author: HOUSTON, Justice.

text:
    Mays E. MONTGOMERY v. HUGHES DEVELOPERS, INC.
    1002059.
    Supreme Court of Alabama.
    June 6, 2003.
    Rehearing Denied Aug. 29, 2003.

      J. Robert Miller, Huntsville, for appellant.
    Robert V. Rodgers of Wilmer & Lee, P.A., Huntsville, for appellee.
   HOUSTON, Justice.

The plaintiff, Mays E. Montgomery, appeals from the judgment of the trial court finding that Montgomery could not recover from the defendant corporation, Hughes Developers, Inc. (“Hughes”), for its issuance of a spurious stock certificate, which Montgomery took as collateral to secure a personal loan he made to the president of Hughes Developers. We affirm in part, reverse in part, and remand.

I. Facts

On May 20, 1991, Mays E. Montgomery lent Morris W. Frank $100,000; to secure that loan Frank executed a promissory note, which contained a notation stating that “(5%) 50 shares of Hughes Developers, Inc. to be assigned as additional collateral.” In accordance with this notation, Montgomery received as collateral from Frank “Stock Certificate No. 8” of Hughes representing 50 shares of stock (“the certificate”), together with an “Irrevocable Stock or Bond Power” signed by Frank. The certificate had been issued to Morris Frank on May 1, 1991. The certificate bore the corporate seal and was signed twice by Morris Frank in his corporate capacities as president and secretary of Hughes. In 1994, Montgomery lent Frank an additional $50,000, which was secured by the same 50 shares of stock. Frank paid interest on the note and executed a renewal note each year until 1997.

Hughes was incorporated in Madison County, Alabama, in 1989. The articles of incorporation list Frank as one of two original incorporators and as one of the initial directors of the corporation. The articles limited the number of authorized shares to 1,000.

It is undisputed that, at the time of the original loan, Frank served as president, secretary, and operating officer of Hughes. All stock certificates issued by Hughes that could be located had been signed by Frank, as issuing agent, on behalf of the corporation, including stock Hughes had issued to him. No other authorized issuing agent was identified by Hughes at trial; indeed, no other signature, besides Frank’s, appears on any of the admittedly valid stock certificates issued by Hughes. While there were at least three other shareholders in Hughes, the operation of Hughes, with few exceptions, appears to have been controlled solely by Frank.

In 1997, Frank ceased making any payments on the note. After Frank’s death in 1998, Montgomery requested that Hughes transfer into his name the certificate Montgomery had received as collateral for his loan to Frank. Gregory D. Gray, a shareholder of Hughes, who became president and a director of the corporation following Frank’s death, denied Montgomery’s request to transfer the certificate representing 50 shares of stock to Montgomery because the 50 shares of stock represented by the certificate were in excess of the total number of shares authorized by the articles of incorporation and the certificate representing the 50 shares was therefore void.

Montgomery sued Hughes and Gray, seeking the following relief:

“COUNT I
“9. That [Montgomery] be granted a Judgment against Hughes for the sum of $150,000.00, interest and attorney fees, which will extinguish the debt owed Montgomery, and upon payment of the same that Montgomery be ordered to deliver unto Hughes the stock assigned by Frank to Montgomery.
“COUNT II
“10. [Montgomery] moves that the Court order and direct the stock certificate of Hughes which is in the possession of Montgomery, being 50 shares of Hughes, be transferred and reissued by Hughes to Montgomery, and the stock of Hughes be structured to allow Montgomery to own 5% of the total number of shares of common stock of Hughes Developers, Inc. which will have the effect of having Montgomery being the owner of 5% of Hughes Developers, Inc.
“COUNT III
“11. That in the event [Montgomery] is mistaken for the relief moved for, [Montgomery] moves for such further and different relief as may be meet and proper.”

Before trial, Gray was dismissed from the action. Montgomery has not appealed that dismissal.

At trial, Hughes alleged that the 50 shares of stock held by Montgomery were spurious; that those shares exceeded the authorized capital stock of the corporation; that the excess stock was unauthorized by the corporation; and that the corporation had received no consideration for the pledge of stock to Frank.

Also at trial, Montgomery’s counsel attempted to clarify his claim for relief against Hughes as stated in count I of his complaint, stating that the claim was based on the certificate, and not on the personal note signed by Frank:

“THE COURT: You have got another action in which you’re essentially attempting to have the corporation made responsible for the loan and I noted that the notes — none of the notes were signed in the capacity as president of the corporation and, I guess, I am sitting here while you go through all wondering if you are trying to perform the note or establish some kind of apparent authority to execute a note on behalf of the corporation, to make the corporation—
“[Montgomery’s counsel]: No, sir, not in any way whatsoever. What I am trying to show is that — is that there has been a defense asserted that this stock is not valid, that it is not proper stock, that, number one, that it is fraudulent — his answer says it is a fraud, his answer states all of these things. We contend that we will show by the evidence and by the actions of Morris Frank that he had total, complete, unqualified control of this corporation and could do anything he wanted to and I contend that that is the evidence and that is what the totality of all of this is.
“THE COURT: So you are not maintaining your claim then that the corporation is responsible for the 100—
“[Montgomery’s counsel]: No, sir, there are some cases, though, that seem to indicate that if a person who has been given apparent authority goes out and he does issue some type of fraudulent stock, let us say that, but yet the corporation clothed him with the authority to do things of that nature, then the corporation might be liable for a judgment, but as far as executing a note and saying the corporation is responsible, no, I am not doing that.
“THE COURT: So then if I understand you then, you are not still maintaining a claim against the corporation for $150,000 plus interest judgement on the grounds that when Mr. Frank signed, he signed on behalf of the corporation?
“[Montgomery’s counsel]: I am not saying he signed on behalf of the corporation, but if the corporation gave him the authority to go out and issue stock and sell land and do anything he wanted to as a — just a personal corporation, and he goes out and he issues stock, then, in my opinion, they would be barred from that and even though they might not honor the stock, there are some cases which hold they are required to pay off.”

Following the hearing, Montgomery also presented written arguments to the trial court in which he argued that even if the trial court found that the 50 shares represented an overissue of Hughes’s stock, the overissue provision of Article 8 of Alabama’s Uniform Commercial Code justified the recovery requested in count I of his complaint.

After an ore tenus hearing the trial court found as follows: “The stock Certificate Number 8 purportedly issued by the defendant corporation to Morris W. Frank, in which the plaintiff claims a security interest, was an overissue of stock unauthorized by the corporation.” The trial court concluded:

“Therefore, the Certificate Number 8, and the shares it purports to represent, are void. As the plaintiff cannot hold a valid security interest in a void instrument, plaintiffs claim for relief in Count II for an order directing the defendant corporation to issue him a stock certificate declaring his ownership of 50 shares of stock in, or 5% ownership of, the defendant corporation is denied.”

The trial court also found:

“The debt owed the plaintiff was incurred by Morris W. Frank personally. It was not the debt of, and was not guaranteed by, the defendant corporation. Therefore, plaintiffs claim for relief in Count I is denied.”

The trial court further summarily denied “all other claims.” Montgomery appealed.

II. Analysis

Accepting the trial court’s findings of fact as true, as we must, we agree that because the stock was an overissue, the 50 shares of stock represented by the certificate are void. “It is a well-established principle that any issue of stock by a corporation in excess of the amount prescribed or limited by its charter is ultra vires, and the stock so issued is void, even in the hands of a bona fide purchaser for value.” Crawford v. Twin City Oil Co., 216 Ala. 216, 218, 113 So. 61, 63 (1927). The adoption of Article 8 of Alabama’s Uniform Commercial Code codified this established principle of corporation law that an overissue of stock is illegal, and the provisions in Article 8 for validating a security or requiring its issue or reissue are drafted so as to avoid an overissue. Consequently, the person who claims to be the holder of a security that is defective because it is an overissue, is left without a valid security. Therefore, the trial court, in the present action, correctly determined that Montgomery was not entitled to an order compelling Hughes to transfer the stock to Montgomery, and that portion of the judgment is due to be affirmed.

However, despite the well-established rule that stock that represents an overissue is void, even in the hands of a bona fide purchaser for value, it is equally well established that the bona fide purchaser has a right to recover damages from an issuer who has permitted an over-issue to occur. This right of recovery was traced by the Court of Appeals of New York, writing in 1865, to an eighteenth century decision of the Court of Chancery in England:

“[The liability of a corporation for injury arising from an act of the directors in excess of the corporation’s powers] was established by the Court of Chancery in England a century ago, in Ashby v. Blackwell (2 Eden, 299). In that case, one question was, whether a party to whom the secretary of a bank company had permitted a transfer of shares on a forged power of attorney, was entitled to recover of the company the sum he paid on such transfer. The secretary in that case, in violation of the rules of the company, had permitted the transfer under a letter of attorney which did not comply with the rules. It was contended that the purchaser ought to have inquired into the reality of the authority. Lord Ch. Northington declared the conduct of the secretary to have been gross negligence, chargeable upon the company, and he held that the company ‘must and ought to answer for their and their servants’ negligence.’ ... He accordingly adjudged the company to pay the vendee the amount he had paid for the stock....”

