author: WOODALL, Justice.

text:
    Janice DIXON v. BOARD OF WATER & SEWER COMMISSIONERS OF THE CITY OF MOBILE.
    1012131.
    Supreme Court of Alabama.
    March 14, 2003.
    Rehearing Denied May 16, 2003.

      John W. Parker, Mobile, for appellant.
    L. Bratton Rainey III of Luther, Oldenburg & Rainey, P.C., Mobile, for appellee.
   WOODALL, Justice.

Janice Dixon appeals from a summary judgment in favor of the Board of Water & Sewer Commissioners of the City of Mobile (“the Board”), in an action arising out of a sewage backup and discharge into Dixon’s residence. We reverse and remand.

Nearly all the material facts are disputed. However, it is undisputed that on November 21, 2000, raw sewage from a sewer system operated by the Board was discharged through plumbing fixtures in Dixon’s home, flooding the house, running out the front door, and forcing her to evacuate the premises. Consequently, on March 9, 2001, Dixon sued the Board, alleging, among other things, that the Board was negligent in the design, maintenance, and operation of its sewage system, including a “lift station adjacent to [her home], so as to allow ... raw ... sewage to escape from the ... sewer system” and flood her home.

The Board filed a motion for a summary judgment, and the trial court entered a summary judgment in favor of the Board. In doing so, it stated, in part:

“The plaintiffs complaint alleges that the defendant caused or allowed the sewage backup on her property. The event which led to the backup of sewage into the plaintiffs home was a grease blockage. There is no evidence that the defendant deposited grease into the sewer system or otherwise caused the grease blockage or otherwise wilfully or intentionally failed to rectify the grease blockage.”

Dixon appealed.

The principles that guide our resolution of this appeal are well settled:

“[I]n this state, no absolute liability stems from sewer system back-ups. Handley v. City of Birmingham, 475 So.2d 1185 (Ala.1985). Liability, if any, is measured by employing a negligence analysis. To recover, the complaining party must show 1) that the defendant undertook the duty to maintain a sewer system, 2) that he negligently discharged that duty, and 3) that the complaining party’s damages resulted from the defendant’s negligence. See Sisco v. City of Huntsville, 220 Ala. 59, 60, 124 So. 95 (1929).”

Water Works & Sewer Bd. of Ardmore v. Wales, 533 So.2d 212, 213 (Ala.1988). On a motion for a summary judgment, “[w]e review the evidence in the light most favorable to the nonmovant, and we must resolve all reasonable doubts against the movant.” Carson v. City of Prichard, 709 So.2d 1199, 1208 (Ala.1998). The parties’ versions of events, and, consequently, the cause of the sewage discharge into Dixon’s house, diverge widely.

I. Dixon’s Version

According to Dixon’s affidavit, filed in opposition to the Board’s motion for a summary judgment, she awoke at approximately 6:00 a.m. “to a gurgling sound and found [that] sewage had begun to enter [her] home as it was pumping out of the toilets and the tub.” Her affidavit further states:

“At around 6:00 a.m., I called ... a plumber and began to call friends for help. They referred me to the Board of Water & Sewer. I called the Mobile Board of Water & Sewer number on the morning of November 21, 2000, around 7:00.... As sewage was entering the entirety of my home some two to three inches deep, I began to carry my pets and belongings outside of my home to my vehicles. My vehicles were parked adjacent to the lift station and in the course of carrying out my pets and belongings, I noticed that the red light was on at the lift station. The red light at the lift station was on during the time the sewage was pumping into my home as the red light was blinking.
“2. The Board of Water & Sewer representatives arrived around 8:00 ... in the morning. By the time they arrived and did work inside the lift station, sewage had pumped into my home and through my home for one hour and everything that I had was covered with raw sewage. After they appeared around 8:00 a.m.and worked at the lift station, the sewage stopped pumping into my home.
“3. During the entire time that sewage was pumping into my home on the morning of November 21, 2000, and pri- or to the Board of Water & Sewer arriving around 8:00 a.m., roughly an hour after I called them, the red light was on at the lift station....
“4. The red light at the lift station had been on before and was on this particular morning. The red light at the lift station has been on a number of occasions after I moved into the home three months after November 21, 2000, particularly, October 13, 2001, at which time the red light was on; however, the Board of Water & Sewer was out within a few minutes to make repairs and I suffered no surcharging into my home. There have been other occasions after I moved back into my home after the November 21, 2000, event at which the red light would come on and the lift station would shut down; however, the Board of Water & Sewer has been responsive to those situations and has made repairs within a matter of a few minutes and I have had no further surcharge of raw sewage into my home after November 21, 2000.”

Dixon argues, among other things, that a system malfunction occurred at the “lift station,” which is located on property adjacent to, and below, her house, causing the sewage to back up into her home. She contends that the malfunction was electronically communicated to the Board’s personnel through an alarm system, but that they failed to respond to the alarm in a timely manner. In support of this theory, she presented by affidavit the expert testimony of Charles Peterson, Jr., an engineer with “experience in design, supervising and/or consulting with municipal and private sewage collection, treatment and operations facilities.” His testimony was based on his review of Dixon’s home, “the adjacent Water-Board lift station, the Rester & Coleman Construction plans for the subject lift station, and the Mobile Board of Water & Sewer work orders relative to the surcharging of sewage into Ms. Dixon’s home.”

Peterson testified, in pertinent part:

“3. Based on the Rester & Coleman construction plans for the subject lift station and the sanitary sewer system, the collection area is such that if the lift station adjacent to Ms. Dixon’s home is down and not running, the red light is on, which signals that the lift station is not functioning. If the red light is on signifying that the lift station is down, then based on the location of Ms. Dixon’s home, sewage will be pushed into her home as sewage from the adjacent homes cannot be processed at the lift station. As the red light was on during the time of Ms. Dixon’s surcharging, I am of the opinion that the malfunctioning of the lift station caused the sewage to surcharge into Ms. Dixon’s home.
“4. As the Board of Water & Sewer is charged with the responsibility of operating and maintaining the sewage collection system, to include the lift stations, it is imperative that a prompt response be made if, in fact, the red light is on at the lift station, as, failing a prompt response, within a few minutes, sewage will overflow carrying infectious bacteria into the home of Ms. Dixon, as occurred in this case.
“5. Further, it is my understanding that the lift station adjacent to Ms. Dixon’s home is tied into the Board of Water & Sewer system through a computer system which carries an instant signal to the Board of Water & Sewer for a response should the lift station be down, and, in this case, the response did not occur for approximately one hour, which, based on the crucial nature of the lift station, is not an adequate or timely response to preclude the surcharging into Ms. Dixon’s home as occurred.”

