Carter pleaded guilty to two misdemeanor charges: obtaining a signature by deception and making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act.

Between December 1996 and February 1997, DQ mailed Roden eight invoices totaling $101,254.16. Roden never paid DQ. On April 17, 1998, DQ sued Johnson, Ro-den, Hayes, and Carter on theories of breach of contract, account stated, and quantum meruit.

From April 17, 1998, until February 2002, the parties filed numerous pleadings, answers, and motions with the trial court. In addition, various other parties were brought in and then subsequently dismissed from this action.

On February 11, 2002, Hayes moved for a judgment on the pleadings. On February 13, 2002, Hayes moved to supplement his motion for a judgment on the pleadings, asserting that DQ, a California corporation, had not obtained a certificate of authority to do business in Alabama. Hayes argued that DQ was not qualified to do business in Alabama at the time of the contract, and, therefore, that under Alabama’s door-closing statute, the contract and all other agreements on which DQ bases its theories of recovery are void. On the same day, Carter moved for a judgment on the pleadings, adopting Hayes’s motion and attachments. The trial court set a hearing on the motions for February 19, 2002.

After the February 19 hearing, the trial court entered the following order:

“At the hearing on the various Motions for Judgment on the Pleadings this Court determined that it should continue the trial setting in this case and re-open the time for filing Amended Answers so as to allow additional affirmative defenses to be pleaded. Counsel may then obtain a new hearing for the Motions for Judgment on the Pleadings.”

Subsequently, Roden moved to dismiss the action and asserted as an affirmative defense that the contract with DQ was void because when Roden and DQ entered into it, DQ was not qualified to do business in Alabama. On March 7, 2002, DQ moved to strike the defendants’ amended answers and also filed a supplemental response to their motions for a judgment on the pleadings, alleging that the contract at issue was not subject to the defendants’ affirmative defense because the contract was interstate in nature.

On March 8, 2002, the trial court held a hearing on DQ’s motion to strike the defendants’ answers. At the hearing, Roden filed an affidavit stating that the agreement was entered into in Alabama and that the agreement specified that all work was to be done in Jefferson County, Alabama. He attached to the affidavit a copy of the agreement which, he asserted, showed that the work performed under the agreement was intrastate in nature. The trial court entered the following order:

“The Plaintiffs Motion to Strike the Defendants’ amended answer, both written and oral, are [sic] Denied. The Motion to Dismiss filed 2/19/02 by Defendant Robert B. Roden is GRANTED. The Motion for Judgment on [the] Pleadings filed 2/13/02 by Defendant Huel M. Carter is GRANTED. The Motion of Defendant Robert J. Hayes for Judgment on the Pleadings filed 2/11/02 and Supplemental Motion of Defendant Robert J. Hayes for Judgment on the Pleadings filed 2/13/02 are GRANTED. Judgment is rendered in favor of all Defendants and against the Plaintiff on all issues in this case. Costs are taxed to the Plaintiff.”

DQ now appeals, arguing that the transaction was an interstate transaction not subject to Alabama’s door-closing statute, § 10-2B-15.02, Ala.Code 1975. I agree; I would reverse the trial court’s dismissal of DQ’s contract action against Roden, Hayes, and Carter.

Section 10-2B-15.02, Ala.Code 1975, bars a foreign corporation from bringing a contract action in an Alabama court unless the foreign corporation has properly registered to do business in Alabama before entering into any contract it subsequently seeks to enforce. “[T]he Commerce Clause, U.S. Const. Art. 1, § 8, cl. 3, [however,] precludes the application of §§ 10-2B-15.01 and 10-2B-15.02 against foreign corporations transacting primarily interstate business.” Community Care of America of Alabama, Inc, v. Davis, 850 So.2d 283, 287 (Ala.2002); Brown v. Pool Depot, Inc., 853 So.2d 181, 185 (Ala.2002)(acknowledging that a nonquali-fied corporation may enforce its contracts when it is engaged in interstate commerce); Stewart Machine & Eng’g Co. v. Checkers Drive In Restaurants of North America, Inc., 575 So.2d 1072, 1074 (Ala.1991)(“[B]usinesses engaged in interstate commerce are protected by the commerce clause in the United States Constitution ... and are therefore immune from the effects of the ‘door closing’ statutes .... Additionally, we note a second exception for foreign corporations whose activities in Alabama are merely incidental to a transaction of interstate business.”). A door-closing statute will not be enforced “if its enforcement in a particular ease would unduly burden interstate commerce .... ” S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1510 (11th Cir.1990).

Interstate commerce takes many forms. “ ‘[A]ll interstate commerce is not sales of goods. Importation into one state from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade, and dealing between citizens of different states, which contemplates and causes such importation, whether it be of good, person, or information, is a transaction of interstate commerce.’ ”

Uncle Ben’s, Inc. v. Crowell, 482 F.Supp. 1149, 1154 (E.D.Ark.1980)(quoting Furst v. Brewster, 282 U.S. 493, 497, 51 S.Ct. 295, 75 L.Ed. 478 (1931)). “[F]or purposes of commerce clause analysis, interstate commerce includes ‘any activity of an intrastate nature which [is] an integral part of an overall interstate pattern or transaction.’ ” Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1443 (5th Cir.1988)(quoting Diversacon Indus. v. National Bank of Commerce, 629 F.2d 1030, 1033 (5th Cir.1980)).

This Court has consistently held that “[a] non-qualified foreign corporation is not barred from enforcing its contracts in Alabama when its activities within this state are incidental to the transaction of interstate business.” North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So.2d 598, 601 (Ala.1988). A foreign corporation may enforce its contracts so long as it has not “ ‘localized its business’ in the forum state,” Community Care of America, 850 So.2d at 287 (quoting Union Brokerage Co. v. Jensen, 322 U.S. 202, 210, 64 S.Ct. 967, 88 L.Ed. 1227 (1944)), and so long as it has entered the state merely “ ‘to contribute to or to conclude a unitary interstate transaction.’ ” Community Care of America, 850 So.2d at 287 (quoting Union Brokerage Co., 322 U.S. at 211, 64 S.Ct. 967).

Roden, Hayes, and Carter argue that the trial court correctly found that they could void their agreement with DQ and not pay DQ for the goods and services it had already provided to them, because DQ was not qualified to do business in Alabama at the time Roden, Hayes, and Carter sought out and agreed to purchase a trial strategy from DQ. Roden, Hayes, and Carter argue that DQ conducted jury research in Alabama, using Alabama citizens and hiring Alabama firms. Roden, Hayes, and Carter further argue that their agreement with DQ states that DQ “was obligated [under the agreement] ‘to assist [Roden] and your colleagues in the preparation of the State v. Roden litigation in Jefferson County, Alabama’ [and that] [p]laintiff [DQ] promised to ‘conduct the research in Birmingham utilizing Jefferson County jurors.’ ” (Appellees’ Brief at 7-8, quoting from a letter to David Cromwell Johnson from Rick Fuentes.) Roden, Hayes, and Carter also argue that

“the undisputed affidavit of Defendant Roden confirms that all of [DQ’s] work was to be conducted in Alabama with respect to a trial to take place in Alabama, that Plaintiffs employees came to Alabama for a number of meetings, that Jefferson County residents were surveyed, that focus groups consisting solely of Jefferson County residents were hired by [DQ], and that [DQ] was hired to determine how a typical jury in Jefferson County, Alabama, would react to various issues involved in the underlying Jefferson County trial.”

(Appellees’ Brief at 9.)

Roden, Hayes, and Carter, however, did not hire DQ to perform labor in Jefferson County; instead, they purchased from DQ a piece of intellectual property — a trial strategy. When an Alabama consumer purchases information from a California corporation doing business in Georgia, that transaction is an interstate transaction. The work DQ performed in Alabama to fulfill its contractual obligation to Roden, Hayes, and Carter was incidental to that interstate transaction. “ ‘[A]ny activity of an intrastate nature which [is] an integral part of ” that interstate transaction is also interstate commerce for the purpose of considering whether the Commerce Clause preempts a state’s door-closing statute. Radio WHEW, 838 F.2d at 1443.

Roden, Hayes, and Carter argue that even if DQ was engaged in some interstate activity, DQ performed both interstate and intrastate activities when it created the trial strategy and DQ became subject to the door-closing statute based on its intrastate work. They cite Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So.2d 1242, 1244-45 (Ala.Civ.App.1986), in support of the proposition that when a transaction involves both interstate and intrastate activities, “one must separate the interstate and intrastate activities and then determine whether the main or primary purpose of the contract constitutes an interstate or intrastate activity.”

