source: Caselaw Access Project

author: PER CURIAM. MOORE, Chief Justice SEE, Justice LYONS, Justice WOODALL, Justice JOHNSTONE, Justice

license: Public Domain

text:
    Brenda D. TILLMAN, as executrix under the will of Kalen Oliver Tillman, deceased v. R.J. REYNOLDS TOBACCO CO. et al.
    1001644.
    Supreme Court of Alabama.
    June 30, 2003.

      Ross Diamond III of Diamond, Hasser & Frost, Mobile; and Jere L. Beasley and R. Graham Esdale, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for plaintiff.
    Samuel H. Franklin, William H. Brooks, and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham; Joseph P.H. Babington and John T. Dukes of Helmsing, Leach, Herlong, Newman &
      Rouse, P.C., Mobile; and Thomas D. Schroeder of Womble, Carlyle, Sandridge & Rice, P.L.L.C., Winston-Salem, North Carolina, for defendants.
   PER CURIAM.

The United States Court of Appeals for the Eleventh Circuit has certified the following question to this Court pursuant to Rule 18, Ala. R.App. P.:

“Whether there is any potential cause of action under any theory against any retail defendants including those that employ pharmacists who sell cigarettes for claims brought under the Alabama Extended Manufacturer’s Liability Doctrine, or premised on negligence, wantonness, or civil conspiracy under Alabama law.”

Tillman v. R.J. Reynolds Tobacco Co., 253 F.3d 1302, 1307-08 (11th Cir.2001). This Court heard oral argument in this case on May 15, 2002. We answer the certified question in the affirmative as to claims premised on negligence and wantonness and as to claims premised on an alleged civil conspiracy; as to all other claims, including those premised on the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”), we answer the question in the negative.

I. Facts and Procedural History

Kalen Tillman originally sued the defendants in the Mobile Circuit Court, alleging that he had smoked Winston brand cigarettes since 1968, and that as a result he developed lung cancer. He asserted products-liability claims under the AEMLD, as well as negligence, wantonness, and civil-conspiracy claims. Kalen died in April 1999, and Brenda Tillman, his wife and the executor of his estate, was substituted as the plaintiff in this action.

The defendants removed the case to the United States District Court for the Southern District of Alabama on the basis of diversity jurisdiction. Tillman filed a motion to remand the case to the Mobile Circuit Court, which the district court denied. In October 1998, the district court dismissed the retailers and the individual defendants as having been fraudulently joined. Tillman then voluntarily dismissed RJR Nabisco, Inc., leaving R.J. Reynolds Tobacco Co. (“Reynolds”) as the sole defendant. In January 2000, the district court granted Reynolds’s motion to dismiss for failure to state a claim and entered a judgment in favor of Reynolds. Tillman v. Reynolds Tobacco Co., 89 F.Supp.2d 1297 (S.D.Ala.2000).

On appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s dismissal of the claims as against the five individual defendants. Tillman’s claims against the retailers alleged a violation of the AEMLD in the marketing and sales of cigarettes, as well as negligence, wantonness, and civil-conspiracy claims. As to those defendants, the Eleventh Circuit Court of Appeals certified the present question and provided the following analysis of the relevant Alabama law:

“To recover under the AEMLD, plaintiff must show, among other things, that ‘an injury was caused by one who sold a product in a defective condition that made the product unreasonably dangerous to the ultimate user or consumer’ Bell v. T.R. Miller Mill Co., 768 So.2d 953, 957 (Ala.2000); see also Allen v. Delchamps, Inc., 624 So.2d 1065, 1068 (Ala.1993). A product is not unreasonably dangerous unless it fails to ‘meet the reasonable safety expectations of an “ordinary consumer,” that is, an objective “ordinary consumer,” possessed of the ordinary knowledge common to the community.’ Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala.1991) (citations omitted); see also Casrell v. Altec Indus., Inc., 335 So.2d 128, 133 (Ala.1976) (establishing ‘reasonable expectations’ test and adopting comment i to § 402A of the Restatement (Second) of Torts); Ex parte Chevron Chem. Co., 720 So.2d 922, 927 (Ala.1998) (‘it is clear drafters of Restatement intended § 402A’s concept of an “unreasonably dangerous” product does not include “a product the dangers of which the consumer could be expected to be aware of, an awareness that may be enlightened by a warning.” ’). ‘Although, under Alabama law, a jury ordinarily evaluates a plaintiffs claims that a product is defective, our review of the pertinent case law convinces us that certain products whose inherent danger is patent and obvious, do not, as a matter of law, involve defects of a sort that a jury should resolve.’ Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir.1990).”

253 F.3d at 1306. The Eleventh Circuit Court of Appeals noted that it had “found no Alabama case, nor [had] the parties referred [it] to any decided under the AEMLD involving cigarettes. The Alabama cases cited by the parties involve different products.” 253 F.3d at 1307.

II. Analysis

A. AEMLD

The first part of the certified question is whether there is a cause of action against tobacco retailers under the AEMLD. To establish liability under the AEMLD, a plaintiff must show

“[1] that an injury was caused by one who sold a product in a defective condition that made the product unreasonably dangerous to the ultimate user or consumer; [2] that the seller was engaged in the business of selling such a product; and [3] that the product was expected to, and did, reach the user without substantial change in the condition in which it was sold.”

Bell v. T.R. Miller Mill Co., 768 So.2d 953, 957 (Ala.2000) (emphasis added). See also Grimes v. General Motors Corp., 205 F.Supp.2d 1292, 1294 (M.D.Ala.2002); Hicks v. Commercial Union Ins. Co., 652 So.2d 211, 215 (Ala.1994).

In this case, the parties do not dispute the second and third parts of the three-part test. The retailer defendants do not dispute that they are “engaged in the business of selling” cigarettes, Bell, 768 So.2d at 957, or that the cigarettes “reach[ed] the user without substantial change in the condition in which [they were] sold.” 768 So.2d at 957. The only question that must be answered in this case to determine whether a cause of action exists under the AEMLD is related to the nature of the product itself: Are cigarettes an unreasonably dangerous product?

“ ‘Liability under the AEMLD turns upon whether a product is unreasonably dangerous when put to its intended use.’ ” Hicks, 652 So.2d at 216 (quoting Koehring Cranes & Excavators, Inc. v. Livingston, 597 So.2d 1354, 1355 (Ala. 1992)). In Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), the case that, together with Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), established the AEMLD, this Court explained:

“The product either is or is not ‘unreasonably dangerous’ to a person who should be expected to use or to be exposed to it. The important factor is whether it is safe or dangerous when the product is used as it was intended to be used. Cf. 62 Ky. L.J. 866. However, danger may be obviated by an adequate warning. Comment i. of § 402 A, Restatement of Torts 2d, states:
“ ‘The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’ ”

335 So.2d at 133 (footnote omitted). More recently, this Court held that to show that a product is in a “defective condition unreasonably dangerous to the plaintiff’ the plaintiff must demonstrate that “the product fails to meet the reasonable safety expectations of an ‘ordinary consumer,’ that is, an objective ‘ordinary consumer,’ possessed of the ordinary knowledge common to the community.” Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala.1991), citing Casrell, 335 So.2d at 133.

In determining whether a product is unreasonably dangerous, this Court and the Court of Appeals for the Eleventh Circuit have explained that there are some products the use of which are “so firmly grounded in common sense as to require no specific instructions or warnings.” Entrekin v. Atlantic Richfield Co., 519 So.2d 447, 450 (Ala.1988), quoted in Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir.1990). Although a jury will normally determine the dangerousness of a product, “certain products whose inherent danger is patent and obvious, do not, as a matter of law, involve defects of a sort that a jury should resolve.” Elliott, 903 F.2d at 1507 (emphasis added).

“Some products, by their nature, (or, in modern parlance, by their conscious design), place both users and bystanders in some measure of danger. A knife or axe may cut persons, as well as their intended targets. Fish hooks can wound; saws can maim, and revolving propellers can cause fearful damage. Yet ... we do not hold manufacturers liable simply because the use of their products involves some risk.”

903 F.2d at 1507 (emphasis added).

As noted above, this Court in Casrell quoted with approval Comment i. to § 402A, Restatement (Second) of Torts. See 335 So.2d at 133; Elliott, 903 F.2d at 1507 (recognizing the adoption of Comment i. by this Court). Comment i. includes tobacco in its list of examples of products that are not unreasonably dangerous, notwithstanding their potential for harm to the user or consumer: “Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.”

Moreover, there is a “wealth of judicial precedence” recognizing that the dangers of cigarette smoking are well-known. See Tillman, 89 F.Supp.2d at 1301-02 (citation to numerous cases recognizing the commonly known dangers of cigarette smoking). “The dangers of cigarette smoking have been a matter of public knowledge since at the latest January 1, 1966, when the first government-mandated warning labels appeared on cigarette packages.” Wakeland v. Brown & Williamson Tobacco Corp., 996 F.Supp. 1213, 1219 (S.D.Ala. 1998). Less than three years ago, the United States Supreme Court stated that, when Congress enacted various tobacco-related legislation beginning in 1965, “the adverse health consequences of tobacco use were well knoum, as were nicotine’s pharmacological effects.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 138, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (emphasis added). Indeed, the Supreme Court acknowledged that in that case the Food and Drug Administration had “amply demonstrated that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States.” 529 U.S. at 161, 120 S.Ct. 1291 (emphasis added).

We conclude that any danger to be found in cigarettes is not “ ‘beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’ ” Cas- rell, 335 So.2d at 133 (quoting Comment i.). This Court has adopted Comment i. of § 402A of the Restatement (Second) of Torts, which expressly includes tobacco as an example of a product that is not “unreasonably dangerous.” See Casrell, 335 So.2d at 133. When “put to its intended use,” Hicks, 652 So.2d at 216 — that is, when the cigarette is ignited and the consequential fumes and smoke are deliberately inhaled — a cigarette, like a saw, a fish hook, or butter, is not an “unreasonably dangerous product” under the AEMLD.

Moreover, even if this Court were to conclude that cigarettes are an unreasonably dangerous product, liability under the AEMLD is “obviated by an adequate warning,” i.e., the-federally mandated surgeon general’s warning prominently displayed on every cigarette package since before Kalen Tillman began smoking cigarettes. Casrell, 335 So.2d at 133; Tillman, 89 F.Supp.2d at 1302.