Peterson’s opinions regarding the operation of the lift station are consistent with testimony presented by the Board’s employees, in particular, James Sneed, its “collections systems engineer.” Sneed testified regarding, among other things, the function of the lift station:

“Basically, [sewage] flows downhill in a gravity system. The reason that we have lift stations in Mobile is that we don’t have enough change in terrain to have all the [sewage] flowing downhill all the way to the plant. So what you’ll have are gravity systems set up in neighborhoods, and they flow to a lift station, and then a lift station will pump that into another system, and it will gravity flow into the next lift station and be pumped on.... ”

Testimony from Sneed, in conjunction with testimony from other Board employees, including Malcolm Steeves, the director of the Board, indicated that each lift station is designed to receive sewage from one or more in-flowing sewer lines; the sewage flows into a reservoir, or “wet well,” in which one or more pumps are located. The pumps are preset to activate automatically when the wastewater in the wet well rises to a predetermined level. Similarly, they deactivate when the waste-water falls below a preset level.

The functions of the “red light” Dixon allegedly observed on the morning of November 21, 2000, in relation to the alarm system discussed in Peterson’s affidavit, are illuminated through Steeves’s testimony. The red light indicates a problem with the lift station. Steeves testified that “Mypieally,” the red light would indicate that the sewage level in the wet well has exceeded the “normal operating levels.” This condition could result from various causes, including the malfunction of one or more of the pumps in the lift station. Steeves said that the red light indicates that the lift station “needs attention.” If the pumps in the lift station are not functioning properly, he testified, it was possible that sewage could back up into Dixon’s house. Significantly, Steeves testified, a condition activating the red light would not result from a grease blockage between the lift station and Dixon’s house. In other words, a grease blockage above the lift station, but below Dixon’s house, would not trigger the red light at the lift station.

The same conditions that trigger the red light also automatically trigger a visual and audible alarm at the Williams Waste-water Facility (“the Williams plant”). Indeed, the Board has in place an electronic monitoring capability, which it refers to as “SCADA,” that according to Steeves “picks up certain information from the [lift] station and through radio transmission^], sends a signal back to the Williams plant,” approximately every eight minutes. Thus, the alarm should have sounded if the pumps in the lift station “were not working properly.” The alarm, like the red light at the lift station, would not be activated by a grease blockage in the sewer lines between the lift station and Dixon’s house.

II. The Board’s Version

According to the Board, the overflow occurred — not because of a malfunction at the lift station located below Dixon’s house — but because of grease buildup resulting in a blockage in the sewer line between the lift station and Dixon’s house. The Board contends that its first notice of a problem at Dixon’s home, or at the lift station, was Dixon’s telephone call at approximately 7:00 a.m. In other words, it concedes that it went to the lift station, not in response to a SCADA alarm, but in response to Dixon’s telephone call. The Board alleges that when its personnel arrived at the lift station between 7:30 a.m. and 8:00 a.m., they discovered, and, within approximately five minutes, dislodged, a grease blockage in the sewer line bettveen the lift station and Dixon’s home. It denies that the red light was activated at the lift station when its personnel arrived. The Board asserts that the Williams plant noted a SCADA alarm between 7:51 a.m. and 8:01 a.m., but insists that it sounded only because the pumps at the lift station were momentarily overwhelmed by the resumed flow of sewage that had accumulated behind the grease blockage.

III. Discussion

The Board states: “[T]he evidence is undisputed that the backup was caused by a grease blockage in the sewer line leading to the lift station.” Appellee’s Brief, at 4 (emphasis in original). This view of the evidence is demonstrably erroneous. Obviously, the parties’ theories of causation differ widely. Indeed, a material issue in this case is whether the damage to Dixon’s home resulted from a grease blockage between the lift station and Dixon’s house, or from a problem at the lift station to which the Board failed to respond adequately. “‘[I]t is well established that the question of proximate cause is almost always a question of fact to be determined by the jury, and that the question must go to the jury if reasonable inferences from the evidence support the plaintiffs evidence.’ ” Norris v. City of Montgomery, 821 So.2d 149, 155 n. 8 (Ala.2001) (quoting Lemond Constr. Co. v. Wheeler, 669 So.2d 855, 862 (Ala.1995)). Viewing the evidence in the light most favorable to Dixon, the nonmovant — as we are required to do, Renfro v. Georgia Power Co., 604 So.2d 408, 411 (Ala.1992)—we conclude that she presented substantial evidence in support of her theory that the backup was caused by a sewer-system malfunction at the lift station.

Dixon testified unequivocally that the red light was activated at the lift station by 7:00 a.m., nearly an hour before the Board’s personnel arrived. It was uncon-troverted that a grease blockage in the line above the lift station would not activate the red light, and that an activated red light indicates a problem with the lift station. Thus, Dixon’s testimony directly contradicts the Board’s theory of causation.

From the testimony of Dixon and her expert witness, it could be inferred that the water exceeded the preset high-water level in the wet well, triggering the alarm at the Williams plant at or before 7:00 a.m., that is, before Dixon’s home was entirely flooded with raw sewage. The Board does not allege that the alarm was inoperable on the morning of the incident. On the contrary, deposition testimony presented by the Board demonstrates that the alarm system was functioning on that morning. Thus, it could further be inferred that the Board failed to respond to the alarm in a reasonable time and in a manner calculated to prevent the discharge of sewage into Dixon’s house, considering the location of the lift station in relation to Dixon’s home. Of course, a jury will be free to reject any or all of the evidence necessary to establish Dixon’s theory of the case. That it may do so, however, is of no moment at this stage of these proceedings.

In this connection, the trial court, in response to the Board’s motion to strike the affidavit testimony of Charles Peterson, rejected Peterson’s testimony, stating in its order that Peterson had “not reviewed any depositions or other material documents and evidence in this case” and that Peterson’s “opinions appear to amount to nothing more than speculation and conjecture.” In doing so, the trial court erred.

To be sure, the opinions of an expert witness may not rest on “mere speculation and conjecture.” Townsend v. General Motors Corp., 642 So.2d 411, 423 (Ala.1994). However, a theory of causation is not mere conjecture, when it is deducible as a reasonable inference from “known facts or conditions,” Alabama Power Co. v. Robinson, 447 So.2d 148, 153-54 (Ala.1983). “ ‘[I]f there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a judicial basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.’ ” Griffin Lumber Co. v. Harper, 247 Ala. 616, 621, 25 So.2d 505, 509 (1946) (quoting Southern Ry. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924)).

If the jury should And Dixon’s testimony credible, that is, if it believes that the red light at the lift station was on at approximately 7:00 a.m., then Peterson’s theory of causation is logically deducible, based on his review of the evidence material to Dixon’s theory of the case. Indeed, the depositions of the Board’s employees and the SCADA records they produced are particularly material to the Board’s case, not to Dixon’s. For Dixon’s case, it was essential for Peterson to establish his knowledge of the lift station, and its construction, operation, and location, in relation to the Board’s system, to the Williams plant, and to Dixon’s house, in particular. He did so through his review of the “construction plans for the subject lift station and the sanitary sewer system.” Moreover, Peterson’s opinion does not conflict with the testimony of the Board’s personnel, insofar as it relates to the operation of the red light at the lift station and the alarm system at the Williams plant.