In Competitive Edge, a New Mexico advertising agency created and placed television advertising for Tony Moore Buick-GMC. Competitive Edge’s account executive met frequently with Tony Moore in Huntsville or in Decatur. Competitive Edge shot television commercials on the Moore-GMC dealership lot. Competitive Edge wrote advertising scripts based on changes in Moore GMC’s inventory. Finally, Competitive Edge negotiated air time with Huntsville television stations to broadcast Moore-GMC’s commercials.

The Court of Civil Appeals recognized in Competitive Edge that “transactions in Alabama by a nonqualified foreign corporation involving no more than a sale, transportation, and delivery of materials into this state are acts of interstate commerce to which the laws of Alabama are not applicable.” 490 So.2d at 1244. The Court of Civil Appeals found, however, that Competitive Edge was distinguishable from cases involving a sale of products because Competitive Edge’s “contract [with Moore-GMC] also involved the negotiating for and procuring of air time from three Huntsville television stations.” 490 So.2d at 1244. The Court of Civil Appeals held that the contract in Competitive Edge was an intrastate transaction because “the primary purpose of the contract between Competitive Edge and Moore-GMC was the service which was agreed to be rendered under it, i.e.[,] the broadcasting of automobile advertisements in the local area.” 490 So.2d at 1246. Thus, although the primary purpose of the contract was the intrastate placement and broadcasting of the commercials, it is most significant for the case before us that, notwithstanding the frequent meetings between Competitive Edge’s account representative and Tony Moore in Alabama and notwithstanding that Competitive Edge shot television commercials on the Moore-GMC dealership lot in Alabama, the Court of Civil Appeals concluded that the production and transportation of the videotaped commercials was an interstate transaction. 490 So.2d at 1246. The trial strategy, embodied in the reports DQ forwarded to Roden, Hayes, and Carter, is like the videotaped commercials forwarded by Competitive Edge. It was David Cromwell Johnson and Roden, Hayes, and Carter who were to implement the trial strategy in Alabama, not DQ. Thus, while the implementation of the trial strategy was intrastate in nature, the preparation of that strategy by DQ and the forwarding of it to Roden, Hayes, and Carter was an interstate transaction.

Moreover, the mere fact that DQ created a trial strategy adapted specifically to Jefferson County does not make the transaction an intrastate transaction. In Wallace Construction Co. v. Industrial Boiler Co., 470 So.2d 1151, 1152 (Ala.1985), Industrial Boiler Company, a Georgia company, designed and manufactured a boiler system to satisfy specific design requirements established by the University of Monteval-lo’s project bid specifications. This Court’s analysis of the application of the door-closing statute in Wallace Construction assumed that the sale by a foreign manufacturer to a domestic consumer of a custom-designed industrial boiler was an interstate transaction.

Also in this case, DQ’s actions in Alabama do not transform its interstate sale of a trial strategy to Roden, Hayes, and Carter into an intrastate transaction. DQ’s initial meetings in Alabama with Ro-den, Hayes, and Carter, and the final presentation in Alabama of DQ’s recommended trial strategy do not constitute intrastate activities sufficient to trigger the door-closing statute because “acts such as delivering materials or soliciting business are generally not enough to constitute ‘doing business.’ ” Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1370 (Ala.1988). Also, the fact that DQ purchased from an Alabama vendor survey data about public attitudes in Jefferson County and used Mississippi and Pennsylvania vendors to assemble and to conduct portions of the trial exercise in Jefferson County does not transform the interstate sale of a trial strategy to Roden, Hayes, and Carter into an intrastate transaction. “A foreign corporation must enjoy the same access to the domestically-provided goods and services required to complete its interstate business as is enjoyed by domestic corporations.” Radio WHKW, 838 F.2d at 1445.

In Radio WHEW, an Alabama radio station not qualified to do business in Mississippi sought to enforce, in Mississippi, a noncompetition agreement signed by a former employee. The trial court held that the radio station’s action was barred by Mississippi’s door-closing statute. The United States Court of Appeals for the Fifth Circuit reversed the trial court’s judgment and held that although the radio station maintained a sales office in Mississippi, purchased supplies in Mississippi, leased automobiles for its sales staff in Mississippi, and entered into numerous other contracts in Mississippi to sell advertising time, the radio station had engaged merely in a series of unitary transactions, and had not localized its business sufficiently to allow Mississippi’s door-closing statute to serve as a bar to the radio station’s contract action against the former employee. 838 F.2d at 1441-43. The court reasoned that although the radio station had extensive contacts with Mississippi, those contacts did not localize the radio station’s business in Mississippi because the radio station’s primary business remained the interstate broadcast of radio signals. 838 F.2d at 1443.

Similarly, in Wallace Construction, this Court held that Industrial Boiler, a Georgia corporation, had not localized its business in Alabama and that the interstate sale of a boiler did not acquire an intrastate character merely because Industrial Boiler hired three to five local residents and leased construction equipment locally in order to install the boiler system at the University of Montevallo. 470 So.2d at 1152. This Court held that the labor performed to install the boiler was incidental to the sale of the boiler. 470 So.2d at 1155. This case is even more compelling. DQ sold Roden, Hayes, and Carter a trial strategy rather than a boiler; however, DQ did not appear in court on behalf of Roden, Hayes, and Carter to carry out the strategy. In effect, DQ sold Roden, Hayes, and Carter the “boiler,” but left it to Roden, Hayes, and Carter to find someone else to handle the installation.

DQ’s sale of the trial strategy and the trial graphics to Roden, Hayes, and Carter is a unitary interstate transaction; therefore, the trial court erred when it dismissed DQ’s action on its contract seeking to compel Roden, Hayes, and Carter to pay for the trial strategy and trial graphics they purchased from DQ. Therefore, I dissent.

      . DQ refers to this as a "venue evaluation.”

      . Roden, Hayes, and Carter argue that DQ was hired to conduct a survey and to make a presentation to some focus groups in order to gauge potential juror attitudes. DQ presented Roden, Hayes, and Carter with much more than "survey results." For example, in one report, DQ provided Roden, Hayes, and Carter with a draft opening statement and with a list of themes that could be developed at trial.

      . One of DQ’s allegations on appeal is that it was understood that its services were performed not only for Johnson’s client Roden, but also for Hayes and Carter. As a result, DQ alleges, Hayes and Carter were also parties to the agreement and are liable for its breach.

      . David Cromwell Johnson is deceased and as to him the case has been dismissed.

      . There is no dispute as to the appropriate standard of review in this case. While the trial court characterizes its order as one granting a motion to dismiss based on the pleadings, because both sides submitted supporting evidentiary material the motion is properly treated as one for a summary judgment.
      "If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
      Rule 12(b), Ala. R. Civ. P. Properly framed, the issue before the trial court and before this Court on appeal is whether there is a genuine issue of material fact as to whether the transaction was interstate in nature, thereby relieving DQ of the need to qualify to do business in Alabama before DQ may avail itself of Alabama’s courts.
      This Court reviews a summary judgment de novo. We use the same standard the trial court used to determine whether the evidence made out a genuine issue of material fact, see Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was "entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P.
      " 'When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the non-movant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial” if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright[v. Wright], 654 So.2d [542] at 543 [(Ala.1995)] (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).' ”

        Walker v. City of Montgomery, 833 So.2d 40, 43 (Ala.2002)(quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).

      . Alabama’s door-closing statute reads, in pertinent part:
      "(a) A foreign corporation transacting business in this state without a certificate of authority or without complying with Sections 40-14-1 to 40-14 — 3, inclusive, 40-14— 21, or 40-14-41, may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.”
      § 10-2B-15.02(a), Ala.Code 1975.

      . They also cite Vines v. Romar Beach, Inc., 670 So.2d 901 (Ala.1995), for the proposition that even a single act of business carried on in furtherance of a corporation’s purpose is sufficient to bring a company under the door-closing statute. Vines actually held that the intrastate activities at issue were not incidental to the company's purpose, and that the foreign corporation had been organized for the sole purpose of doing business in Alabama. 670 So.2d at 903-04. This case is distinguishable because DQ is not in the business of conducting telephone surveys or of recruiting simulated jurors (which is why they contracted those tasks to other vendors); DQ is in the business of creating and selling trial-defense strategies.

      . This case can be contrasted with Ex parte Dial Kennels of Alabama, 771 So.2d 419 (Ala.1999). In Dial Kennels, this Court found that when Dial Kennels bred greyhound puppies in Alabama, raised them for 90 days, transported the puppies out of state for training, and then returned the puppies for use in Alabama, Dial Kennels was engaged in intrastate activity. Dial Kennels is distinguishable because this Court held that the kennel localized its business by creating an ongoing dog-breeding business. 771 So.2d at 427. In the present case, DQ engaged in a one-time transaction with Roden, Hayes, and Carter. A unitary transaction in which a company does not localize its business is generally not intrastate in character. See Community Care of America, 850 So.2d at 287. Moreover in this case, DQ engaged in what, for it, constituted a series of interstate transactions in order to complete the contract with Roden, Hayes, and Carter. DQ, operating from Georgia, purchased survey data from an Alabama company; DQ also purchased services from Mississippi and Pennsylvania companies.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    R.W. and S.F. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2010934, 2010935 and 2010936.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2002.
    Rehearing Denied Jan. 31, 2003.
    Certiorari Denied May 2, 2003 Alabama Supreme Court 1020762.