Therefore, we conclude that an AEMLD claim against retailers of cigarettes fails because (1) cigarettes are not an unreasonably dangerous product under the AEMLD; and (2) even if they were, the current warnings on cigarette packages regarding cigarette smoking obviate any unreasonable danger posed by the cigarettes.

B. Negligence and Wantonness

The Court of Appeals for the Eleventh Circuit also asked whether retailers of cigarettes could be subject to negligence and wantonness claims. The retailer defendants argue that Tillman’s negligence and wantonness claims merge with her AEMLD claim. Indeed, some federal district courts in Alabama have expressly held as much. See, e.g., Grimes v. General Motors Corp., 205 F.Supp.2d 1292, 1295 (M.D.Ala.2002); Wakeland v. Brown & Williamson Tobacco Corp., 996 F.Supp. 1213, 1217 (S.D.Ala.1998).

It must be remembered, however, that the AEMLD, as established in Casrell and Atkins, supra, is “an example of judicial legislation,” not of legislative enactment. Keck v. Dryvit Sys., Inc., 830 So.2d 1, 8 (Ala.2002). This Court warned last year in Keck that “[¿judicial decision-making should not be seen as the opportunity to legislate.” 830 So.2d at 8. Alabama remains a common-law state, and therefore common-law tort actions “so far as [they are] not inconsistent with the Constitution, laws and institutions of this state ... shall continue in force, except as from time to time ... may be altered or repealed by the Legislature.” § 1-3-1, Ala.Code 1975. We will not presume to so define the boundaries of the judicially created AEMLD so that it subsumes the common-law tort actions of negligence and wantonness against the retailer defendants.

C. Civil Conspiracy

Although there remains a “potential cause of action” for negligence and/or wantonness as alleged in Tillman’s complaint, there is no such potential cause of action for civil conspiracy in this case for the simple reason that Tillman’s complaint did not assert a civil-conspiracy claim against the retailer defendants. Tillman concedes as much in her brief before this Court.

Even if a civil-conspiracy claim was before this Court (or before the United States Court of Appeals for the Eleventh Circuit), “[ejonspiraey itself furnishes no civil cause of action.” Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221, 1225 (Ala. 1993). There must be an underlying wrong to support the conspiracy claim. Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1271 (Ala.2000). Thus, there may exist a potential claim for conspiracy only to the extent that there exist (or preexist) independent claims against the retailers of cigarettes.

III. Conclusion

Therefore, we answer the question certified by the United States Court of Appeals for the Eleventh Circuit in the affirmative as to the potential cause of action premised on negligence and wantonness and any attendant cause of action for civil conspiracy; in all other respects we answer it in the negative.

QUESTION ANSWERED.

HOUSTON and HARWOOD, JJ„ concur.

MOORE, C.J., and SEE, LYONS, BROWN, WOODALL, and STUART, JJ., concur in part and dissent in part.

JOHNSTONE, J., concurs specially in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur with the following conclusions in the per curiam opinion: (1) that there exists no viable claim against tobacco retailers premised on the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”); (2) that the judicially created AEMLD does not subsume common-law tort claims of negligence and wantonness; and (3) that no civil-conspiracy claim, which would require an underlying claim, is before us. However, I dissent from the conclusion in the per curiam opinion that Brenda Tillman may proceed with the claims against the tobacco retailers premised on negligence and wantonness.

To prove a prima facie claim of negligence in Alabama, “ ‘a plaintiff must establish that the defendant breached a duty owed by the defendant to the plaintiff and that the breach proximately caused injury or damage to the plaintiff.’ ” Kmart Corp. v. Bassett, 769 So.2d 282, 284 (Ala.2000)(quoting Lowe’s Home Ctrs., Inc. v. Laxson, 655 So.2d 943, 945-46 (Ala.1994)(emphasis added)). Similarly, “ ‘[t]o establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains.’ ” Brushwitz v. Ezell, 757 So.2d 423, 432-33 (Ala.2000)(quoting Martin v. Arnold, 643 So.2d 564, 567 (Ala. 1994) (emphasis added)).

In Alabama, a prima facie claim of negligence or wantonness against tobacco retailers for the sale of prepackaged cigarettes fails for — at least — lack of proximate causation. The complaint in this case does not allege that the defendant retailers opened, altered, or inspected the double-sealed cigarette packages purchased by Kalen. Therefore, any defect in the product as manufactured cannot be imputed to the retailers, who were operating as mere conduits of the product. Thus, lacking the requisite element of causation, Tillman has no cause of action against the retailer defendants premised upon negligence or wantonness.

Accordingly, I dissent from the per cu-riam opinion insofar as it answers affirmatively the viability of the negligence and wantonness claims under Alabama law.

BROWN and STUART, JJ„ concur.

SEE, Justice

(concurring in part and dissenting in part).

As to Parts ILA. and II.C. of the per curiam opinion, I concur; however, as to Part II.B. of the per curiam opinion, I concur in part and dissent in part.

A majority of this Court, in Part II.B. of the per curiam opinion, concludes that Tillman’s common-law negligence and wantonness claims are not subsumed under the judicially created AEMLD. I agree that the AEMLD does not subsume all of the negligence and wantonness claims Tillman asserts in her complaint. However, to the extent that Tillman’s negligence and wantonness claims allege that the retailer defendants negligently marketed and sold an unreasonably dangerous product, I believe that our discussion of the viability of the AEMLD claim in Part II.A. of the per curiam opinion is dispositive of any allegation that cigarettes are an unreasonably dangerous product. See Veal v. Teleflex, Inc., 586 So.2d 188, 191 (Ala.1991)(“The substance of the complaint against Teleflex was that it placed into the stream of commerce a product that was unreasonably dangerous for its intended use. This is a claim under the AEMLD, and the trial court did not err in refusing to charge the jury with regard to negligence and wantonness.”).

The per curiam opinion concludes that Tillman’s claim against the retailer defendants fails because cigarettes are not a “product unreasonably dangerous to the ultimate user or consumer.” 871 So.2d at 31. See also Bell v. T.R. Miller Mill Co., 768 So.2d 953, 957 (Ala.2000). In reaching this conclusion, the per curiam opinion notes that Comment i of § 402A of the Restatement (Second) of Torts “expressly lists tobacco as an example of a product that is not unreasonably dangerous.” Therefore, because a majority of this Court determines that cigarettes are not an unreasonably dangerous product, any claims that the retailer defendants negligently and wantonly marketed and sold such a product appear to be pretermitted by this discussion.

Nevertheless, I agree that any remaining common-law claims that are not premised on a determination that cigarettes are an unreasonably dangerous product are not subsumed by the AEMLD. Nonetheless, as Justice Lyons points out in his special writing, “incredibly difficult problems of proof await Tillman” if she is to overcome the statute-of-limitations defense and the defenses relating to causation. 871 So.2d at 37 (Lyons, J., concurring in part and dissenting in part).

LYONS, Justice

(concurring in part and dissenting in part).

I concur with the conclusion expressed in Part II.A. of the per curiam opinion only to the extent it precludes liability, as a matter of law, against any retail defendant who sells cigarettes in a sealed package and who 1) does not employ personnel who have superior knowledge about the contents of the package or 2) employs personnel who have superior knowledge about the contents of the package who are under no duty to convey that knowledge to the employer. I would recognize at least a theoretical basis for a claim against retailers employing pharmacists who have superior knowledge about the contents of a package of cigarettes who had a duty to convey that knowledge to the employer.

However, incredibly difficult problems of proof await Tillman in several areas. She must prove which of those retailers from which the decedent purchased cigarettes over the course of many years had pharmacists who, at the time of the purchases, had the aforementioned superior knowledge and job responsibilities that generated a duty to pass on their information to the employer. She must overcome the defense of the statute of limitations that begins with the onset of the addiction as discussed in the per curiam opinion in Spain v. Brown & Williamson Tobacco Corp., 872 So.2d 101 (Ala.2003). Finally, she must also overcome extremely formidable defenses relating to causation presented by reason of the warnings appearing in various formulations over the years on every package of cigarettes sold in this country. Nevertheless, I cannot say, based on the materials before us, that there is no “potential cause of action” against a retailer of tobacco products that employs or employed a pharmacist. Whether those claims will ever reach a jury is a matter we should not foreclose as a matter of law, at this stage of the proceeding. In all other respects, I respectfully dissent as to Part II.A.

I concur in Parts II.B. and II.C.

WOODALL, Justice

(concurring in part and dissenting in part).

I respectfully dissent from the per cu-riam opinion’s holdings regarding the claims asserted by Tillman under the Alabama Extended Manufacturer’s Liability Doctrine. Otherwise, I concur.

JOHNSTONE, Justice

(concurring specially in part and dissenting in part).

I concur in the holdings of the main opinion on the plaintiffs theories of negligence, wantonness, and conspiracy. I respectfully dissent from the rationale and holdings of the main opinion on the plaintiffs Alabama-Extended-Manufacturer’s-Liability-Doetrine (AEMLD) theory. The plaintiffs best claim is viable under all three theories of AEMLD, negligence, and wantonness, severally.

The plaintiffs best claim now before us is that the tobacco-retailer defendants began selling cigarettes to Kalen Tillman when he was 12 years old in violation of a criminal statute intended to protect him from the defendants’ conduct; that the cigarettes the defendants continually sold him in violation of that criminal statute addicted him to continued cigarette smoking; that the addiction prevented Kalen from stopping smoking; that the smoking caused Kalen’s cancer; and that the cancer killed him. The trial court granted the tobacco retailers’ Rule 12(b)(6), Fed.R.Civ. P., motions to dismiss for failure “to state a claim upon which relief can be granted.” The issue before us is whether any of the plaintiffs theories — AEMLD, negligence, or wantonness — recognizes or accommodates this claim. The issue is not whether these defendants could plead or prove affirmative defenses, for the potential availability of affirmative defenses does not detract from the content of the plaintiffs complaint and therefore does not detract from the sufficiency of the complaint to state a claim that should withstand these defendants’ Rule 12(b)(6) motions.