New York & New Haven R.R. v. Schuyler, 34 N.Y. 30 (1865) (quoting Ashby v. Blackwell, 28 Eng. Rep. 913, 914-15 (1765)).

In New York & New Haven Railroad, an officer of a corporation issued stock certificates to his personal trading firm, which then resold the stock to unsuspecting purchasers; the stock was void by reason of overissue. Although the corporation claimed that the officer’s actions were unauthorized, the Court, following the rule first established in Ashby, held that a group of lenders who had lent money upon stock certificates that were void by reason of overissue were entitled to a recovery from the corporation. 34 N.Y. at 75-78. The Court stated:

“The [parties] who have been led into loaning their money upon certificates and transfers, held and made by parties who had like credits on the books, and who apparently complied with every condition, stand on the same footing with those [who directly purchased the stocks from the officer in good faith and for value]. Public policy and the true interests of all parties concerned, as well as plain principles of equity and justice, require that the corporation make good the losses they have sustained.”

34 N.Y. at 78.

In Cabbage v. Citizens Bank & Trust Co., 31 Tenn.App. 283, 214 S.W.2d 572 (1948), the secretary of the board of directors, who was also custodian of the stock book, issued himself stock, without corporate authorization; the stock certificates bore the corporate seal, his signature as secretary, and a forged signature of the corporation’s president. The secretary then gave this stock, which also represented an excess of the authorized capital stock, as collateral to secure a personal loan. The Tennessee Court of Appeals held that the holder of this spurious stock was a bona fide purchaser for value, entitled to indemnity from the corporation. Cabbage, 31 Tenn.App. at 294-95, 214 S.W.2d at 577. See also Havens v. Bank of Tarboro, 132 Ñ.C. 214, 43 S.E. 639 (1903)(holding that a bona fide purchaser for value was entitled to recover from a corporation, where the corporate secretary issued the false stock certificates — though he deceived both his principal and the public by forging and issuing false certificates — because it was the corporation that had placed the secretary in the position to perpetrate the wrong); Cincinnati, N.O. & T. Ry. v. Citizens’ Nat'l Bank, 56 Ohio St. 351, 47 N.E. 249 (1897)(holding that a corporation that, through negligence, permits its agent, held out to the public as one having authority to act, to perpetrate fraud through the pledge of spurious stock, regular upon it face, .was accountable to the injured party).

The rule, based upon the principles of agency, allowing a bona fide purchaser of spurious stock to recover against a corporation has been recognized by Alabama courts. In Randle v. Walker, 17 Ala.App. 211, 84 So. 551 (1919), the Court of Appeals stated:

“ ‘On the clearest principles a corporation owes the duty to all persons dealing in its stock to observe care in the issuance of such stock, and particularly in the matter of the supervision of its issuing officers. A purchaser of stock has a right to rely upon the diligence of the corporation and to put faith in the recitals in the certificates issued by its agents acting within the general scope of their powers. And the rule is that, if by reason of its negligence in this regard spurious stock, properly authenticated, is issued by dishonest officials, having the power to issue stock, the corporation will be liable to any one purchasing it for value, without knowledge of its fraudulent character. This rests upon the familiar principle that, whenever one of two innocent persons must suffer by the act of a third, he who has enabled such person to occasion the loss must stand it.’ 4 Thomp. Corp. § 3566, and authorities there collated.”

Randle, 17 Ala.App. at 215, 84 So. at 554-55. Further, in Howe v. Roberts, 209 Ala. 80, 95 So. 344 (1923), this Court stated:

“[C]omplainant was a bona fide purchaser from a previous holder, the corporation was at fault in issuing [excess shares of stock], and, if the overissued stock in the hands of complainant can be identified, is responsible to complainant in damages. 1 Cook, [Corp.] § 293 [ (6th ed.) ]. It follows that the corporation should not be heard to have complainant’s stock declared void in whole or in part, as its cross-bill prays, without an offer to restore complainant to his status prior to his purchase.”

209 Ala. at 81-82, 95 So. at 346.

Article 8 sought to codify the well-established common-law right to recover damages from an issuer who has permitted an overissue to occur and to establish a uniform remedy. See Ala.Code 1975, § 7-8-210, Official Comment, citing New York & New Haven R.R. v. Schuyler, supra. Alabama’s original Article 8, which was in force at the time Montgomery took possession of the stock certificate as collateral, provided:

“(1) The provisions of this article which validate a security or compel its issue or reissue do not apply to the extent that validation, issue or reissue would result in overissue; but:
“(a) If an identical security which does not constitute an overissue is reasonably available for purchase, the person entitled to issue or validation may compel the issuer to purchase and deliver such a security to him against surrender of the security, if any, which he holds; or
“(b) If a security is not so available for purchase, the person entitled to issue or validation may recover from the issuer the price he or the last purchaser for value paid for it with interest from the date of his demand.”

Act No. 549, Ala. Acts 1965, p. 956 (current version codified at Ala.Code 1975, § 7-8-210). In his arguments before the trial court, Montgomery sought to establish that he was a “person entitled to issue or validation.” Accordingly, if Montgomery is indeed a “person entitled to issue or validation,” Article 8 affords him a remedy against the corporation. He could compel the corporation to purchase and deliver to him identical stock that does not constitute an overissue, or, if such stock is not available for purchase, he could recover from the issuer the value he paid for the stock with interest from the date of his demand. While the trial court correctly concluded that the corporation was not liable on the promissory note signed by Frank, that note is evidence of the value paid by Montgomery for the spurious stock.

The trial court also found that the stock in question was issued by Frank to himself “without adequate consideration.” Therefore, according to Hughes, that issuance was also void under Article XII, § 234, Ala. Const.1901, which provides, in part:

“No corporation shall issue stocks or bonds except for money, labor done, or property actually received; and all fictitious increase of stock or indebtedness shall be void.”

We do not believe that the findings of the trial court allow us to reach the same conclusion. We note, however, that while Article 8 of Alabama’s Uniform Commercial Code provides no remedy to a holder of a security void by reason of a constitutional provision, neither does it foreclose the previously discussed well-established common-law right to recover damages from a corporation that has permitted the issuance of the spurious stock. See Ala. Code 1975, § 7-1-103 (“Unless displaced by the particular provisions of this title, the principles of law and equity ... shall supplement its provisions.”). Therefore, if Montgomery is a bona fide purchaser, he may be entitled to a remedy against the corporation even if the stock was also void because it violated § 234, Ala. Const.1901.

Accordingly, we believe that Montgomery’s theory of recovery as presented in count I of his complaint and further clarified at trial was a valid theory. Therefore, the trial court’s denial of that requested relief based on the fact that the 50 shares of spurious stock secured a personal debt was error.

III. Conclusion

Insofar as the trial court’s judgment held that Montgomery was not entitled to an order compelling Hughes to transfer stock representing 5% of the stock in Hughes to him, it is affirmed. Insofar as the trial court’s judgment denied the relief requested in count I of Montgomery’s complaint, it is reversed, and the case is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . This case was originally assigned to another Justice; it was reassigned to Justice Houston on March 19, 2003.

      . Apparently, upon renewal, the $100,000 loan and the $50,000 loan were evidenced by one promissory note in the amount of $150,000.

      . Montgomery argues that the trial court erred in finding that the certificate represented an overissue of authorized capital stock. However, because this evidence was in dispute at trial and because it is unclear from the corporate records what amount of stock had already been issued at the time of the purported issuance of the 50 shares in question, we are compelled to accept the trial court’s finding that the subject stock was an overissue.


source: Caselaw Access Project

author: MOORE, Chief Justice. HOUSTON, Justice LYONS, Justice JOHNSTONE, Justice HARWOOD, Justice

license: Public Domain

text:
    Ex parte SOUTHERN ENERGY HOMES, INC. (In re Southern Energy Homes, Inc. v. Emma Riddle).
    1020037.
    Supreme Court of Alabama.
    June 27, 2003.

      Warren B. Lightfoot, Jr., of Maynard, Cooper & Gale, P.C., Birmingham (reply brief filed by Warren B. Lightfoot and John B. Holmes III of Maynard, Cooper & Gale, P.C., Birmingham; W. Scott Simpson of Batchelor & Simpson, P.C., Birmingham; and Christopher A. Mixon, Birmingham), for petitioner.
    Richard E. Fikes of Tweedy, Jackson, Beech & Fikes, Jasper, for respondent.
   MOORE, Chief Justice.

Southern Energy Homes, Inc., petitions this Court for a writ of certiorari to challenge the Court of Civil Appeals’ affir-mance of the trial court’s finding that Emma Riddle is 100% permanently and totally disabled and therefore entitled to workers’ compensation benefits. We granted the petition to determine whether Riddle presented substantial evidence of a permanent total disability as defined by the Workers’ Compensation Act. We reverse and remand.