      R. Aaron Gartlan of Moulton, Capps & Gartlan, P.C., Dothan, for appellant R.W.
    Ginger Emfinger Lucas, Dothan, for appellant S.F.

      William H. Pryor, Jr., atty. gen., J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., for appel-lee.
   PITTMAN, Judge.

S.F. (“the mother”) and R.W. (“the father”) appeal a trial court’s order terminating their parental rights as to each of their three children, D.W., Sh.W., and S.W. In May 2000 the Department of Human Resources (“DHR”) filed petitions to terminate the parental rights of the mother and the father as to the three children. On April 24, 2002, and May 7, 2002, the trial court held a hearing on those petitions. At the time of the hearing, the children were seven, six, and three and one-half years old.

Tami Chancy, a licensed professional counselor, testified at the hearing. Chancy stated that she had counseled two of the children, D.W. and Sh.W., for a year and a half. Chancy described the significant positive behavioral changes she had seen since the children were placed in foster care. Chancy testified that the two children were hyperactive, but that a combination of medication and structure provided by the foster parents had helped the two children concentrate better and behave better in school and in public. Chancy stated that after her first two or three visits with the children, neither of them had mentioned their natural father during counseling sessions.

Tony Webber, a Houston County probation officer, testified that he had known the mother since April 2001. He described the community corrections program that the mother was enrolled in that required her to cooperate completely with DHR; to violate no federal, state, or local laws; to find and maintain suitable employment; to refrain from changing residences without prior permission; and to pay a supervision fee of $25 per month for the duration of her probation. Webber testified that the mother had not maintained any stable employment during her probation, that she had moved without permission, and that she had not paid any supervision fees since October 2001. Web-ber stated that he had seen no improvement in the mother’s ability to handle responsibility in the year preceding the hearing. Webber also stated that if the mother had not been pregnant at the time of the hearing, the Houston County probation office would have revoked her probation.

Linda Thomas, a staff member of Family Options, an independent agency providing intensive on-site intervention to help families in crisis, testified that DHR had referred the mother to Family Options for services nearly three months before the hearing in reference to the mother’s then nine-month-old child, D.F. Thomas stated that she visited the mother’s house and observed filthy conditions that she thought made the house unsafe for a nine-month-old baby. Thomas noticed that the sink was piled with dirty dishes, that clothing was strewn all over the floor, that the bathroom was filthy, and that the baby’s high chair was encrusted with dried food. Thomas concluded by stating that she saw no reason why either the mother or her then husband (not the father) could not perform basic housework to keep the house clean and safe for a child.

On cross-examination, Thomas stated that, although Family Options is a four-week intervention program, a coworker and she had made a total of five weekly visits to the mother’s house. Thomas noted that she had personally visited the mother’s house four times, but the mother was not at home on two of those occasions. Thomas stated that she and the mother had developed some goals, but that the mother had not changed her habits.

Jennifer Magrino, the DHR caseworker for the three children, received the case in May 2000, at the same time the children were taken into custody by DHR. Magrino stated that DHR had held 19 meetings to develop Individual Service Plans (“ISPs”) to aid the father and the mother in regaining custody of their children. She testified that the father had attended nine of those meetings. Magrino stated that she discussed with the father the termination procedure and the father’s right to an attorney. According to Magrino, the father initially stated that he believed foster care was best for the children. Magrino did not recall the father’s asking for custody of the children at any time during the year preceding the hearing. Furthermore, she stated that none of the father’s relatives had been identified as suitable alternatives to raise the three children.

Magrino testified that before May 2000 DHR had received 22 indicated reports that the care of the children was inadequate. She also testified concerning the following matters: The father had left the house in February 2000, before DHR took custody of the children. The mother had moved eight times since the children were taken into DHR’s custody. DHR provided numerous services to the mother to help her regain custody of the children, including transportation services, financial aid, homemaker services, employment referrals, counseling services, and parenting classes. The mother has not been able to maintain employment for any length of time; at the time of the hearing she was working part-time for minimum wage. Magrino concluded that the mother had made some lifestyle changes, but had not been able to maintain those changes for any length of time. Magrino cited, as an example, that the mother had found work, but had been unable to keep a steady job. Magrino also noted that the mother was able to clean her home, but had failed to maintain the cleanliness. Magrino did not foresee either the mother or the father making the changes necessary to regain custody of the children in the near future.

Magrino noted that DHR intervened about one month before the hearing and had removed a fourth child, D.F., due to inadequate supervision and neglect. Mag-rino testified that the mother was pregnant at the time of the hearing and that her fifth baby was due in June 2002. Magrino testified that the mother had recommended her two half sisters, A.W. and H.O., for alternative placement. Magrino stated that A.W.’s home evaluation revealed that that sister already had two children of her own and that her husband had been arrested for possession of a controlled substance. The evaluation further noted that A.W. had an indicated-neglect report concerning her child, as well as an arrearage in child support for a child not in her custody. According to Magrino, DHR attempted to perform a home evaluation of H.O., but a vacant lot was at the address DHR had been given, and DHR could not verify H.O.’s address. Magrino stated that the mother later indicated that she did not want her children left with H.O. because she feared they would be abused.

During cross-examination, Magrino stated that she believed that the mother loved her children. She also testified that at the time of the hearing DHR was working with the mother to develop an ISP to regain custody of the fourth child because the child had been removed from the mother’s custody only one month before the hearing. Magrino stated that because the three older children had been in foster care for 28 months, she believed the children needed a permanent home as soon as possible.

On the second day of the hearing, Mag-rino testified that the father had never asked to be considered by DHR as an alternative placement for the children. Magrino stated that the father’s mother had initially been reviewed as a candidate for alternative placement of the children, but her health was too poor to allow her to be considered. Magrino reviewed the latest ISP for the father, stating that it showed that the father loved the children, that he was responsive to them, that he was willing to accept assistance, and that he was employed. Magrino also stated that the fact that although the children had improved while in foster care, those improvements did not solve the problems that originally required DHR to remove them from the mother.

Magrino also stated that she received a report from Dr. Roby Hicks who had diagnosed the mother with adjustment disorder with depressed moods resulting in parent/child relational problems, partner relational problems, and occupational problems. Dr. Hicks’s report included a statement that the mother had had suicidal thoughts but that she had not acted on them because the mother believed an unsuccessful suicide attempt would prevent her from getting custody of her children.

The trial court asked Magrino about referring the mother to Family Options in May 2000. Magrino agreed that Family Options had not succeeded in helping the mother keep custody of her children. Magrino stated that she had seen the mother keep a clean and safe environment for a time, but that the living environment would deteriorate; on occasion, she had seen animal feces on the floors and other similar unsanitary conditions. Magrino also testified to the following matters: During the two years before the hearing, DHR had received reports that the children were playing naked in the neighborhood, reports of domestic violence in the home, and reports of the mother’s striking the children. Furthermore, DHR did not have a current address for the father until two weeks before the hearing. The father never requested a home evaluation, and he never paid any child support during the entire time the children had been in foster care.

The mother testified that she had left an abusive relationship with another man, had married again, and was pregnant with her fifth child. The mother stated that she had completed several parenting classes. The mother testified that her new home was a mobile home with three bedrooms and one and one-half baths. The mother brought pictures of her new home, which showed beds for the children, and the safety plugs and doorknob covers that she had purchased. The mother stated that DHR had told her what to do in order to regain custody of her children; she testified that she had tried to do everything DHR had told her to do. The mother discussed all the jobs she had had in the two years before the hearing; she stated that she had lost most of them because of health problems and a lack of transportation. The mother stated that she had been molested while she was a minor and in foster care and that she had had her first two children while she was still in DHR’s custody. The mother related that although she had only a part-time job, she and her new husband jointly earned $1,438 each month; she stated that this money paid all their bills, with some money left over. The mother described a typical overnight visitation, including the amount of time she plays with the children, the amount of time she allows for naps, the amount of time they spend preparing and eating meals, the amount of time the children are allowed to watch television, and the chores each child performs while visiting their mother.

The mother recounted her childhood spent in DHR’s custody and the abusive situations she had lived through. The mother stated that because she loves her children and wants them to have a better childhood than she experienced, she is willing to do whatever DHR says she must to regain and maintain custody of her children. On cross-examination the mother admitted that she had not paid any child support since November 2000. The mother also admitted that she had not had her children for overnight visitation since the previous year and that her description of overnight visitation was merely her plan for future visits. The mother admitted that due to her difficult childhood she still needed counseling.