Alabama outlawed selling cigarettes to minors 107 years ago. That law is now embodied in § 13A-12-3, Ala.Code 1975. The violation of this statute may constitute negligence. Fox v. Bartholf, 374 So.2d 294 (Ala.1979); Consolidated Freightways, Inc. v. Pacheco-Rivera, 524 So.2d 346 (Ala. 1988); and Sparks v. Alabama Power Co., 679 So.2d 678 (Ala.1996). See also Murray v. Alabama Power Co., 413 So.2d 1109 (Ala.1982), and Allen v. Delchamps, Inc., 624 So.2d 1065 (Ala.1993) (each of these two cited cases addresses a violation of a regulation rather than a statute). Similarly, a conscious violation of this statute with knowledge that injury would probably result could constitute wantonness. Hamme v. CSX Transp., Inc., 621 So.2d 281 (Ala. 1993); Senn v. Alabama Gas Corp., 619 So.2d 1320 (Ala.1993); Alabama Pattern Jury Instructions: Civil 29.00 (2d ed.1993).

The analysis of “good” tobacco in the main opinion, in its discussion of the AEMLD claim, may well explain why tobacco not contaminated with dangerous additives is not “unreasonably dangerous” to a normal adult. This analysis, however, depends on the “ordinary-consumer” standard — “the reasonable safety expectations of an ‘ordinary consumer.’ ” Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala.1991), as quoted in the main opinion. By law, a teenager is not and has not been an “ordinary consumer” of cigarettes. § 13A-12-3 and its predecessors. The “reasonable safety expectations” of Kalen Tillman when he was between 12 and 20 years of age, is a jury question. Likewise, after Kalen was addicted to cigarettes, he was no longer an “ordinary consumer” as a matter of law. The standard of “the reasonable safety expectations of the ‘ordinary consumer,’ ” Deere, supra, contemplates a consumer who is physically and mentally capable of responding to a danger he or she perceives. Whether Kalen, as an addicted adult, was an “ordinary consumer” subject to the “reasonable safety expectations” standard is a jury question.

The plaintiffs theories of negligence and wantonness are not merged with or subsumed under the AEMLD claim, as the tobacco-retailer defendants argue they are. Each theory is composed of its own essential elements, some distinct from the essential elements of the others. The negligence and wantonness theories are important in that they will accommodate an emphasis on each retailer’s opportunity to know Kalen’s minority status at the time of each of his purchases of cigarettes during his teenage years and an emphasis on each retailer’s individualized knowledge (through the knowledge of its pharmacist, if any) of the dangers of cigarettes to all smokers and especially to minor smokers at the time of each sale. This Court has allowed plaintiffs to proceed on theories of negligence and wantonness together with the theory of AEMLD in these cases: Hobart Corp. v. Scoggins, 776 So.2d 56 (Ala. 2000); Ex parte Chevron Chem. Co., 720 So.2d 922 (Ala.1998); Flagstar Enters., Inc. v. Davis, 709 So.2d 1132 (Ala.1997); Halsey v. A.B. Chance Co., 695 So.2d 607 (Ala.1997); Ford Motor Co. v. Burdeshaw, 661 So.2d 236 (Ala.1995); Mobile Infirmary v. Delchamps, 642 So.2d 954 (Ala.1994); Vines v. Beloit Corp., 631 So.2d 1003 (Ala. 1994); Yarbrough v. Sears, Roebuck & Co., 628 So.2d 478 (Ala.1993); Allen v. Delchamps, Inc., 624 So.2d 1065 (Ala. 1993); Kelly v. M. Trigg Enters., Inc., 605 So.2d 1185 (Ala.1992); Savage Indus., Inc. v. Duke, 598 So.2d 856 (Ala.1992); Clarke Indus., Inc. v. Home Indem. Co., 591 So.2d 458 (Ala.1991); Grose, supra; Beech v. Outboard Marine Corp., 584 So.2d 447 (Ala.1991); Yamaha Motor Co. v. Thornton, 579 So.2d 619, 621 (Ala.1991); Dunn v. Wixom Bros., 493 So.2d 1356 (Ala.1986). See also Richards v. Michelin Tire Corp., 21 F.3d 1048 (11th Cir.1994), and Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465 (11th Cir.1993).

The tobacco-retailer defendants rely on “no-causal-relation” as an alternate ground for their argument that their Rule 12(b)(6) motions to dismiss were properly granted. “No-causal-relation,” however, is an affirmative defense to be pleaded and proved by these defendants when the time for such pleading and proof comes. Casrell v. Altec Indus., Inc., 335 So.2d 128, 134 (Ala. 1976); and Atkins v. American Motors Corp., 335 So.2d 134, 143 (Ala.1976). The potential availability of this affirmative defense for pleading and proof in the future is immaterial to the issue of the sufficiency of the plaintiffs complaint as it must be judged now.

Each sale of cigarettes to Kalen may be the basis for a distinct cause of action on each theory against each retailer: (1) that the retailer sold an unreasonably dangerous product to Kalen, (2) that the retailer negligently sold cigarettes to him, and (3) that the retailer wantonly sold cigarettes to him. Obviously no statutory period of limitation for a cause of action based on a particular sale can have begun running before the sale itself occurred.

No statutory period of limitation on any cause of action based on a sale began running until the first damage caused by that particular sale accrued. Damage of whatever kind (even addiction if it be deemed damage) preexisting a sale would obviously not be the proximate result of that sale. Therefore, the accrual of any damage before a sale has not started the running of any period of limitation on any cause of action based on that sale. When damage first has been proximately caused by any particular sale which occurred after Kalen became addicted, remains to be proved. Therefore, no statute of limitation can constitute ground for affirming the Rule 12(b)(6) dismissal of any cause of action based on a sale which occurred after Kalen became addicted.

      . Because the certified question asks whether there is "any potential cause of action,” we do not address any affirmative defenses that might be raised against such actions (e.g., statute of limitations, no causal relation) or arguments that might then be used against those defenses (e.g., a retailers’ or pharmacists’ "superior knowledge” of a product's dangerousness). Such defenses and counterarguments are not relevant to the threshold question whether under Alabama law there exist any viable claims against retailers of tobacco products.

      . On the same day, this Court heard oral argument in a related case, Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300 (11th Cir.2000), in which the United States Court of Appeals for the Eleventh Circuit certified several questions to this Court (before the question in this case was certified) pertaining to the liability of manufacturers of cigarettes and to whether cigarettes are unreasonably dangerous as a matter of Alabama law. See Spain, 230 F.3d at 1312.

      . The original defendants named in the complaint in this case were R.J. Reynolds Tobacco Co.; RJR Nabisco, Inc.; Winn-Dixie of Montgomery, Inc.; Food World; Racetrac Petroleum, Inc.; and five individuals, all Alabama residents and current or former employees of RJ. Reynolds Tobacco Co.

      . According to the Eleventh Circuit Court of Appeals' opinion, Kalen Tillman alleged that he
      "began smoking in 1968 at the age of 12, more than two years after the Surgeon General's warnings were required to be placed on every package of cigarettes sold in the United States and four years after the Surgeon General's 1964 report on the adverse health effects of smoking. Plaintiff alleges Tillman became 'addicted' to nicotine at an early age and was a multi-pack a day smoker.”
      253 F.3d at 1304.

      .Comment i. to § 402A, Restatement (Second) of Torts (1965), reads in its entirety:

        "Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. This is not what is meant by 'unreasonably dangerous’ in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.”
      (Emphasis added.)

      . As early as 1900, the United States Supreme Court, although refusing to take judicial notice of any "special injury” resulting from the use of cigarettes, recognized that "a belief in their deleterious effects, particularly upon young people, has become very general." Austin v. Tennessee, 179 U.S. 343, 348, 21 S.Ct. 132, 45 L.Ed. 224 (1900) (emphasis added). It is probably safe to say that the belief in the dangers of cigarette smoking has not diminished or weakened in the 103 years since Austin was decided.

      . Even if a cigarette smoker, such as Kalen Tillman, lacks the objective "ordinary knowledge” regarding the dangers of cigarettes, such a smoker need only read for himself or herself the mandatory surgeon general’s warning on the cigarette package that expressly warns the user of the dangerous "characteristics” of cigarettes. Thus, the subjective ignorance of a cigarette smoker is irrelevant to a determination of the product’s dangerousness. See, e.g., Deere, 586 So.2d at 198 ("ordinary consumer" standard is an objective test).

      . 15 U.S.C. § 1333(a) provides:
      "(1) It shall be unlawful for any person to manufacture, package, or import for sale or distribution within the United States any cigarettes the package of which fails to bear, in accordance with the requirements of this section, one of the following labels:
      "SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.
      "SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.
      "SURGEON GENERAL’S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.
      "SURGEON GENERAL’S WARNING: Cigarette Smoke Contains Carbon Monoxide.”


author: WOODALL, Justice.

text:
    YELLOW DOG DEVELOPMENT, LLC v. BIBB COUNTY et al.
    1020374.
    Supreme Court of Alabama.
    July 3, 2003.

      J. Stanton Glasscox, Birmingham, for appellant.
    J. Eric Anderson of Webb & Eley, P.C., Montgomery, for appellees.
   WOODALL, Justice.

Yellow Dog Development, LLC (“Yellow Dog”), appeals from a summary judgment in favor of Bibb County, the Bibb County Commission, and Jerry Pow, in his official capacity as Bibb County Probate Judge

(hereinafter referred to collectively as “the County”), in Yellow Dog’s action challenging the constitutionality of a “special transaction fee” (“the Fee”), payable to the Bibb County Probate Judge, upon the transaction of any “public business” in that office. We affirm.

This action began on May 22, 2000, when Yellow Dog filed a two-count complaint containing class-action allegations against the County. Count one sought a judgment declaring that Local Act No. 93-521, Ala. Acts 1993 (“the Act”), which authorized the Fee, violated Ala. Const.1901, § 104(24), and Amendment No. 332, Ala. Const. 1901. Count one averred, in pertinent part:

“20. The Act raises the fees of one of the courts for Bibb County — the Probate Court — in violation of Amendment 332 of the Alabama Constitution of 1901; specifically, the Act did not call for a vote of the people of Bibb County for approval of the special transaction fee. As such, the Act, and all funds raised under the Act, were raised illegally, and are due to be returned to the persons, corporations, firms, or entities that paid the same, with any and all appropriate interest.
“22. The Act is a local act, applicable and operative only in Bibb County, Alabama. Article IV, Section 104(24), of the Alabama Constitution of 1901, forbids the Legislature from passing ‘a special, private, or local law in any of the following cases: (2Jp) [the] [cheating, increasing, or decreasing fees, percentages, or allowances of public officers.’ The Act, on its face, is violative of Article IV, Section 104(24), in that it is a local act that increases the fees of a public office, to wit: the Probate Judge of Bibb County.”

