text:
    Ex parte Lawrence Paultic WILLIAMS. (Re Lawrence Paultic Williams v. State of Alabama).
    1001054.
    Supreme Court of Alabama.
    June 14, 2002.

      J.D. Quinlivan, Jr., Mobile, for petitioner.
    Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

We granted Lawrence Paultic Williams’s petition for a writ of certiorari to determine whether the Court of Criminal Appeals, in an unpublished memorandum affirming the denial of Williams’s Rule 32, Ala.R.Crim.P., petition, violated “the law of the case” established by the opinion that court had already published in previously affirming Williams’s conviction on direct appeal, Williams v. State, 736 So.2d 1134 (Ala.Crim.App.1998), cert. denied, 736 So.2d 1134 (Ala.1999). We conclude that the crucial statement of law in the published opinion on direct appeal is not a holding but is, rather, obiter dictum and therefore was not and is not the law of the case. We conclude moreover, that the dictum is mistaken. Therefore, we affirm the Court of Criminal Appeals in its denial of Williams’s Rule 32 petition, and, to prevent confusion in future cases, we disapprove the mistaken dictum in the opinion on direct appeal.

Williams was convicted of reckless murder as defined by § 13A-6-2(a)(2), Ala. Code 1975, as was his codefendant Mark Antonio Thompkins. That subsection reads:

“(a) A person commits the crime of murder if:
“(2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.”

The dictum addresses whether the evidence was sufficient to support a finding of the mens rea essential to reckless murder. Several passages from the opinion of the Court of Criminal Appeals on direct appeal state the operative facts:

“This case stemmed from an incident that took place in a cul-de-sac surrounded by an apartment complex. As many as 50 persons were gathered at an outdoor party, including Williams and Thompkins. Williams and Thompkins got into an argument that culminated in an exchange of gunfire between them. During the exchange one innocent bystander, William Glen Richardson, was killed and another bystander was wounded. The state medical examiner determined that Richardson died from multiple gunshot wounds; however, he was unable to ascertain whether Williams’s gun or Thompkins’s gun had fired the fatal shots.”

Williams, 736 So.2d at 1136-37.

“In the present ease, the evidence showed that Williams intentionally retrieved a gun from inside his car, loaded it, and fired it at Thompkins. Thomp-kins intentionally retrieved his gun from his clothing and fired at Williams.”

Williams, 736 So.2d at 1144.

“The evidence tended to show that, following a brief confrontation and in the midst of as many as 50 people, Williams and Thompkins drew a 9mm pistol and a .45-caliber pistol, respectively, and engaged in a gun battle. At some point during the shooting, William Glen Richardson, a bystander, was hit three times and killed. Another bystander was wounded. The forensic evidence showed that the bullets that caused Mr. Richardson’s wounds entered his body from different directions. One bullet entered the left shoulder where it joins the neck, hit the carotid artery, and then exited through the left side of Richardson’s jaw. This bullet was traveling from left to right. Another bullet entered the right side of the abdomen/chest area, lacerated Richardson’s liver, intestines, and stomach and then exited through the left side of the abdomen. This bullet was traveling right to left and downward. The third bullet entered the front of Richardson’s left leg below the knee and exited through the calf muscle, traveling in a downward direction. The medical examiner stated that all the wounds were of a size consistent with the bullets fired by both weapons; therefore, he could not determine whether one or both weapons inflicted any or all of the wounds. However, with the evidence indicating wound entry points on both sides of Richardson’s body, the jury could reasonably infer that Richardson was hit by at least one shot from both Williams’s gun and Thompkins’s gun. The official cause of death was ‘multiple gunshot wounds.’ ”

Williams, 736 So.2d at 1140.

The pertinent holding in the opinion on direct appeal is that the evidence was sufficient to support a finding on the essential element of causation — that Williams’s conduct caused the death of the victim. This holding, among others, is the basis for the judgment by the Court of Criminal Appeals affirming Williams’s conviction for reckless murder.

The opinion expressly recognizes that the issue of whether the evidence was sufficient to support a finding of the mens rea essential to reckless murder, was not before the Court of Criminal Appeals in the direct appeal. Nonetheless, the opinion states:

“While engaging in a gunfight in a residential area with dozens of people present undoubtedly constitutes reckless conduct, under the facts of this case, that conduct does not conform to the statutory definition of reckless murder contained in § 13A-6-2(a)(2), Code of Alabama 1975. The evidence clearly showed that Williams and Thompkins were specifically shooting at each other and that they were not just shooting into the crowd.
“The appellants were clearly attempting to shoot each other. Based on the caselaw cited above, the evidence in the present case simply does not support a conviction for reckless murder as to either Williams or Thompkins.
“Because both Williams and Thomp-kins were precluded from relief in the instant appeal regarding their reckless murder convictions, the proper vehicle to address this issue is through a post-conviction petition pursuant to Rule 32, Ala.R.Crim.P.”

Williams, 736 So.2d at 1141-42. (Emphasis added.) While we, the Supreme Court, denied the respective petitions for a writ of certiorari filed not only by Williams but also by the State, our denials did not constitute any endorsement of any feature of the opinion by the Court of Criminal Appeals. See Ex parte Siebert, 778 So.2d 857, 857 (Ala.2000) (Johnstone, J., concurring specially); Ex parte Terry, 540 So.2d 785 (Ala.1989); Banks v. State, 358 So.2d 480 (Ala.1978); and Hurst v. State, 293 Ala. 548, 307 So.2d 73 (1975).

After Williams’s conviction was affirmed on direct appeal, he pursued the suggestion in that opinion and filed a Rule 32 petition, the matter now before us, asserting that the evidence was insufficient to support a finding of the mens rea essential to reckless murder and that his appellate counsel was ineffective for failing to raise this aspect of insufficiency of the evidence on direct appeal. The trial court held that the statements by the Court of Criminal Appeals cited by Williams were not the law of the case but were only dictum which conflicted with the holding of Ex parte Simmons, 649 So.2d 1282, 1285-86 (Ala.1994). Therefore, the trial court held that the evidence was not insufficient to support a finding of the requisite mens rea and that Williams’s appellate counsel was not ineffective for refraining from challenging this aspect of the sufficiency of the evidence on direct appeal. Upon these holdings, the trial court denied Williams’s Rule 32 petition.

Likewise relying on Simmons, the Court of Criminal Appeals affirmed the denial of Williams’s Rule 32 petition. He has petitioned us for certiorari review. While we have granted his petition, we now affirm because the trial court was right in denying the Rule 32 petition and the Court of Criminal Appeals was right in affirming the denial.

Because obiter dictum is, by definition, not essential to the judgment of the court which states the dictum, it is not the law of the case established by that judgment. Gray v. Reynolds, 553 So.2d 79, 81 (Ala.1989). Therefore, in addressing Williams’s Rule 32 petition, neither the trial court nor the Court of Criminal Appeals was bound by the dictum in the opinion by the Court of Criminal Appeals on direct appeal. Rather, those courts were justified in relying on the holding of this Court in Simmons:

“Simmons contends that the State presented insufficient evidence to support a conviction of reckless murder. Specifically, he contends that the evidence showed that the shots fired were fired with the intention to kill a specific individual only and were not directed at human life in general....
“ ‘Reckless murder’ or, as it is sometimes called, ‘universal malice murder’ or ‘depraved heart murder,’ requires the prosecution to prove conduct that manifests an ‘extreme indifference to human life,’ any human life. As noted above, Simmons contends that this section is not applicable to the present situation because, he says, the intended victim was a particular person. We disagree.
“The fact that the families of Simmons and Peterson had been involved in an altercation the night before the child was killed is not in dispute. There was testimony that Peterson had fired shots at Simmons and at some of Simmons’s family before the exchange of gunfire in which the child was killed. However, the evidence was that Simmons, as well as several others, was shooting firearms indiscriminately in the general direction of the car in which the child was riding. This spraying of bullets occurred on a public street in a residential neighborhood in the middle of the day. That the one who fired the fatal shot may have intended to kill a particular person does not take this fact situation out of the scope or concept of reckless murder. Spraying gunfire openly on a public street is reckless conduct that creates a grave risk of death and, in fact, in this case it did cause the death of an innocent person, the child.
“As noted in the Commentary to § 13A-6-2 (under the subheading ‘Transferred Intent’):
“ “Where the actor intentionally or knowingly does an act that is highly likely to cause death to another person, and as a natural and direct result another person is killed, though not the person subjectively intended to be killed or seriously injured {e.g., arson of public building, blowing up commercial airplane, shooting gun indiscriminately, etc.), the actor is guilty of murder under either § 13A-6-2(a)(l) because he intended “to cause the death of another person,” or § 13A-6-2(a)(2) for recklessly engaging in conduct which creates a grave risk of death and “under circumstances manifesting extreme indifference to human life.” ’
“Given the specific facts of this case, it does not matter whether Simmons intended to kill Peterson or some other particular person. Rather, the conduct of the parties involved in the shooting created a grave risk of death and was, under the circumstances, a manifestation of extreme indifference to human life.”

Simmons, 649 So.2d at 1285-86. This law, rather than the conflicting dictum in the Williams opinion, governs the corresponding issue in Williams’s Rule 32 petition now before us.

The evidence of Williams’s mens rea in the case now before us is analogous to and as strong as the evidence of mens rea Simmons held to be sufficient. Therefore the proof against Williams was sufficient.

A lawyer is not ineffective for declining to assert an invalid contention. Neelley v. State, 642 So.2d 494, 509 (Ala.Crim.App.1993); Hubbard v. State, 584 So.2d 895, 914 (Ala.Crim.App.1991); and Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.1984). Therefore, Williams’s appellate counsel was not ineffective for declining to challenge the sufficiency of the evidence of Williams’s mens rea.

AFFIRMED.