We reiterate that a material question is whether the red light was activated at the lift station before the Board’s personnel arrived. It is peculiarly the function of the jury to resolve such conflicts in the evidence as exist in this case. For these reasons, the trial court erred in entering a summary judgment for the Board. Therefore, the judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, and JOHNSTONE, JJ„ concur.

      . SCADA is an acronym for "supervisory control and data acquisition.”

      . It goes without saying that " ' "a court may not determine the credibility of witnesses on a motion for summary judgment.” ’ " Wilson v. Teng, 786 So.2d 485, 498 (Ala.2000) (quoting Ex parte Usrey, 777 So.2d 66, 68 (Ala.2000), quoting in turn Phillips v. Wayne's Pest Control Co., 623 So.2d 1099, 1102 (Ala.1993)).


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Adlee BRUNER and Riverbend Lumber Company v. GENEVA COUNTY FORESTRY DEPARTMENT et al.
    1011658.
    Supreme Court of Alabama.
    May 16, 2003.

      Henry F. Lee III, Geneva, for appellants.
    William H. Pryor, Jr., atty. gen., and David J. Dean, asst. atty. gen., for appellee Department of Conservation and Natural Resources, State Lands Division.
   HARWOOD, Justice.

As finally constituted, the civil action underlying this appeal was prosecuted by Adlee Bruner (“Bruner”), Riverbend Lumber Company, a Florida corporation (“Riverbend”), and Bruner Lumber Company, Inc., a Florida corporation (“Bruner Lumber”), against two agencies of the State of Alabama, the Alabama Forestry Commission (“Forestry”) and the State Lands Division of the Alabama Department of Conservation and Natural Resources (“Conservation”). Brought originally in the Geneva Circuit Court, the case was transferred to the Montgomery Circuit Court on Conservation’s motion.

The plaintiffs’ complaint contained two counts. Count one asserted a claim in detinue seeking possession of 80 pine logs physically in the possession of Forestry and Conservation, alleged to have been recovered after being “sunk while being rafted down the Pea River, a tributary of the Choctawhatchee River,” or, alternatively, their value, along with damages for their wrongful detention. Count two sought a judgment declaring the plaintiffs to be the owners of all logs still located in the beds of the Pea River and the Chocta-whatchee River in Geneva, Coffee, and Dale Counties, Alabama, bearing certain “brands,” as depicted by an exhibit to the complaint, “and all unmarked logs that were rafted with the branded logs.”

The exhibit was a copy of a document executed by Bruner, as president of River-bend, on May 11, 1998, declaring that “pursuant to Florida Statute 536.14” Riv-erbend had adopted certain “marks, brands, and stamps to distinguish and designate its ownership on floating or sunk lumber, logs and timber in the rivers, streams, or water courses of [Florida].” The document stated that the brands were “to be” stamped, branded, or cut into the ends or sides of the logs. Hand drawn on the face of the document were 25 “brands,” 11 of which consisted of capital letters of the alphabet, 4 of which were basic geometric shapes, 2 of which were Greek letters, one of which was the numeral “3,” and the remaining 5 of which were of random design, e.g., a star, a heart, etc.

The plaintiffs did not purport to bring the detinue claim as a statutory action pursuant to § 6-6-250 et seq., Ala.Code 1975, because their complaint did not ask for seizure or possession of the logs in advance of a final judgment. This fact presents no procedural impediment, however, because “[c]ommon-law detinue still exists in this state and does not involve recovery of property at the time of suit but only after judgment.” Richardson v. First Nat’l Bank, 46 Ala.App. 366, 371-72, 242 So.2d 676, 680 (1970). Forestry filed a motion to dismiss, asserting, among other things, that it made no claim to the logs and that it was simply storing the logs at Conservation’s request. Conservation filed an answer denying all allegations of the detinue count and, as to the declaratory-judgment count, denying that the plaintiffs had any ownership interest in the still submerged logs. Conservation admitted that it claimed ownership of the logs.

Forestry moved for a summary judgment, supported by the affidavit of the deputy legal counsel for Conservation, attesting that “[i]n November of 1997, employees of the Department of Conservation took possession of approximately eighty sunken logs that were being illegally removed from the Pea River in Geneva County, Alabama” and asserting further that Conservation had requested the local Forestry office to allow Conservation to “temporarily store the logs” on its premises. The affidavit acknowledged that after the plaintiffs filed this action, Forestry had requested Conservation to move the logs to another location, but that, because Conservation could not find another suitable location and was concerned about possible damage in transport, it had not removed them. Forestry asserted that it should be dismissed from the case “except possibly for the purpose of injunctive relief only, to make the logs available as the Court directs.”

The plaintiffs responded to Forestry’s motion; their response indicated that they had no objection to Forestry’s “being dismissed with respect to the claim for money damages” but that it should “remain in the suit for the purpose of being required to comply with any injunctive relief which might be granted to Plaintiffs in this cause.” However, at no time has the complaint contained a request for injunctive relief.

Conservation filed its own motion for a summary judgment supported by excerpts from the March 1, 2002, deposition of Bruner and an affidavit of Alton Reddick, a resident of Bruce, Florida, who is engaged in the logging business. Reddick attested that he was personally involved in the retrieval in 1997 of the 80 logs from “the bottoms of the navigable waterway known as the Pea River,-in the State of Alabama” at a point approximately 3 to 4 miles above the Florida state line and that Bruner “was not present at the time of any of the logs ... were retrieved from the waterbottoms, and he did not give me any direction or information as to the location of these logs.” Bruner testified in his deposition to the following: He knew Red-dick and the three individuals who worked with Reddick to take the logs out of the river, but they were not working for Bruner. “I had talked with them about the logs, but I wasn’t working with them, no ... the best I can remember, I was going to buy the logs from them. Best I can remember it.” One of the men told him that they had retrieved the logs from the tiny portion of the Pea River that dips down into Florida at the southern border of Geneva County. “I wasn’t there. They say they came out of the Florida part of the Pea River.” Bruner acknowledged that it was fair to' say that the logs had “probably been sitting there for a hundred years in these river beds.” He did not dispute that the rivers involved in this case are navigable. He did not have “any kind of documents or anything to indicate that these logs ... were bought by anybody in Florida, originally.”