The father did not testify. The trial court entered a separate order for each child, terminating the mother’s and the father’s rights as to S.W., Sh.W., and D.W. The father and the mother filed timely appeals contesting the termination of their parental rights as to each child.

“ ‘[0]ur standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of a trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown.’ ”

Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994)(quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted)).

The law in Alabama is that parents have a prima facie right to the custody of their child. See Ex parte D.J., 645 So.2d 303 (Ala.1994); Ex parte Terry, 494 So.2d 628 (Ala.1986).

“This prima facie right can be overcome only by clear and convincing evidence that the child’s best interests would be served by removing the child from the parent’s custody. The consideration for the best interests of the child lies at the heart of every proceeding to terminate parental rights.”

M.H.S. v. State Dep’t of Human Res., 636 So.2d 419, 421 (Ala.Civ.App.1994). Also in such a proceeding, the juvenile court must find from clear and convincing evidence that the child is dependent and that there are no viable alternatives to terminating the parental rights. See Ex parte Beasley, 564 So.2d 950 (Ala.1990). The statutes regarding termination of parental rights are codified at §§ 26-18-1 through 26-18-11, Ala.Code 1975.

Section 26-18-7(a) provides, in relevant part:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child....
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the [DHR] ... leading toward rehabilitation of the parents have failed.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.”
Furthermore, § 26-18-7(b) provides that if, at the time of the termination hearing, the child is not in the custody of the parents, the juvenile court may consider whether the parents are providing monetary support for the child, whether they are regularly exercising visitation with the child, and whether they are adjusting their “circumstances to meet the needs of the child.”

We first address whether the children are dependent. The evidence indicated that before the children were taken from the mother in May 2000, DHR had received 22 indicated reports of inadequate care of the children. DHR offered several types of services to help the mother regain custody of the children including counseling, transportation, financial aid, homemaking services, employment referrals, and parenting classes. However, as recently as six weeks before the hearing, crisis intervention was unable to prevent the mother from losing custody of her fourth child, a nine-month-old baby. The mother has not paid any child support since the previous year nor has she maintained a steady full-time job. The evidence also indicated that the father left the mother in February 2000. DHR did not have an address for the father until less than a month before the hearing and he has never paid any child support. We conclude that the record contains clear and convincing evidence that the children are dependent.

We next review whether the juvenile court properly considered viable alternatives to a termination of the parents’ parental rights and whether it properly rejected those alternatives. While the mother has consistently exercised visitation, she has not paid child support since the year before the hearing, and she has not maintained a steady job or kept a clean home environment. The evidence indicated that the mother had recommended her two half sisters, A.W. and H.O., for alternative placement. The evidence also showed that neither sister was an appropriate candidate for placement for various reasons including the potential for domestic violence and further neglect. In fact, the mother indicated that she did not want her children left with H.O. because she feared the half sister’s father might abuse the children. The evidence indicated that the mother was able to make some lifestyle changes for short periods, but that she was unable to maintain those positive changes over the long term.

Although the father had attended half of the ISP meetings with DHR and had exercised sporadic visitation with the children, he never asked for custody of the children and he never requested a home evaluation. DHR reviewed the father’s mother as a possible candidate for alternative placement but determined that she was not a viable alternative because her health was so poor that she could not manage visits with more than one child at a time. We conclude that the trial court did not err when it determined that there were no viable alternatives to terminating the parental rights of the mother and the father.

Because clear and convincing evidence supports a finding that the children are dependent and because there are no viable alternatives to terminating the parental rights of the mother and the father, we affirm the juvenile court’s judgment terminating the mother and the father’s parental rights.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . The mother was convicted of two ''NWNI's” in the district court and of second-degree possession of a forged instrument in the circuit court.

      . D.F. is not one of the children as to whom DHR is seeking to terminate the mother's parental rights in this action.


author: CRAWLEY, Judge. MURDOCK, Judge, THOMPSON, Judge,

text:
    Darrell KIMBRELL d/b/a Kimbrell Builders v. Larry Lee WHITE. Larry Lee White v. Darrell Kimbrell d/b/a Kimbrell Builders.
    2010886.
    Court of Civil Appeals of Alabama.
    April 25, 2003.

      Micheál S. Jackson of Beers, Anderson, Jackson, Hughes & Patty, P.C., Montgomery, for appellant/cross-appellee Darrell Kimbrell d/b/a Kimbrell Builders.
    Roger W. Pierce of Haygood, Cleveland & Pierce, L.L.P., Auburn, for appel-lee/cross-appellant Larry Lee White.
   CRAWLEY, Judge.

Darrell Kimbrell d/b/a Kimbrell Builders (hereinafter sometimes referred to as “the company”) appeals from the trial court’s judgment ordering it to pay workers’ compensation benefits to Larry Lee White (hereinafter referred to as “the worker”) for a back injury. The worker cross-appeals from that part of the trial court’s judgment ordering that the company was not obligated to pay workers’ compensation benefits for his carpal-tunnel syndrome. We affirm as to the company’s appeal and reverse and remand as to the worker’s cross-appeal.

On October 18, 2000, the worker sued the company seeking workers’ compensation benefits for carpal-tunnel syndrome he alleged arose out of and in the course of his employment with the company; the complaint also sought additional damages on counts alleging fraud and the tort of outrage. On November 22, 2000, the company filed an answer to the count of the worker’s complaint seeking workers’ compensation benefits, and filed a motion to sever that count from the other counts stated in the complaint. On December 12, 2000, the company filed an answer to the worker’s counts alleging fraud and the tort of outrage. On January 29, 2001, the worker filed an amended complaint to include in his count for workers’ compensation benefits an allegation that he had injured his back on or about the first week of October 2000, during the course of his employment with the company. On March 22, 2001, the company filed an answer to the worker’s amended complaint. On April 24, 2001, the trial court granted the company’s motion to sever the workers’ compensation claims and set the case for trial.

On January 22, 2002, after lengthy discovery, the trial court conducted a bench trial on the workers’ compensation claims. On February 7, 2002, the trial court entered an order; that order stated, in pertinent part:

“FINDINGS OF FACT
“8. [The worker] has alleged multiple injuries arising out of and in the course of his employment. The parties have admitted into evidence the deposition and medical records of Dr. Mitchell L. Galishoff, as well as the medical charts of Dr. Stephen M. Collins, George H. Lanier Memorial Hospital, Dr. Cecil C. Waddell, Valley Orthopedics/Dr. Patrick L. Martin, the Kirkland Clinic at UAB (Dr. Christopher Paramore and Dr. Charles S. Cobbs), the University of Alabama-Birmingham Hospital, The Medical Center, and Collins Clinic.
“9. The court finds that [the worker] has carpal tunnel syndrome in both his left and right arms. The court finds, however, that the carpal tunnel syndrome is a pre-existing condition and, therefore, does not find that the carpal tunnel syndrome arose out of and in the course of [the worker’s] employment with [the company]. The court does find, however, that [the worker] suffered a lumbar herniated disc in approximately October, 2000, arising out of and in the course of [the worker’s] employment when he was injured while carrying a large wooden beam.
“10. [The company] has paid none of [the worker’s] medical expenses. [The worker’s] back surgery was performed at the University of Alabama Hospital at Birmingham. It is [the worker’s] understanding that the physicians performed the surgery without cost to [the worker] based upon his indigent financial circumstances. [The worker] has received charges from UAB Hospital related to his treatment and surgery. [The company] shall pay all unpaid, past reasonable medical expenses and all future medical expenses related to [the worker’s] back injury and surgery. [The company] shall not be responsible for the payment of [the worker’s] medical expenses related to [the worker’s] treatment for carpal tunnel syndrome.
“11. [The worker] has reached maximum medical improvement.
“12. [The worker] completed the eighth grade at Troup County High School in LaGrange, Georgia. He has no GED [certificate] or further educational training.
“13. [The worker’s] job history consists almost exclusively of construction work. [The worker] has no readily transferrable job skills to other occupations.
“14. Randall S. McDaniel, a licensed occupational therapist and certified rehabilitation counselor, testified as a vocational expert. Mr. McDaniel interviewed [the worker] and conducted several tests. Mr. McDaniel administered math and reading portions of the Woodcock Johnson Psycho-Educational Test Battery and the Slosson Intelligence Tests, Revised. On the reading portions of the tests administered, [the worker] demonstrated reading capacity at the fifth grade level. On the math portions of the tests, [the worker] demonstrated performance at the seventh grade reading level. On the Slos-son Intelligence Test, [the worker] obtained a total standard score of 94, placing him in the low average range, which is consistent with his work background. Upon consideration of [the worker’s] educational history and abilities, his work history and medical condition, Mr. McDaniel concluded that [the worker] has a 100% vocational disability at the present time.
“15. [The company] offered no vocational evidence.
“16. [The worker] testified that he is unable to return to carpentry work. He cannot bend, stoop, lift, carry or climb to the extent necessary to perform his job duties as a carpenter.
“17. [The worker] complains of constant low back pain from his buttocks down into his left leg. He can only sit for short periods of time without pain and can walk and stand for only relatively short periods of time without pain. He cannot bend at the waist.
“18. Following his back injuries, [the worker] has done some very sporadic light work. However, he has been unable to engage in gainful employment since October, 2000.
“19. [The worker] continued to take strong medications prescribed and monitored by Dr. Galishoff. [The worker] takes Lortab for pain and Xanax to help him sleep and for his nerves.
“20. Based upon the testimony presented by the witnesses, the stipulations of the parties, the medical testimony of the treating physician, Dr. Galishoff, and the medical records and vocational report admitted into evidence, the court finds that [the worker] has suffered a permanent and total disability as defined by the Alabama Workers’ Compensation Act.
“CONCLUSIONS OF LAW
“21. Based upon the court’s findings of fact, the court concludes that [the worker] is entitled to recover from [the company] workers’ compensation benefits under the laws of the State of Alabama.
“23. [The worker] is entitled to be compensated for permanent total disability resulting from his back injury and subsequent surgery, which arose out of and in the course of his employment with [the company].