MOORE, C.J., and HOUSTON, LYONS, and WOODALL, JJ., concur.


source: Caselaw Access Project

author: HOUSTON, Justice.

license: Public Domain

text:
    George L. DONOGHUE III v. AMERICAN NATIONAL INSURANCE COMPANY and Harold Knotts, Jr.
    1001926.
    Supreme Court of Alabama.
    June 14, 2002.

      Sidney W. Jackson III and Mathew B. Richardson of Jackson & Foster, L.L.C., Mobile, for appellant.
    W. Michael Atchison, Rik S. Tozzi, and Benjamin J. Espy of Starnes & Atchison, L.L.P., Birmingham, for appellee American National Insurance Company (rehearing brief filed by W. Michael Atchison, Rik S. Tozzi, and Joshua A. Threadcraft).
    Edward B. McDonough, Jr., and Kevin D. Graham of McDonough & Graham, P.C., Mobile, for appellee Harold Knotts, Jr.
   On Application for Rehearing

HOUSTON, Justice.

The opinion of February 22, 2002, is withdrawn and the following is substituted therefor.

George Donoghue III seeks review of the Mobile Circuit Court’s dismissal of his claims against American National Insurance Company (“American National”) and its agent, Harold Knotts, Jr., stemming from Donoghue’s purchase of life insurance from American National. Donoghue contends that the dismissal — based upon the trial court’s holding that Donoghue’s claims were not ripe for adjudication — was improper. We agree, and we reverse and remand.

I. Facts

In November 1993, Donoghue, through Knotts, purchased a universal life insurance policy from American National. On August 25, 2000, Donoghue filed this action in the Mobile Circuit Court against American National and Knotts, alleging fraud, breach of contract, negligence, conspiracy, and negligent and/or wanton failure to train, supervise, and monitor agents. The foundation of each of the claims in Dono-ghue’s original complaint was the alleged misrepresentation by American National and Knotts that the “universal life insurance policy would meet his stated needs in that monies would be available at retirement.”

American National filed a motion to dismiss (which Knotts adopted) pursuant to Ala. R. Civ. P. 12(b)(6), arguing, among other things, that Donoghue’s claims were not ripe for adjudication. American National later amended its motion to dismiss to assert that Donoghue’s claims were barred by the applicable statutes of limitation. Attached to the amended motion was a copy of Donoghue’s policy.

Subsequently, Donoghue amended his complaint to allege (1) that before he purchased the policy Knotts had represented to him that the policy would provide a permanent life insurance plan, as well as a separate “retirement fund”; (2) that his understanding was that if he paid a premium of $73 per month, this separate “retirement fund” would have $125,000 in it when he reached the age of 65, the age at which he planned to retire; and (3) that he later learned that there was no such “retirement fund.”

Following a hearing, the trial court granted American National’s motion to dismiss, holding that Donoghue’s claims were not ripe for adjudication. Donoghue appeals.

II. Standard of Review

American National’s motion to dismiss included, as an exhibit, a copy of Donoghue’s policy. In general, exhibits provided in support of motions to dismiss under Rule 12(b)(6) are considered “matters outside the pleading” and effectively convert the motion into a motion for a summary judgment. Ala. R. Civ. P. 12(b); see F.A. Dobbs & Sons, Inc. v. Northcutt, 819 So.2d 607, 609 (Ala.2001) (“Dobbs’s attaching exhibits to its motion to dismiss effectively converted it to a summary judgment motion.”); Wesson v. McCleave, Roberts, Shields & Green, P.C., 810 So.2d 652, 656 (Ala.2001) (stating that conversion of a motion to a motion for a summary judgment under Rule 12(b) occurs “ ‘regardless of what the motion has been called or how it was treated by the trial court’ ” (quoting Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997))).

However, we are persuaded to embrace the well-founded rule adopted by the Alabama Court of Civil Appeals precluding conversion when the exhibits in question are referred to in, and are central to, the plaintiffs complaint:

“Alabama cases are silent concerning whether a portion of a document made the basis of a pleader’s claim, or an omitted portion of an exhibit incorporated into a pleading, may be considered by a trial court without converting a motion to dismiss for failure to state a claim. However, ‘since the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when we are called upon to construe the Alabama rules.’ McBrayer v. Hokes Bluff Auto Parts, 685 So.2d 763, 765 (Ala.Civ.App.1996) (quoting City of Birmingham v. City of Fairfield, 396 So.2d 692, 696 (Ala.1981)).
“A number of federal appellate courts construing the analogous provisions of Rule 12(b), Fed.R.Civ.P., have concluded that ‘if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiffs claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.’ GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir.1997) (citing authorities from the First, Second, Third, Fourth, Sixth, Ninth, and Eleventh Circuits); see also Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir.1994) (documents attached to a motion to dismiss are considered part of the pleadings if referred to in plaintiffs complaint and are central to his or her claim); Cortec Indus, v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991) (stock-offering memorandum and purchase agreement properly considered on motion to dismiss securities fraud action), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992). ‘If the rule were otherwise, a plaintiff with a deficient claim could survive a motion to dismiss simply by not attaching a dispositive document upon which the plaintiff relied.’ GFF Corp., 130 F.3d at 1385.
“In this case, the application form attached to the motion to dismiss was a component of the letter that Wilson contends was fraudulent. Under Alabama law, ‘statements comprising the alleged misrepresentations “must be viewed in their entirety to adequately resolve the question of whether a misrepresentation has occurred.” ’ Benton v. Paul Revere Life Ins. Co., 858 F.Supp. 1112, 1115 (M.D.Ala.1994) (quoting Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345, 1351 (Ala.1991)). In light of the authorities discussed above, we agree with First Union that the application form, which Wilson has not disputed was a portion of the letter enclosed in the first mailing, was properly considered by the trial court in ruling on First Union’s motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P. Thus, the trial court’s consideration of this form did not require conversion of the motion into one for a summary judgment.”

Wilson v. First Union Nat’l Bank of Georgia, 716 So.2d 722, 726 (Ala.Civ.App.1998).

Guided by the above analysis, we conclude that we need not treat American National’s motion to dismiss as a motion for a summary judgment. Donoghue’s complaint specifically references the policy, and the purchase and substance of the policy serve as the foundation for each of Donoghue’s claims. Therefore, our review is governed by the following standard:

“ ‘On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.], is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ”

C.B. v. Bobo, 659 So.2d 98, 104 (Ala.1995) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted)).

III. Analysis

In its order granting American National’s motion to dismiss, the trial court held as follows:

“This suit was filed in [August] 2000 and after receiving an initial motion to dismiss, [Donoghue] filed a first amended complaint in May 2001, focusing his claims, it appears, on alleged representations that the insurance policy he was solicited to purchase would provide a ‘retirement plan’ as well as a death benefit. In the amended complaint, at Paragraph 10, [Donoghue] alleges that his ‘retirement plan’ would ‘progressively reach $125,000.00 at age 65.’ It appears to this court that [Donoghue] is making an effort to avoid the impact of recent Alabama Supreme Court opinions deferring ‘vanishing premium’ claims until the date should arrive when the premiums had been, allegedly, promised to vanish. See Williamson v. Indianapolis Life Insurance Company, 141 So.2d 1057 (Ala.1999); Stringfellow v. State Farm Life Insurance Company, 743 So.2d 439 (Ala.1999); DeArman v. Liberty National Life Insurance Company, [786 So.2d 1090 (Ala.2000)]. In paragraphs 10-16 of the first amended complaint, [Donoghue] repeatedly alleges that no ‘retirement fund’ exists. However, [Donoghue] does not allege that he has attained age 65 and is entitled to benefits from a ‘retirement fund.’
“It appears to this court that the term ‘retirement fund’ is simply another name for a policy cash value or pool of money allegedly promised to be on hand at retirement age, a date which has not yet arrived in the instance of this plaintiff. [Donoghue] likens the situation to that in Boswell v. Liberty National Life Insurance Company, 643 So.2d 580 (Ala.[1994]). However, the Supreme Court, in Williamson, supra, explains that in Boswell, the plaintiffs were persuaded to purchase something that did not exist and never would exist, while in Williamson, the plaintiff purchased policies that might or might not perform in the manner which he was allegedly represented. Such is the situation here. Thus, as in Williamson, and the succeeding cases, [Donoghue] has suffered no discernible injury at this time. The issue is not ripe. The motions to dismiss of defendants American National Insurance Company and Harold Knotts are due to be granted; however, as in DeArman, supra, the court finds that [Donoghue’s] complaint was filed with the bona fida intention of receiving an adjudication on the merits and, therefore, as in DeArman, the statute of limitations is tolled while this claim has been pending.
“The motions to dismiss filed by defendants American National Insurance Company and Harold Knotts are GRANTED, and this case is DISMISSED without prejudice. Costs having been prepaid, no further costs are taxed.
“DATED, July 17, 2001.
“/s/William H. McDermott
“William H. McDermott
“Circuit Judge”

Donoghue contends that the trial court erred in relying on Williamson v. Indianapolis Life Insurance Co., 741 So.2d 1057 (Ala.1999), Stringfellow v. State Farm Life Insurance Co., 743 So.2d 439 (Ala.1999), and DeArman v. Liberty National Life Insurance Co., 786 So.2d 1090 (Ala.2000), arguing that each of those cases involves “vanishing premiums” and, therefore, was decided based on a factual context wholly different from the one presented here. Donoghue concedes that in a “vanishing-premium” case (in which large premiums are paid over a short period with the anticipation that at some future date the premiums will “vanish,” i.e., will no longer be required from the insured) a claim alleging that a plaintiff might have to pay premiums beyond the date on which the premiums were represented to “vanish” is not ripe for adjudication until a premium payment is made beyond the “vanish” date. See Williamson, 741 So.2d at 1060-61 (“Although there are projections suggesting that the agent’s alleged representation [that premiums would ‘vanish’ in 2002] was false, there is absolutely no way to know whether this representation was true or was false, until the end of the year 2002.”); Stringfellow, 743 So.2d at 440-41 (claims filed in December 1997 were not ripe because they were based on an alleged misrepresentation that no premium payments would be required after July 11, 1998); DeArman, 786 So.2d at 1092 (“The DeAr-mans filed this action in January 1996, one year before the represented [Vanish’] date. Therefore, no cause of action had accrued when the DeArmans filed their complaint and no justiciable controversy existed.”).