I. Facts

Southern Energy builds and distributes manufactured homes. It hired Emma Riddle in November 1995 at Southern Energy’s Lynn plant to clean the manufactured homes before they left the manufacturing facility. Emma was 58 years old at the time of trial. Before she was hired by Southern Energy, Riddle had worked for approximately 20 years at various jobs, such as driving a school bus, raising chickens, and working as a security guard for different companies. Riddle alleged in her complaint that she first injured her back in April 1996 when she fell off a six-foot ladder and landed on her feet. As a result of her fall, she missed one day of work, after which she was back to work performing all of her normal duties. She testified that she continued to feel significant pain in her lower back after that incident, despite the fact that she continued to work. Riddle testified that she immediately informed her supervisor that she had been injured on the job and that five days after the incident she asked to see a doctor. However, Riddle never filled out the workers’ compensation paperwork for an on-the-job injury, and when she asked to see a doctor an administrative employee informed Riddle that Southern Energy was not aware that she had been injured on the job.

In early 1997, because Southern Energy was downsizing its workforce, Riddle was transferred from the. Lynn plant to Southern Energy’s Double Springs plant. Riddle’s supervisor first assigned her to clean black marks off walls,and counters of the manufactured homes, but when Riddle complained that she was tired and that the fumes of the cleaning solution bothered her, the supervisor switched her to stripping protective plastic off the floors. When Riddle complained that that job also bothered her, the supervisor switched her to smaller clean-up work that included vacuuming the insides of the manufactured homes.

On or around January 5, 1997, the same day she was assigned to do the vacuuming work, Riddle complained to her supervisor that she hurt her back when she was pushing a vacuum cleaner inside one of the manufactured homes. Riddle did not testify that she had suffered a specific trauma to her back on that day, only that her “back started paining even more” when she was “trying to push a vacuum cleaner.” Riddle and Southern Energy filled out the paperwork necessary for a workers’ compensation claim, and Riddle never returned to work at Southern Energy. In fact, Riddle has not worked anywhere since January 5, 1997; she has not attempted to work anywhere; and she has not applied for new work.

During Riddle’s employment with Southern Energy, her primary-care physician was Dr. Bernard Simieritsch. Riddle testified that she informed Dr. Simieritsch of her daily back pain, but Dr. Simieritsch’s records admitted into evidence do not mention the April 1996 incident or any complaints of back pain during Riddle’s first seven visits to Dr. Simieritsch after the alleged April 1996 incident. On a January 24, 1997, visit to Dr. Simieritsch, after she had filed a workers’ compensation claim with Southern Energy and had stopped working for Southern Energy, Riddle informed Dr. Simieritsch that she had fallen off a ladder in- April 1996 and that she has had problems with her back since that time. She also indicated that she had hurt her arm in the fall. After an X ray and CT scan of Riddle’s spine, Dr. Simieritsch diagnosed Riddle with degenerative disk disease of the lumbar spine, but testing did not indicate neurological impairment or a herniated disk.

Dr. Simieritsch referred Riddle to Dr. Edward Fisher, an orthopedic surgeon. Dr. Fisher treated Riddle on five occasions beginning on February 5, 1997, and ending on June 4, 1998. Initially, in February 1997, Dr. Fisher stated in his records admitted into evidence that “[i]t is certainly possible that [Riddle’s] problems are a result of the injury she described,” but that “there is no objective way to completely decide one way or the other.” By May 14, 1998, Dr. Fisher observed that Riddle’s “complaints of symptoms seem[] out of proportion to any physical findings.” Dr. Fisher concluded that, pending an MRI, “[Riddle] would be able to work with restrictions of no heavy lifting, repetitive bending or stooping.”

However, on May 21,1998, after an MRI had been performed, Dr. Fisher concluded that Riddle had “mild degenerative disk changes with no evidence for nerve impingement, nothing unexpected for someone her age.” He diagnosed her with “[degenerative disk disease of the lumbar spine with back pain” and “[d]egenerative arthritis of her right elbow with pain.” By June 1998, Dr. Fisher concluded that “[although she has quite a few symptoms[,] there are not really any objective findings to rate any permanent impairment.” He did not place any work restrictions on Riddle upon releasing her from his care.

Southern Energy paid for some of the care provided by Dr. Simieritsch and Dr. Fisher, but Riddle decided to seek further treatment from other doctors of her own choosing. She sought treatment from Dr. Forqouk Raquib, who initially diagnosed Riddle with degenerative changes in her lower back but concluded that she did not have any “surgical disease,” based on his review of the CT scan and MRI. On the basis of his interview with her, Dr. Raquib initially concluded that Riddle’s “long term prognosis is poor as far as ... returning to any meaningful job,” and he did not believe she would be able to hold a sedentary job, “as she’s in constant pain and unable to sit or stand for more than 5-10 minutes at a time.”

As part of Riddle’s treatment, Dr. Ra-quib referred Riddle to a physical therapist, David Breedlove. After 11 sessions with Riddle between September and October 1998, Breedlove discontinued ' the therapy because, he said, Riddle was “not progressing and [she] demonstrates an inconsistency in that she has very minimal forward flexion from a standing position in the clinic and has much more forward flexion outside of the tested environment.” Dr. Raquib then released Riddle from his care, diagnosing her with chronic back syndrome and degenerative changes in her back, but he concluded that the “degree of her physical symptoms are inconsistent with physical findings.” Upon releasing Riddle from his care, Dr. Raquib did not restrict Riddle from working and did not make a finding as to whether her condition was caused by an on-the-job injury.

Dr. Muhammad Ali, a neurologist and pain specialist, treated Riddle for a little more than a year beginning on February 18, 1999; he saw Riddle five times during that period. Dr. Ali testified by deposition that he performed an ENG and nerve-conduction study on Riddle and that based on those tests, he “did not find any evidence of nerve damage, pinched nerves. Basically, the test was negative for any pathology.” He found no evidence of herniated or bulging disks. After his complete evaluation, Dr. Ali found that Riddle was engaging in “symptom magnification,” i.e., she was exaggerating the extent of her debilitation in comparison to what the tests showed her injury to be. Dr. Ali diagnosed Riddle with a degenerative disease in her spine and with depression, and stated that the fall from the ladder could have aggravated the degenerative disease. However, he also concluded that “[t]he pattern of her injury did not follow her complaints” because

“what she says is that she jarred herself; she never landed on her back; she did not hit her head from any side; she did not hit any part of her muscles directly; she just jarred with foot down. With that kind of fall, it "should have communicated to the central spine and maybe done a compression fracture, or maybe have resulted in a herniated disk; and that’s what we had thought initially, and that’s why we did those tests, and it did not follow that.”

Dr. Ali determined that Riddle had reached maximum medical improvement on April 4, 2000. He never assigned Riddle a permanent impairment rating during her visits, but upon questioning at his deposition, he placed Riddle’s permanent impairment rating at between 0% and 5%. Dr. Ali never restricted Riddle from working in any way, and he concluded that there was nothing that would preclude her from performing light-duty and medium-duty work and “possibly heavy-duty job[s] also, but not outrightly.”

Riddle applied for Social Security disability benefits. As part of her application, Riddle was evaluated by two psychologists. Dr. Alan Blotcky, a clinical psychologist, evaluated Riddle in October 1997, at which time he diagnosed her with moderate depression. Dr. Blotcky stated in his deposition that he did not believe the 1997 injury was the cause of Riddle’s depression, and he concluded that he could not say “either way” whether the depression was the result of the April 1996 injury or the January 1997 injury. He did not believe that the depression prevented Riddle from being gainfully employed, but he surmised that there would be jobs, particularly jobs involving complex tasks, that Riddle would be precluded from doing based on her intellectual ability and educational background.

Clinical psychologist Dr. John Haney evaluated Riddle on July 18, 2000, and diagnosed her with moderately severe depression and as being “borderline intellectual functioning.” Dr. Haney surmised that Riddle’s type of injury, if it was treated and then neglected, “could lead” to depression or a worsening of already existing depression. However, he also stated that he had “no reason to think” that her on-the-job injury was the “actual cause” of her depression any more than any other possible factor. Ultimately, he concluded that Riddle’s depression would not keep her from being gainfully employed.

Marcia Schulman, a witness for Southern Energy and a vocational expert with 30 years’ experience, testified that she believed that Riddle had a 0% disability rating based on the records from all of the doctors and on Riddle’s own deposition testimony. Schulman testified:

“[Tjhere was no evidence in the [medical] records that I reviewed of a physician assigning [Riddle] permanent restrictions of physical activity, and that must be present in developing and/or to justify developing a vocational disability rating on an individual, and since that was not present, there was no basis to provide a vocational disability rating, so I would have assigned her a zero.”