On March 8, 2002, the company filed a motion to alter, amend, or vacate the trial court’s judgment, to which the worker filed a response. On April 23, 2002, the trial court denied the company’s postjudgment motion. On June 4, 2002, the company filed a notice of appeal to this court. On June 12, 2002, the worker filed his cross-appeal.

On appeal, the company argues that the trial court erred by awarding workers’ compensation benefits to the worker for his back injury because, it says, the worker failed to present substantial evidence of medical causation or legal causation. In his cross-appeal, the worker argues that even if his carpal-tunnel syndrome was a preexisting condition, that fact does not bar his being entitled to workers’ compensation benefits for that condition.

The standard of review this court uses when reviewing a trial court’s judgment in a workers’ compensation case is well settled. The Workers’ Compensation Act provides that “[i]n reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” § 25 — 5—81(e)(1), Ala.Code 1975. Our supreme court has stated the standard of review to be applied to the trial court’s findings of fact as follows:

“[U]nder the applicable standard of review, we will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975)). See also § 25-5-81(e)(2), Ala.Code 1975. Further, “[t]he [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

I. The Company’s Appeal

The company argues that the worker failed to prove either medical causation or legal causation so as to entitle him to workers’ compensation benefits for his back injury. In support of its argument, the company focuses on inconsistencies between the worker’s testimony, the worker’s answers to interrogatories, and medical records offered and accepted into evidence. It further asserts that there was no medical evidence or testimony that documented an injury to the worker’s back in October 2000. The thrust of the company’s argument at trial was to question the worker’s credibility; the worker contended that he had reported his back injury; the company denied that he did; and the chronology of events concerning the worker’s alleged work-related back injury did not match his medical records. Therefore, the company asserted, the worker did not injure his back on the job.

In his amended complaint, the worker stated that “on or about the first week of October 2000 while in the employment of [the company], [he] injured his back when he slipped and fell while carrying a beam across [the company’s] job site.” In response to an interrogatory from the company asking the worker to “[d]escribe in detail the injuries sustained in the accident,” the worker responded, in pertinent part:

“I hurt my back carrying [a weight-bearing beam] with Perry. I slipped on mud at [the] carport. I notified Darrell Kimbrell and worked the rest of the day, then went to Emergency Room and the doctor first told me I pulled a hamstring then several weeks later was told it was my back.”

At trial, during direct examination by his own counsel, the worker testified concerning his back injury, in pertinent part, as follows:

“Q. Did you have an incident where you hurt your back working for [the company]?
“A. Yes, sir.
“Q. Did that happen after that letter from Dr. Galishoff or before? [Dr. Galishoff had sent a letter to the company in August 2000 concerning the worker’s carpal-tunnel syndrome.]
“A. After.
“Q. Do you remember the date that you hurt your back?
“A. No, sir, I don’t.
“Q. All right. Was it in the year 2000? “A. Yeah, seemed like it was about halfway through the year 2000.
“Q. Tell me what happened that time when you hurt your back?
“A. Me and another boy that was working for him [were] toting [beams].
“Q. Well tell me what happened with that beam that caused you to get hurt?
“A. Me and — it had been raining, I think it rained for like a day and a half, and we [came] in that morning and [Darrell Kimbrell] told us to go around back and bring them around, you know, to where we could get ready to set them. And I thought it was funny because he only put two people toting them, and you know, you should have three or four people toting them at least because they’re extremely heavy. And we went around there and we [were], you know, trying to get them around there where he wanted them.... And the boy that was helping me, he was on the front of the beam and I was on the back of it. And we [were] toting it around the house and he stepped up in the garage and he was walking across the concrete and I went to step up in the garage and where they poured the garage, you’ve got to dig a foot to where concrete goes down in the ground to help support the house, and there was a hole there, all the way around the whole house was a, you know, a little ditch around it. And when I went to step from the ground up on the concrete it was pretty muddy and my foot shot off in that hole. Whenever it did it ..., I dropped down probably six, eight, ten inches, and it was just a sudden jar with that weight. And whenever it jarred I felt a pain go down the back of my leg and up my back. And I told [the coworker] then, I said you know, I told him to stop, because he was trying to keep walking. And he turned around and looked at me and I told
him we needed to set it down. And he set his end down and I more or less dropped mine because I couldn’t hardly bend over.
“Q. Okay. Now, was there anybody on the job that day besides you and [the coworker]?
“A. [Darrell Kimbrell] was there....
“Q. Okay. You say [Darrell Kimbrell] was there. Was he in the garage where this happened, or where was he?
“A. He was on top of the first floor starting for the second floor. He was up on top of the house.
“Q. All right. Did he, did you and [Darrell Kimbrell] talk any after this event happened when you hurt your back?
“A. Yes, sir, I told him I hurt my back.
“Q. Okay. And what did, what did you do then?
“A. Well, whenever it happened I sat down for a little bit and I figured out that, you know, something was wrong, real bad wrong. So I went and got in the truck and it took me awhile to get home but I finally got home. And I laid there all that day, or the rest of that day. And it wouldn’t, you know, it just, it got, it kept getting [worse] and [worse]. And so finally I ended up going to the doctor about it and he told me that I probably tore some muscles in my back or something.
“Q. All right. Let me stop you. What doctor did you go see?
“A. [Dr.] Galishoff.
“Q. Okay. Did you tell [Darrell Kim-brell] you were leaving the job site that day?
“A. Yes, sir.
“Q. Have you ever had any type of injuries, on the job, off the job, that kept you from working before this carpal tunnel and this back injury?
“A. No, sir.
“Q. Did you have an event where you were dragging a deer stand out of the woods one time and you hurt your back, do you remember anything about that?
“A. I pulled a hamstring on the back of my leg.
“Q. Which leg was that?
“A. It was, I’m not really sure now. It’s been a long time ago. And I know the people at the [emergency room] where I went to whenever it happened they said it was a pulled hamstring....”

On cross-examination by the company’s counsel, the worker testified, in pertinent part, as follows:

“Q. [Your] amended complaint states in paragraph five that on or about the first week of October of 2000 that you injured your back. That’s what this amended complaint says, that the first week of October you hurt your back. And this amended complaint [w]as filed January 29, 2001. So in your amended complaint, anyway, you allege that you hurt your back the first week of October 2000; correct?
“A. I’m not sure what the date was when I was hurt.
“Q. Yeah. Well, assuming that this amended complaint is accurate obviously you had already had this injury the first week of October when you filed your original complaint October 18th; correct? If this is true, if this is accurate that you hurt your back the first week of October you didn’t file the complaint until October 18th which is after the middle of October and you didn’t say anything in the original complaint about your back, did you?
“A. I’m not sure whenever that — I know when I went to the lawyer to start with it was about my [workers’] comp on my wrists. And after I had, after I had went to the lawyers it was probably three to four and a half weeks after that, or maybe five weeks after that whenever my back got hurt. I’m not sure of the dates....
“Q. Now isn’t it true, Mr. White, that your allegation of a back injury is an afterthought, that you alleged in January of 2001, you alleged that you had hurt your back on the job in order to get this surgery done?
“A. No, sir.
“Q. All right. So the records of Dr. Galishoff have been admitted into evidence. And you’ve already testified to the Judge that after this back injury occurred you first went home but then it didn’t get any better so you went to see Dr. Gali-shoff?
“A. Yes, sir.
“Q. All right. The only reference in Dr. Galishoffs records to anything about your back is on October 26th he’s got, he is having a lot of leg pain. As a matter of fact, it doesn’t even say anything about your back, it says, he also hurt his leg at work several weeks ago. That was on October 26, 2000. Are you sure you went to Dr. Gali-shoff and told him about pain in your back?
‘A. It was in the lower part of my back and my buttocks and in the back of my leg.
‘Q. All right. Well on October IS he says that you’re having pain from your carpal-tunnel syndrome, there’s nothing on there about your back or your leg. That’s on October 13th. Then on October 26th he says, he’s having a lot of leg pain. He also hurt his leg at work several weeks ago.
‘A. I don’t, I don’t know what he writes on them things.
‘Q. Okay. Well, that’s what his records say. You’ve told [your counsel] that after this back injury occurred, you went home, you sat in bed, it didn’t get any better, so then you went to see Dr. Galishoff.
‘A. I had to make an appointment to see him.
‘Q. Okay. Now the note attached to Dr. Galishoff s records dated October 26 says, pulled left hamstring at work two and a half to three months ago. Now ... hurting down to calf. That’s what the note says. Did you tell the medical people there at Dr. Galishoffs office that you had pulled your left hamstring at work two and a half or three months ago?
‘A. I told them that I had pulled my hamstring.
‘Q. At work two and a half or three months ago?
‘A. No, I didn’t tell them it was at work.
‘Q. Okay. Now according to these records you started seeing Dr. Gali-shoff June 29, 2000. That’s his first entry of your first visit to him. Is that consistent with your memory?
‘A. I don’t even remember the date was when I seen him.
:‘Q. Okay. And I will represent to you and the medical records are in evidence that from ... June 29 up until that entry that I just talked to you about, October 26, there is no mention whatsoever about you having any back pain. Are you still saying that you told Dr. Gali-shoff that you had hurt your back toting a beam at work?
‘A. Yes, sir.
‘Q. All right. Now, [your counsel] asked you a question about a deer stand or something like that. I don’t know, I don’t think it was clear what happened. And I want to ask you some questions about that.
“This is ... the Lanier Hospital records and it’s got October 21, October 21, 2000. It says this A.M. taking deer stand across, I can’t read that word.
‘A. Creek.
‘Q. Across something. Boot got hung and he fell. Is that what happened on October 21, 2000?
‘A. Actually what it was is I was taking a deer stand down in the woods to put it on a tree and I was crossing a creek and my boot got hung, I didn’t fall, I slid down inside the creek. And they told me that it pulled a hamstring in the back of my leg.
‘Q. Okay. And that is accurate as to the date, October 21, 2000?
‘A. I’m not sure what the date was.
‘Q. Well, do you have any reason to disagree with this record that says October 21?
“A. No, I have no reason to disagree with it because I don’t remember the date.
“Q. All right. Now, and that would be after you filed the verified complaint in this case alleging that you had carpal-tunnel syndrome; correct?
“A. I’m not sure whenever I filed that.
“Q. Okay. Well, we’ve established that that was October 18 that you signed that and filed it, October 18 and this is October 21, three days later you’re doing this with this deer stand and according to this taking the deer stand across something and your boot got hung and you fell. You deny telling the doctor that you fell?
“A. I didn’t tell him I [fell], I just told him that I slid down the side of a creek.
“Q. Okay. And that is what Dr. Gali-shoffs records talk about in October 26, [2000], it talks about you having leg pain doesn’t it?
“A. No, I am not sure what they say. I haven’t looked at them.
“Q. Okay. Well, now you have looked at them, we went over them and I’m not going to repeat that but October 26, [2000,] is when Dr. Galishoff for the first time says that you come to him and you’ve got [a] complaint of leg pain. So that would be in between, this accident here would be in between when you filed the complaint and when you saw Dr. Galishoff on October 26, wouldn’t it?
“A. I guess.
“Q. Okay. Well, we’ve already looked at this. October 13 you saw Dr. Galishoff, he says nothing about
any pain in your leg. October 18 you filed the complaint and it says nothing about any pain in your back or leg. October 21 you have this incident with this deer stand.
“A. Uh-huh. (Affirmative response.)
“Q. Which you deny falling, according to your testimony, but you have this incident on October 21. Then you see Dr. Galishoff on October 26 and for the first time he’s talking about you having leg pain.
“A. Yeah, he told me I had a pulled hamstring too.
“Q. Okay. And in fact, [in your deposition testimony] you make a reference there that it was two days before you filed the lawsuit when you were toting the beam; right?
“A. I think it was a couple of days before I signed the — I went down there, I told them what happened, then I had to go back to sign papers for them and medical releases and all this other stuff.
“Q. All right. Now you also told me, in your deposition you told me and you’ve told [your counsel] and the Judge here in court today that after this incident that you went to Dr. Galishoff after you first went home ...; correct?
“A. Yeah, it was — I don’t — let’s see, if I remember correctly I don’t think it was the same day.
“Q. In your answers to interrogatories, in response to number 12 you say, I notified [the company] and worked the rest of the day. It doesn’t say anything about going home and resting, it says you worked the rest of the day ...; is that correct?
“A. I don’t think that is correct, because—
“Q. Okay. Then you say, then went to the emergency room....
“A. I went to the emergency room but I didn’t work the rest of that day.
“Q. Well, now, which way was it? I mean now you say you went to the emergency room. You told [your counsel] and the Judge that you went home first, tried to put ice on it or something, tried to see if it was going to get any better and it didn’t, then you went to Dr. Gali-shoff.
“A. Yeah.
“Q. Well, Dr. Galishoff is not in the emergency room.
“A. No, I went to the [emergency room] to start with and they told me it was probably a pulled hamstring and then whenever I went back for my two week visit I told Dr. Galishoff that I had hurt myself and he explained to me that it was probably a pulled hamstring, and they didn’t know what it was until they did the MRI to where they could see in my spinal track.”

On redirect-examination by his own counsel, the worker testified that it was approximately one month after he had complained of back and leg pain to Dr. Galishoff that he was diagnosed with a herniated disc. Darrell Kimbrell testified that the worker had not notified him that he had injured his back or leg while carrying a beam; he further testified that the worker had previously injured himself when a beam fell on him on an occasion and under circumstances separate from those the worker had described, but that on that occasion the worker had refused his offer to be taken to the emergency room. Another employee of the company’s also testified that he did not recall any

incident in which the worker injured his back and that the worker had never told him that he had injured his back.

The deposition testimony and medical records of Dr. Galishoff were also offered and admitted into evidence. During his deposition, Dr. Galishoff testified in response to questions by the worker’s counsel, in pertinent part, as follows:

“Q. It appears in July [2000] ... he had suffered some other type of injury, he discussed with you, on the job?
“A. Let me — okay. Yes. On the 27th I say hurt himself at work. Got some wood jammed in his face and a beam fell on him. He was having pain in his upper back, having muscle spasm[s] and pain behind his left leg. So he was having pain in the upper back; basically lower back also going into the left leg.... So now we had a new problem. And I went ahead and added Soma, which is [a] muscle relaxant.... But I was hoping that the back pain and the leg pain would just resolve on its own.
“Q. I notice your notes indicate that a beam fell on him at work. Do you remember any more detail about what he said happened on that occasion?
“A. No, I don’t remember any more detail.
“Q. You’re talking — excuse me. September now, September 29?
“A. September 29 he came in and was having more leg pain. He attributed it to — initially to a hamstring injury several months ago, and that he was having problems when he lifted....
“A. Now, on the 26th—
“Q. And, again, that’s October. Right?
“A. October 26, his leg pain was getting worse.
“Q. Okay.
“A. And he hurt his leg several weeks ago at work. And I think this was in part related to what I had mentioned with the beam is what he was referring to. At first we thought he may have a DVT, a deep venous thrombosis, because we felt the cord in the back of the leg.... So I focused on that first and refilled his pain medication, [and] made arrangements to get that excluded.... And when he came back on the 9th of November, his pain actually became better characterized and he was having a clear neuropathic pain. Before it was a little bit vague.... But we do see that — I have seen often times in my practice people come in with back and leg pain and then later, after several weeks, it becomes ... a full blown radiculopathy or where a nerve is being pinched by a herniated disk or some other type of problem. And on the 9th of November it became pretty clear what he had, and we felt that he had a herniated disk or a pinched nerve....
“Q. Okay.
“A. On the 22nd he still continued to have a L5-S1 radiculopathy. And that refers to the two levels — the level of a nerve that is coming out that’s affected.
“Q. So that’s really low back pain that’s radiating down into one—
“A. That’s what we would call sciatica.
“Q. Okay. All right.
“A. And we felt it was becoming — herniated disk that became more evident. ...
“Q. I notice on the November 22 visit, Doctor, you indicate that ... perhaps he has a herniated disk at that time, and you note that probably explains his leg pain all along. Explain that statement to me, please, sir?
“A. As I previously stated, sometimes the entire pain syndrome takes awhile to, what we call, declare itself where in the beginning his pain pattern didn’t fit that sort of injury....
“Q. Okay. And Doctor, based on your examination and treatment of the worker, did you have an opinion on whether or not his back injury was relate[d] to his employment?
“A. It was temporally related to the time he came to me when he said he had a beam fall on him and he had back pain. The pain progressed and in a way that I would expect somebody with a worsening herniated disk from an injury to progress. And I can date it to the time he came in and told me he had an on-the-job injury. So in my opinion, yes, it would be related to that.”