Bruner based his claim of ownership to the logs on a collection of documents attached to his deposition as one exhibit. Two of the papers reflected that J.J. McCaskill and Co. (“McCaskill”) had recorded declarations in Walton County, Florida, in 1887 and 1889, respectively, stating that McCaskill had “adopted” certain symbols depicted on the declarations as its log and timber brands. The brands depicted coincide with the first 20 of the 25 brands listed on the exhibit to the complaint. Another of the documents was a May 20, 1991, quitclaim deed from Angelina M. Levy, an heir of the McCaskills, quitclaiming to Granger Bruner, Bruner’s father, all logs bearing the brands shown in the 1887 and 1889 declarations, “situate, lying and being in the County of Walton, Washington, Holmes & Bay, State of Florida ... lying in, along or under the Choc-tawhatchee River” and its tributaries. Also included in the collection of documents was a “bill 'of sale” from Granger Bruner to Riverbend, assigning all of his rights in the timber brands conveyed to him by Levy. The rest of the documents consisted of declarations of the adoption of various timber brands, “to be stamped, branded or cut into the ends or sides of logs,” executed by Bruner as president of either- Riverbend or Bruner Lumber. (Emphasis supplied.) The declarations were dated at various times from April 30, 1996, to April 30, 2000; each was recorded in a county in Florida. Some of the brands were the same as those included in the 1887 and 1889 declarations, but others were completely different. Bruner acknowledged at his deposition that the collection of documents constituted all of the documents “that I can think of at this time” evidencing his claim of ownership to the logs involved in this action.

Florida statutes §§ 536.13 through 536.16 (including § 536.14 referenced in each of the declarations) provide as follows:

“536.13 Stamp or brand for logs
“Any person engaged in this state in the business or getting out, buying, selling, or manufacturing saw logs, may adopt a stamp or brand for such logs, of such design as she or he may select.
“536.14 Brands to be recorded by clerk of circuit court
“A person may execute a written declaration that she or he has adopted a brand, describing it, and after acknowledgment of such declaration before any officer authorized to take acknowledgments of deeds, may have the same recorded by the clerk of the circuit court in the record of mortgages, in any county in which she or he may desire to own or have in possession saw logs.
“536.15 May prevent use by others
“Any person who has had her or his brand recorded in any county, may prevent other persons from using the same in said county by a writ of injunction, restraining such use.
“536.16 Prima facie evidence of ownership
“Any log found in any county branded with a brand recorded in said county by any person shall be deemed prima facie to be the property of such persons.”

Bruner testified that “from everybody that I’ve talked to in Alabama says that Alabama didn’t have brands” and he acknowledged that anyone placing logs in rivers for down-river flotation could imprint on them brands identical to the ones he had recorded. “They could be used anywhere anybody wanted to use them.” He testified that in Florida there was a permit system whereby a person could purchase a permit to retrieve logs from navigable waterways in that state. He had “called up a couple of times to Alabama” to explore the necessity of a permit for getting logs out of Alabama riverways but “[t]hey said they weren’t issuing any permits. So I did not pursue it any further.”

As can be seen from Florida statute § 536.16, a log found in a Florida county bearing a brand recorded in that county is prima facie deemed to be the property of the person who recorded the brand. The record reflects that it was the practice in the late 1800s and early 1900s for logs to be floated down the Choctawhatchee and Pea Rivers and their tributaries in Alabama to sawmills located in Choctawhat-chee Bay and Tucker Bayou in Florida. According to Bruner, under Florida law the brands “were used to identify the logs when they arrived at the sawmill in order that the sawmill operators would know who owned the logs, from whose land they had been cut and which timber crew had done the harvesting.” (Bruner provided no explanation as to how a brand might convey all of that information.) Also, Bruner stated in an affidavit he filed in opposition to Conservation’s motion for a summary judgment:

“8. Some of the logs were bunched together on what was called rafts and they were ‘rafted’ down the river tied by ropes or affixed by other means. In such instances it was common for not all the logs to be branded but rather the outside logs were branded to identify the group.
“9. While these logs were being floated down the river, often times a portion of the logs were lost either due to a natural disaster such as a flood, hurricane or high water and also logs were lost in curves on the river.
“10. The logs, which sunk to the bottom of the rivers, while remaining valuable, could not be found and recovered by the owners.
“11. These logs have been left in the rivers for approximately 100 years and have moved with the various natural disasters and high water, which has flowed through the rivers over this period of time.
“12. Water passing over these logs and the force with which they have moved down the rivers, have caused the brands to become unidentifiable in some occasions.
“13. Some of the logs have remained stationary for a long period of time while others have moved down river.”

In the materials filed in opposition to Conservation’s summary-judgment motion, the plaintiffs asserted that they were “the owner of all logs branded with certain brands more specifically described in Exhibit 1” attached to Bruner’s supporting affidavit. Exhibit 1 is a “Bill of Sale and Conveyance of Title,” signed on March 28 and 30 and April 1, 2002, respectively, by three signatories who identified themselves as the sole surviving heirs of the two partners in MeCaskill (“the bill of sale”). One of them identified herself in the process as the sole surviving hem of Levy, an intervening MeCaskill heir. The bill of sale transferred to Bruner all of the heirs’ interest in the brands recorded by MeCaskill in 1887 and 1889 and “the rights to said brands in all other counties where such brands may be recorded.” Additionally, the document covered “all saw logs and timber lying in, along, or under the Choctawhatchee River, Pea River, or their tributaries located in the States of Alabama and Florida bearing MeCaskill brands or unbranded logs bunched with logs or timber bearing MeCaskill brands.” The bill of sale declared that the two MeCaskill partners had died “more than 50 years ago.” The text of the plaintiffs’ filing in opposition to Conservation’s summary-judgment motion makes it clear that the plaintiffs were not basing them claim of ownership of the logs (as opposed to the brands) on any of the documents attached as exhibits to Bruner’s deposition, but were relying solely on the bill of sale. The plaintiffs apparently recognized that the 1991 quitclaim deed by Levy could not have released to Granger Bruner anything more than a partial ownership interest, and only as to logs located in Florida bearing a MeCaskill brand.

Also attached to the plaintiffs’ filing in opposition to Conservation’s summary-judgment motion were six pages from the deposition of Don Burdett, identified in the deposition as the “state land resources manager” for Conservation. He described the State’s claim to the logs as being based on the understanding that the logs “were abandoned and to óur knowledge, no attempt was made by the owner of the property to recover those logs,” on the fact that “a lot of these logs had become embedded in the sediments and incorporated as part of the bottoms of these rivers,” and on the principle that “[a]ny lands beneath navigable rivers” within Alabama are owned by the State. The plaintiffs argue that whether the logs could be classified as “abandoned” was, at the very least, a question of fact to be resolved by the jury. They quote from Johnson v. Northpointe Apartments, 744 So.2d 899 (Ala.1999), the propositions that “there is ‘a presumption that one does not intend to abandon’ property of value” and that “ ‘[abandonment of property requires intent plus an act. A sufficient act is one that manifests a conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession.’ ” 744 So.2d at 905 (quoting Milford v. Tennessee River Pulp & Paper Co., 355 So.2d 687, 689 (Ala.1978), and Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.Ct.App.1974), respectively). The plaintiffs take the position that “the logs involved were not abandoned but rather lost,” quoting Automobile Insurance Co. v. Kirby, 25 Ala.App. 245, 246, 144 So. 123, 124 (1932), for the proposition that “ ‘[g]oods or chattels are lost in the legal sense of the word only when the possession has been casually and involuntarily parted with, so that the mind has no impress of[,] and can have no recourse, to the event.” Of course, when and how any particular log might have sunk is not established anywhere in the record, and apparently is beyond establishing. All that the record reflects is that at various times approximately 100 years ago, numbers of logs sunk to the bottoms of the Chocta-whatchee and Pea Rivers or their tributaries.