However, Donoghue argues that his circumstance is distinguishable from a vanishing-premium case in that he is alleging not that the policy might not perform as represented, but that it will not perform as represented, because no “retirement fund” exists. Donoghue contends that he suffered immediate injury when he purchased the American National policy because he “understood from Defendant’s representations that his [premium] payments would immediately cause his [allegedly nonexistent] retirement plan to start growing and would progressively reach $125,000 at age 65.” (Appellant’s brief on rehearing pp. 1-2.) Because, as Donoghue alleges, there is no “retirement fund,” Do-noghue contends that he has been paying for something that does not exist and that his case is similar to Boswell v. Liberty National Life Insurance Co., 643 So.2d 580 (Ala.1994), and his claims are ripe for adjudication.

In Williamson, we summarized Boswell and distinguished that case from the vanishing-premium scenario as follows:

“In Boswell, this Court held that insureds could maintain fraudulent-misrepresentation and suppression claims based on their allegations that the insurer had persuaded them to surrender one policy and to purchase, for greater premiums, a policy that was represented to provide greater benefits. The basic question in that case was whether, given that the plaintiffs had made no claim under the policy, they had suffered any injury. This Court held:
“ ‘The injury or damage alleged is that the plaintiffs were persuaded, through the fraudulent acts of the defendants, to pay for something they did not receive. In other words, the alleged injury or damage was the payment of greater premiums that were unnecessary because the plaintiffs received no additional coverage in return for the greater premiums and lost benefits they already enjoyed under the old policy.’
“Boswell> 643 So.2d at 582. Williamson argues that his case is similar to Boswell. We are not persuaded that it is.
“In Boswell, the plaintiffs were persuaded to purchase something that did not exist and never would exist. In the present case, Williamson purchased policies that will perform as he says he was told they would, if he dies before 2003 or if he does not have to pay premiums on the policies after the year 2002. In other words, because the performance of the policies is directly related to interest rates, Williamson today can only speculate that the policies will not sustain themselves as he claims he was promised.”

Williamson, 741 So.2d at 1061.

We hold that, under the standard of review for motions to dismiss under Rule 12(b)(6), the dismissal of Donoghue’s claims was erroneous. Viewing the allegations of Donoghue’s complaint most strongly in his favor, we cannot conclude that Donoghue could not prove a set of facts similar to those in Boswell — namely, that due to the alleged tortious actions of the defendants, Donoghue was paying for something that “did not exist and never would exist” and that he consequently has suffered injury sufficient to ripen his claims. Therefore, we reverse the trial court’s dismissal of Donoghue’s claims.

American National attempts to present this Court with an alternative basis on which to decide this case against Dono-ghue. Specifically, American National contends that even if Donoghue’s claims are ripe for adjudication, those claims are barred by the applicable statutes of limitation.

Generally, we can affirm a trial court’s judgment on any basis. See Ex parte City of Fairhope, 739 So.2d 35, 39 (Ala.1999) (“A trial court’s judgment, if correct, should be affirmed even if the court has given a wrong reason in support of its judgment.”); see also Steiger v. Huntsville City Bd. of Educ., 653 So.2d 975, 977 (Ala.1995) (“A judgment properly entered will not be disturbed, even if it is not supported by the reasons stated by the trial court.”). However, even if we found merit in American National’s statute-of-limitations argument, the procedural posture of this case precludes the use of this “alternative” basis to affirm the trial court’s judgment. The trial court held that Donoghue’s claims were not ripe; that ruling would allow the claims to be asserted at a later date. Consequently, a decision against Donoghue based upon the statutes of limitations having expired would bar the claims from ever being brought again — a result well beyond mere “affirmance” of the trial court’s decision.

For the reasons given above, we reverse the trial court’s dismissal of Donoghue’s claims and remand the case for further proceedings consistent with this opinion.

APPLICATION GRANTED; OPINION OF FEBRUARY 22, 2002, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

SEE and LYONS, JJ., concur in the result.


author: HARWOOD, Justice. MOORE, Chief Justice

text:
    STATE FARM FIRE AND CASUALTY COMPANY v. SHADY GROVE BAPTIST CHURCH.
    1010018.
    Supreme Court of Alabama.
    June 14, 2002.
    Roderick K. Nelson and Adam M. Milam of Spain & Gillon, L.L.C., Birmingham, for appellant.
    Gerald D. Colvin, Jr., of Bishop, Colvin, Johnson & Kent, Birmingham; and Frank S. Buck, Birmingham, for appellee.
   HARWOOD, Justice.

State Farm Fire and Casualty Company (hereinafter referred to as “State Farm”) appeals from the trial court’s denial of its motions for a judgment as a matter of law in regard to a breach-of-contract claim asserted against it by the Shady Grove Baptist Church (hereinafter referred to as “the Church”). We reverse and remand.

On February 2, 1998, the Church sued State Farm, seeking to recover damages on claims of breach of contract, bad faith, and fraud in regard to State Farm’s denial of a claim made by the Church following the collapse of a portion of the roof on its building. The Church’s complaint alleged that an insurance policy issued by State Farm provided coverage for the roof collapse but that State Farm refused to pay the claim it made based on the collapse. On February 1, 1999, State Farm filed a motion for a summary judgment with attached exhibits and a supporting brief; on February 23, 1999, it filed a supplemental brief in support of its motion. On March 4, 1999, the Church filed an opposition to State Farm’s motion for a summary judgment.

On May 3,1999, the trial court entered a summary judgment for State Farm on the Church’s claims of bad faith and fraud, and certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.; on May 12, 1999, the Church filed a notice of appeal. On November 19, 1999, the Court of Civil Appeals affirmed the trial court’s judgment without an opinion. Shady Grove Baptist Church v. State Farm Ins. Co., 789 So.2d 253 (Ala.Civ.App.l999)(table). On July 21, 2000, State Farm resubmitted its motion for a summary judgment as to the Church’s breach-of-eontract claim; the trial court denied that motion on November 6, 2000. The breach-of-contract claim was tried before a jury on April 9-11, 2001.

State Farm made an oral motion for a judgment as a matter of law at the close of the Church’s case-in-chief; the trial court denied the motion. On April 11, 2001, at the close of all the evidence, State Farm filed a written motion for a judgment as a matter of law; the trial court denied the motion that same day. On April 13, 2001, the jury returned a verdict in favor of the Church in the amount of $128,800, and the trial court entered a judgment on the verdict, adding $31,586.03 to the judgment as interest, for a total judgment of $160,386.03.

On May 10, 2001, State Farm filed a renewed motion for a judgment as a matter of law, or, in the alternative, a motion for a new trial or for a remittitur. On August 9, 2001, the trial court denied State Farm’s renewed motion for a judgment as a matter of law and motion for a new trial. However, the trial court granted the motion insofar as it requested a remittitur and reduced the amount of the judgment to $98,700 to comport with the coverage limits of the insurance policy. The court added $24,205.98 in interest, for a total judgment of $122,905.98. On September 20, 2001, State Farm filed a notice of appeal to this Court.

State Farm states the issue presented in this appeal as whether “[t]he trial court erred by denying [its] Motion for Judgment As a Matter of Law because [the Church] failed to present any evidence which was sufficient to create a question of fact whether the cause of the roof collapse at the church was covered by the policy.” Our review of the denial of a motion for a judgment as a matter of law is settled.

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

Ex parte Alfa Mut. Fire Ins. Co., 742 So.2d 1287, 1240 (Ala.l999)(emphasis added). Further, this Court has stated that “ ‘[e]vidence supporting nothing more than speculation, conjecture, or a guess does not rise to the level of substantial evidence.’ ” McGinnis v. Jim Walter Homes, Inc., 800 So.2d 140, 145 (Ala.2001)(quoting Brushwitz v. Ezell, 757 So.2d 428, 432 (Ala.2000)).

The insurance policy at issue provides, in pertinent part:

“SECTION I
“LOSSES INSURED AND “LOSSES NOT INSURED
“LOSSES '
“NOT INSURED
“2. We do not insure for loss either consisting of, or directly and immediately caused by, one of more of the following:
“p. collapse, except as provided in the Extensions of Coverage.
“But if accidental direct physical loss results at the described premises, we will pay for that resulting loss.
“3. We do not insure under any coverage for any loss consisting of one or more of the items below. Further, we do not insure for loss described in paragraphs 1. and 2. immediately above regardless of whether one or more of the following: (a) directly or indirectly cause, contribute to or aggravate the loss; or (b) occur before, at the same time, or after the loss or any other cause of the loss:
“a. conduct, acts or decisions, including the failure to act or decide, ■ of any person, group, organization or governmental body whether intentional, wrongful, negligent or without fault;
“b. faulty, inadequate, unsound or defective:
“(1) planning, zoning, development, surveying, siting;
“(2) design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
“(3) materials used in repair, construction, renovation or remodeling; or
“(4) maintenance;
“of part or all of any property (including land, structures, or improvements of any kind) on or off the described premises.
“But if accidental direct physical loss results from items 3.a. and 3.b., we will pay for that resulting loss unless the resulting loss is itself one of the losses not insured in this section.
“SECTION I
“EXTENSIONS OF
“COVERAGE
“EXTENSIONS OF COVERAGE
“Subject to the terms and conditions applicable to Section I of this policy, the following Extensions of Coverage apply separately to each location scheduled in the Declarations. But the amount of insurance afforded on any one scheduled location will not be more than the limit of insurance specified in each Extension of Coverage if a limit is included in the extension.
“4. Collapse.
“a. We will pay for any accidental direct physical loss to covered property involving collapse of a building or any part of a building caused by only one or more of the following: “(1) any of the ‘Specified Causes of Loss’ or breakage of building glass, only as insured against in this policy;
“(2) hidden decay;
“(3) hidden insect or vermin damage;
“(4) weight of people or personal property;
“(5) weight of rain that collects on a roof;
“(6) use of defective material or methods in construction, remodeling or renovation if the collapse occurs during the course of the construction, remodeling or renovation.
“c. Collapse does not include settling, cracking, shrinking, bulging or expansion.”