On cross-examination, Dr. Galishoff testified that in forming his opinion that the worker’s injuries were work related, he relied on the history provided to him by the worker, his examination of the worker, and his interpretation of lab tests performed on the worker. When asked whether his opinion might change if different or additional information was provided to him, he stated that it was impossible to tell and that it would depend on the information he received.

We conclude that based upon this recitation of the evidence that was before the trial court relating to the back injury allegedly suffered by the worker while he was on the job that there was substantial evidence supporting the trial court’s judgment. Ex parte Trinity Indus., supra. Furthermore, while the company correctly asserts that inconsistent and conflicting evidence was presented, which it claims lessened the worker’s credibility, “[i]t is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanor, and not the appellate court, to weigh the evidence presented.” Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 795 (Ala.Civ.App.2002) (citing Blackman v. Gray Rider Truck Lines, Inc., 716 So.2d 698, 700 (Ala.Civ.App.1998)). See also Edwards v. Jesse Stutts, Inc., supra. Any inconsistencies between the testimony of the worker and the evidence presented would affect the weight accorded to that testimony or evidence; that function is within the province of the trial court, not this appellate court. Accordingly, we affirm the trial court’s judgment insofar as it ordered the company to pay workers’ compensation benefits for the worker’s back injury.

II. The Worker’s Cross-Appeal

The worker cross-appeals from the trial court’s denial of his claim for workers’ compensation benefits for his carpal-tunnel syndrome on the basis that it was a preexisting condition. Our supreme court has stated:

“It is well settled that workmen’s compensation is not limited to those in perfect health. If the employment aggravated, accelerated, or combined with a latent disease or infirmity to produce disability, the preexisting disability does not disqualify the claim under the ‘arising out of employment’ requirement of the statute.”

Ex parte Lewis, 469 So.2d 599, 601 (Ala.l985)(citing Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 333, 96 So.2d 159, 164 (1957)(in turn citing 1 Arthur Larson, Workmen’s Compensation Law, § 12.20)). Further, while substantial evidence does support the trial court’s determination that the worker’s carpal-tunnel syndrome was a preexisting condition, this court has stated:

“[I]f a previous injury or infirmity has not demonstrated itself as disabling and has not prevented the employee from performing his job in a normal manner, then the pre-existing condition or disability does not disqualify the claim under the ‘arising out of and in the course of his employment’ requirement of the statute.”

Holt v. Dunlop Tire Corp., 646 So.2d 74, 76 (Ala.Civ.App.l994)(citing Ex parte Lewis, 469 So.2d 599 (Ala.1985), and Blue Bell, Inc. v. Nichols, 479 So.2d 1264 (Ala.Civ.App.1985)).

At trial, during his direct testimony, Darrell Kimbrell testified that the worker was often late for work, that he was not dependable, and that he often complained of pain in his legs, shoulders, knees, and back, and occasionally complained of pain in his hands and wrists. On cross-examination, however, Darrell Kimbrell testified that the worker met the standards of performance set for his job, and that the worker’s job performance was acceptable “to a certain degree.” Accordingly, the trial court could not deny the worker’s claim for workers’ compensation benefits on the basis that his carpal-tunnel syndrome was a preexisting condition because it “ha[d] not demonstrated itself as disabling and ha[d] not prevented [the worker] from performing his job in a normal manner.” Holt, 646 So.2d at 76. Thus, as to the worker’s cross-appeal, the trial court’s judgment is reversed and the cause is remanded for it to enter an order that is consistent with this opinion.

APPEAL — AFFIRMED.

CROSS-APPEAL — REVERSED AND REMANDED.

YATES, P.J., concurs.

MURDOCK, J., concurs in part and concurs in the result in part.

PITTMAN, J., concurs in the result.

THOMPSON, J., dissents.

MURDOCK, Judge,

concurring in part and concurring in the result in part.

I concur with respect to Part I of the main opinion; I concur in the result as to Part II of the main opinion.

THOMPSON, Judge,

dissenting.

I would affirm the trial court’s determination in its entirety. With regard to Part I, in workers’ compensation cases an employee must present more than evidence of mere possibilities such as would simply serve to “guess” the employer into liability. Eddy v. Dunlop Tire & Rubber Corp., 516 So.2d 709, 710 (Ala.Civ.App.1987). In order to prove that an injury is compensa-ble under the Workers’ Compensation Act, a claimant must prove by substantial evidence that an on-the-job accident caused the injury. § 25-5-31, Ala.Code 1975; Ex parte Moncrief, 627 So.2d 385, 388 (Ala.1993). The main opinion affirms the trial court’s award of benefits to the worker for his alleged on-the-job back injury. I do not find substantial evidence in the record to indicate that the problems the worker experienced with his back were attributable to an accident arising out of and in the course of his employment.

      . Upon reviewing the record on appeal, we concluded that the trial court had in fact ordered separate trials pursuant to Rule 42(b), Ala. R. Civ. P., rather than a severance of claims pursuant to Rule 21, Ala. R. Civ. P.; this appeal was thus from a nonfinal judgment. See Key v. Roben 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 and Cas. Co. v. Owen, 729 So.2d 834 (Ala.1998)). On March 10, 2003, this court remanded the cause to the trial court to allow it the opportunity to certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. On March 21, 2003, the trial court certified its judgment as final.


author: THOMPSON, Judge.

text:
    The CITY OF MOBILE and Mobile County Personnel Board v. Howell Roe ROBERTSON.
    2020003.
    Court of Civil Appeals of Alabama.
    April 25, 2003.

      William R. Lauten, Mobile; and Jacqueline M. McConaha of Atchison, Crosby, Saad & Beebe, Mobile, for appellant City of Mobile.
    Mylan R. Engel and Edgar P. Walsh of Engel, Walsh & Associates, Mobile, for appellant Mobile County Personnel Board.
    Kimberly J. Walker of Gardner, Middle-brooks, Gibbons & Kittrell, Mobile; and Sam Heldman of Gardner, Middlebrooks, Gibbons & Kittrell, Washington, D.C., for appellee.
   On Rehearing Ex Mero Motu

THOMPSON, Judge.

This court’s opinion of March 21, 2003, is withdrawn, and the following opinion is substituted therefor:

The City of Mobile (“the City”) and the Mobile County Personnel Board (“the Board”) appeal from the Mobile Circuit Court’s judgment reversing the Board’s decision suspending, for disciplinary reasons, Howell Roe Robertson from the Mobile Police Department for three days without pay. We reverse the trial court’s judgment.

Robertson has been employed with the Mobile Police Department since 1988; he was ranked as a corporal at the time of the incident that gave rise to this action, but he customarily “filled in” as a sergeant approximately two or three nights each week to accommodate the precinct’s scheduling requirements. On New Year’s Eve, December 31, 2000, random gunfire occurred in parts of the City, beginning at 11:30 p.m., becoming heaviest at midnight, and continuing throughout the night. Robertson and Lt. Glen Brannan, the supervising officer at the Fourth Precinct, overheard the gunfire from their posts at the police station. Near midnight, Robertson and Brannan stepped outside the precinct building to listen to the gunshots; based on the sound of the gunfire, they were able to recognize the various types of weapons being discharged. Both Robertson and Brannan retreated under a metal awning to avoid potential injuries from falling projectiles. Because of the number of weapons being discharged and the many locations from which the weapons were being fired, the officers agreed that it would be futile to investigate the gunshots.

Two days later, on January 2, 2001, Robertson, who was off duty and at home, was contacted by Richard Lake, a newspaper reporter; Lake asked Robertson to comment on the New Year’s Eve celebration. Robertson agreed to talk to the reporter, but he made it clear to Lake that he was speaking to the press in his capacity as president of the police union. A two-page article entitled “Mobile Police Kept Busy by New Year’s Eve Salvo” was published on January 3, 2001, in which Robertson was quoted as saying:

“It was like Beirut out there. We were out there, we took shelter. We went under a steel roof. We could hear weapons fire all around us. Automatic fire, handguns, .22 rifles. You can tell the sound. And I’ve been shot at before, so I know.”