Finally, Riddle testified concerning the timing and nature of her injuries as well as the extensive treatment she sought for her pain. Riddle stated that her supervisor knew about the April 1996 injury as soon as it happened, but she admitted that she never completed the paperwork for a workers’ compensation claim for that injury. She contends that the only reason she continued to work after taking only one day off following the April 1996 injury was financial necessity, but she was unable to explain why Dr. Simieritsch never mentioned this injury or her back pain in his notes on their visits until late January 1997. Riddle testified that before her injury, she could do “anything I wanted to do,” but that now she is not able to work, cannot go shopping, has difficulty driving for long periods, and, as far as household chores, can only wash clothes and cook around her house. She stated that she is in “severe pain.” She testified that she was depressed because she is unable to do many of the things that she previously enjoyed, such as horseback riding and tennis, and that her financial situation is difficult; she claims that she has lost her home and her car, and that she cannot buy the medicine she needs. Riddle stated that she has seen other doctors in addition to the ones who testified by deposition or submitted medical findings for this case; among those were Dr. Hatchett, Dr. Knight, Dr. Lowe, Dr. Carter Harsh, and Dr. Jeff Long. She testified that Dr. Hatchett is an orthopedic surgeon who performed an epidural on her and had an MRI performed on her neck and back. Riddle claimed that the MRI results showed bulging disks in her neck and back, but none of Dr. Hatchett’s findings were submitted into evidence.

Based on evidentiary submissions, the depositions, and oral testimony, the trial court ruled that as a result of the

“accident of January 5, 1997 ... [Riddle] sustained a permanent injury after having sustained a previous permanent injury in her employment at defendant, and the combined effect of said previous injury and said subsequent injury resulted in the permanent total disability of [Riddle]; because of said injuries and because of [Riddle’s] education and training, she is unable to perform work of her trade or obtain reasonably gainful employment, resulting in her permanent and total loss’ of ability to earn; said injuries permanently and totally inea-paeitate [Riddle] from working at and being retrained for gainful employment.”

The trial court awarded Riddle $363,684.32 for her disability. The Court of Civil Appeals affirmed the trial court’s ruling, without an opinion. Southern Energy Homes, Inc. v. Riddle (No. 2010428, August 9, 2002), - So.2d - (Ala.Civ.App.2002)(table).

II. Analysis

The standard of review on appeal in a workers’ compensation case has been stated by this Court:

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

Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). However, “an appellate court’s review of the proof and [its] consideration of other legal issues in a workers’ compensation case shall be without a presumption of correctness.” Ex parte American Color Graphics, Inc., 838 So.2d 385, 387-88 (Ala.2002) (citing § 25-5-81(e)(1), Ala.Code 1975).

Southern Energy argues that Riddle failed to produce substantial evidence as to the medical causation element of her workers’ compensation claim. “[F]or an injury to be compensable under the Workers’ Compensation Act, the employee must establish both legal and medical causation.” Ex parte Moncrief 627 So.2d 385, 388 (Ala.1993). “Once legal causation has been established, i.e., that an accident arose out of, and in the course of employment, medical causation must be established, i.e., that the accident caused the injury for which recovery is sought.” Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989).

In Ex parte Price, 555 So.2d 1060, 1061 (Ala.1989), this Court held that expert medical testimony is not required to prove medical causation by substantial evidence. Thus, it was not necessary for Riddle to present testimony from a medical expert tying her injury to her workplace accident. However, the Court also stated in Price that “[ijt is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test finds its application.” Price, 555 So.2d at 1063 (citing Odell v. Myers, 52 Ala.App. 558, 295 So.2d 413 (1974)) (emphasis omitted; emphasis added).

None of the doctors who treated Riddle stated with any degree of certainty that Riddle’s back condition was due to the alleged workplace injury. The records of Dr. Simieritsch, Riddle’s personal physician, do not mention the April 1996 injury or Riddle’s complaining about back pain in any of her seven visits to Dr. Simieritsch after that incident but before late January 1997 when she left Southern Energy’s employ permanently. Riddle admitted that Dr. Simieritsch had no records of such an injury before January 1997, but claimed that when she subsequently mentioned it to him, he stated that he “forgot” about it. Dr. Fisher initially stated, before he performed any tests, that it was “possible” that Riddle’s back condition was caused by the fall from the ladder, but after several visits and tests, he concluded that Riddle’s back condition was caused by normal degeneration for someone her age and that he could not point to anything “objective,” i.e., anything other than Riddle’s own complaints, that demonstrated that Riddle had even suffered an injury .to her back. Dr. Raquib did not make a finding as to whether Riddle’s condition was caused by an on-the-job injury. Dr. Ali testified that the April 1996 injury could have aggravated Riddle’s degenerative disk disease. However, this testimony was mitigated by Dr. Ali’s further testimony that “[t]he pattern of her injury did not follow her complaints,” meaning that the possibility that Riddle’s back injury was caused by her fall from the ladder was remote.

These were the only expert medical opinions admitted into evidence at trial. Even viewed in the light most favorable to Riddle, the testimony of these doctors at best established a possibility that Riddle’s back condition was caused by her alleged on-the-job injury. “It is a well established principle that evidence presented by a [workers’] compensation claimant must be more than evidence of mere possibilities that would only serve to ‘guess’ the employer into liability.” Hammons, 547 So.2d at 885. Yet possibilities are all that Riddle’s many doctors could provide. Thus, the only evidence of medical causation of the back injury came from Riddle’s own testimony.

The same holds true for Riddle’s depression. Dr. Blotcky stated that he could not conclude whether either of Riddle’s on-the-job accidents caused her depression. Although Dr. Haney speculated, based on a hypothetical question, that a failure to treat such an injury could lead to depression, he stated that he had no actual basis to think that Riddle’s on-the-job injuries were the cause of her depression. Again, mere possibilities and speculation cannot establish medical causation, yet that is all that the clinical psychologists provided concerning the relation between Riddle’s on-the-job injuries and her depression. As was the case with her back condition, the only basis for tying Riddle’s depression to her on-the-job accidents is her own testimony.

Looking at the “overall substance” of the evidence, “viewed in the full context of all the lay and expert evidence,” Price, 555 So.2d at 1063, Riddle’s testimony alone cannot be said to constitute “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer” medical causation. West v. Founders Life Assurance Co., 547 So.2d at 871. This is not to say that a plaintiffs testimony alone can never constitute substantial evidence of medical causation, but rather that in this case the evidence as a whole weighs heavily against finding the plaintiffs testimony alone to be substantial evidence of medical causation.

In addition to the lack of proof of medical causation, there is also a lack of evidence indicating that Riddle sustained a permanent total disability. “Permanent total disability is the inability to perform one’s trade and the inability to find other gainful employment.” Jim Walter Res., Inc. v. Budnick, 619 So.2d 926, 927 (Ala.Civ.App.1993) (citing § 25-5-57(a)(4)d., Ala.Code 1975). None of Riddle’s doctors placed restrictions on her work status after May 1998. Three of the physicians as well as the physical therapist who treated Riddle stated that Riddle’s symptoms and complaints were not consistent with the medical testing and her behavior at various times. Most importantly, none of the doctors, psychologists, or experts stated after examining Riddle that Riddle was incapable of gainful employment.

In fact, Dr. Fisher could not cite any objective information that would warrant an impairment rating; Dr. Raquib did not place any work restrictions on Riddle even after sending her to physical therapy; neither clinical psychologist thought that Riddle’s depression would prevent her from being gainfully employed; and the only vocational expert to testify gave Riddle an impairment rating of zero percent. Dr. Ali was the only physician to give Riddle an impairment rating, stating that her impairment as a result of the injuries was at most 5%, and he concluded that Riddle could perform light-, medium-, and even heavy-duty work, given the right conditions. The only caveat any of these individuals placed on Riddle’s job prospects was that she probably could not perform jobs involving complex operations because of her intellectual capacity and level of education. This is far from finding an “inability to find other gainful employment.” Once again, while Riddle’s testimony as to her ability to work certainly constitutes a modicum of evidence indicating that she possesses a permanent total disability, in thig case it cannot be said to constitute substantial evidence of such a disability, particularly when one considers that some of the doctors indicated that Riddle tended to exaggerate her symptoms.

In short, we conclude that Riddle failed to present substantial evidence of medical causation between her on-the-job incidents and her condition and that she failed to produce substantial evidence indicating that she sustained a permanent total disability. The Court of Civil Appeals’ judgment affirming the trial court’s judgment is therefore due to be reversed. Despite Southern Energy’s invitation, we decline to adopt a per se rule that expert medical testimony is necessary to prove medical causation for injuries such as the one sustained by Riddle in this case. Instead, we reaffirm that all of the evidence, including expert and lay testimony, must be examined as a whole to determine whether substantial evidence of medical causation has been shown in a workers’ compensation case. The cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, BROWN, and STUART, JJ„ concur.

HOUSTON, J., concurs specially.

LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., dissent.

HOUSTON, Justice

(concurring specially).

What is substantial evidence of permanent, total disability in a workers’ compensation claim involving a soft-tissue injury? In my opinion, if such a claim is disputed by credible expert medical testimony, the claimant must offer credible expert medical testimony in support of the claim for his or her claim to be supported by substantial evidence. The claimant in this case did not do so; therefore, I concur.

LYONS, Justice

(dissenting).

I must respectfully dissent.

The Workers’ Compensation Act was amended in 1992 to provide that “[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81 (e)(2), Ala.Code 1975. The issue is not whether five of us would have- reached the same result as that reached by the trial court. We must analyze the record to determine if that result is supported by substantial evidence.