(Emphasis added.) Count two sought, among other things, “[t]he imposition of a constructive trust ... upon the ... monies obtained by the [County],” and “[a]n award to Yellow Dog ... [of] damages for the [County’s] conduct in the amount equal to the additional court costs and fees that [they were] forced to pay.” The trial court granted the County’s summary-judgment motion, and Yellow Dog appealed.

In its entirety, the “Summary of Argument” section of Yellow Dog’s appellate brief asserts:

“The Act is violative of Art. IV, § 104(24), Ala. Const. (1901), which prohibits the Alabama Legislature (by passage of a special, private or local law) from creating, increasing, or decreasing fees, percentages, or allowances of public officers, i.e. — the Bibb County Probate Judge. The Act is also violative of Amendment 332 of Ala. Const. (1901) inasmuch as it was passed without a referendum election to seek the approval of the qualified electors of Bibb County of the Act; the referendum requirement of 332 is mandatory, not permissive.”

Yellow Dog’s brief, at 10. Indeed, Yellow Dog’s argument on appeal is limited to the validity of the Act in relation to only two constitutional provisions: § 104(24) and Amendment No. 332.

The Act provides, in pertinent part:

“In addition to all other fees and costs provided by law, a special transaction fee not exceeding two dollars ($2) shall be paid to the Bibb County Judge of Probate when any public business is transacted in his or her office. The special additional transaction fees shall be collected by the judge of probate and deposited in the county general fund for appropriation for the improvement and computerization of the probate office.”

(Emphasis added.) Section 104(24) provides: “The legislature shall not pass a special, private, or local law ... [cheating, increasing, or decreasing fees, percentages, or allowances of public officers.” Amendment No. 332 provides, in pertinent part:

“Costs and Charges of Courts, and Compensation of Certain Officers of Bibb County
“The legislature may, from time to time, by general or local laws applicable to or operative in Bibb county and approved by a majority of the qualified electors of Bibb county at a referendum election, fix, regulate, and alter the costs and charges of court and the fees, commissions, allowances, and salaries, including the method and basis of their compensation, to be charged or received by the probate judge, the circuit clerk and the register, the tax assessor, and the tax collector of Bibb county; and may place any or all of such officers on a salary and provide for the fees, commissions, allowances, and percentages collectible by such officers to be paid into the treasury from which their salaries are paid.”

(Emphasis added.)

It is undisputed that the Act is a “local law[] applicable to or operative in Bibb county.” It is further undisputed that the Act became effective on May 13, 1993, without a “referendum election” and without “approv[al] by a majority of the qualified electors of Bibb county.” Nevertheless, we cannot — based on the arguments presented by Yellow Dog — declare the Act or the Fee unconstitutional.

We begin our analysis with a number of oft-declared principles. First, this Court will not “reverse a trial court’s judgment based on arguments not presented to the trial court or based on arguments not made to this [C]ourt.” Brown v. Wal- Mart Stores, Inc., 864 So.2d 1100, 1104 (Ala.Civ.App.2002). See also Pate v. Rollison Logging Equip., Inc., 628 So.2d 337, 343 n. 2 (Ala.1993); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). This principle applies with particular force to issues involving the constitutionality of a statute. This is so, because “ ‘[i]n reviewing the constitutionality of a statute, we “approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.” ’ ” House v. Cullman County, 593 So.2d 69, 71 (Ala. 1992) (quoting Moore v. Mobile Infirmary, 592 So.2d 156 (Ala.1991)) (emphasis added).

Yellow Dog argues that the Act “creates” or “increases” the “fees, percentages, or allowances of [a] public officerG” in Bibb County, in violation of § 104(24). Therefore, Yellow Dog argues, the Act must comply with Amendment No. 332, which, the argument goes, was enacted to authorize such legislation. The Act, however, does not comply, Yellow Dog insists, because it does not require a referendum election for its implementation.

In this connection, it must “ ‘be borne in mind ... that [state] legislative power is not derived either from the state or federal constitutions. Apart from limitations imposed by these fundamental charters ..., the power of the [state] legislature has no bounds and is as plenary as that of the British Parliament.’ ” Alabama Alcoholic Beverage Control Bd. v. City of Pelham, 855 So.2d 1070, 1077 (Ala.2003)(quoting Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 814-15 (1944)). In other words, the Legislature may legislate by local act, except with regard to those subjects as to which the constitution specifically speaks to the contrary. See Drummond Co. v. Boswell, 346 So.2d 955, 958 (Ala.1977). However, the sole constitutional restriction upon which Yellow Dog relies is § 104(24). Thus, if the Fee does not constitute a “fee, percentage!], or allowance!] of [a] public officerG,” as that phrase is used in § 104(24), then Amendment No. 332 has no application to the Act, and compliance with the referendum provision of that amendment is unnecessary. Otherwise stated, if the Fee is not the “allowance of a public officer,” then § 104(24) is no constitutional impediment to the Act, regardless of the County’s noncompliance with Amendment No. 332.

We are cited to no case on point, that is, one involving a fee challenged solely on the basis of § 104(24). Such challenges have traditionally involved Ala. Const. 1901, § 96, or both § 104(24) and § 96. Section 96 provides: “The legislature shall not enact any law not applicable to all the counties in the state, regulating [1] costs and charges of courts, or [2] fees, commissions or allowances of public officers.” (Emphasis added.)

Unlike § 104(24), § 96 is composed of two clauses, each representing a separate principle. Clause two, which prohibits local laws “regulating ... fees, commissions or allowances of public officers,” is substantively identical to § 104(24). In other words, § 104(24) and clause 2 of § 96 are identical in meaning. See House, 593 So.2d at 72 (a recurring phrase in a constitution will be “ ‘interpreted to have the same meaning’ throughout”). However, clause one, which involves “costs and charges of courts,” renders § 96 broader than § 104(24). See Jackson v. Sherrod, 207 Ala. 245, 247, 92 So. 481, 483 (1921). Because Yellow Dog makes no § 96 argument, we are not presented with any issue concerning clause one, that is, whether the Fee is a “cost[] [or] chargeG of court.” However, in deciding whether the Act violates § 104(24), we are informed by cases discussing clause 2 of § 96.

Green v. Austin, 425 So.2d 411 (Ala. 1982), for example, involved a challenge to three local acts, which “authorized the courts of Blount County to levy additional charges to be applied to expenses relating to service of process by the sheriffs department and to expenses incurred in the maintenance of the county jail building.” House, 593 So.2d at 77 (discussing Green). The challenge was based on both § 96 and § 104(24). On the subject of clause 2 of § 96 and § 104(24), the Court stated:

“[A]t the time the Constitution of 1901 was ratified many public officials, including court officials, were compensated from the fees, costs, and charges of court. At the present time, most public officials, and all judicial officers, are compensated by salaries and not from fees, percentages, and allowances accruing from the costs and charges of courts. Accordingly, since no issue was 'presented respecting the fees, percentages, and alloivances of public officers, the trial court did not deem it necessary to address this claim of constitutional violation.”

Green, 425 So.2d at 413 (emphasis added). The Court, nevertheless, went on to hold that the acts purporting to authorize the “additional charges” violated the eosts- and-charges-of-courts clause of § 96. Id. at 412, 415.

In Opinion of the Justices No. 154, 264 Ala. 181, 86 So.2d 1 (1956), “this Court addressed the constitutionality of a proposed bill that would have required a $1 recording fee on all instruments filed in the Mobile County Probate Office ‘affecting the title to real and personal property.’ ” Norton v. Mobile County, 562 So.2d 503, 505 (Ala.1990) (discussing Opinion of the Justices No. 154). The Court considered the validity of the proposed legislation within the context of both clauses of § 96. As to clause two, the Court said:

“We think it is ... clear that the special recording fees provided for in the bill do not constitute fees, commissions or allowances of public officers’ within the meaning of [clause two of] § 96 of the Constitution. The recording fees provided for in the bill are not to be paid to any public officer but, as heretofore indicated, are required to be held in the county treasury in a special fund and expended only for the purpose of effecting the installation and maintenance of the improved indexing and recording system.”

Opinion of the Justices No. 154, 264 Ala. at 182-83, 86 So.2d at 3 (emphasis added). See Brandon v. Askew, 172 Ala. 160, 167-68, 54 So. 605, 608 (1911) (section 104(24) contemplates compensation in the form of “allowances,” which are synonymous with “fees, costs, commissions, and percentages”; thus, the section does not regulate compensation of public officers by salary)-, see also Birmingham Elec. Co. v. Harry, 215 Ala. 458, 459, 111 So. 41, 42 (1926) (saying in dicta that “allowances for clerical help” are not compensation to the public officer indirectly benefited thereby, and, therefore, are not within the scope of clause 2 of § 96).

As these opinions suggest, not every fee collected by a public officer pursuant to a local law violates § 104(24). Instead, the validity of the fee depends on the use to which the proceeds from the fee are put. Section § 104(24) regulates (1) compensar tion (2) to public officers in the form of (3) “fees, percentages, or allowances.” If, therefore, the fee is not paid to the officer as compensation in that manner, it does not offend § 104(24).

The Fee at issue here is not paid to the probate judge as compensation, or otherwise for his use. It is to be used to upgrade and modernize the probate office. Simply stated, § 104(24) has nothing to do with this case. Because § 104(24) is not offended, Amendment No. 832 is not implicated. Consequently, it is immaterial — for the purposes of this appeal — that the Fee was implemented without a referendum election.

We reiterate that Yellow Dog does not contend that the Fee implicates Amendment No. 332 in connection with clause one of § 96. Therefore, we express no opinion on that issue. We do hold, however, that the Fee is not within the scope of § 104(24); that compliance with Amendment No. 332 was, therefore, unnecessary; and that, in the context of the arguments presented in this ease, the Fee is valid.