In a section entitled “Definitions,” the policy also states:

“Each time the phrase ‘Specified Causes of Loss’ is used in this policy, it refers to all of the following causes:
“1. fire;
“2. lightning;
“3. explosion;
“4. windstorm or hail;
“5. smoke;
“6. aircraft or vehicles;
“7. riot or civil commotion;
“8. vandalism;
“9. leakage from fire extinguishing equipment;
“10. sinkhole collapse, meaning the sudden sinking or collapse of land into underground empty spaces created by the action of water on limestone or similar rock formations but does not include the cost of filling sinkholes.
“11. volcanic action, meaning the airborne volcanic blast or airborne shock waves, lava flow, ash, dust or particulate matter resulting from the eruption of a volcano but does not include the cost of removing ash, dust or particulate matter that does not cause accidental direct physical loss to covered property.
“12. falling objects, not including loss to:
“a. personal property in the open; or
“b. the interior of a building or structure, or property inside a building or structure, unless the roof or an outside wall of the building or structure is first damaged by a falling object;
“13. weight of snow, ice or sleet;
“14. water damage, meaning accidental discharge or leakage of water or steam as the direct result of the breaking or cracking of any part of a system or appliance containing water or steam.”

In Twin City Fire Ins. Co. v. Alfa Mutual Ins. Co., 817 So.2d 687 (Ala.2001), this Court observed:

“A contract of insurance, like other contracts, is governed by the general rules of contracts. Pate v. Rollison Logging Equip., Inc., 628 So.2d 337 (Ala.1993). Insurance companies are entitled to have their policy contract enforced as written. Gregory v. Western World Ins. Co., 481 So.2d 878 (Ala.1985). ‘Insurance contracts, like other contracts, are construed so as to give effect to the intention of the parties, and, to determine this intent, a court must examine more than an isolated sentence or term; it must read each phrase in the context of all other provisions.’ Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 870 (Ala.1996).”
817 So.2d at 691-92.

In regard to its burden of proof under the policy, the Church states in its brief to this Court:

“Certainly Shady Grove proved that there was a collapse of the roof which is clearly a covered loss under the policy.... Further it is clear that Shady Grove established as probable causes of this collapse a number of causes listed as insured under the policy, such as explosion (blasting), weight of people, load of wind, rain, ice and snow, decayed wood and insect or vermin damage. The position of State Farm appears to be that the loss should be excluded because of State Farm’s contention that defective construction played a part in the collapse. Clearly any such contention should have been considered as State Farm’s burden to prove.”

However, the policy states that it does not provide coverage for collapse unless the collapse resulted from one or more of the six specific enumerated causes stated within the section entitled “Extensions of Coverage.” Further, it is not State Farm’s position on appeal that the collapse was excluded from coverage; rather, State Farm asserts that the collapse was not covered under the policy. Therefore, this is not a case in which the Church has to prove that a collapse, as defined within the policy, has occurred and State Farm then has to prove that a certain exclusion within the policy removed the collapse from the scope of its coverage. See Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d at 697 (“[The insurer] has the burden of proof in asserting that a claim is excluded under its policy of insurance.”). Rather, in resisting State Farm’s motions for a judgment as a matter of law, and for the trial court’s denial of those motions to have been proper, the Church must have submitted substantial evidence showing that the collapse fitted within the definition of that term in the policy and that it was covered under the policy by virtue of its being caused by at least one of the six enumerated causes provided in the policy. See, e.g., State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 325-26 (Ala.l999)(considering, on rehearing, whether the insureds had presented substantial evidence showing that their loss was a collapse as that term was defined in a policy); Colonial Life & Accident Ins. Co. v. Collins, 280 Ala. 373, 376, 194 So.2d 532, 535 (1967)(“The burden was on the plaintiff to prove that the insured’s death resulted from injuries sustained in such a manner as to bring him within the coverage of the policy.”). Accordingly, we must consider whether the Church submitted substantial evidence as to this issue. Ex parte Alfa Mut. Fire Ins. Co., McGinnis v. Jim Walter Homes, Inc., supra.

During the Church’s case-in-chief, testimony was elicited from Preston Walker, a former trustee, deacon, and pastor of the Church; Joann Lewis, Walker’s sister and chairman of the Church’s building committee; and Timothy Ryan, a State Farm claim-team manager. Portions of the deposition testimony of Hugh Walker, Jr., deceased, the brother of Preston Walker and Lewis and a former trustee and deacon of the Church, was also read into evidence. Preston Walker, Lewis, and Hugh Walker all testified that a coal company had conducted blasting activity in close proximity to the community in which the Church’s building was located; the Church alleges in its brief that the blasting constituted an “explosion,” listed as a specified cause of loss in the policy.

Preston Walker testified as follows:

“Q. Well, prior to '91 when you moved away, do you ever recall there having been blasting in and around the Sipsey area?
“A. I’m trying to think of that company that came in there. There’s a company came in there from Cullman. I can’t recall their name, and there was a lot of strip pits back in there.
“Q. At the home that you lived in when you were in Sipsey, did you ever have occasion to experience blasting to where you could feel it in your home?
“A. You could kind of feel a rumble sometimes from it, uh-huh.”

Lewis testified as follows:

“Q. Living in that Sipsey area in the year prior to the collapse of the roof of the church, did you ’ experience any effects of blasting in the area?
“A. Well, you know, a couple of times in my lifetime, but when I moved in my house, a couple of times I remember — I think it was like on August 8 that there was some blasting done, and you know, it just like rattled the dishes, you know, no kind of effects in my house. It was just like a rattle.
“Q. But it was something you could feel and see[J the rattle?
“A. Yeah.
“Q. And that occurred more than once in your residence?
“A. Not a lot since I’ve been in my house, not a lot.”

The deposition testimony of Hugh Walker, which was read into evidence, stated:

“Q. Have you ever had any blasting damage at your house here in Sipsey? “A. Not at my house.
“Q. How far do you live from the church, Shady Grove?
“A. About three or four blocks, kind of blocks.
“Q. Did you have any damage to your house from what you thought might be blasting in the summer of 1997 [when the roof on the Church’s building collapsed]?
“A. No. No, I didn’t. I didn’t have no damage I don’t think.
“Q. Anybody around you?
“A. Well, nobody — the boy that stayed next to me, stayed down up under the hill from me, he was saying that his cabinets and things was — you know, was shaking and going on at times.
“Q. Dishes rattling, plates rattling, things like that?
“A. Yes.”

In regard to the activities conducted in the Church’s building, i.e., weight of people, Lewis testified as follows:

“Q. What kind of activities did y’all have in this church building?
“A. As far as our services, you know, we had a lot of praise in our church. We have a lot of praise in our church.
“Q. Is it a spirit-filled worship?
“A. Yes.
“Q. And do people sing and sway and raise their hands and be animated in their worship of the Lord?
“A. Yes, yes.
“Q. Have you filled that church up— “A. Yes.
“Q. —with people?
“A. Uh-huh.
“Q. Do you have children in the congregation?
“A. Yes.
“Q. And before and after church, do they sometimes run around and jump and have active times within the church? “A. Yes, but, you know, we try to refrain from a lot of kids running around in the church but there are times that that happens.”

Further, in regard to weather conditions the Church’s building had been exposed to — the load of wind, rain, ice, and snow— Lewis testified:

“Q. Have there been occasions at your house and at the church building when there have been heavy wind and rain storms?
“A. Yes.
“Q. Have there been occasions where there have been snows and sleet?
“A. Yes.
“Q. Have there been occasions where those have piled up on the roofs of your house and of the church’s house?
“A. Yes. It happens to everybody.”

Lewis also made mention of possible termite damage to the roof, stating:

“Q. After this roof came in, have you had an opportunity to look at some of the wood that was in there to determine if it was all good wood or if some of it had decayed?
“A. After it happened, you know, we were like just looking around in it, none of us being skilled in the area but, you know, you could pick up pieces of wood or you could walk to areas where someone would say, well, those are termites, termites have eaten it, but as far as experts or skilled people knowing, we were just looking.”
In regard to Preston Walker’s belief as to a specific cause of the roofs collapse, he stated:
“Q. From what you did observe, could you come to any conclusion as to why that roof would have fallen in?
“[State Farm’s counsel]: Object, Your Honor. I don’t think there has been any predicate laid for him to render an opinion.
“THE COURT: Overruled. You can answer it.
“[State Farm’s counsel]: Your Hon- or, can I take him on voir dire for qualify?
“THE COURT: Let’s see what his answer is first.
“[THE COURT:] Do you have an opinion? Do you know why it fell?
“THE WITNESS: No, I don’t. I was surprised.
“THE COURT: You don’t have an opinion, do you?
“THE WITNESS: Not really.”

As to the question of a specific cause, Hugh Walker testified in his deposition as follows:

“Q. Yes, sir. Let me ask you this: Do you have an opinion as to what happened to the church roof?
“A. No. The only thing that — the only thing I knew is it just — I don’t know what happened to it. It just fell in.
“Q. Do you have an opinion as to what caused it to fall in?
“A. Old and it could have been blasting and termites. It could have been anything. I don’t know. I just don’t know.”