I am concerned about the inconsistency of the main opinion with what heretofore were considered settled principles of law. In Ex parte Price, 555 So.2d 1060 (Ala.1989), a case also involving a claimant with back • pain, this Court held that medical causation as an element of the employee’s burden of proof in a workers’ compensation case could be found from evidence other than that supplied by the testimony of doctors. This Court embraced the view expressed by Professor Larson in his treatise The Law of Workmen’s Compensation:

“ ‘True, in many instances it may be impossible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is. But this is not invariably so.’ ”

555 So.2d at 1061-62 (quoting 3 A. Larson, The Law of Workmen’s Compensation § 79.51(a), at 15-426.128 (1988)). This Court then turned to situations where medical evidence was not always necessary and again quoted from Professor Larson:

“Professor Larson gives several examples where the factfinder is authorized to find the causation element absent medical evidence to that effect:
“ ‘The Rhode Island Supreme Court’s opinion in Valente [v. Bourne Mills, 77 R.I. 274, 75 A.2d 191 (1950) ], continued, on the subject of the lack of medical testimony on causation, as follows:
“ ‘ “Thus where, as in the instant case, injury appears in a bodily member reasonably soon after an accident, at the very place where the force was applied and with symptoms observable to the ordinary person, there arises, in the absence of believed testimony to the contrary, a natural inference that the injury, whatever may be the medical name, was the result of the employment.” [77 R.I. at 279, 75 A.2d at 194.]
‘One of the most familiar applications of this approach is to back injuries that occur suddenly as a result of an obvious accident or strain.’ ”

555 So.2d at 1062 (quoting 3 A. Larson, The Law of Workmen’s Compensation § 79.51(b), (c), at 15-426.149 to .160 (1988)) (emphasis added).

In Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996), a case governed by the Workers’ Compensation Act as amended in 1992, an employee suffered a stroke while he was at work. The employee could not pinpoint a specific incident as the cause of his stroke, but he contended that his repeated exposure to stressful activity made his stroke job related. Before laying down a special rule for injuries not the result of a sudden and traumatic event, this Court reiterated the following rule:

“An employee claiming to have been injured by a sudden and traumatic external event (an ‘accident’ in the colloquial sense, e.g., being struck by a falling hammer on a construction site or slipping off a ladder) need only produce substantial evidence tending to show that the alleged ‘accident’ occurred and tending to establish ‘medical causation,’ by demonstrating that the ‘accident’ was a contributing cause of the complained-of injuries and complications.”

680 So.2d at 266 n. 3 (emphasis added). The Court then concluded that the issue of the causation of a stroke fell within the exception recognized in Price whereby medical evidence was necessary “[b]ecause the nature and origin of strokes is obviously beyond the understanding of the average person.” Id. at 269. However, in requiring medical evidence of causation, this Court embraced a minimal standard of proof by treating as sufficient the testimony of the employee’s expert, Dr. Gordon Kirschberg, that he “ ‘would think that if they are chronically hypertensive vessels and you give one last push to the blood pressure it may cause some spasm or little clots to fall off and that may, in fact, be the cause of the stroke.’ ” Id. at 270 (emphasis added). The Court concluded:

‘Although Dr. Kirschberg’s testimony seems to be weak and at points contradictory, he does conclude that the cardiovascular stress, associated with the strenuous work that Cunningham had been performing for four and one-half hours before collapsing while on a break, could have precipitated the onset of Cunningham’s stroke.”

Id. at 270-71 (emphasis added).

This Court explicitly endorsed in Price Professor Larson’s observation that a back injury occurring suddenly as the result of an obvious injury or strain was one of the most “familiar applications” of the rule that, absent believed evidence to the contrary, there arises “ ‘a natural inference that the injury, whatever may be the medical name, was the result of the employment.’” 555 So.2d at 1062 (quoting Valente v. Bourne Mills, 77 R.I. 274, 279, 75 A.2d 191, 194 (1950)) (emphasis added). I do not read Trinity Industries as having overruled Price, especially as it relates to a back injury that occurs as a result of an accident such as falling off a ladder. See Trinity Indus., 680 So.2d at 266 n. 3. Here, the trial court believed that Riddle fell from a ladder and thereafter suffered pain as a result of her work-related injury. Riddle testified:

“Q. Okay. You say you landed flat-footed [after falling from the ladder]. Did you experience any pain?
“A. I went numb from the waist down. I couldn’t move, and my shoulder, my elbow was paining me. I just stood there, and my supervisor asked me if I was hurt, and they started to touch me and I told them, ‘Don’t touch my [sic] just yet.’ I said, T don’t know what is wrong.’ I said, ‘I can’t move.’
“Q. Did you go to work the next day? “A. No.
“Q. Why not?
“A. Well, I got home and I was hurting so bad I just went to bed and that is where I stayed.
“Q. All right. When did you go back to work?
“A. The following Monday.
“Q. Were you free of pain at that time? “A. No, I was not.
“Q. Tell the Judge where your pain was located on your body.
“A. My neck, my elbow, my back, my leg, my hands.
“Q. Did you continue to work for Southern Energy after this injury?
“A. Yes.
“Q. How were you able to perform your job duties after this injury?
“A. I took the strongest aspirins I could, well, non-aspirin, that I could find and gritted my teeth and done the best I could.
“Q. All right. You stated earlier that you had received a second injury [while operating a vacuum cleaner]; is that correct? .
“A. That is correct.
“Q. You stated that your back was paining you when you were operating the vacuum. Was this different from the prior pain you were suffering?
“A. It was more severe but in the same area.
“Q. Tell the Judge where it was located.
“A. In my lower back, in my arm.
“Q. Were you able to continue to work that day?
“A. No.
“Q. Have you ever returned to Southern Energy after that day?
“A. No.
“Q. Prior to April of 1996, had you had any prior injuries to your back or elbow?
“A. No.
“Q. What about your neck?
“A. No.”

Furthermore, one of Riddle’s physicians testified that her injury was a “possible” cause of her condition.

Even if the soft-tissue injuries complained of here fall under the heading of those instances recognized in Price where “ ‘it may be impossible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is,’ ” 555 So.2d at 1061-62 (quoting Larson at § 79.51(a)), the express reference in Price to back injuries notwithstanding, the standard of proof of medical causation required by the main opinion is more stringent than that employed in Trinity Industries.

The trial court chose to disbelieve evidence contrary to Riddle’s testimony and drew the “natural inference” that her injury was the result of her employment. The main opinion impermissibly reweighs this evidence and disregards findings made by the trial court based on ore tenus evidence in a workers’ compensation case, thereby sub silentio overruling legions of cases. See, e.g., Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala.2000), in which this Court stated:

“It is well ‘settled that the trial court’s findings on disputed evidence in a workers’ compensation case are conclusive.’ Moreover, the 1992 amendments to the Workers’ Compensation Act ‘did not alter the rule that [the Court of Civil Appeals] does not weigh the evidence before the trial court.’ ”

(Citations omitted.) See also Ex parte Drummond Co., 837 So.2d 831, 832-33 (Ala.2002); Ex parte Kmart Corp., 812 So.2d 1205, 1207 (Ala.2001). The trial court’s observations are of critical importance in a workers’ compensation case. “ ‘The trial court is in the best position to observe the demeanor of the employee and other witnesses. In arriving at its judgment, the court may consider all evidence, including its own observations, and interpret it according to its own best judgment.’ ” Ex parte Alabama Ins. Guar. Ass’n, 667 So.2d 97, 101 (Ala.1995) (quoting Williams v. Lee Apparel Co., 610 So.2d 410, 412 (Ala.Civ.App.1992)) (citations omitted).

The main opinion sub silentio rejects Price and the dicta in Trinity Industries as to the proof necessary in a workers’ compensation claim involving a back injury caused by an obvious accident. Furthermore, as far as soft-tissue injuries of the nature alleged by Riddle are concerned, not only does the main opinion conclude that medical evidence is now necessary, the main opinion also requires more than merely a possibility of medical causation, as was found to be, acceptable in Trinity Industries. Therefore, the main opinion appears to have elevated Riddle’s burden of proof to clear and convincing evidence, as opposed to a preponderance of the evidence. Such a result is authorized only in instances where an employee’s injuries have resulted from “gradual deterioration or cumulative physical stress disorders.” See § 25-5-81(c). The main opinion apparently has reweighed the evidence Riddle presented as to her fall from the ladder, which the trial court obviously found credible, and rejected it in favor of the view that Riddle’s injury was nonaccidental. If this be so, the main opinion has also sub silentio overruled the holding in Trinity Industries as to the degree of proof of medical causation in workers’ compensation cases involving nonaccidental injuries.

Because the main opinion rejects Riddle’s evidence concerning causation, I express no opinion on the sufficiency of the evidence presented at trial concerning the degree of Riddle’s disability.

WOODALL, J., concurs.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. The main opinion holds, in effect, that Riddle’s own testimony did not constitute substantial evidence because it was disputed by or uncorroborated by the testimony of other witnesses. The presence of countervailing evidence and the absence of corroborating evidence are immaterial to the issue of whether the testimony of a competent witness constitutes substantial evidence. See Ex parte Coleman, 861 So.2d 1080 (Ala.2003).