For these reasons, the trial court did not err in entering a summary judgment in favor of the County. That judgment is, therefore, affirmed.

AFFIRMED.

HOUSTON, SEE, LYONS, BROWN, and STUART, JJ., concur.

MOORE, C.J, and JOHNSTONE and HARWOOD, JJ., dissent.


author: PITTMAN, Judge. MURDOCK, Judge,

text:
    FORT JAMES OPERATING COMPANY f/k/a Fort James Pennington, Inc. v. Willie J. THOMPSON.
    2010620.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.
    Rehearing Denied Jan. 10, 2003.

      Terry A. Moore of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for appellant.
    William L. Utsey of Utsey & Utsey, Butler, for appellee.

      . Ex parte Cowgill itself would appear to be a case, like those cited in the text below, involving a prior court order, the violation of which would have been the basis for the attorney-fee award the Supreme Court said it probably would be inclined to make had the employer acted "willfully and contumaciously.” The Supreme Court explained that it would probably be inclined in that case to consider whether the employer willfully and contumaciously refused to pay for medical care "necessarily and directly related” to the on-the-job injury, see 587 So.2d at 1004, apparently referencing language adopted by the parties in their settlement agreement that was approved by the trial court in its previous order. See Cowgill v. Bowman Transp., Inc., 587 So.2d 1000, 1001 (Ala.Civ.App.1991); compare Ala.Code 1975, § 25-5-77(a) (requiring payment of "reasonably necessary” medical treatments).

   PITTMAN, Judge.

Willie J. Thompson (“the employee”) sued Fort James Pennington, Inc., the predecessor of Fort James Operating Company (“the employer”), seeking workers’ compensation benefits. He alleged that he suffered a work-related injury in September 1998 that resulted in a permanent disability. The employer countered with the argument that the employee had a preexisting condition that was not work-related. Following a hearing, the trial court awarded the employee accrued temporary total disability benefits, certain accrued medical expenses, future medical expenses, and the costs of maintaining the action. The employer filed a postjudgment motion, which the trial court denied.

This court will not reverse a trial court’s judgment in a workers’ compensation case that is based on factual findings if those findings are supported by “substantial evidence.” Section 25 — 5—81(e)(2), Ala.Code 1975. Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). The trial court’s legal conclusions, however, are afforded no presumption of correctness, and this court reviews them de novo. Ex parte Cash, 624 So.2d 576 (Ala.1993).

The employer argues that the trial court erred because (1) its judgment does not comply with § 25-5-58, Ala.Code 1975; (2) it miscalculated the benefits owed to the employee; (3) it miscalculated the attorney fees; (4) it awarded future medical expenses; and (5) it taxed costs to the employer.

I. Section 25-5-58, Ala.Code 1975

The employer argues that the trial court erred by not reducing the benefits owed to the employee because the employee had a pre-existing condition. See § 25-5-58. In his deposition Dr. Perry Wallace stated that he examined the employee on August 29, 1998, following a fall at home. At that time, Dr. Wallace found no swelling, no bruising, or any other sign of a ruptured or torn achilles tendon. Dr. Martin, who diagnosed the employee with a ruptured achilles tendon on September 10, 1998, reviewed the medical records of Dr. Wallace and concluded that at the time Dr. Wallace examined the employee, no rupture or tear had occurred.

In its order the trial court stated:

“The issues in the case are simple. On the one hand, [the employee] contends that on September 6, 1998, he injured his right lower leg in an [on-the-job] accident....
“On the other hand, the [employer] contends the [employee] ruptured his right achilles tendon on August 28, 1998, at his home or at some time or place other than as [alleged]....
“The evidence is clear. While the [employee] did bruise or sprain his right ankle at home on August 28, 1998, an examination by [Dr.] Wallace on August 29, 1998 and an examination by [Dr.] Kugler on September 4, 1998, clearly shows that [the employee] did not have a ruptured achilles tendon following the accident at home. Also an examination by the [employee’s physician [Dr.] Valentine on September 10, 1998, clearly shows that the achilles tendon was completely severed at that time. Dr. Valentine gave his opinion that the rupture occurred on the job....
“Based on the evidence the Court finds that [the employee] ruptured his right achilles tendon on September 6, 1998, on the job with [the employer]. The Court further finds there was no tear in his achilles tendon before the accident of September 6,1998.”

(C. 548-549.)

Based on the foregoing, § 25-5-58 does not require any reduction of the employee’s workers’ compensation benefits.

II. Calculation of Benefits

The employer also argues that the trial court erred in its calculation of the amount of benefits it owes to the employee. The trial court found that the employer owed a total of $9,577.69 in temporary total-disability benefits, less $6,556.43 paid to the employee by Aetna U.S. Health Care (“Aetna”), the employer’s third-party administrator for accident and illness claims. The trial court calculated the amount of net benefits owed to the employee to be $4,004.73. This calculation is incorrect—$9,577.69 less $6,556.43 is $3,021.26, not $4,004.73. Therefore, that portion of the trial court’s judgment calculating the amount of benefits owed to the employee is reversed.

III. Calculation of Attorney Fees

The employer argues that the trial court erred in its calculation of attorney fees. The trial court ordered that the benefits Aetna had paid the employee would offset a portion of the employer’s liability. The employer contends that the trial court erred by computing the 15% maximum attorney fee allowed by § 25-5-90, Ala. Code 1975, on the total amount of temporary total-disability benefits awarded instead of deducting from that amount the amount of sickness and accident benefits paid to the employee by Aetna before calculating the amount of attorney fees due.

The employer cites Bynum v. City of Huntsville, 779 So.2d 243 (Ala.Civ.App. 1999), to support its argument. Bynum holds that attorney fees are calculated after deducting the credit due to the employer, pursuant to § 25-5-11(e), for the employer’s recovery from a third-party tortfeasor. We conclude that the policy consideration of § 25-2-11(e), preventing the double recovery of attorney fees, is not implicated in this case. The benefits Aet-na paid to the employee merely replace a portion of the employer’s liability; the fact that Aetna paid these benefits does not shift responsibility for the workers’ compensation benefits from the employer to Aetna. See Bruno’s, Inc. v. Killingsworth, [Ms. 2010281, October 4, 2002], — So.2d - (Ala.Civ.App.2002) (holding that attorney fees are calculated before crediting the employer for a setoff pursuant to § 25-5-57(c)(1), Ala.Code 1975, and reasoning that attorney fees would not be reduced when the employer is liable for the benefits). Therefore, we conclude that the trial court did not err by calculating the attorney fees before deducting the credit for the benefits paid by Aetna.

The employer also argues that the trial court erred in its calculation of attorney fees because the trial court’s order can be interpreted to require the employer to pay a portion of the attorney fees instead of deducting the attorney fees from the employee’s recovery. The trial court’s judgment states that the employer is entitled to a setoff equal to the amount of benefits paid by Aetna minus a 15% attorney fee on the amount of the setoff. We agree with the employer that this imposes on the employer a liability for attorney fees in contravention of § 25-5-90. See Liberty Trousers Div. of Walls Indus., Inc. v. Amos, 738 So.2d 1272 (Ala.Civ.App. 1999) (holding that the 15% attorney fee is not calculated on the amount of the credit owed to the company pursuant to § 25-5-57(c)(3), for salary paid to the employee during the benefit period). Therefore, we must reverse this portion of the trial court’s judgment that awards attorney fees.

Additionally, the employer argues that the trial court erred in awarding attorney fees on the medical expenses awarded to the employee. Attorney fees are not awarded on the recovery of medical expenses in a workers’ compensation action, absent willful or contumacious conduct. Millar v. Wayne's Pest Control, 804 So.2d 213 (Ala.Civ.App.2001); and Cowgill v. Bowman Transp., Inc., 587 So.2d 1000 (Ala.Civ.App.), cert. quashed, 587 So.2d 1002 (Ala.1991). However, the trial court specifically' found that the employer “wrongfully and without just cause ... refused to furnish the [employee] medical benefits to which he was entitled.” This finding is specifically supported by the record, which indicates that the employee clearly suffered a work-related injury. Therefore, we conclude that the trial court did not err by awarding attorney fees on the recovery of the employee’s medical expenses.

IV. Future Medical Expenses

The employer argues that the trial court erred by ordering it to pay the employee’s future medical expenses. The employer argues that, because the employee suffered only a temporary disability, it cannot be ordered to pay the employee’s future medical expenses.

In support of this argument, the employer cites Ivie v. Winfield Carraway Hosp., 678 So.2d 1190 (Ala.Civ.App.1996), and Raines v. Browning-Ferris Indus. of Alabama, Inc., 638 So.2d 1334 (Ala.Civ.App. 1993). Ivie cites Raines, 678 So.2d at 1193, which in turn cites Davis v. City of Tuscaloosa, 494 So.2d 643 (Ala.Civ.App. 1986). This court overruled Davis in Robbins Tire and Rubber Co., Inc. v. Byrd, 659 So.2d 672, 674 (Ala.Civ.App.1995) (stating that § 25-5-77 authorizes awarding future medical expenses upon a showing that they arise from a work-related injury, that they are reasonable and necessary, and that they are obtained by employer authorization). Our supreme court recognized our overruling of Davis in Ex parte Americold Compressors Co., 684 So.2d 140, 142 (Ala.1996). Therefore, we conclude that the trial court did not err by awarding the employee future medical expenses.

V. Taxing Costs to the Employer

The employer argues that the trial court erred by awarding costs to the employee. “Costs may be awarded by [the trial] court in its discretion.” Section 25-5-89, Ala. Code 1975; see also Ex parte Ellenburg, 627 So.2d 398 (Ala.1993). The employer argues that the award of costs is not supported by the evidence; therefore, the employer argues that the trial court abused its discretion by awarding costs to the employee.