On April 18, 2002, the trial court entered a brief order granting Forestry’s and Conservation’s motions for a summary judgment and dismissing the case. Bruner and Riverbend timely appealed from that order, but Bruner Lumber is not identified in any of the documents initiating the appeal, or in the appellants’ briefs, as a party to the appeal. Accordingly, we conclude that Bruner Lumber does not contest the summary judgments as to it and, therefore, we do not address them further.

Bruner and Riverbend (hereinafter referred to jointly as “the appellants”) contend that “in Florida, Riverbend purchased all rights to logs with certain brands, under a Florida statute, which provides for the ownership of brands”; that “Riverbend and Bruner purchased a number of log brands and recorded the purchases in the State of Florida”; and that “Bruner also purchased the logs identified by such brands located in the State of Alabama.” The appellants’ citations to the record in support of those contentions reflect that, with respect to the claim of ownership of those logs located in Alabama, they rely only on the 2002 bill of sale. As previously noted, that is consistent with the position they took in opposition to Conservation’s motion for a summary judgment. Even if the appellants had not abandoned their reliance on the various materials Bruner produced at his deposition, those materials would have been unavailing as proof of ownership or as showing a right of possession of the logs. The Levy quitclaim deed represented only a minority heirship interest and dealt only with “chattel property situate ... in” Florida. The Florida brand-recording statutes had legal effect only within Florida. The bill of sale executed by Granger Bruner assigned to Riverbend only those rights “in any and all timber brands conveyed by Angeline M. Levy,” in contrast to her broader quitclaim to him including “all saw logs and timber ” in the specified Florida riverways. None of the only five declarations recorded in the name of Riverbend cover any of the McCaskill brands, depicting rather only “new” brands adopted by Riverbend. Among them are the last 5 of the brands in the 25 brands listed on the exhibit to the complaint. All of those declarations, the earliest of which was recorded in April 1996, related prospectively to brands “to be” stamped on, or otherwise affixed to, logs. Consequently, given all of those considerations, the documents produced by Bruner at his deposition were ineffectual to establish in Alabama that he had any ownership interest in any of the logs in question.

Because Bruner was the only named vendee of the interests and rights covered by the bill of sale, and because there is no suggestion in the record that he ever transferred those interests and rights to Riverbend, Riverbend cannot rely on the bill of sale as evidence of its ownership of any of the logs. Accordingly, the summary judgment as to Riverbend is due to be affirmed on that basis alone.

Although the McCaskill heirs purport in the 2002 bill of sale to sell and transfer to Bruner all of their ownership in the described logs, neither the bill of sale nor anything else in the record purports to place any ownership of the logs in McCas-kill in the first instance. The 1887 and 1889 McCaskill declarations of the adoption of certain brands were recorded only in Walton County, Florida. Even there, they had only the limited effect of establishing prima facie evidence of McCaskül’s ownership of any log found in Walton County bearing a brand shown on the declarations. Thus, the appellants have failed to show any actual or original ownership or right of possession by MeCaskill in any of the 80 logs found in Alabama. In pointing out that missing element, as to which the appellants had the burden of proof, Conservation, as movant for a summary judgment, satisfied its burden of production and the burden then shifted to the appellants to present sufficient evidence of ownership. See Verchot v. General Motors Corp., 812 So.2d 296, 300 (Ala.2001). They did not carry that burden. On that basis alone, we would uphold the summary judgment denying Bruner’s claims of ownership or right of possession of the 80 logs.

Moreover, the only proof of ownership relied on by Bruner in the final analysis is that ownership purportedly vested in him by the bill of sale. The plaintiffs filed their complaint on May 15, 1998, and although they amended it once in March 2002 to rename, add, and eliminate parties, they never moved to amend it pursuant to Rule 15(d), Ala. R. Civ. P., to submit a supplemental pleading “setting forth transactions or occurrences or events which have happened since the date of the pleadings sought to be supplemented.” Thus, they never pleaded ownership arising from the “after-the-fact” bill of sale.

In Alabama, “[i]t is elementary that the gist of [a detinue action] is the wrongful detention. It is also elementary that the plaintiff must have the right to the possession of the chattel at the commencement of the suit, in order to recover.” Jesse French Piano & Organ Co. v. Bradley, 138 Ala. 177, 180, 35 So. 44, 44 (1902) (emphasis supplied). See, to like effect, Galleon Indus., Inc. v. Lewyn Mach. Co., 50 Ala.App. 334, 279 So.2d 137 (1973); Chrysler Credit Corp. v. Tremer, 48 Ala.App. 675, 267 So.2d 467 (1972); Hollingsworth v. Case, 267 Ala. 165, 100 So.2d 772 (1957); First Nat’l Bank v. Crawford, 227 Ala. 188, 149 So. 228 (1933); and Donahoo Horse & Mule Co. v. Durick, 193 Ala. 456, 69 So. 545 (1915). Thus, the summary judgment was proper as to Bruner’s deti-nue claim because, in addition to the reasons already discussed, Bruner had no right of possession to the 80 logs when this action began, and even if, contrary to the rule of Bradley and the other cases cited, after-acquired title could retroactively suffice if pleaded, the plaintiffs never moved to amend their complaint, as allowed by Rule 15(d), Ala. R. Civ. P., to reference the 2002 transaction evidenced by the bill of sale.

Likewise, there is an additional basis for affirming the summary judgments as to the declaratory-judgment count relating to logs that might be found in the Pea and Choctawhatchee Rivers in the future.

“[Bruner] does not contend that he owns every sunken dead-head log found in the rivers of the geographical areas upon which the suit is based. He contends that he owns certain of those logs, which he can identify as his property. It may well be that the evidence shows that some of the logs are embedded and certainly the evidence shows that other logs are not embedded but move with the currents.”

Appellants’ Reply Brief, pp. 5-6. In that regard, the appellants further assert in their reply brief that in this case “there are numerous pieces of property[,] each of which will have its own ‘story.’ ” One aspect of the “story” of each log submerged under the navigable waterways of Alabama will be whether the log is embedded in the river bottom soil. Bruner does not challenge the position taken by the State that logs found embedded in the riverbed of a navigable waterway belong to the State as the owner of the riverbed. “It has long been settled that the State of Alabama has title to the submerged lands in navigable waters Reid v. State, 373 So.2d 1071, 1074 (Ala.1979) (citing, cases going back to 1840). The State argues that although the “common law of finds” generally assigns ownership of abandoned property without regard to where the property is found, an exception to that rule is that “when the abandoned property is embedded in the soil, it belongs to the owner of the soil.... ” Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985). As discussed in Chance v. Certain Artifacts Found & Salvaged from the Nashville, 606 F.Supp. 801 (S.D.Ga.1984), case precedent establishes that “property need not be totally buried to satisfy the embeddedness requirement. What is affixed to the land belongs to the owner of that land.” 606 F.Supp. at 806. “Property which has become a part of the natural earth is not subject to the general rule of lost or mislaid property; such property belongs to the owner of the real estate upon which it is found.” 1 Am.Jur.2d, Abandoned, Lost, etc., Property § 29, p. 36.