The contrast between § 12-21-12(d), Ala.Code 1975, defining “substantial evidence,” and § 6 — 11—20(b)(4), AIa.Code 1975, defining “clear and convincing evidence,” is instructive. These two statutes, respectively, read:

“(d) Substantial evidence shall mean evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven. A scintilla of evidence is insufficient to permit submission of an issue of fact to the trier of facts.”

§ 12-21-12(d).

“Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

§ 6 — 11—20(b)(4). While the definition of “clear and convincing evidence” requires a comparison between the supporting evidence and any countervailing evidence, the definition of “substantial evidence” is independent of any consideration of countervailing evidence.

Riddle’s competency, as distinguished from her credibility, is established by the record and is not disputed by the defendant. Riddle’s credibility was for the trial judge, not this Court, to determine. Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So.2d 92 (Ala.2001); Ex parte Anonymous, 803 So.2d 542 (Ala.2001); Ex parte Pielach, 681 So.2d 154 (Ala.1996); B.F. Goodrich Co. v. Lee, 271 Ala. 312, 123 So.2d 117 (1960); 3-M Co. v. Myers, 692 So.2d 134 (Ala.Civ.App.1997).

But for one exception, I concur in Justice Lyons’s scholarly dissent. The exception is that I hope today’s main opinion will, in the future, be treated simply as a lapse rather than a sub silentio overruling of so much bedrock workers’ compensation precedent.

WOODALL, J., concurs.

HARWOOD, Justice

(dissenting).

I dissent. I agree with Justice Lyons and Justice Johnstone that Riddle’s testimony was sufficient to constitute substantial evidence of medical causation. As explained in the excerpt from Dolphin Homes v. Issa, 428 So.2d 102 (Ala.Civ.App.1983), set out later in this writing, expert testimony concerning medical causation was therefore not necessary. I write further, however, to express my separate view about certain statements in the respective dissents of Justice Lyons and Justice Johnstone.

Section 25-5-81(e), Ala.Code 1975, provides that any party aggrieved by a final judgment in a workers’ compensation case may “appeal” to the Court of Civil Appeals. Section 25-5-81(e) states that the decision of the trial court “shall be based on a preponderance of the evidence as contained in the record of the hearing ...,” except in cases where the injury is alleged to have resulted from “gradual deterioration or cumulative physical stress disorders....” Subsection (e)(1) directs that “[i]n reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” That mandate does not expressly and directly implicate the standard of review this Court should apply in undertaking its independent review following the issuance of the writ of certiorari to the Court of Civil Appeals. Subsection (e)(2) provides that “[i]n reviewing pure findings of fact, the findings of the circuit court shall not be reversed if that finding is supported by substantial evidence.” The “standard of proof set forth herein,” § 25-5~81(e)(l), is that supplied by § 25-5-84(e)(2), i.e., “substantial evidence.” Although the Workers’ Compensation Act, of which § 25-5-81 (e) is a part, does not define “substantial evidence,” this Court noted in Ex parte Trinity Industries, Inc., 680 So.2d 262, 268 (Ala.1996), that “substantial evidence,” as that term is used in § 12-21-12(d), Ala. Code 1975, has been defined as “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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Thus, as this Court explained in Trinity Industries, 680 So.2d at 268-69:

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

Before the addition of § 25-5-81(c) and (e) to the Workers’ Compensation Act in 1992, direct appellate review of a final judgment in a workers’ compensation case was by petition for a writ of certiorari pursuant to what was former § 25 — 5—81(d). Faddis v. Woodward Iron Co., 276 Ala. 283, 161 So.2d 486 (1964); Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.1980). The standard of review was that commonly referred to as the “any legal evidence” test: “If there [was] any legal evidence that supports the findings of the trial court, this Court [would] affirm those findings.” Lowe v. Walters, 491 So.2d 962, 964 (Ala.Civ.App.1986).

“The law is well settled in this jurisdiction that this court does not look at the weight of the evidence as to any fact found by the trial court but it does look to see if there is any evidence to support the facts found by the trial court. Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973). Moreover, we know of no requirement that ‘any evidence’ must be interpreted to mean any ‘expert medical evidence.’ Stewart v. Busby, supra. Furthermore, in workmen’s compensation cases the trier of fact is not bound by medical opinion testimony. Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370 (Ala.Civ.App.1973).”

Dolphin Homes, 428 So.2d at 103.

It is patent that the Legislature intended by the addition of § 25 — 5—81(e)(1) and (2) to change appellate review of final judgments in workers’ compensation cases so that the review would be by way of appeal; the standard of review would be without a presumption of correctness as to the standard of proof (substantial evidence) and “other legal issues,” and the trial court’s judgment based on “pure findings of fact” would not be reversed if its findings were “supported by substantial evidence.” It is true, as Justice Lyons notes in his dissent, that subsequent to the 1992 amendments to the Workers’ Compensation Act this Court stated, in Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala.2000):

“It is well ‘settled that the trial court’s findings on disputed evidence in a workers’ compensation case are conclusive.’ Ex parte Ellenburg, 627 So.2d 398, 399 (Ala.1993). Moreover, the 1992 amendments to the Workers’ Compensation Act ‘did not alter the rule that [the Court of Civil Appeals] does not weigh the evidence before the trial court.’ ”

Although Ex parte Ellenburg, 627 So.2d 398 (Ala.1993), on which the Golden Poultry Court relied, was decided on April 16, 1993, 11 months after the 1992 amendments to the Workers’ Compensation Act became effective on May 19, 1992, it involved a review by petition for a writ of certiorari of a decision of the Court of Civil Appeals issued October 30, 1992, in a case filed in October 1989. Universal Forest Prods. v. Ellenburg, 627 So.2d 395 (Ala.Civ.App.1992). Although the respective dates of the trial, the entry of the trial judge’s final judgment, and the filing of the appeal are not provided in the opinion of the Court of Civil Appeals, one can readily infer from other information in the opinion that all of those events took place before the effective date of the 1992 amendments. At any rate, neither the parties nor the Court of Civil Appeals considered the newly enacted provisions, now codified as § 25-5-81(c) and (e), to have any application to the case, and the opinion takes no note of them. Therefore, the Court of Civil Appeals stated, and relied on, the pre-1992 proposition that the initial step in its review was to “determine if there is any legal evidence to support the trial court’s findings.” 627 So.2d at 397. Likewise, after this Court granted the petitions of both parties for certiorari review, it accepted as applicable the “any legal evidence” standard and noted that “[i]t is further settled that the trial court’s findings on disputed evidence in a workers’ compensation case are conclusive.” Ex parte Ellenburg, 627 So.2d at 399. The Supreme Court, like the Court of Civil Appeals, did not mention § 25 — 5—81(c) or (e), apparently because neither party argued the applicability of those subsections or, given the time frame of all of the prior proceedings, they were not otherwise deemed applicable.

Thus, neither of the two Ellenburg opinions dealt with the effect of § 25 — 5—81(c) and (e) on the standard of proof required at the trial level or the standard of appellate review.

When this Court in Golden Poultry, supra, applied § 25-5-81(e)(l) and (2) in that case, decided in April 2000, as the “applicable standard of review,” it nonetheless quoted the rule from Ex parte Ellenburg that a trial court’s findings based on disputed evidence are “conclusive.” 772 So.2d at 1176.

Before the 1992 amendments, a trial judge’s findings of fact were “conclusive” if there was “any legal evidence” to support those findings. I agree that, even after the 1992 amendments, a trial judge’s findings based on disputed facts are conclusive, if the factual findings are the result of a determination made after a hearing at which those facts are presented by witnesses whose credibility the trial judge must assess. On the other hand, the Court of Civil Appeals is now obliged under § 25-5-81(e)(l) to review “the standard of proof ... and other legal issues ... without a presumption of correctness” and when a trial judge’s “pure findings of fact” are reviewed, they must be upheld, under § 25-5-81(e)(2), only if they are supported by substantial evidence. In that respect, then, it is no longer correct to state categorically for all “applications” that a trial judge’s findings of fact on disputed evidence are conclusive. In deciding the mixed question of law and fact of whether the trial judge’s finding that the substantial evidence standard has been met, we independently review that evidence, giving due deference to the trial court’s resolution of disputed issues of fact, to determine if it is of “such weight and quality” that it meets the criteria for substantial evidence. As Justice Cook stated in his special concurrence in Ex parte Northam, 689 So.2d 854, 857 (Ala.1996), another workers’ compensation case: “The substantial evidence test, by its nature, requires that the court assess or weigh evidence and determine whether fair-minded persons exercising impartial judgment could reasonably infer the existence of the fact sought to be proved.”

As Justice Lyons notes in his dissent in this case, the “conclusiveness” proposition has been reiterated in two recent opinions of this Court, Ex parte Drummond Co., 837 So.2d 831, 832-33 (Ala.2002), and Ex parte Kmart Corp., 812 So.2d 1205, 1207 (Ala.2001). In Ex parte Drummond, the Court properly noted that § 25 — 5—81(e)(1) and (2) set forth the applicable standard of review in a workers’ compensation case, but then added the statement:

“See also Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala.2000). The trial court’s findings of fact ‘ “on disputed evidence in a workers’ compensation case are conclusive.” ’ Ex parte Golden Poultry, 772 So.2d at 1176 (quoting Ex parte Ellenburg, 627 So.2d 398, 399 (Ala.1993)).”