In its postjudgment motion and motion for a new trial, the employer argued that the trial court erred in awarding the employee costs in excess of $1,923.75. It is true that the motion to tax costs contains no invoices, receipts, or other evidence to substantiate the requested amount. The better practice would be to support a motion to tax costs with the appropriate invoices and receipts. Previously, this court has concluded that the trial court abused its discretion in awarding the prevailing party payment of those costs that were not supported by proof in the record. See Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784 (Ala.Civ.App. 2002); Hooker Constr., Inc. v. Walker, 825 So.2d 838 (Ala.Civ.App.2001). A trial court may take judicial notice of filing fees and subpoena fees. See Bostrom Seating, 852 So.2d at 799. In this case, because we are reversing on other grounds, we reverse and remand as to this issue for the trial court to reconsider its cost award.

VI. Conclusion

We reverse the judgment of the trial court insofar as it miscalculated the amount of benefits the employer owes to the employee (see Part II); insofar as it imposes on the employer a liability for attorney fees in contravention of § 25-5-90, Ala.Code 1975 (see Part III); and insofar as it taxed costs in excess of $1,923.35 (see Part V). In all other respects the judgment of the trial court is affirmed. We reverse the case for the trial court to recalculate the amount of benefits, the amount of attorney fees, and the amount of costs in compliance with this opinion.

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

THOMPSON, J., concurs.

YATES, P.J., concurs in the result.

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

MURDOCK, Judge,

concurring in part; concurring in the result in part; and dissenting in part.

I concur in the result reached in Parts I and V of the main opinion. I concur in the remainder of the opinion except as it relates to two aspects of the trial court’s award of attorney fees.

First, for the same reasons I dissented in Bruno's, Inc. v. Killingsworth, [Ms. 2010281, October 4, 2002] — So.2d -— (Ala.Civ.App.2002) (Murdock, J., concurring in part and dissenting in part), I am of the opinion that the employee’s attorney was not entitled to an attorney fee with respect to the voluntary payment of sickness and accident benefits on behalf of the employer by Aetna U.S. Health Care. Those benefits were not recovered for the employee by his attorney. I therefore conclude that the trial court erred in regard to this aspect of its attorney-fee award, and I dissent from that portion of the main opinion holding otherwise.

Second, I note that in this case, thfe award of attorney fees relating to the recovery of medical expenses was part of the trial court’s initial judgment in which it first determined that the employee’s injury was covered under the Workers’ Compensation Act and the extent to which the employer was responsible for compensation and/or medical benefits. I therefore do not agree that the trial court properly awarded fees to the employee’s attorney in relation to the recovery of medical expenses.

The right to recover benefits for injuries covered by the Workers’ Compensation Act is controlled by statute. In entering its judgment, however, the trial court found that the evidence indicating that the employee’s injury was covered under the Act was “clear” and that the employer had acted “wrongfully” and “without just cause” in not paying compensation and medical benefits to the employee, and thereupon proceeded to award an attorney fee in relation to the employee’s recovery of medical expenses. I see no basis in the statute for this award.

Under the “American rule” applicable in Alabama, attorney fees are recoverable only when authorized by statute, when provided for by contract, or in certain equitable proceedings. Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So.2d 1238 (Ala.1985). In Ex parte Cowgill, 587 So.2d 1002 (Ala.1991), our Supreme Court, acknowledging the lack of any statutory or contractual basis for doing so, stated that, under appropriate circumstances, it “probably would be inclined ” under the aforesaid equity exception to assess attorney fees on medical expenses recovered from an employer. 587 So.2d at 1004 (emphasis added). However, because the Court did not specifically hold that attorney fees may be awarded in the circumstances described in that case, I would look further to find applicable precedent. See Argo Constr. Co. v. Rich, 603 So.2d 1078, 1080 (Ala.Civ.App.1992) (stating that it would look beyond Ex parte Cowgill for guidance). Specifically, I would look to opinions issued since Ex parte Cowgill, several of which address the meaning of Cowgill. Those cases indicate that when an employer has “willfully and contuma-eiously” refused to obey a prior court order to pay medical expenses, the trial court may exercise its equitable powers to enforce its own order by holding the employer in contempt and providing relief for the employer’s contemptuous acts through, among other things, an award of attorney fees incurred in enforcing the prior order.

In Argo Construction Co., this court quoted as follows from Moody v. State ex rel. Payne, 355 So.2d 1116, 1119 (Ala. 1978):

“ ‘As a general rule, and in the absence of contractual or statutory provisions, attorneys’ fees are not recoverable either as costs of litigation or as an element of damages. State v. Alabama Public Service Commission, 293 Ala. 553, 307 So .2d 521 (1975); Hartford Accident & Indemnity Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965); and Taylor v. White, 237 Ala. 630, 188 So. 232 (1939). There are, however, a number of exceptions to this general rule. One widely-accepted exception, and one which we specifically accept, is that in proper circumstances a reasonable attorney’s fee may be allowed the prevailing prosecuting party in a civil contempt proceeding. This award, though not mandatory, is allowed within the sound discretion of the trial court. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719 (1923); Arvin, Inc. v. Sony Corp. of America, 215 Va. 704, 213 S.E.2d 753 (1975); and 43 A.L.R.3d 793-97.’ ”

603 So.2d at 1080 (emphasis added). The Argo Construction Co. court explained its application of the Moody holding as follows:

“The amount of the medical expenses should not matter in deciding whether to assess attorney fees if the employee prevails in a civil contempt proceeding. ... We hold that this set of circumstances is an exception to the general rule and that the trial court, by invoking its equitable jurisdiction so as to effectuate the beneficent purpose of the [Workers’ Compensation] Act, may award attorney fees to the prevailing prosecuting party as an element of damages in this civil contempt proceeding.”

603 So.2d at 1080 (emphasis added).

Other pertinent cases decided since Ex parte Cowgill include the following: Travelers Indem. Co. of Illinois v. Griner, 809 So.2d 808, 814 (Ala.2001) (characterizing Ex parte Cowgill as holding “that the [trial] court, in the exercise of its equitable powers, could hold a party in contempt upon a finding that ‘the employer willfully and contumaciously refused to provide the expenses for the medical care’ ” (emphasis added)); Southern Label Co. v. Raymond, 707 So.2d 280, 282 (Ala.Civ.App. 1997) (“[b]ecause the trial court found that [the employer] was not in contempt, the court did not have the authority to order [the employer] to pay a fee to [the employee’s] attorney” (emphasis added)); Collins v. Taco Bell Corp., 689 So.2d 863, 865 (Ala.Civ.App.1996) (Robertson, P.J., concurring specially and noting that, under Argo Construction Co., a “trial court has the authority to hold the employer in contempt and to order an award of fees to the injured employee’s attorney” (emphasis added)). See also Millar v. Wayne’s Pest Control, 804 So.2d 213, 216 (Ala.Civ.App. 2001) (“This court has held that a trial court may, in its discretion, award an attorney fee in a civil contempt proceeding arising out of a workers’ compensation action.” (emphasis added)).

In the present case, there was no finding that the employer was “willful and contumacious” in respect to a prior court order; there was no finding of contempt in respect to a prior court order. I therefore find no authority in the language of the Workers’ Compensation Act or any precedent in our caselaw for the award of attorney fees in relation to the recovery of medical expenses by the employee.

      . The employer also argues that some of the costs claimed by the employee are not reimbursable. In light of our reversal and remand as to the issue of costs, we do not reach this argument.

      . The Workers’ Compensation Act includes a provision for an attorney fee of up to 15% of any "compensation” awarded, regardless of the scienter of the employer in refusing to pay the compensation that the court eventually finds to be owed under the Act. See Ala. Code 1975, § 25-5-90. Further, § 25-5-59(b) provides for a 15% penalty "[i]f any installment of compensation payable is not paid without good cause within 30 days after it becomes due.” (Emphasis added.) The Legislature, however, did not include a provision of either nature with respect to the recovery of medical expenses.


author: HOUSTON, Justice.

text:
    Ex parte FORT JAMES OPERATING COMPANY. (In re Fort James Operating Company f/k/a Fort James Pennington, Inc. v. Willie J. Thompson).
    1020678.
    Supreme Court of Alabama.
    June 27, 2003.

      Terry A. Moore of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for petitioner.
    William L. Utsey, Tara B. Armistead, and J. Perry Newton, Butler, for respondent.
   HOUSTON, Justice.

We granted the writ of certiorari in this case to review the Court of Civil Appeals’ affirmance of the Choctaw Circuit Court’s calculation of attorney fees in a workers’ compensation action filed against Fort James Operating Company. Upon further review, we quash the writ as improvidently granted.

I. Facts

The petitioner, Fort James Operating Company (“Fort James”), was sued by its employee, Willie J. Thompson (“the employee”), for workers’ compensation benefits. The employee alleged that he suffered a work-related injury in September 1998 that resulted in his being permanently disabled. Following a hearing, the trial court awarded the employee accrued temporary total disability benefits, certain accrued medical expenses, future medical expenses, and the costs of maintaining the action. The trial court also awarded attorney fees to the employee’s attorney.

The trial court ordered that benefits that had been paid through the employee’s insurance, which was an employment benefit provided by Fort James, would offset a portion of Fort James’s liability, pursuant to Ala.Code 1975, § 25-5-57(c)(l). In calculating attorney fees, however, the trial court computed the maximum attorney fee allowed by § 25-5-90, Ala.Code 1975— 15% — on the total amount of temporary total disability benefits due before deducting the setoff amount for the benefits paid by the employee’s insurance. In other words, the attorney fee was calculated on the pre-setoff amount. The trial court ordered Fort James to pay an attorney fee that was based, in part, on the amount of the setoff.

The trial court also awarded the employee’s attorney a fee based on 15% of the medical expenses awarded to the employee. The parties agree that the trial court ordered that this fee be subtracted from the award of medical expenses, and thereby it was to be paid by the employee, not by Fort James. (Employee’s brief at 21. “The attorney’s fee based upon the award of medical expenses in this case will be paid by [the employee] from the medical expense award of $8,827.73. This is clearly set forth in the trial court’s order.”).

Fort James appealed. The Court of Civil Appeals affirmed the trial court’s judgment as to the amount of the attorney fee awarded, but reversed the portion of the trial court’s order that required Fort James to pay that portion of the attorney fee calculated on the setoff. Fort James Operating Co. v. Thompson, 871 So.2d 44 (Ala.Civ.App.2002). We quash the writ of certiorari as improvidently granted.