The Church’s final witness was Timothy Ryan, a State Farm claim-team manager, who testified as to why the Church’s claim was denied. Ryan stated that the claim was denied based on an engineer’s report. That report, which was admitted into evidence during Ryan’s testimony, appears in the record as a 17-page document prepared by Joel D. Wehrman, identified as a registered engineer in the state of Alabama, on behalf of JADE Engineering. The report’s conclusion was that the collapse of the roof was not caused by blasting, a concern Wehrman stated was reported to him by the Church’s members, but was caused by improper construction.

After considering the evidence presented by the Church, we conclude that the Church failed to present substantial evidence showing that the collapse of the roof on its building was a result of any one of the enumerated causes contained in the policy. Rather, the testimony elicited provided several possible causes for the collapse, but substantial evidence as to any one cause was not presented. Further, the testimony of Preston Walker and Hugh Walker bolster this conclusion because their statements concerning their beliefs as to the specific cause of the collapse were speculative. Therefore, their testimony does not rise to the level of substantial evidence, McGinnis v. Jim Walter Homes, Inc., supra, and the trial court erred when it denied State Farm’s motions for a judgment as a matter of law. The trial court’s judgment is therefore reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent. I would affirm the trial court’s denial of State Farm’s renewed motion for a judgment as a matter of law because I believe Shady Grove Baptist Church presented substantial evidence to submit to a jury the issue whether the collapse of the church building’s roof was a result of any of the causes covered by the Church’s insurance policy with State Farm.

At trial, the Church presented the following evidence, from which a jury could have resolved the dispute in the Church’s favor. Preston Walker, a former trustee, deacon, and pastor of the Church, testified that at his home in Sipsey, one block from the church, he “could kind of feel a rumble sometimes” from blasting activity at strip mines in the area. In his deposition, admitted into evidence at trial, Hugh Walker stated that one of his neighbors had experienced “cabinets and things” rattling from the blasting. Hugh Walker also stated in his deposition that he didn’t know what happened to the roof: “It just fell in.” But when pressed as to his opinion as to the cause of the collapse, he said, “Old and it could have been blasting and termites. It could have been anything. I don’t know. I just don’t know.” Walker stated in his deposition what he may have told the State Farm inspector about the cause of the collapse: “I could have said blasting or something.” Walker stated in his deposition that, in the past, he had seen broken rafters on other people’s houses and that those people had said that the cause of the broken rafters was “coming from blasting.”

Joann Lewis, the Walkers’ sister and the chairman of the Church’s building committee, testified at trial that blasting in Sipsey sometimes “rattled the dishes, you know, no kind of effects in my house. It was just like a rattle.” Ms. Lewis responded affirmatively when she was asked whether there had been occasions at her house and at the church budding where the wind and rain were heavy and where sleet and snow “piled up on the roofs” of her house and the church. Ms. Lewis also described what she and other church members observed after the collapse:

“[W]e were just looking around in it, none of us being skilled in the area but, you know, you could pick up pieces of wood or you could walk to areas where someone would say, well, those are termites, termites have eaten it, but as far as experts or skilled people knowing, we were just looking.”

Harold McCain, a former member and trustee of the Church testifying for State Farm, testified on cross-examination that when he arrived at the church building after the roof had collapsed, he “was told it was done through blasting, that through a mining company doing blasting was the first thing I heard.” After the collapse, McCain was told what others thought had caused the collapse: “I was told it was due to blasting, and I pursued it in the sense of blasting, so I didn’t feel that the insurance company [had any] liability to take care of it if it was a blasting company that caused the problem.”

Joel Wehrman, an engineer employed by JADE Engineering sent by State Farm to inspect the collapsed church building, testified that when he went to see the church building after the collapse, “that’s when I learned that many of the people there believed that the blasting from a coal mine had caused or contributed to the damage.” More specifically, Wehrman stated that “the only thing anyone ever told me was there was a coal mine, I believe, it was south of the building and that there was some vibrations in the area, that several people felt had caused the collapse.”

Such evidence would be — and was— weighed by the jury, but I believe the majority errs in holding that the evidence is not substantial and therefore not sufficient to present to a jury the issue whether the collapse of the roof was covered by the Church’s insurance policy.

      . We note that the Church makes no argument that the policy is ambiguous.

      . See, e.g., Paula B. Tarr et al.. Insurance Coverage for Collapse Claims: Evolving Standards and Legal Theories, 35 Tort & Ins. L.J. 57, 59 (1999):
      "In response to [some courts’] application of the concurrent causation theory, property insurance form writers made a number of changes in standard forms. One of those changes was to exclude collapse as a covered cause of loss except as provided in an 'additional' or 'extended' coverage. Coverage was provided only if the collapse was caused by certain enumerated perils. In this sense, collapse was not a peril but rather a result of other perils. The clear intent seemed to be to provide collapse coverage only if the cause or causes of the collapse were among those listed....”


author: PER CURIAM.

text:
    Alford WALTERS v. Rose STEWART, Joe A. Hicks, and Marie Adair.
    2001011.
    Court of Civil Appeals of Alabama.
    June 21, 2002.

      John M. Lassiter, Jr., Mobile, for appellant.
    Richard R. Williams, Mobile, for appel-lees.
   PER CURIAM.

Alford Walters, the pastor of the New Life Fellowship Church, an unincorporated religious association in Mobile County, appeals from a judgment entered on a jury verdict in favor of Rose Stewart, Joe A. Hicks, and Marie Adair. Stewart, Hicks, and Adair are members or former members of the Bread of Life Church, the nominal predecessor of the New Life Fellowship Church. The three individuals sued to compel Walters to resign his pas-torship of the New Life Fellowship Church and to relinquish control of disputed church property.

In 1990, John Loper founded the Bread of Life Church in Mobile County; Loper was the church’s first pastor. In 1994, Loper and his wife deeded the property at issue in this case to James Davis and Tommy Stewart, as trustees of the Bread of Life Church. Tommy Stewart was the husband of appellee Rose Stewart and, after the death of Rev. Loper, he became the second pastor of the church. Rose Stewart was the church secretary, the keeper of the church records, and the custodian of the church bank accounts. Rev. Stewart died in 1998, and Joe A. Hicks became the third pastor.

In late 1998, Hicks left Mobile County to preach in Mississippi, and he “turned the pastorship [of the Bread of Life Church] over to Alford Walters.” Walters accepted. Rose Stewart accompanied Walters and his wife Shirley to the bank, and they “transferred the church bank accounts” to Rev. and Mrs. Walters.

Walters changed the name of the church from the “Bread of Life Church” to the “New Life Fellowship Church.” On December 4, 1998, Walters and his wife signed a warranty deed purporting to convey the church property from the Bread of Life Church to “Reverend Alford Walters, Senior Pastor and President, and Shirley Walters, Co-Pastor and Vice-President, as trustees for the New Life Fellowship Church (formerly known as the Bread of Life Church), an unincorporated association.” On the same day, Walters signed a quitclaim deed reciting

“that the grantor, Bread of Life Church, for and in consideration of the sum of One and no/100’s ($1.00) Dollars and other good and valuable considerations in hand paid to the said grantor by New Life Fellowship Church, Rev. Alford and Shirley Walters hereinafter called the grantee, does hereby remise, release, quitclaim and convey unto the said grantee, the heirs and assigns forever, in fee simple ... all of its right, title, and interest in and to that certain real property [described] .... ”

In early 1999, Walters and his wife moved into the church building; they converted an adult Sunday school room into their bedroom, the church fellowship hall into their kitchen/living-room area, and one of the church restrooms into their residence bathroom. They kept a dog pen in the back of the churchyard, and they hung their wash on a clothesline outside.

Church attendance, which had previously been between 20 and 30 worshippers at any given service, dwindled to less than 5 attendees. Joe Adair testified that he and the other members of the church board tried to have a meeting with Walters to ask him to resign as pastor, but Walters refused to meet with them. Then, in April 1999, Stewart, Hicks, and Adair sued to have Walters removed as pastor of the church, to have the church bank accounts returned to them, to have the church property deeded to them as trustees, and to have an accounting of the church funds spent by Walters.

The jury returned a verdict for Stewart, Hicks, and Adair, accompanied by answers to three special interrogatories. The jury specifically found (1) that Walters “should be removed from the church as pastor,” (2) that the property “should be deeded back to the church,” and (3) that Walters should reimburse the church $1,180. Walters appeals, raising two issues. Initially, we note that our review is limited by the following principles:

“The First Amendment prohibits a court from resolving disputes on the basis of religious practice or doctrine. Presbyterian Church v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). Despite these constitutional limitations, the courts still have jurisdiction to decide cases concerning questions of civil or property rights. Abyssinia Missionary Baptist Church v. Nixon, 340 So.2d 746, 748 (Ala.1976); Trinity Presbyterian Church v. Tankersley, 374 So.2d 861, 865 (Ala.1979). ‘[T]he courts must decide the property disputes by looking at so-called “neutral principles of law” and not resolve [any] underlying controversies over religious doctrine.’ Tankersley, 374 So.2d at 866. The issue of who holds title to church property is a civil matter and is not ecclesiastical in nature. Id.”

Murphy v. Green, 794 So.2d 325, 330 (Ala.2000).

Walters first argues that Stewart, Hicks, and Adair had no standing to sue him because, he says, they were no longer members of his church and before they filed suit they had stopped attending services and had relinquished all interest in the workings of the church. The record, however, does not bear out Walters’s claim. Marie Adair testified that she was one of the founding members of the church, that she had taught Sunday school, and that she had continued to attend church services after Walters became the pastor, but that, after Walters and his wife moved into the church building, attendance dwindled “down to nothing.” She stated that the last time she went to church only four people were there — Rev. and Mrs. Walters, herself, and her granddaughter— and Rev. Walters suggested that they attend a service at another church. Adair said that, after that incident, she “just quit going. After we wasn’t having no service, I quit going.”