However, the actual holding in Ex parte Drummond was that the trial court erred because “[i]t did not have before it substantial evidence” supporting its determination that a “scheduled” injury should be compensated as “an unscheduled” injury. 837 So.2d at 836. In Ex parte Kmart Corp., the trial court found that one condition from which the employee suffered was compensable, but that her fibromyalgia was not compensable, and it made various factual findings in support of its determinations. On appeal, the Court of Civil Appeals rejected the trial court’s finding that the fibromyalgia was not a compensa-ble injury and also concluded that the percentage of loss of earning power the trial judge had assigned to the compensable injury was inadequate. On certiorari review, this Court noted that § 25-5-81(e)(2) established the standard of review for “pure findings of fact” in a workers’ compensation case, and that, under that standard, a judgment based on such findings would not be reversed if the findings were supported by substantial evidence. This Court noted that the Court of Civil Appeals was authorized in a workers’ compensation case to determine whether the trial court’s decision was supported by sufficient evidence, i.e., substantial evidence, but, citing earlier caselaw, stated that it could not independently weigh the evidence. 812 So.2d at 1207. We concluded that the record contained substantial evidence in support of the trial court’s finding that the employee’s fibromyalgia was not a compensable injury, and we reversed the judgment of the Court of Appeals on that point. In discussing the loss-of-earning-capacity issue, we commented that “[t]he trial court’s findings, if supported by the evidence, are conclusive,” 812 So.2d at 1210, citing Ex parte Golden Poultry, but then phrased our review in terms of whether the trial court’s finding that the employee had suffered a particular degree of earning loss “was supported by substantial evidence.”

Because pursuant to § 25-5-81(e) the Court of Civil Appeals now reviews the trial court’s application of the standard of proof, i.e., substantial evidence, without a presumption of correctness, and must assess whether the trial judge’s “pure findings of fact” are supported by substantial evidence, there is necessarily a “reweighing” of the evidence at the appellate level, for that limited purpose. Likewise, the trial judge’s factual findings based on disputed issues of fact are not conclusive unless they are supported by substantial evidence.

      . Both Riddle and her husband receive Social Security disability benefits. Riddle testified that her husband is handicapped and that he has cancer.

      . Riddle finished the seventh grade in school. She attempted at one time to get a GED certificate, but the evidence was conflicting as to whether she actually got the certificate.

      . Indeed, Riddle herself acknowledged on tire stand that this was the case:
      “Q. No doctor has restricted you from working since 1997; have they?
      "A. No.
      "Q. Okay. Has any doctor, since 1997, said that you cannot return to work or that you can't try to find a job?
      "A. No.
      “Q. No doctor has said that you are physically incapable of getting a job; have they?
      "A. No.
      “Q. No doctor has said that you are psychologically incapable of getting a job; have they, Ms. Riddle?
      "A. No.
      "Q. And you have seen, since these alleged injuries, you have seen, let me try to make a list and you tell me if I'm leaving somebody off or adding somebody I shouldn't!)] Dr. Simieritsch, Dr. Fisher, Dr. Raquib, Dr. Ra-quib's therapist, Dr. Ali, Dr. Blotcky, Dr. Haney, Dr. Lowe, Dr. Jeff Long, Dr. Carter Harsh, Dr. Knight and Dr. Hatchett; is that correct?
      "A. Correct.”


author: PITTMAN, Judge.

text:
    SOUTHERN ENERGY HOMES, INC. v. Emma RIDDLE.
    2010428.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2003.

      Warren B. Lightfoot, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
    Richard E. Fikes of Tweedy, Jackson, Beech & Fikes, Jasper, for appellee.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

The Alabama Supreme Court has reversed this court’s August 9, 2002, affir-mance, without opinion, of the trial court’s judgment, and has remanded the case. Ex parte Southern Energy Homes, Inc., 873 So.2d 1116 (Ala.2003). In compliance with the Alabama Supreme Court’s opinion, the judgment of the trial court is reversed and the cause is remanded to the trial court “for further proceedings” consistent with the Supreme Court’s opinion. 873 So.2d at 1124.

REVERSED AND REMANDED.

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


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

text:
    Pamela MORROW and Ruth H. Morrow v. Annie Jean HELMS et al.
    2990942.
    Court of Civil Appeals of Alabama.
    March 16, 2001.
    Rehearing Denied May 4, 2001.

      C. Clay Torbert III and Richard H. Allen of Capell & Howard, P.C., Montgomery, for appellants.
    L. Merrill Shirley, Elba, for appellees.
   CRAWLEY, Judge.

Annie Jean Helms and several other persons (the “contestants”) contested the validity of a will offered for probate as the will of Bernice Grimes; they filed their contest in the Coffee Probate Court. Pamela Morrow and Ruth H. Morrow (the “proponents”) maintained that the will was valid. The case was transferred from the Coffee Probate Court to the Coffee Circuit Court. The will contest proceeded to a jury trial. The jury returned a verdict for the contestants. The proponents moved for a judgment as a matter of law (“ JML”) at the close of the contestants’ evidence and at the close of all the evidence, and the proponents renewed their motion after the jury had returned its verdict. The trial court denied both motions and entered a judgment for the contestants. The proponents appealed to the supreme court, which transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

The motion formerly known as a motion for a directed verdict is now known as a motion for a judgment as a matter of law (JML). See Rule 50, Ala. R. Civ. P. Our supreme court has stated the standard of review applicable to a ruling on a JML motion:

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying 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 JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in a 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 1237, 1240 (Ala.1999).

The proponents argue that the trial court erred by submitting the following issues to the jury: (1) whether the will was invalid because of an improper execution; (2) whether the will was invalid on the basis of incapacity; and (3) whether the will was invalid on the basis of an exercise of undue influence by the proponents over the decedent.

The proponents argue that the trial court erred by allowing the jury to consider whether the will was properly executed. They argue that the will was self-proved, pursuant to § 43-8-132, Ala.Code 1975, which states:

“(a) Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer’s certificate, under official seal, in substantially the following form:
“(b) An attested will may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer’s certificate, under the official seal, attached or annexed to the will in substantially the following form:
“(c) If the will is self-proved, as provided in this section, compliance with signature requirements for execution is conclusively presumed, other requirements of execution are presumed subject to rebuttal without the testimony of any witness, and the will shall be probated without further proof, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.”

It is undisputed that the will and the acknowledgment complied with all the requirements of § 43-8-132, except that the documents contain no notary seal. The proponents argue that the absence of the notary seal does not destroy the self-proved status of the will. The contestants argue that the absence of the notary seal precludes the will from being self-proved. This court has held that the absence of a notary seal on an affidavit presented as evidence in support of a motion for summary judgment did not affect the admissibility of the affidavit. McCloud v. State, 715 So.2d 230 (Ala.Civ.App.1998). The court stated its reasoning as follows:

“There is no Alabama statute requiring an Alabama notary public to take an affidavit under seal. Our supreme court has held that the name of the notary public must be disclosed in the body of the recitals of the affidavit or by his or her signature. Ex parte Finance America Corp., 507 So.2d 458 (Ala.1987); Sellers v. State, 162 Ala. 35, 50 So. 340 (1909). [The] affidavit contains the signature of the attesting notary public.”

715 So.2d at 232. See also Harrison v. Simons, 55 Ala. 510 (1876) (holding that a notarial seal is not necessary to authenticate the certificate of acknowledgment of an Alabama notary).

The holding of McCloud is directly applicable to this case. Section 43-8-132(b) provides that the will becomes self-proved by execution of an acknowledgment of the testator and affidavits of the witnesses, which are certified by a notary. Both McCloud and this case involve notarization of affidavits, and, based on the holding of McCloud, we conclude that the notary seal is not required to validate the acknowledgment and affidavits in the decedent’s will. Furthermore, the notary in this case, who is also the attorney who drafted the will, signed the document and testified that he witnessed the signing of the will by the decedent and the witnesses. In this case, the contestants presented no other evidence indicating that the will was improperly executed or that the affidavits were forged or fraudulent. Therefore, the trial court erred by not admitting the will as self-proved and erred by submitting to the jury the issue whether the will was properly executed.

The proponents next argue that the trial court erred by submitting to the jury the issue whether the decedent lacked the requisite mental capacity to execute the will. Testamentary capacity requires

“mind and memory sufficient to recall and remember the property [the decedent is] about to bequeath, and the objects of her bounty, and the disposition which she [wishes] to make — to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other.”

Bolan v. Bolan, 611 So.2d 1051, 1057 (Ala.1993).