II. Analysis

In the present case, the Court of Civil Appeals held that the trial court did not err by computing the attorney fee at the 15% maximum on the total amount of temporary total disability benefits awarded without first deducting from that amount the amount of medical benefits paid to the employee from his employer-provided insurance. The Court of Civil Appeals held:

“The benefits [the insurer] paid to the employee merely replace a portion of the employer’s liability; the fact that [the insurer] paid these benefits does not shift responsibility for the workers’ compensation benefits from the employer to [the insurer]. See Bruno's, Inc. v. Killingsworth, [Ms. 2010281, October 4, 2002] — So.2d-(Ala.Civ.App.2002) (holding that attorney fees are calculated before crediting the employer for a setoff pursuant to § 25-5-57(c)(l), Ala. Code 1975, and reasoning that attorney fees would not be reduced when the employer is hable for the benefits). Therefore, we conclude that the trial court did not err by calculating the attorney fees before deducting the credit for the benefits paid by [the insurer].”

Fort James Operating Co., 871 So.2d at 47. Fort James argues that the Court of Civil Appeals’ affirmance of the trial court’s calculation of the attorney fee based on the pre-setoff amount conflicts with § 25-5-90(a), Ala. Code 1975, a provision of the Alabama Workers’ Compensation Act, which restricts attorney-fee awards to “15 percent of the compensation awarded or paid.” However, because we find that Fort James lacks standing, we need not reach that issue.

The Court of Civil Appeals reversed the portion of the trial court’s judgment making Fort James responsible for the attorney fee Fort James claims was miscalculated. The Court of Civil Appeals held:

“The employer also argues that the trial court erred in its calculation of attorney fees because the trial court’s order can be interpreted to require the employer to pay a portion of the attorney fees instead of deducting the attorney fees from the employee’s recovery. The trial court’s judgment states that the employer is entitled to a setoff equal to the amount of benefits paid by [the insurer] minus a 15% attorney fee on the amount of the setoff. We agree with [Fort James] that this imposes on [Fort James] a liability for attorney fees in contravention of § 25-5-90. See Liberty Trousers Div. of Walls Indus., Inc. v. Amos, 738 So.2d 1272 (Ala.Civ.App.1999) (holding that the 15% attorney fee is not calculated on the amount of the credit owed to the company pursuant to § 25-5 — 57(c)(3), for salary paid to the employee during the benefit period). Therefore, we must reverse this portion of the trial courts judgment that awards attorney fees.”

Fort James Operating Co., 871 So.2d at 47-48.

Additionally, Fort James argues that the Court of Civil Appeals erred in affirming the trial court’s award of an attorney fee based on the award of medical expenses to the employee. However, Fort James is also not responsible for the payment of this attorney-fee award. Because Fort James is not responsible for the payment of either attorney-fee award of which it complains, Fort James lacks standing to obtain certiorari review of the awards.

“Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.” National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). “‘[L]ack of standing [is] a jurisdictional defect.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (quoting Tyler House Apartments, Ltd. v. United States, 38 Fed. Cl. 1, 7 (Fed.Cl.1997)). “[Juris dictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The Court of Civil Appeals has previously addressed the issue of standing in similar situations:

“[When] ‘the employer pays no portion of such a fee but the employee must bear the whole fee out of compensation awarded,’ any error regarding the attorney’s fee award is a matter for correction between the employee and his attorney. ‘It is no basis for complaint on appeal by the employers.’ ”
Topline Retreads of Decatur, Inc. v. Moore, 484 So.2d 1090, 1091 (Ala.Civ.App. 1985) (quoting Rush v. Heflin, 411 So.2d 1295, 1297 (Ala.Civ.App.1982)). See also Drummond Co. v. Lolley, 528 So.2d 885, 888 (Ala.Civ.App.1988). Accordingly, because as a result of the Court of Civil Appeals’ opinion no attorney fee is assessed against Fort James, Fort James has no standing to obtain certiorari review of the calculation of those fees.

III. Conclusion

Because we conclude that Fort James lacks standing to seek certiorari review, we quash the writ as having been improvidently granted.

WRIT QUASHED.

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

      . The order provided: “The Court finds that [Fort James] is entitled to a setoff ... less a 15% attorney's fee which the Court finds [the employee’s attorney] is entitled to ... with [Fort James] paying 15% on the amount of the setoff.”

      . The trial court’s order states: “It is further ORDERED, ADJUDGED AND DECREED by the Court that ... [the] attorney for [the employee], receive ... 15% of the judgment for medical benefits.”


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

text:
    CITY OF DOTHAN v. EIGHTY-FOUR WEST, INC., and Quin E. Flowers, Jr.
    2010683.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2002.
    Opinion on Application for Rehearing Feb. 21, 2003.

      F. Lenton White, Dothan, for appellant.
    Jere C. Segrest and Kevin Walding of Hardwick, Hause & Segrest, Dothan, for appellees.
   YATES, Presiding Judge.

This is the third time these parties have been before this court. See City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903 (Ala.Civ.App.1999) (“Dothan I”), and City of Dothan v. Eighty-Four West, Inc., 822 So.2d 1227 (Ala.Civ.App.2001), cert. denied, 822 So.2d 1237 (Ala.2001) (“Dothan II ”), for a detailed factual and procedural history.

This litigation involves the ongoing efforts of Eighty-Four West, Inc., and Quin E. Flowers, Jr. (hereinafter collectively referred to as “the Flowers defendants”), to obtain approval from the City of Dothan (“the City”) for the plat and construction plans for a subdivision known as the Grove Park Subdivision. This court stated in Dothan II:

“Simply because this court has affirmed the trial court’s determination that any and all surface water should be allowed to drain through the easement and that Flowers is entitled to construct the dam on his property, there is no determination that the proposed plans for the subdivision’s storm-water management system are adequate....
“It is for the City and its planning commission to consider the holding of this court and then to exercise the authority delegated to it by the legislature, based on its police power, and to determine whether the proposed storm-water management system is adequate.”

822 So.2d at 1237.

After we issued our opinion in Dothan II, Flowers resubmitted the construction plans for phase II of the Grove Park Subdivision to the City for approval. Those plans included a design for a storm-water management system. The City requested from Alan Parker, an engineer employed with the design firm hired by Flowers to design the subdivision, additional storm-water analysis on the adequacy of the inlets and piping system in the subdivision because of a revised lot layout in the subdivision. This analysis was completed in the summer of 2001.

In a letter to Parker dated December 6, 2001, the City questioned what effect the dam Flowers was authorized to construct would have on the storm-water management system of the subdivision. The City noted previous sworn testimony from Bill Douty, the designer of the Grove Park subdivision, which indicated that if the dam was built in the proposed location at the proposed height, storm-water would run into the entrance of the subdivision, and if this were to happen, the proposed storm-water management system would be inadequate to handle the additional flow of water. In February 2002, the City requested additional storm-water analysis from the design firm with regard to the proposed dam. An interoffice report was completed by the design firm on February 18, 2002.

The construction plans for phase II were stamped “Approved for Construction” on December 27, 2001, and were signed by Alan Kramer, a civil engineer for the City. On that same date, Kramer wrote Parker. His letter stated, in part:

“I have reviewed and approved the construction plans and specifications (water, street, and sanitary sewer) for the above referenced subdivision. Please ensure that all prospective bidders, the contractor and all subcontractors receive a copy of the approved plans and specifications for this development. The contractor shall have a set of plans and specifications on site during any work activities. If you should need any additional sets of plans stamped ‘Approved for Construction’ we will accommodate your needs.”

Flowers responded by letter on January 3, 2002, stating, in part:

“I am in receipt of the copy of your letter dated December 27, 2001, to Alan Parker of Barge, Waggoner, Sumner and Cannon concerning your approval of the construction plans for the 2nd Addition to Grove Park. Since you did not specifically approve the drainage plan as you did the other elements of construction, I would appreciate your prompt approval of that as well.”

Kramer responded by letter on January 10, 2002, stating:

“This is to inform you that this office is unable to approve the stormwater design for the Second Addition of Grove Park as currently submitted. As you are aware, the present stormwater design proposal is based upon hydrological data that is no longer accurate as a result of the dam construction on the eastern boundary of your property.
“We will be happy to review any new stormwater design submitted by a professional engineer which meets both the requirements of the City Code of Ordinances and of the Alabama Court of Civil Appeals. Our staff is available to review this matter with you and your design engineer at your earliest convenience.”

Flowers responded by letter on January 16, 2002, stating, in part:

“Please approve the drainage plans for the 2nd addition to Grove Park no later than Monday, January 21, 2001. Failure to do so will result in my taking immediate legal action to remedy this situation.”

On January 17, 2002, Flowers informed the City that he had authorized APAC-Alabama, Inc./Couch Construction Division to begin construction on phase II of the Grove Park subdivision and that construction had begun on January 16, 2002. The City notified Flowers on January 24, 2002, that the storm-water management system for the subdivision had not been approved and that the construction must cease immediately. The City notified the contractor on February 5, 2002, that the storm-water management system had not been approved and ordered it to cease work on the subdivision until the storm-water management system was approved.

On February 27, 2002, the Flowers defendants filed a “Motion For Contempt and/or To Show Cause, and/or For Injunc-tive Relief And Damages” alleging, among other things, that the City had approved the construction plans on December 27, 2001; that in reliance upon the approval of the plans, Flowers had entered into construction contracts; that the construction work had actually begun; that the City had issued a “stop-work order” and had halted the previously approved construction of the subdivision; and that no adequate remedy exists at law to correct the problem. The Flowers defendants sought an order from the trial court setting the matter for a hearing at the earliest possible date to consider the matters alleged and requiring the City to “show cause why the Court should not hold it in contempt for illegally and wrongfully stopping previously approved work” and/or to grant “other equitable relief to rectify and/or remedy the work stoppage and/or enter such orders as are required to allow the resumption of work.” On February 28, 2002, the trial court entered an order requiring the City to appear on March 4, 2002, and show cause why the stop-work order oh the subdivision should not be lifted. The court set the Flowers defendants’ request to hold the City in contempt for a hearing on March 29, 2002. On March 1, 2002, the City moved for clarification of the order to show cause, or, in the alternative, to dismiss, which the trial court denied.