Because of Robertson’s published remarks, the City charged him with violating Mobile Police Department General Order Number 54.1, entitled “Public Information”; it also charged him with intentionally violating the Mobile Police Department’s Rules of Conduct. Sgt. Christian Dorsey of the internal affairs unit of the Mobile Police Department was assigned to investigate the accuracy of Robertson’s statements. After conducting an investigation, Dorsey determined that Robertson’s statements to the press were inaccurate because the situation had not been as dangerous as Robertson had described it. In fact, in the Fourth Precinct on that New Year’s Eve, no dispatcher had been requested to send an officer to investigate a complaint of gunfire, and no officer had responded to any complaints of gunfire. Maj. Curley Rogers of the Mobile Police Department conducted a hearing on the charges against Robertson, and, after receiving the evidence, Rogers recommended that Robertson be suspended for one day without pay for making a misleading or inaccurate statement to the press. The City adopted Rogers’s recommendation.

Robertson timely appealed his suspension to the Board for a de novo hearing. On May 22, 2001, a hearing was conducted. At the hearing, Sgt. Dorsey testified that General Order Number 54.1 — the police department’s policy regarding disseminating police information to the public — provided that a selected departmental official called a “public-information officer” would monitor all information released to the press. The Board entered a judgment on June 5, 2001, that increased Robertson’s suspension from one to three days. The Board found that Robertson had violated General Order Number 54.1 by releasing information to the public without clearing the information through the chief of police of the Mobile Police Department or the public-information officer. Robertson appealed the Board’s judgment to the Mobile Circuit Court (hereinafter “the trial court”).

The parties submitted trial briefs and argued their positions to the trial court; on August 30, 2002, the trial court entered a judgment in which it reversed the Board’s decision and directed the City to remunerate Robertson for the three days it had suspended him. In its lengthy judgment, the trial court reasoned that the Mobile Police Department, in suspending Robertson from the force for violating General Order Number 54.1, had infringed upon Robertson’s right to freedom of speech. The City and the Board appealed.

The City and the Board claim that the trial court erred to reversal by exceeding its jurisdiction in deciding the issues presented to it on First Amendment grounds. Act No. 470, Ala. Local Acts 1939, a local act pertaining to Mobile County, provides for an appeal to be taken from the final decision of the Board to the Mobile Circuit Court. As to the proper standard of review, this statute provides:

“Findings of fact of said Board contained in such transcript [of Board proceedings] if supported by substantial evidence adduced before said Board or before its Personnel Director after hearing and upon notice to the interested party or parties and after affording such parties an opportunity to be heard, shall be conclusive on such appeal.... If upon such appeal the Court finds that the ruling, order or action appealed from is unlawful or unreasonable within the meaning of this Act it shall have power to vacate or modify the same.”

§ 34, Act No. 470, Ala. Local Acts 1939.

As the trial court correctly noted in its judgment, its review of the Board’s decision under this local act is limited to the record of the Board’s proceedings and the questions of law presented to the Board; such review has been construed as certio-rari review. City of Mobile v. Seals, 471 So.2d 431 (Ala.Civ.App.1985) (citing Personnel Bd. v. Bunkley, 255 Ala. 299, 51 So.2d 368 (1951)). In Turner v. Mobile County Personnel Board, 689 So.2d 168 (Ala.Civ.App.1997), this court made it clear that the Board had not been authorized by Act No. 470 to address constitutional issues. The Turner court explained that the fundamental obstacle to circuit-court review of a constitutional challenge on an appeal from the Board’s decision was the fact that the issue had not been raised and ruled upon by the Board, thereby precluding appellate review. Because appellate review of constitutional issues in such a case is precluded, the sole manner in which a constitutional challenge may be presented is to invoke the general jurisdiction of the circuit court by filing a separate and independent collateral action. Turner, 689 So.2d at 169. In making this distinction, the Turner court stated:

“ ‘To be sure, the circuit court’s consideration of the constitutional issues was barred, but for the more fundamental reason that its jurisdiction is limited to a consideration of issues properly raised and made of record before the Board, and those do not include constitutional issues. In other words, only by invoking the general jurisdiction of the circuit court, by way of a collateral suit, could Averyt’s constitutional challenges be raised and presented for determination.’ ”

689 So.2d at 170 (quoting Ex parte Averyt, 487 So.2d 912, 914 (Ala.1986)). The present case is an appeal from the Board’s decision; no collateral action has been filed.

Robertson argues that principles of procedural due process allow the circuit court to exercise jurisdiction over his constitutional challenge even though he has not filed a collateral action because, he says, the rule he allegedly violated explicitly guarantees his individual constitutional rights. The language Robertson relies upon in General Order Number 54.1 states:

“Police-related incidents and their results are always matters of continuing public concern. This department is committed to establishing a cooperative climate in which the news media may obtain information on matters of public concern in a manner that does not hamper police operations or threaten individual constitutional rights.”

The above-quoted language is vague and ambiguous concerning the constitutional rights it seeks to protect. It is unclear what or whose constitutional rights the order seeks not to “threaten.” We hold that, regardless of the actual intended effect of the language of the order, the reference to individual constitutional rights does not serve to confer jurisdiction upon the circuit court to decide constitutional questions on appeal from decisions of the Board absent a collateral action.

Robertson cites Ex parte Averyt, supra, and City of Homewood v. Caffee, 400 So.2d 375 (Ala.1981), as exceptions to the collateral-action requirement for circuit-court review of a constitutional challenge to a personnel-board decision. He claims that, because the order he allegedly violated is expressly intertwined with the concept of individual constitutional rights, his appeal presents another such example. We are not persuaded by his argument. As this court stated in Turner: “We would note that in both Averyt and Caffee, Averyt and Caffee had instituted separate and distinct collateral suits in the circuit courts.” 689 So.2d at 169.

Our supreme court in Averyt clarified the rule regarding a circuit court’s jurisdiction, stating that the collateral action Averyt had filed was the only avenue by which Averyt could invoke the general jurisdiction of the circuit court and present his constitutional issues for determination. Ex parte Averyt, 487 So.2d at 914.

Moreover, we conclude that because the trial court did not confine itself to the issues expressly designated for review, in compliance with the requirements set forth in § 34 of Act No. 470, it exceeded its jurisdiction in entering a judgment on an issue not designated for appellate review. The statute requires that issues raised on appeal from decisions of the Board be designated for review as follows:

“The issues on such appeal shall be made up under the direction of the [Circuit] Court and within thirty days after said transcript [of proceedings of the Board] is filed therein, and trial thereof shall proceed on the evidence contained in such transcript, if it appears therefrom that said evidence was taken after such notice and opportunity to be heard.”

§ 34, Act No. 470, Ala. Local Acts 1939.

In compliance with the statute, the parties filed a joint motion in the trial court to establish the issues on appeal; the trial court granted that motion. In its judgment, the trial court restated those stipulated issues as follows:

“1. Were the findings of fact by the Mobile County Personnel Board supported by substantial evidence?
“2. Was the Personnel Board’s decision to increase the discipline imposed by the City of Mobile supported by substantial legal evidence, or was the decision arbitrary and capricious?
“3. Was the Personnel Board’s Order of June 5, 2001, lawful within the meaning of Act No. 470, Local Acts of Alabama (1939), or did the Personnel Board fail to comply with applicable law?
“4. Was the Personnel Board’s Order reasonable within the meaning of Act No. 470?”

Our review of the trial court’s judgment indicates that it did not limit its scope of review to the issues stipulated before it in compliance with § 34 of Act No. 470, but that it proceeded to adjudicate Robertson’s constitutional challenges, which had not been designated for appellate review. Our supreme court has held that a trial court that adjudicates issues beyond those stipulated by § 34 of Act No. 470 has “misconceived its authority under the statute” and has thereby committed reversible error. See Personnel Bd. v. Bunkley, 255 Ala. at 301, 51 So.2d at 371; see also Mobile v. Seals, 471 So.2d at 434.

In its judgment reversing the Board’s decision, the trial court relied only on the constitutional challenge raised by Robertson. That issue was not properly before the court. A circuit court’s review in a case of this type is limited to the record made before a personnel board and to questions of law presented, and that court must affirm the personnel board’s decision if the record contains substantial supporting evidence. Mobile v. Seals, supra. Therefore, we must reverse the trial court’s judgment and remand the case for that court to determine whether the Board’s findings were supported by substantial evidence. Id.

ON REHEARING EX MERO MOTU: OPINION OF MARCH 21, 2003, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . However, if a litigant's right to appeal is governed by the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975, which gives a reviewing court broader jurisdiction than it usually has in reviewing administrative decisions, the circuit court has jurisdiction to consider constitutional issues on appeal, and the failure to appeal from a panel decision will result in a waiver of all claims. Ex parte Smith, 683 So.2d 431 (Ala.1996).