The decedent and her husband, who had predeceased her, accumulated a sizable estate during their marriage. They operated a successful business for many years. They had no children. In 1994, the decedent executed a will that would have divided her estate among her sister and her niece— the proponents— and several of her husband’s relatives, who are the contestants. The 1994 will favored the proponents. Her husband died of cancer in 1996. In December 1996, the decedent was diagnosed with the same form of cancer that her husband had had. In January 1997, the decedent executed a will that practically disinherited all of the contestants and left almost all her estate to the proponents. The decedent died in 1998. The contestants are challenging the probate of the 1997 will.

The evidence most favorable to the contestants indicates that the decedent had been extremely upset about her cancer diagnosis. Her physician prescribed a pain reliever. The proponents presented no evidence indicating that the pain medication had made the decedent mentally incompetent at the time she executed the will. The attorney who drafted the will testified that the decedent was competent at the time she executed her will. The evidence in the record suggests that the decedent may have executed the 1997 will rashly and quickly; however, the fact that a person takes rash actions while in a state of mental upset is not at all proof of a lack of capacity. Therefore, we conclude that the trial court erred by submitting to the jury the issue of the decedent’s capacity.

Last, the proponents argue that the trial court erred by submitting to the jury the issue whether they had exercised undue influence over the decedent.

“A presumption of undue influence arises when: (1) there is a confidential relationship between a favored beneficiary and the [decedent]; (2) there is a dominant and controlling influence by the beneficiary over the [decedent]; and (3) there is undue activity in procuring the execution of the will. Ex parte Baker, 709 So.2d 7, 9 (Ala.1997); Allen v. Sconyers, 669 So.2d 113, 117 (Ala.1995). In order to prevail on a claim of undue influence, a party must establish each of these elements. Sessions v. Handley, 470 So.2d 1164, 1166 (Ala.1985).”

Burns v. Marshall, 767 So.2d 347, 352 (Ala.2000).

We conclude that the trial court also erred by submitting to the jury the issue of undue influence. The proponents are the sister and niece of the decedent, and they cared for the decedent during her terminal illness. However, the record contains no evidence indicating that the proponents dominated or controlled the decedent. The decedent managed her own financial affairs and had helped her husband in running a business. The proponents also testified that they had had no knowledge that the decedent had executed the 1997 will, and certainly had not influenced her to make that will. They testified that they knew she had executed a will prior to 1997 but that they did not know the disposition she had made by that will. Simply put, the record contains no evidence of undue influence.

Because the circuit court erred by submitting any of the three issues to the jury, its judgment is reversed and the cause is remanded for that court to enter a judgment for the proponents.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

YATES, P.J., concurs specially.

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

YATES, Presiding Judge,

concurring specially.

I agree that the proponents were entitled to a judgment as a matter of law. I write to note the following: The contestants presented no evidence indicating that the decedent lacked testamentary capacity on January 15, 1997, when she signed her will. Although several of the contestants’ witnesses testified that the decedent slept more than usual after receiving her cancer diagnosis, they presented no evidence to indicate that she was taking any pain medication at the time she signed her will, a mere 12 days after she was diagnosed with cancer, or to indicate that if she had been taking the pain medication it might have interfered with her mental capacity.

The decedent’s neighbor, who happened to be a nurse, testified for the contestants that the pain medication “makes you drowsy and changes your mood, and it clouds you mentally.” However, she had no specific knowledge of what medications had been prescribed to the decedent, and she had not been . around the decedent for weeks before she signed the will. Another witness, who was present when the decedent signed her will, testified that in her opinion the decedent was at that time of sound mind.

As to the contestants’ allegations of undue influence, their testimony at best indicates that the decedent’s sister and niece spent a lot of time with her from the time she was diagnosed with cancer in January 1997 until she died in May 1998. The record contains no evidence indicating undue influence on the decedent between the time she made her 1994 will and the time she made her 1997 will. More important, it contains no evidence indicating that the decedent did not act of her own volition or that she devised her property in a manner inconsistent with her free will.

MURDOCK, Judge,

concurring in the result.

I am not prepared to hold that an affidavit given in an attempt to make a will self-proving need not bear the notarial seal, and believe further that this court need not reach this issue.

Unlike the documents at issue in the cases relied upon by the majority (McCloud v. State, 715 So.2d 230 (Ala.Civ.App.1998) (an affidavit submitted in support of a motion for summary judgment); and Harrison v. Simons, 55 Ala. 510 (1876) (a certificate attached to a deed)), the affidavit in a self-proving will is subject to a statutory requirement that it be “evidenced by [a] certificate, under official seal.” § 43-8-132, Ala.Code 1975. (Emphasis added.) As this court has held, “[t]he words in a statute must be given their plain, ordinary, and commonly understood meanings.” Edmonds v. Bessemer Bd. of Educ., 736 So.2d 646, 648 (Ala.Civ.App.1999). “Where a statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” Rucker v. Morgan, 702 So.2d 452, 454 (Ala.Civ.App.1996) (reaffirming that a will must be executed according to statutorily prescribed formalities; quoting Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985)), rev’d on other grounds, 702 So.2d 456 (Ala.1997).

In addition, Alabama’s self-proving will statute is an innovation on the common law. That is, § 43-8-132 provides an alternative to the general mode of proving a will, as set out in § 43-8-167, Ala.Code 1975, which is nothing more than a legislative declaration of the common law. See Whitt v. Forbes, 258 Ala. 580, 64 So.2d 77 (1953), and Woodruff v. Hundley, 127 Ala. 640, 29 So. 98 (1900); see also commentary to § 43-8-132, Ala.Code 1975 (stating that “it is fair to conclude that Alabama did not have prior to this act the self-proving mechanism which is provided by this section”). Because § 43-8-132 is an innovation on the common law, it should be strictly construed. See Pappas v. City of Eufaula, 282 Ala. 242, 244, 210 So.2d 802, 804 (1968). Therefore, because of the absence of a notary’s official seal from the face of the will offered by the proponents, I disagree with the majority’s conclusion that that will was self-proving under § 43-8-132.

Nonetheless, I concur in the result reached by the majority. Although the decedent’s will does not meet the requirements for a self-proving will under § 43-8-132, I conclude that the issue of the validity of the will’s execution should not have been submitted to the jury in light of other evidence before the trial court.

The proponent of a contested will has the burden of making a prima facie showing that the will was validly executed by offering testimony evidencing the execution of the will by the testator and the attestation of the will by the witnesses, as prescribed by Alabama law. Burns v. Marshall, 767 So.2d 347, 351 (Ala.2000) (citing Anderton v. Latham, 342 So.2d 779, 780 (Ala.1977)). Section 43-8-131, Ala. Code 1975, which provides the formalities for the execution of a will, requires:

“Except as provided within section 43-8-135, every will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgement of the signature or of the will.”

A contested will must be proved by both attesting witnesses; if a witness is unavailable, and the proponent accounts for the absence of that witness, secondary evidence of the witness’s attestation may be admitted. Ferrell v. Minnifield, 275 Ala. 388, 391, 155 So.2d 345, 347 (1963) (citing Barnett v. Freeman, 197 Ala. 142, 72 So. 395 (1916)); see also Culver v. King, 362 So.2d 221, 222 (Ala.1978) (citing Ferrell, supra).

The record indicates the following facts regarding the execution of the decedent’s 1997 will: The attorney who drafted the will testified that he had observed the signing of the document by the decedent and two witnesses. The attorney further testified that the decedent had signed the will in the presence of the witnesses. At the trial of this case, the proponents explained that they had been unable to locate one of the witnesses to the decedent’s will. However, the other witness testified that she had signed the 1997 will, as a witness, and that she recognized the signature above hers on the will as that of the missing witness.

Based on the foregoing, I conclude that the proponents presented a prima facie case proving that the will was validly executed. It then became the duty of the contestants to offer evidence showing that the will was not validly executed or that the will should not be probated for some other reason. See Bums, 767 So.2d at 351; see also Anderton, 342 So.2d at 780. Because the record indicates that the contestants proffered no evidence refuting the proponents’ prima facie showing, I agree with the majority that the trial court erred in submitting the issue of the validity of the will’s execution to the jury.

THOMPSON, J., concurs.

      . Section 43-8-167(a) provides, in pertinent part:
      "Wills offered for probate ... must be proved by one or more of the subscribing witnesses, or if they be dead, insane or out of the state or have become incompetent since the attestation, then by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will. Where no contest is filed, the testimony of only one attesting witness is sufficient.”
      Although this Code section did not take effect until January 1, 1983 (see § 43-8-8(a), Ala. Code 1975), this section mirrors preexisting law. See § 43-1-44, Ala.Code 1975 (repealed); and Ala.Code 1940, tit. 61, § 39.

      . When the decedent’s 1997 will was executed, the witness in question shared a law practice with the attorney who had drafted that will. The record indicates that the proponents had searched for the witness, placing a notice in the Alabama Lawyer, a publication of the Alabama State Bar. At the beginning of the trial of this matter, the court took "judicial notice” that such a notice had been published in the Alabama Lawyer approximately two or three months before the trial. Subsequently, the attorney for the proponents asked the court to "take judicial notice of the unavailability of [the missing witness],” and the court replied, "I think we have got that on the record.” The attorney for the proponents also stated on the record that as far as she knew, the missing witness was not in the State of Alabama.