Following an ore tenus proceeding, the trial court, on March 6, 2002, entered an order finding that the City had approved the construction plans submitted by Flowers, including the storm-water management design and that the issuance of the stop-work order was arbitrary, capricious, and an abuse of the City’s police power; it also ordered that the stop-work order be set aside and that no further stop-work orders be issued without prior approval from the trial court and awarded Flowers an attorney fee. The trial court denied the City’s motion for a stay of execution. The City appeals. This case was transferred to this court by the supreme court, pursuant to § 12-2-7, Ala.Code 1975. The City has not requested a stay of execution from this court.

The relief sought by the Flowers defendants in the trial court was injunctive in nature. Our supreme court has defined an injunction as “‘[a] court order commanding or preventing an action.’ ” Dawkins v. Walker, 794 So.2d 333, 335 (Ala. 2001), quoting Black’s Law Dictionary 788 (7th ed.1999). Following a hearing, in which both parties presented evidence, the trial court entered an order directing that the stop-work order be set aside and that no further stop-work orders be issued without the prior approval of the trial court. The trial court’s order reaches the merits of the issuance of the stop-work order and has the effect of a permanent injunction. Accordingly, we will treat this appeal as an appeal from the grant of a permanent injunction. See TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238 (Ala. 1999).

Our supreme court has stated:

“To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not dis-serve the public interest.”

Id. at 1242. The review of the issuance of a permanent injunction is de novo. Id.

Gary Martin, the city engineer, testified that the City generally issues a letter for the purpose of clarifying plans that have been stamped as approved. He further testified that the City will issue a partial approval of plans as an accommodation to developers so that construction of certain elements of a development may begin while deficiencies with other elements are being resolved. Martin testified that the City’s letter of December 27, 2001, specifically states that “water, street, and sanitary sewer” had been approved. He stated that the storm-water management design for phase II of the subdivision had never been approved by the City because the City had not been supplied with information regarding the impact of the proposed dam on the storm-water management system of the subdivision.

Martin stated that he did not question Flowers’s right to build the dam; however, he stated that the impact of the proposed dam on the storm-water management system of the subdivision required additional study. Martin testified that he had not been provided with the design firm’s interoffice report of February 18, 2002, containing the analysis of the impact the dam may have on the storm-water management system of the subdivision. However, Martin did state that he had discussed some preliminary information with the firm. Martin stated that characteristics such as the height of the dam and the existence and size of a spillway could have an impact on the existing storm-water management system of the subdivision and that the City has not been supplied with that information.

Parker testified that the height of the dam and the existence and size of a spillway are characteristics that could affect the subdivision, and the City’s request for additional storm-water analysis regarding the impact the proposed dam would have on the subdivision was a reasonable one. Parker stated that he and his employer (the design firm hired by Flowers) had nothing to do with the design and construction of the dam. He testified that at the request of the City, his employer performed additional storm-water analysis regarding the effect of the proposed dam on the storm-water management system and that this analysis was based on data supplied by Flowers regarding the size and characteristics of the dam. Parker was unaware whether the report had been provided to the City. Parker stated that he and his employer have not seen any design plans for the dam and he could not state whether the dam was actually built to the specifications Flowers provided to the design firm.

Parker testified that when he received the letter of December 27, 2001, from the City he assumed that the storm-water management design for the subdivision had been approved. However, he stated that when he discussed the letter with Flowers, Flowers pointed out to him that the letter did not mention that the storm-water design had been approved.

Flowers testified that the City approved the storm-water management system for the subdivision by stamping the plans as approved on December 27, 2001. Flowers further stated that a subdivision cannot be partially approved and that construction of the streets cannot be approved without approving the construction of the storm-water management system. However, Flowers also stated that he wrote the January 3, 2002, letter in which he requested specific approval of the storm-water management system, to clarify what elements of the subdivision had been approved for construction. Flowers testified that he did not know whether the design firm considered the effect of the dam on the storm-water management system of the subdivision in the subdivision plans.

After reviewing the record in this case, we conclude that the trial court erred in finding that the City had approved the storm-water management design of the subdivision and in ordering the stop-work order to be set aside. The record indicates that the City stamped the subdivision plans for phase II, which included the storm-water management design, as approved on December 27, 2001. Kramer issued a letter that accompanied the plans indicating that he had reviewed and approved the plans for the subdivision and specifically referred to “water, street, and sanitary sewer” but did not mention the storm-water management system. Flowers responded and recognized that the storm-water management system had not been specifically approved by Kramer and requested that it be promptly approved. The City responded and informed Flowers that it was unable to approve the submitted storm-water management design based on data that was no longer accurate because of the proposed construction of the dam. Flowers himself testified that he did not know whether the design firm considered the effect of the dam on the storm-water management system in preparing the subdivision plans.

The City requested additional storm-water analysis regarding what effect the dam would have on the storm-water management system. Parker testified that this was a reasonable request because such things as the size of the dam and the size and existence of the spillway could affect the storm-water management system of the subdivision. Additional storm-water analysis was completed by the design firm based upon data supplied by Flowers regarding the dam. Parker could not state whether the dam was actually constructed according to the specifications supplied by Flowers and relied upon by the design firm in conducting the additional storm-water analysis. He further stated that he did not know whether the additional analysis was supplied to the City. Martin testified that the City had not been supplied with information concerning what effect the dam would have on the storm-water management system of the subdivision and that the storm-water management design had not been approved.

Because we are reversing the judgment, we pretermit discussion of the other issues raised by the City. Accordingly, the trial court’s judgment is reversed and the case is remanded for entry of an order consistent with this opinion.

REVERSED AND REMANDED.

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

On Application for Rehearing

YATES, Presiding Judge.

APPLICATION OVERRULED.

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

MURDOCK, J., concurs specially.

MURDOCK, Judge,

concurring specially.

On rehearing, the Flowers defendants argue that, on original submission, this court incorrectly relied on TFT, Inc. v. Warning Systems, Inc., 751 So.2d 1238 (Ala.1999), and therefore incorrectly applied a de novo standard of review. The decisions of both the trial court and the Alabama Supreme Court in TFT turned on an objective review of certain documents and the application of governing law to those documents. It does not appear from the Supreme Court’s opinion in TFT, Inc., that ore tenus evidence was material (1) to the court’s interpretation of the documents or (2) to the court’s consideration of whether the threatened injury to the plaintiff outweighed the harm that the requested injunction may cause the defendant or whether granting the injunction would dis-serve the public interest. See generally Clark Constr. Co. v. Pena, 980 F.Supp. 1470 (M.D.Ala.1996) (outlining elements required for injunctive relief). Citing Smith v. Madison County Commission, 658 So.2d 422, 423 n. 1 (Ala.1995), the Supreme Court in TFT, Inc., therefore applied a de novo standard of review. Id.

At issue in Smith was a pure question of law. As the Supreme Court noted, the appeal presented “a single issue: Whether the Madison County Commission’s statutory authority to enforce its building code ended through application of Alabama’s ‘Sunset Act.’ ” 658 So.2d at 423 (footnote omitted). Where the sole issue presented is a question of law, an appellate court’s review is, indeed, de novo. See, e.g., Thompson Tractor Co. v. Fair Contracting Co., 757 So.2d 396 (Ala.2000); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999); Friday v. Ethanol Corp., 539 So.2d 208 (Ala.1988).

The outcome in the present case, however, does not appear to turn merely upon a review of documents or the application of governing law to those documents. As the Flowers defendants note, decisions of both the Alabama Supreme Court and this court, before and after Smith, reaffirm the principle that, where a trial court’s decision to grant or to deny a permanent injunction turns on evidence received ore tenus, an appellate court does not review that trial court’s decision de novo. In support of this proposition, the Flowers defendants cite to this court the cases of Carson v. City of Prichard, 709 So.2d 1199, 1207 (Ala.1998) (“It is settled law that whether to grant or to deny injunctive relief rests in the sound discretion of the trial court and that the trial court’s ruling on that question will not be set aside unless that court has abused its discretion.” (citing Acker v. Protective Life Insurance Co., 353 So.2d 1150 (Ala.1977) (affirming a trial court’s denial of a permanent injunction))); Lott v. City of Daphne, 624 So.2d 544, 545 (Ala.1993) (affirming a trial court’s denial of a permanent injunction and holding that “[t]o establish an abuse of discretion in the trial court’s denying or granting injunctive relief, it must be shown that the trial court committed a clear or palpable error”); Lange v. Scofield, 567 So.2d 1299, 1301 (Ala.1990) (“[A] presumption of correctness attends determinations made by trial courts sitting without a jury and hearing evidence presented ore tenus. This court will not disturb the decisions of such courts unless their findings are plainly and palpably wrong or manifestly unjust.”); Lisenby v. Simms, 688 So.2d 864 (Ala.Civ.App.1997); Romano v. Caribe, U.S.A., Inc., 702 So.2d 1230 (Ala.Civ.App. 1996) (affirming the application of a deferential standard of appellate review as to the issuance of a permanent injunction), rev’d on other grounds, 702 So.2d 1234 (Ala.1997). I also note the holding of our Supreme Court in Nunley v. State, 628 So.2d 619 (Ala.1993):

“The permanent injunction was based upon [the] clear determination that [the defendants] were violating the [Deceptive Trade Practices] Act. Under the ore tenus standard of review, this determination bears a presumption of correctness and it will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.”

628 So.2d at 622.

Thus, I acknowledge the merit of the Flowers defendants’ argument as to the proper standard of review in this case. Nonetheless, even under the more deferential standard required by the above-cited authority, I conclude that the record (taking into consideration both the documentary evidence and the evidence received ore tenus) supports a reversal of the trial court’s judgment in this case. Accordingly, I concur in overruling the application for rehearing because I continue to agree with the result reached in the majority opinion.


text:
    Ex parte 84 WEST, INC., and Quin E. Flowers, Jr. (In re City of Dothan v. Eighty-Four West, Inc., and Quin E. Flowers, Jr.)
    1020895.
    Supreme Court of Alabama.
    June 27, 2003.
    Jere C. Segrest and Kevin Walding of Hardwick, Hause & Segrest, Dothan, for petitioners.
    F. Lenton White, city atty., Dothan, for respondent.
   WOODALL, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

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