Rose Stewart testified that she stopped going to church because she did not approve of the Walterses’ having moved into the church building, but that she “did not relinquish” her membership or her position as a member of the church board. Joe Hicks testified that although he had been a visiting preacher in other churches, he had never resigned from the church board and he still considered himself a member of the Bread of Life Church. Hicks stated that he disapproved of Walters’s having changed the name of the church and using the church building as a residence. He stated that when he “[came] back [to Mobile] and found out what [Walters] was up to, [he] called a meeting [with] Sister Rose [Stewart] and Sister Marie [Adair] ... to stop [Walters] from moving in that building.”

Standing turns on “ ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027-28 (Ala.1999) (quoting Romer v. Board of County Comm’rs of County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)). One has standing if he or she has “a real, tangible legal interest in the subject matter of the lawsuit.” City of Hoover v. Oliver & Wright Motors, Inc., 730 So.2d 608, 611 (Ala.1999). A party has standing “ ‘if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.’ ” Smith v. Potts, 293 Ala. 419, 422, 304 So.2d 578, 580 (1974) (quoting Har-man v. City and County of San Francisco, 7 Cal.3d 150, 151, 101 Cal.Rptr. 880, 886, 496 P.2d 1248, 1254 (1972)).

The record does not contain any written rules or governing documents relating to the organization, structure, or polity of the Bread of Life Church. We are not informed as to the requirements for membership, the powers and duties of the church board, or the function of trustees. Although Stewart, Hicks, and Adair testified that they were members of the church “board,” they conceded on cross-examination that they had no documentary evidence of their having been elected, appointed, or otherwise designated to act in that capacity. Although Walters challenges the standing of Stewart, Hicks, and Adair based on what, he says, is their current nonattendance at church services, our supreme court has held that even former church members have standing to sue when the issues are their alleged wrongful expulsion and the claimed misappropriation of church funds by the minister. See Abyssinia Missionary Baptist Church v. Nixon, 340 So.2d 746 (Ala.1976). Stewart, Hicks, and Adair claim, in effect, that Walters’s usurping the church building for his personal residence has resulted in a wrongful expulsion of church members who desire to use the facility for worship. In addition, Stewart, Hicks, and Adair claim that Walters has misappropriated church funds. We conclude that the circuit court properly rejected Walters’s argument that Stewart, Hicks, and Adair lacked the standing to sue.

Walters next claims that the action against him should have been dismissed for failure to join his wife Shirley as a party under Rule 19, Ala. R. Civ. P. Rule 19 provides, in pertinent part:

“(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. ...
“(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. ...”

Walters moved the court, both before and during the trial, to require the joinder of Shirley Walters or to dismiss the complaint. The trial court denied the relief requested without comment. On appeal, Walters argues that Shirley is an indispensable party because she is a grantee named in the deeds to the real property and she is a signatory on the church bank accounts.

“Rule 19, [Ala.] R. Civ. P., requires a two-step process. The first concerns the question of whether someone who is not a party to an action should be joined as a party. Rule 19(a). If that question is decided in the affirmative, and for some reason the absent party cannot be made a party, then the court must determine whether the action should proceed. Rule 19(b). The factors of Rule 19(b) are to be applied only if joinder is not feasible. Withington v. Cloud, 522 So.2d 263 (Ala.1988). In this instance, we are concerned only with the first process under Rule 19(a) because, from all indications, the joinder of [Mrs. Walters] is certainly feasible.”

Hoeck v. Hoeck, 545 So.2d 786, 787-88 (Ala.Civ.App.1989). We apply the abuse-of-discretion standard to review a trial court’s decision as to whether a party was indispensable. American Family Care, Inc. v. Irwin, 571 So.2d 1053 (Ala.1990); Ross v. Luton, 456 So.2d 249 (Ala.1984). Walters, as the party seeking the dismissal for failure to join a necessary party, had the burden of showing that his wife’s presence was necessary to the action; this he failed to do.

By the deed of December 4, 1998, Alford Walters and Shirley Walters purported to convey the church property from the Bread of Life Church to “Reverend Alford Walters, Senior Pastor and President, and Shirley Walters, Co-Pastor and Vice-President, as trustees for the New Life Fellowship Church (formerly known as the Bread of Life Church), an unincorporated association.” That conveyance purports to vest in Alford and Shirley Walters the legal title to the church property as cotrustees for the benefit of the church congregation. The Bread of Life Church, however, could not convey, in its own name, any interest in the church property to Walters and his wife as cotrustees of the New Life Fellowship Church; Walters’s wife, therefore, is not necessary in order to “reconvey” the church property. An unincorporated association formed before 1996 was without capacity to acquire, hold, or convey legal title to real property. Adams v. Bethany Church, 380 So.2d 788 (Ala.1980). When a deed of trust is made to trustees for an unincorporated association, the title remains in the trustees. Street v. Pitts, 238 Ala. 531, 192 So. 258 (1939).

In 1996, the Legislature enacted the Alabama Unincorporated Nonprofit Association Act, see Act No. 95-527, Ala. Acts 1995 (codified at § 10-3B-1 et seq., Ala.Code 1975), allowing, among other things, an unincorporated association to hold property in its name. § 10-3B-5. Statutes affecting vested rights or altering legal status are substantive and are denied retrospective application. State Home Builders Licensure Bd. v. Grzelak, 705 So.2d 406 (Ala.Civ.App.1997). Therefore, § 10-3B-5 would not automatically vest title to the church property in the Bread of Life Church because before 1996 title was held in the names of trustees James Davis and Tommy Stewart. After 1996, if the members of The Bread of Life Church had wanted the church, in its own name, to be authorized to transfer title, then the church members would have had to comply with § 10-3B^4 with regard to governance of the church and execute and record a statement of authority as to the transfers of real property pursuant to § 10-3B-6. Also, the Bread of Life Church could have incorporated. When an unincorporated religious association is incorporated, legal title to real property will pass to the incorporated religious association, regardless of whether legal title is considered to have remained in the grantor or the grantor’s heirs, members of the unincorporated church, or in the trustees of the church and passed to the church upon incorporation. Adams v. Bethany Church, 380 So.2d 788 (Ala.1980). Walters made no showing that the Bread of Life Church either complied with §§ 10-3B^4 and -6, or incorporated before December 4, 1998, the date of the purported conveyance to Walters and his wife.

Chief Justice Heflin, in his special writing concurring in the result in Murphy v. Traylor, 292 Ala. 78, 85, 289 So.2d 584, 590-91 (1974), stated:

“In the usual situation, the persons who constitute an unincorporated association will have made some sort of agreement or will have established a constitution and by-laws for the government of the association. Unless justice and equity dictate otherwise, the actions of the duly constituted authorities, acting in accordance with its rules and regulations or under a mandate of the majority should be binding on the association. Naturally a corollary to this rule would be that if the constituted authorities act outside the scope of the conferred authority, the acts would not bind the association. See Pallilla v. Galilee Baptist Church, 215 Ala. 667, 112 So. 134 (1927).
“In the event the association has no written constitution or by-laws, absent a valid reason for not so doing, the court likely would adhere to the cases which hold that in democratic church organizations, the majority controls as a rule. See Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947 [(1909)]; Harris v. Cosby, 173 Ala. 81, 55 So. 231 (1911); Guin v. Johnson, 230 Ala. 427, 161 So. 810 (1935).”

Nothing in the record indicates that Walters and his wife were ever duly appointed as successor trustees to James Davis and Tommy Stewart. While Walters was named as pastor of the church and both he and his wife were signatories on the church’s checking account, nothing indicates that they were appointed or elected as trustees for the Bread of Life Church. The 1994 deed from the Lopers does not provide any guidance as to how successors to the named trustees are appointed. There is nothing in the record as to what the bylaws or any other organizational documents of the Bread of Life Church provide regarding the appointment or election of successor trustees. Nothing in the record indicates that the majority of the church members voted to have Walters and his wife succeed Davis and Stewart as trustees.

In Long v. Vielle, 549 So.2d 968 (Ala.1989), Yvonne Vielle sued Athalie Long, seeking reformation of a property deed to include a third lot in addition to two lots specifically described in the deed. Long argued, among other things, that Sharon Long, her daughter, should have been made a party to the suit because Sharon had purchased the third lot at a tax sale. Long argued that Sharon was an indispensable party whose rights were adversely affected by the judgment entered and that the judgment was therefore void for failure to join Sharon as a party. The supreme court held:

“In the case at bar, the evidence is undisputed that Sharon Long purchased the property from the State of Alabama for back taxes. It is also without dispute that Sharon Long lived directly across the street from the property in dispute. Furthermore, at all times subsequent to 1979, Sharon Long had knowledge of Vielle’s claim to the property. In fact, Sharon Long was present and actually testified at the trial of this matter. Accordingly, she had ample opportunity to be heard on issues pertinent to a determination of proper title to the property in question. Therefore, Sharon Long is not within that class of parties who are guaranteed protection by Rule 19 [Ala. R. Civ. PJ. Consequently, based on these facts, we fail to see how any prejudice to Sharon Long results by the trial court’s judgment. Sharon Long was not ‘absent’ within the contemplation of Rule 19(a), Ala. R. Civ. P.”

549 So.2d at 973. In the present case, Walters’s wife knew of the church members’ claim to the church property. She also testified at the trial.

Based on the foregoing, we cannot say the trial court abused its discretion in not dismissing the action against Walters for failure to join his wife as a necessary party pursuant to Rule 19.

The judgment of the circuit court is affirmed. The appellees’ request for an attorney fee on appeal is denied.

AFFIRMED.

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

      . According to the record, Tommy Stewart is now deceased. James Davis appears to be the surviving trustee. A trust will not fail for lack of a trustee. Sections 19-3-250 and 19-3-251, Ala.Code 1975, give circuit courts the power to appoint a successor trustee when a vacancy arises and the trust instrument does not provide a method for appointing a successor trustee. Creel v. Martin, 454 So.2d 1350 (Ala.1984); see also Arnold, v. Methodist Episcopal Church, 281 Ala. 297, 202 So.2d 83 (1967).


author: MURDOCK, Judge.

text:
    William SLOVIK v. PRIME HEALTHCARE CORPORATION d/b/a Dadeville Convalescent Home.
    2000823.
    Court of Civil Appeals of Alabama.
    June 21, 2002.

      Donald R. Harrison of Harrison & Edmondson, L.L.C., Dadeville, for appellant.
    Tom Radney of Radney, Radney & Brown, P.A., Alexander City, for appellee.
   MURDOCK, Judge.

William Slovik (“Slovik”) appeals from a purported judgment of the Tallapoosa Circuit Court awarding Prime Healthcare Corporation (“Prime Healthcare”) $5,282 in damages for Slovik’s alleged breach of a promise to pay his stepfather’s nursing-home care from his stepfather’s Social Security income.

In 1994, Slovik’s stepfather entered a nursing home owned by Prime Healthcare and operated under the name “Dadeville Convalescent Home.” The stepfather remained in the Dadeville Convalescent Home until his death some time after January 15, 1999, the date Slovik and his stepfather filed their complaint in this matter, but before the trial of this matter on January 29, 2001. From September 1994 through December 1998 the Alabama Medicaid Agency (“Medicaid”) paid the Dadeville Convalescent Home a portion of the cost of the care it provided Slovik’s stepfather. During this period, the remainder of the cost of Slovik’s stepfather’s care came from Social Security retirement benefits received by Slovik on behalf of the stepfather.

On January 7, 1998, Medicaid notified Slovik and his stepfather that it had allegedly overpaid by $6,482 for the stepfather’s nursing-home care in 1997. Medicaid requested that the stepfather reimburse the agency for the alleged overpayment. Slovik’s stepfather requested an administrative hearing regarding Medicaid’s claim and a hearing was held before an administrative hearing officer.

On August 12, 1998, the administrative hearing officer rendered a decision against Slovik’s stepfather, concluding that the stepfather owed Medicaid $6,482. Slovik’s stepfather filed an administrative appeal of the hearing officer’s decision; that appeal was not successful. On December 21, 1998, Medicaid notified Slovik’s stepfather that he would be disqualified for Medicaid benefits effective December 31, 1998, for a period of at least one year and thereafter until he repaid the $6,482.

During 1998, while the stepfather’s dispute with Medicaid was pending, Medicaid allegedly informed Slovik and his stepfather that the amount the stepfather was responsible for paying for his nursing-home care had increased. However, Slo-vik, who was the Social Security “personal representative” for his stepfather and who apparently handled the stepfather’s financial matters, allegedly refused to make payments at the increased rate.

Some time during 1998, Prime Healthcare sued Slovik in the District Court of Tallapoosa County. Although the record from that district court action is not included in the record on appeal, Prime Healthcare apparently asserted that Slovik had breached an alleged agreement between Slovik and Prime Healthcare to be personally responsible for paying from his stepfather’s Social Security income (over which Slovik exercised control) that portion of the cost of his stepfather’s care not paid by Medicaid. In December 1998 the district court entered a judgment in favor of Prime Healthcare and against Slovik. The district court amended its judgment in January 1999.

On December 30, 1998, Prime Healthcare issued a 30-day discharge notice to Slovik and his stepfather, notifying Slovik that it planned to discharge the stepfather from the Dadeville Convalescent Home on February 1, 1999, for allegedly failing to pay $6,833 for nursing-home care. The notice also informed Slovik and his stepfather of the stepfather’s right to appeal this decision to the State Department of Public Health.

On January 15, 1999, Slovik and his stepfather filed a complaint in the Talla-poosa Circuit Court against Medicaid and Prime Healthcare. In their complaint, Slovik and his stepfather appealed from the district court’s judgment in favor of Prime Healthcare and requested that the circuit court review Medicaid’s decision regarding that agency’s $6,482 reimbursement claim. Slovik also interpleaded the sum of $6,033 and requested that the court decide who was entitled to those funds. Slovik and his stepfather also alleged that Medicaid and Prime Healthcare had conspired to evict the stepfather from the Dadeville Convalescent Home; they alleged that that eviction constituted a taking of the stepfather’s property without due process of law and that it violated the stepfather’s rights under the United States Constitution and under 42 U.S.C. § 1983 et seq.

Soon after Slovik’s complaint was filed, the circuit court issued an order stating that it lacked subject-matter jurisdiction over Slovik’s and his stepfather’s eviction claim. On April 13, 1999, Slovik and his stepfather requested that the circuit court pay the interpleaded funds to Medicaid pursuant to a settlement agreement. On April 28, 1999, the circuit court entered an order directing that the interpleaded funds be paid to Medicaid.

After an ore tenus hearing in January 2001, the circuit court entered a judgment against Slovik on Prime Healthcare’s claim that Slovik had promised to be personally responsible for making payments to Prime Healthcare from his stepfather’s Social Security income. The circuit court specifically determined that Slovik “was a party to the original promise to pay [Prime Healthcare], not a promise of guarantee, and, therefore, said promise is not within the statute of frauds and does not require a written document” and entered a judgment against Slovik in the amount of $5,282. After the circuit court denied a postjudgment motion filed by Slovik, he appealed.

On appeal, Slovik argues that he did not assume any personal contractual obligation to pay his stepfather’s alleged debt to Prime Healthcare and that the Statute of Frauds requires that any agreement he may have made to pay the debt of his stepfather be in writing. As to the latter argument, Slovik correctly notes that the Statute of Frauds requires, in pertinent part, that “[e]very special promise to answer for the debt, default or miscarriage of another” must be in writing. Ala.Code 1975, § 8-9-2(3). However, Prime Healthcare did not argue at trial that Slovik was hable for the alleged debt of another and specifically asserted that it was not attempting to collect the stepfather’s debt from Slovik as a guarantor. Instead, Prime Healthcare argued that Slovik had agreed to be personally responsible each month for forwarding a portion of his stepfather’s Social Security income, over which Slovik had control, to Prime Healthcare to pay for part of the cost of the stepfather’s nursing-home care and that Slovik had failed to forward the agreed-upon funds to Prime Healthcare. As a result, Prime Healthcare argued that Slovik was liable for damages resulting from his failure to do so. Because Prime Healthcare’s theory of recovery is premised upon an alleged agreement by Slovik as a primary obligor, rather than as a guarantor of his stepfather’s performance, Slovik’s argument that his purported obligation to Prime Healthcare was in the nature of a guaranty agreement governed by the Statute of Frauds is without merit.

We turn then to Slovik’s argument that he did not assume any personal contractual obligation in connection with the payment of his stepfather’s alleged debt to Prime Healthcare. We first note that, in addition to documentary evidence, the circuit court heard evidence ore tenus and made findings of fact based on that evidence. Under the ore tenus standard of review, the trial court’s findings of fact are presumed correct and “we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court’s findings.” Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala.1990). See also, e.g., First Alabama Bank of Huntsville, N. A. v. Spragins, 515 So.2d 962 (Ala.1987).

“The basic elements of a contract are an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement.” Hargrove v. Tree of Life Christian Day Care Ctr., 699 So.2d 1242, 1247 (Ala.1997). “In order to recover for breach of agreement, the plaintiff has the burden of showing that an agreement existed; that defendant breached that agreement; and that plaintiff was damaged by the breach.” Cocke v. Odom, 385 So.2d 1321, 1322 (Ala.Civ.App.1980).

We note that the only document Prime Healthcare introduced into evidence that might have evidenced an agreement between it and Slovik was instead introduced solely for the limited purpose of proving that Slovik had executed a document as his stepfather’s “personal representative.” That document, Plaintiffs Exhibit 1, appears to have been compiled from two separate documents. The first two pages of Plaintiffs Exhibit 1 are an unsigned letter from Medicaid to Slovik’s stepfather (in care of Slovik) regarding the deficiency amount Medicaid claimed that Slovik’s stepfather owed Medicaid. The remaining pages of Plaintiffs Exhibit 1 are apparently the last two pages of a document executed by Slovik, as the stepfather’s “personal representative,” and by the Dadeville Convalescent Home’s nursing administrator, on October 14,1997.

An office manager for Prime Healthcare testified regarding Plaintiffs Exhibit 1:

“Q: Do you have any contract whereby he promised to pay you money?
“A: No, I don’t have a contract that specifically states that, but he did sign as sponsor.
“Q: Who with?
“A: And to be responsible.
“Q: Who did he sign as sponsor with? It was with the Medicaid agency, was it not?
“A: Well, with Dadeville Convalescent Home. And I’m not sure exactly what he signed with Medicaid.
“Q: He signed with Dadeville Convalescent Home. This Exhibit Number 1, is this it?
“A: I’m not really the person that should answer that.
“Q: He’s the sponsor, right?
“A: Personal representative.
“Q: Personal representative. It doesn’t say ‘sponsor.’ It says ‘personal representative.’ ... And who is this with?
“A: It says ‘Dadeville Convalescent Home.’
“Q: And that’s in 1997; is that correct?
“A: Um-hum.
“Q: I’m asking you is there any contract, any written contract to back up this complaint that you have filed suit on? ... Is there any document that you can show me where there is an agreement by Mr. Slovik to pay Prime Healthcare anything?
“A: I assume that that is the — That is one of those kinds of documents.
“Q: Anything other than this?
“A: Not to my knowledge.
“Q: Okay. So you’re relying totally on page four of Plaintiffs Exhibit 1 for the basis of him owing you money?
“A: Not to my knowledge. Ms. Jo Brand may be able to indicate that there is something else, but not to my knowledge.”

The office manager was the only witness who testified on behalf of Prime Healthcare; the record contains no testimony from a witness by the name of Jo Brand. The only other witness at the trial was Slovik, who admitted only that his signature appeared on page 4 of Plaintiffs Exhibit 1 as “personal representative.”

The Alabama Supreme Court has stated that “absent an admission by the defendant of the existence, execution, and content of [a] written agreement, a written contract sued upon must be put into evidence.” Alabama Life & Disability Ins. Guar. Ass’n v. Trentham, 543 So.2d 195, 196 (Ala.1989). As noted above, the contents of Plaintiffs Exhibit 1 were introduced into evidence only for the purpose of proving that Slovik had executed a document as his stepfather’s “personal representative.” The contents of that document were not admitted into evidence for the purpose of showing the terms of a contract. Further, Slovik did not make any “admission” regarding the contents of the document.

The circuit court, however, apparently found that there was an oral agreement between Slovik and Prime Healthcare. In so doing, the trial court based its judgment on a finding that Slovik “was a party to the original promise to pay [Prime Healthcare] ... and ... [that] said promise [was] not within the statute of frauds and [did] not require a written document.” (Emphasis added.)

In addition to her testimony discussed above, the office manager for Prime Healthcare also testified:

“Q: And tell us why it is from whatever you got from Medicaid or in your record or whatever, that [Slovik] owes that money?
“A: Because [Slovik] had charge of [his stepfather’s] Social Security check.
“Q: [The stepfather’s] money?
“A: Yes.”

Slovik argues on appeal that there is insufficient evidence to support the trial court’s finding that he agreed to “make his own debt” to Prime Healthcare. On the record presented in this case, we must agree. Based on our review of that record, we do not find that it contains “substantial evidence” to support the trial court’s finding that Slovik “was a party to the original promise to pay [Prime Healthcare].”

The circuit court’s judgment against Slo-vik in the amount of $5,282 is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Prime Healthcare initially filed the action in the name of Dadeville Convalescent Home, one of several names under which Prime Healthcare did business. After the district court action was appealed to the circuit court for a trial de novo, Prime Healthcare amended its complaint to clarify that the proper name of the plaintiff was "Prime Healthcare” and that it did business as "Dadeville Convalescent Home.”

      . Prime Healthcare stated that Medicaid’s regulations prohibited it from requiring Slo-vik to guarantee his stepfather’s obligation to them. We note that Ala. Admin. Code r. 560-X-10-.02, states, in pertinent part: "(9) Nursing facilities must not require a third party guarantee of payment to the facility as a condition of admission, or expedited admission, or continued stay in the facility.”


text:
    Tommy Lee WILLIAMS v. MEAD COATED BOARD, INC.
    2000731.
    Court of Civil Appeals of Alabama.
    June 21, 2002.
    David L. Hirsch, Columbus, Georgia, for appellant.
    Sydney S. Smith of Smith & Smith, P.C., Phenix City, for appellee.
   MURDOCK, Judge.

In February 1998, Tommy Lee Williams filed a complaint against Mead Coated Board, Inc. (“Mead”), seeking workers’ compensation benefits. Following an ore tenus proceeding, the trial court in March 2001 entered a judgment in favor of Mead. Williams appealed. On September 18, 2001, this court remanded the case to the trial court for that court to enter a judgment complying with § 25-5-88, Ala.Code 1975. On September 20, 2001, the trial court, in accordance with the order of this court, entered an amended judgment stating that Williams’s injury

“occurred as a result of medical treatment subsequent to any work related injury [and therefore the injury complained of did not occur while [Williams] was working on the premises or at the direction of [Mead]. The court is of the opinion ... that in order for an injury to be compensable under § 25-5-88, Ala. Code 1975, an injury must have occurred either on the premises of [Mead] or while [Williams] was working at the direction of [Mead].”

On appeal, Williams contends that Mead should be held liable for the injuries he allegedly sustained while undergoing authorized medical treatment.

This case is governed by the 1992 Workers’ Compensation Act. The Act provides that a trial court’s findings of fact will not be reversed if they are supported by substantial evidence. Section 25-5-81(e)(2), Ala.Code 1975. Our Supreme Court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘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)).

A review of the record reveals the following pertinent facts. At the time of the hearing Williams was 55 years old. He worked for Mead from 1966 until 1997, when he was terminated. Williams testified that in 1993 he worked as a “control room operator” and that his job involved operating a crane and controlling the “debarking system” wherein wood would be sent through conveyors and would then be taken to a “chipper” to be cut. Williams’s job also involved changing the knives on the chipper and rebuilding the “chipper” machine when necessary.

Williams testified that in February 1993, while he was changing a part on the chipper, his right shoulder was injured. He was sent to the Hughston Clinic, where Dr. George McCluskey performed rotator-cuff repair surgery. Following the surgery, Williams attended physical therapy. Williams claimed that his right shoulder was about 95% healthy after that surgery. Williams then returned to his regular job, but in January 1994, while rebuilding the same piece of equipment, he tore the rota-tor cuff in his left shoulder. In April 1994, Dr. McCluskey performed surgery on the left shoulder, and Williams subsequently underwent physical therapy. Williams testified that in September 1994, he continued to have pain in his left shoulder.

In October 1994, an arthrogram revealed that Williams’s left rotator cuff was torn; a second surgery on that cuff ensued in October 1994, followed by physical therapy. Williams stated that after his second surgery, he was “doing fine.” Following the completion of physical therapy stemming from the second surgery on his left shoulder, at Dr. McCluskey’s recommendation, Williams attended a ‘Work Assessment and Readiness Program,” also known as the WAR” program; the program had been started by Dr. McCluskey. Williams testified that he had not been given a choice as to a physical-therapy program and that he had followed the instructions of Mead as to treatment.

On May 3, 1995, while participating in the WAR program, Williams testified that the following occurred:

“We tried this particular exercise this one time. This physical therapist had reviewed films of [my] job description, and what he had me to do was supposedly simulate changing the second bit knife out of the chipper. But I knew that we hadn’t worked up to this stress wise[;] so we had been lifting the same amount of weight supposedly at belt buckle level, but we had never tried it at shoulder level going up.... So I told the therapist, I said we hadn’t worked up to that in between, so he said try it. So I grabbed it, went to go up, and you [could] hear the arm pop 20 feet away.... [I]t was a painful pop. As I was coming down, I tried to come back up so the rack wouldn’t fall on me, and it made two crunching grinding noises, and [my left shoulder] has never stopped hurting since.”

Following this injury, Williams returned to Dr. McCluskey, who performed an arth-rogram. Dr. McCluskey informed Williams that the rotator cuff was still in place and that there was nothing more he could do. Dr. McCluskey noted the following after an appointment with Williams on June 14,1995:

“It is my opinion today that the episode [Williams] had while participating in the WAN program at Rehabilitation Services was a strain of his rotator cuff that did not re-tear the cuff and is something that will not interfere with the long-term prognosis of his shoulder. It will, however, cause us to back off on the exercises and on his work activities for a short time until it resolves.”

Williams testified that he cannot use his left shoulder and is unable to work. Williams stated that he left the WAR program with a reinjured left shoulder and a back injury. Mead stopped paying Williams workers’ compensation benefits in January 1997 and terminated Williams’s employment in December 1997. Williams testified that Mead personnel had thought that there was nothing wrong with him and that he did not want to return to work.

Williams has not worked since 1995. Williams has received $1,393 a month in Social Security benefits, based upon an administrative determination of total disability, since May 1999, and he has received $605 in disability retirement from Mead since March 2000. Williams is also qualified to receive Medicare benefits.

Williams testified that in 1998, while reviewing records for an arbitration meeting regarding his termination, he had come across medical records of Dr. McCluskey that revealed that the 1995 arthrogram performed following Williams’s injury at WAR had in fact detected a tear in his left rotator cuff of which Williams had not been informed. Following Williams’s discovery of this information, Williams underwent an MRI in 1999 that also revealed the existence of a tear in his left shoulder. Following the MRI, Dr. McCluskey stated that arthroscopic surgery would need to be performed on the shoulder to determine the amount of damage to the shoulder and whether the damage was work related. Williams testified that the parties had reached an impasse regarding the surgery because if Dr. McCluskey found the damage not to be work related, Mead would not pay for the surgery. Williams could not afford to pay the costs of the procedure, so the procedure was not performed.

Dr. McCluskey testified that he had recommended the WAR program for Williams; he further stated that: “I’m not disputing that [Williams] might have strained his shoulder or hurt his shoulder in some way in the WAR program.” Dr. McCluskey testified that he had recommended that an arthroscopic evaluation be undertaken, but that Mead had declined to authorize such an evaluation. He further stated that until such an evaluation can be done, one cannot say whether Williams’s condition is or is not a product of the original injury or whether it arose out of the care associated with the original injury.

Mead takes the position that Williams’s current condition is a separate, independent injury resulting from the actions of a physical therapist and that Mead is not responsible for paying benefits under the Act with respect to such an injury.

In Patterson v. Clarke County Motors, Inc., 551 So.2d 412 (Ala.Civ.App.1989), this court held that “[aggravation of a primary injury by medical or surgical treatment is compensable.” 551 So.2d at 417 (citing 1 A. Larson, The Law of Workmen’s Compensation, § 13.21 (1985)). See also Easterly v. Beaulieu of America, Inc., 703 So.2d 397 (Ala.Civ.App.1997). We therefore hold that the trial court erred in holding that Williams’s injury was not compensable. The record clearly reveals that the injury resulted from Williams’s physical therapy; there is no evidence to the contrary. Accordingly, the judgment of the trial court is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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