Although Conservation asserts in its brief to this Court that it made a prima facie showing “that the logs involved in this case were embedded in the bottoms of the State of Alabama-owned navigable waterways,” and further asserts that “the plaintiffs admit that they are seeking ownership of abandoned logs that have been embedded in navigable Alabama waterways ...,” the appellants deny those assertions, and the portions of the record Conservation cites in support are inconclusive. For example, Conservation references a page of Bruner’s deposition where, upon being asked whether “these logs are embedded in the bottom of the waterways that we are talking about; right,” Bruner answered simply, “They are in the bottom of the waterways.” The other cited portions of the record reflect only that the logs have been submerged for approximately 100 years. Burdett testified that “a lot of [the 80 retrieved] logs had become embedded in the sediments and incorporated as a part of the bottoms of these rivers” (emphasis added), but Bruner asserted in his affidavit that, based on his years of experience, he knew that the logs in question would “have moved with the various natural disasters and high water.” He affirmed that although “some of the logs have remained stationary for a long period of time, ... others have moved down river.” Clearly the “embedded” status of logs submerged but as yet unfound will be important to, if not determinative of, ownership, but that status cannot presently be predicted.

Declaratory-judgment actions in Alabama are governed by the Declaratory Judgment Act, codified at §§ 6-6-220 through -232, Ala.Code 1975 (“the Act”). The Act does not “ ‘empower courts to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.’ ” Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)) (emphasis added in Stamps). Pursuant to § 6-6-226, declaratory relief may be afforded in cases “in which a judgment will terminate the controversy or remove the uncertainty,” but § 6-6-229 emphasizes the corollary that “[t]he court may refuse to enter a declaratory judgment where such judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

In their declaratory-judgment action, the plaintiffs asked the trial court to declare them the owners of all logs bearing certain brands, and associated unbranded logs, lying in the Choctawhatchee River and its tributaries in three Alabama counties. Determination of that ownership would require the trial court to speculate on presently undeterminable circumstances. There may be no logs remaining in the specified river systems that bear MeCaskill brands (those being the only logs Bruner could claim ownership to, assuming MeCaskill originally owned them). Any logs that do bear a MeCaskill brand may never be located. Any imprinted brand may not be readily discernible, thereby requiring a specific viewing and interpretation by the fact-finder. It will be difficult, if not impossible, to determine what unbranded logs might have been rafted with branded logs. Any logs located, assuming a tentative determination of brands can be made underwater, may be unrecoverable by Bruner for want of a necessary contract with, or permit issued by, the State of Alabama.

Furthermore, even a log bearing one of the brands adopted by MeCaskill in 1887 and 1889 may be a log thus branded by someone else and in fact never owned by MeCaskill. As Bruner acknowledged in his deposition, the mere fact that McCas-kill recorded certain log brands in Walton County, Florida, would not have prevented persons elsewhere from using that same brand. As explained at the beginning of this opinion, the 20 MeCaskill brands were mostly basic and common designs, including 11 capital letters. It was apparently a common practice throughout the Southeast to brand logs introduced into navigable waterways for transport to distant mills. See J.A. Bel Lumber Co. v. Stout, 134 La. 987, 64 So. 881 (1914). We take judicial notice that the Pea River flows south through Coffee County, Alabama, for many miles and that the Choctawhatchee River flows south through Dale County for many miles and that they converge in Geneva County just below the City of Geneva, to continue flowing into Florida as the Choctawhatchee River. Thus, it is obvious, as a geographical fact, that there would have been widespread opportunity for different persons to brand logs and place them into that extensive river system.

All of these possibilities and uncertaines, which allow a potential separate “story” for any log found submerged anywhere along that river system, would serve to render any declaratory judgment relating to Bruner’s ownership essentially an advisory opinion and one that “would not terminate the uncertainty or controversy giving rise to proceeding.” Therefore, the trial judge in this case acted well within the discretion accorded him by § 6-6-229 in declining prospectively to declare ownership of the logs in Bruner.

Although Conservation has not argued to us all of the principles discussed above as justifying the summary judgment, “[w]e will affirm a summary judgment if it is right on any ground developed in, and supported by, the record.” Ex parte Ramsay, 829 So.2d 146, 155 (Ala.2002).

Conclusion

We need not address the summary judgments entered against Bruner Lumber because it has not appealed from those judgments. We affirm the summary judgment entered against Riverbend because the record contains no evidence of title in Riv-erbend to any of the logs in question. We affirm the summary judgment as to Forestry not only on the merits but also because the plaintiffs conceded that the summary judgment might be properly entered in Forestry’s favor except for possible in-junctive relief, and no injunctive relief has been sought. We affirm the summary judgment against Bruner and in favor of Conservation because Conservation successfully established the lack of evidence in the record of any ownership or right of possession in Bruner to the logs. Furthermore, Conservation is entitled to a summary-judgment as to the detinue claim because Bruner made no showing of title existing in him when the complaint was filed, and it is entitled to a summary judgment as to the declaratory-judgment action because the declaration of ownership Bruner sought would be advisory and “would not terminate the uncertainty or controversy giving rise to the proceeding.” Accordingly, the summary judgments are affirmed in every aspect against Bruner and River-bend and in favor of Forestry and Conservation.

AFFIRMED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

      . The motion to transfer filed by Conservation stated, among other things: "The 'Geneva County Forestry Department,’ listed as a Defendant by Plaintiffs, is in fact the Alabama State Forestry Commission, an agency of the State of Alabama....”

      . Conservation also asserted the affirmative defense of “sovereign immunity as set forth in Article I, Section 14, of the Constitution of Alabama of 1901 it does not, however, argue that defense on appeal.

      . The plaintiffs essentially waived any objection to a summary judgment for Forestry as to all but possible injunctive relief, and nowhere in their appellate briefs do they protest the summary judgment entered for Forestry. Forestry, in turn, has not filed a brief on appeal.


author: JOHNSTONE, Justice.

text:
    Shelia HOLLY and Leroy Holly, as parents and next friends of Cameron Holly, a deceased minor v. HUNTSVILLE HOSPITAL and Dr. John Edward Markushewski, Jr., M.D.
    1000963.
    Supreme Court of Alabama.
    May 16, 2003.

      Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; and Maureen K. Cooper of Morris, Conchin, Banks & Cooper, Huntsville, for appellants.
    Stanley Rodgers, Daniel F. Beasley, and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
   JOHNSTONE, Justice.

Introduction

The plaintiffs, Shelia Holly and Leroy Holly, parents of Cameron Holly, appeal the judgment on the jury verdict in favor of the defendants Huntsville Hospital and Dr. John Edward Markushewski, Jr., in the medical malpractice action of the plaintiffs. We reverse and remand.

On October 6, 1997, Shelia Holly took her eleven-month-old son Cameron to the emergency room at Huntsville Hospital because he had a high fever, a high pulse rate, and trouble breathing. Dr. Markush-ewski, who was board-certified in family practice, was working in the emergency room when the Hollys arrived at the hospital. Dr. Markushewski treated Cameron for croup, observed him for three hours, gave Shelia a prescription for Cameron, and then released him to go home. After Shelia left the hospital, she went to a Winn Dixie pharmacy to get Cameron’s prescription filled. While at the pharmacy, Cameron went into respiratory arrest and then into cardiac arrest. Emergency medical technicians, responding to a 911 emergency call, transported Cameron to Huntsville Hospital, where he was pronounced dead. An autopsy of Cameron indicated that he died of necrotizing tracheobronchitis (severe tracheitis and bronchitis), a severe infection of the trachea and bronchi that obstructed his airway.

The plaintiffs sued Huntsville Hospital and Dr. Markushewski for medical malpractice. To prove medical negligence, the plaintiffs offered expert medical testimony by Dr. Mark Weber, who was board-certified in pediatrics, in emergency medicine, and in pediatric emergency medicine, and Dr. Lance Kreplick, who was board-certified in emergency medicine. The defendants objected to expert testimony from Dr. Weber and Dr. Kreplick on the ground that they were not “similarly situated” with Dr. Markushewski in that neither Dr. Weber nor Dr. Kreplick was board-certified in family practice as Dr. Markushew-ski was.

Relying on Waddail v. Roberts, 827 So.2d 784 (Ala.Civ.App.2000) (reversed by this Court six months after the trial of the case now before us, Ex parte Waddail, 827 So.2d 789 (Ala.2001)), the trial court held that, because Dr. Weber and Dr. Kreplick were not board-certified in family practice like the defendant Dr. Markushewski, they were not “similarly situated” with Dr. Markushewski and therefore were not competent to testify to the standard of care and the breach of that standard alleged by the plaintiffs. While the trial court allowed Dr. Weber and Dr. Kreplick to testify to causation, the trial court instructed the jury that these expert witnesses were not qualified to testify to the standard of care or to a breach of that standard. Further relying on Waddail v. Roberts, the trial court also instructed the jury that the standard of care applicable to Dr. Markushewski was the standard of care applicable to family practice physicians.

The jury returned a verdict in favor of the defendants. The plaintiffs moved for a new trial. The trial court denied the motion and entered a judgment on the jury verdict in favor of the defendants.

On appeal, the plaintiffs argue that Waddail v. Roberts, followed by the trial court in excluding testimony by the plaintiffs’ expert witnesses on standard of care and breach of that standard, and cited by the trial court in instructing the jury on the competency of the plaintiffs’ expert witnesses and on the standard of care applicable to the defendant doctor, was wrongly decided. The plaintiffs argue to us, as they did before the trial court, that the standard of care applicable to the defendant doctor was the standard applicable to a doctor practicing emergency medicine, as the defendant Dr. Markushewski was in treating Cameron. The plaintiffs argue, therefore, that the trial court erred to reversal in excluding the plaintiffs’ experts’ testimony to standard of care and breach of that standard and in instructing the jury on the plaintiffs’ experts’ competency and on the applicable standard of care. The defendants argue that any error by the trial court was harmless because “Dr. Markushewski himself.provided the same testimony the plaintiffs’ experts would have provided concerning the standard of care, and this testimony was sufficient to establish a jury question whether Dr. Mar-kushewski breached the standard of care.” (Appellees’ brief, p. 7.)

Testimony

In the plaintiffs’ case-in-chief, they called the defendant Dr. Markushewski as an adverse witness. On direct examination, he testified that he was board-certified in family practice but was not board-certified in emergency medicine. He testified further that, when he treated Cameron, he was “working in the emergency room practicing emergency medicine” and was “not [working] as a family practice doctor.” (R. 10.) Dr. Markushewski admitted that he had not obtained a complete history of Cameron’s illness, had treated him for croup rather than for necrotizing tracheobronchitis, had not admitted him to the hospital, had not intubated him to protect his airway, and had not recorded his vital signs before discharging him. Dr. Markushewski further admitted that tra-cheitis, a part of tracheobronchitis, requires admission to the hospital and intu-bation of the patient to protect his airway.

On cross-examination by defense counsel, Dr. Markushewski testified about the standard of care to be met by a doctor practicing emergency medicine:

“Q. Tell me what the standard of care is, Doctor, as you understand it?
“A. Standard of care, as I understand it, is that the standard of care implies what a reasonable and prudent physician would do to evaluate and treat a patient who presents to the emergency department.
“Q. Let’s talk about Cameron Holly for a minute. Does the standard of care with Cameron Holly require you to take a history from his mother about his illness?
“A. Yes, sir.
“Q. And did you do that?
“A. I did.
“Q. And did you take the appropriate history that met the standard of care?
“A. Yes, sir.
“Q. Did it require that you do a physical examination?
“A. Yes, sir.
“Q. And did you do that physical examination?
“A. I did.
“Q. And did you do a thorough and appropriate physical examination for his presentation?
“Q. Now, let me talk to you about the literature and your course of action here. I want to show you some information from a publication, Pediatrics in Review, December 1997. One of the sections in here deals with croup and its treatment; am I correct?
“A. Yes, sir.
“Q. You’ve reviewed that?
“A. Yes, sir.
“Q. You consider that to be an authoritative — or reliable authoritative information with respect to the treatment of croup?
“A. Yes, sir.
“Q. ‘Current research suggests that children presenting with croup who are in significant distress may be treated effectively with racemic epinephrine or L-epinephrine and steroids, undergo a period of observation, and be discharged home safely if they are free of stridor and retraction and have access to appropriate follow-up care. The recommended period of observation varies from one to three hours.’ Do you agree that is appropriate and acceptable care to be provided to an infant such as Cameron Holly ?
“A. Yes, sir.
“Q. Would it represent one method of treatment of a patient such as Cameron that would meet the appropriate standard of care for someone taking care of a patient such as Cameron Holly?
“A. Yes, sir.
“Q. In this case, did he receive racemic epinephrine?
“A. Yes, sir.
“Q. Steroids?
“A. Yes, sir.
“Q. We haven’t talked about that. He got the two shots, one was an antibiotic Rocephin?
“A. Right.
“Q. The other was Decadron, the steroid?
“A. That’s correct.
“Q. So, he had received both epinephrine and steroid?
“A. Right. Yes, sir.
“Q-He had undergone a period of observation that was approximately three hours?
“A. Yes, sir.
“Q. He was free of stridor, correct?
“A. Yes, sir.
“Q. He was free of reactions?
“A. Yes, sir.
“Q-Did he have access to appropriate follow-up care?
“A. Yes, sir.
“Q. Had you arranged for that followup care the next day?
“A. Yes, sir.
“Q. Let me see if I can find this other one. Let me show you an article from the — I believe it’s Mayo Clinic — the Mayo Clinic Procedures I believe is the publication of the Mayo Clinic here. And ask you if you have reviewed that.
“A. I have.
“Q. And does it contain information that is pertinent to the treatment of a patient like Cameron Holly?
“A. Yes, sir.
“Q. And does it make a recommendation for treatment of a patient like Cameron Holly?
“A. Yes, sir.
“Q. They note, ‘It seems to be safe to dismiss a child who received nebu-lized adrenaline.’ Is that racemic epinephrine?
“A. Yes, sir.
“Q. From the emergency department, if, after three to four hours of observation, the child has not stridor at rest, normal air entry, normal color, normal level of consciousness, and has received one dose of .6 milligrams per kilogram of dex-amethasone. Is that Decadron?
“A. Yes, sir.
“Q. Same as what [Cameron] received?
“A. Yes, sir.
“Q. And, he received that treatment?
“A. Yes, sir.
“Q. Lastly, have you reviewed an article on ‘The Cost Effective Use of Nebulized Racemic Epinephrine’?
“A. Yes, sir.
“Q. This one here — ‘In the treatment of Croup’ from the American Journal of Emergency Medicine, January 1998?
“A. Yes, sir.
“Q. Does it contain reliable information, reliable authority for the treatment of patients such as Cameron Holly?
“A. Yes, sir.
“Q. Does it provide that if there is significant improvement after treatment with racemic epinephrine, patient should be observed for three hours in the ED [emergency department] until the effect of the medication is gone to assess for relapse of the stridor respiratory distress. If continued improvement, therapy may include discharge on appropriate therapy and close follow-up.
“A. Yes, sir.
“Q. Was that, too, in keeping with the standard of care that was being advised for patients being treated as was Cameron Holly?
“A. Yes, sir.
“Q. And did you follow that?
“A. Yes, sir. He stayed in the ED [emergency department] for approximately three hours after the completion of racemic epinephrine treatment.
“Q. Let me close with a couple of questions. In the care that you provided to Cameron that day, that morning and that early afternoon during that four hours that he was there in the emergency department at Huntsville , Hospital, did you bring to him your education, your experience, and did you do what you thought was in his best interests for his presentation?
“A. In my medical judgment I did, yes, sir.
“Q. And did you follow those teachings and that training that you had and these things such as we’ve just alluded to from the medical literature that set forth plans for care for patients such as Cameron Holly as you rendered care to him that day?
“A. Yes, sir.
“Q. Did you perform in a manner which is in keeping with the standard of care required of you as a doctor practicing in the emergency department at the time in question of October 6,1997?
“A. Yes, sir.
“Q. Did you in any way violate what was the standard of care required of you in taking care of Cameron Holly on October 6,1997?
“A. No, sir.”

(R. 223-232.)

Thereafter, on redirect examination by counsel for the plaintiff, Dr. Markushewski testified further:

“Q. ... If someone has a severe case of viral tracheitis, you agree that the standard of care requires all of these things?
“A. If someone has a severe case of viral tracheitis, that would — as we talked about earlier, Cameron did not have that.
“Q. I understand you say that is correct, but if that were the truth, then you agree that the standard of care requires mandatory admission to the hospital, aggressive treatment, safe airway, all three of those things, right?
“A. That’s correct.”

(R. 232.)

Expert witness Dr. Weber testified that he had been board-certified in pediatrics, emergency medicine, and pediatric emergency medicine. He testified that he treats his own and other pediatric patients in the emergency room and that, when he is on call for the pediatric emergency department, he answers calls from other emergency room physicians about their pediatric patients. Dr. Weber testified he has practiced emergency medicine in this manner for several years, including the year before the alleged breach occurred. Had Dr. Weber been permitted to testify about the standard of care and the breach of that standard alleged by the plaintiffs, he would have testified as follows:

“Q. Dr. Weber, are you familiar with the minimum standard of care required of a physician seeing a pediatric patient like Cameron Holly in an emergency room setting in October of 1997?
“A. Yes.
“Q. On the basis of your medical education, background, and training and experience, your review of the records in this case, do you have an opinion as to whether Dr. Mar-kushewski met and satisfied the standard of care in this case?
“A. Yes.
“Q. What is that opinion?
“A. That he did not.
“Q. In what respects did Dr. Markush-ewski deviate or depart from the minimum standard of care applicable to the facts of this case?
“A. That if a diagnosis of tracheitis, be it bacterial or viral, is seriously entertained or made, there is only one management option for that patient, and that patient goes to the operating room, they have an artificial airway placed, and they’re treated with antibiotics.
“Q. All right. In your opinion, did the standard of care require Dr. Mar-kushewski to see that that was done in this case?
“A. Yes.
“Q. If the standard of care had been met in this case, Dr. Weber, do you have an opinion based on reasonable medical probability as to whether Cameron Holly would probably have survived?
“A. Yes.
“Q. What is that opinion?
“A. That he would have survived.
“Q. What do you base that opinion on?
“A. I base that opinion on two facts: One, if you have either severe croup or tracheitis, or for that matter epiglottitis, if those patients are timely taken, in the case of severe croup, to an intensive care unit and have frequent, rapid cardiopulmonary assessments so that you recognize when that child is tiling out, their airway can be managed appropriately. Certainly, if you have a patient with epiglottitis or tra-cheitis, if those patients are taken — if those patients are taken to the operating room and their airway is managed appropriately, they do very well. And, in fact, for the most part are extubated within 48 or 72 hours....
“Q. All right.
“A. And then the second area is if they’re admitted in the case of severe croup, certainly in a pediatric intensive care unit setting, which this hospital had and if there was a pediatric intensivist available— from what I can gather from the records, Dr. McDuffey, she was available — that that airway would have been managed quite optimally-
“Q. All right. And that Cameron Holly would have survived even if he had had a respiratory arrest before his airway was protected?
“A. Yes.
“Q. You say the standard of care would require protection of the airway, admission to the hospital before Cameron arrested outside the hospital 45 to 50 minutes after he was discharged?
“A. That’s correct.”

(R. 284-87.)

The plaintiffs’ other expert witness, Dr. Kreplick, testified by affidavit that he “became board certified in emergency medicine in 1994, and [he has] been actively engaged in the practice of emergency medicine continuously and without interruption since 1991.” He testified further by this affidavit that the defendant Dr. Markush-ewski “breached the minimum standard of care” “required of emergency room physicians in diagnosing and treating children like Cameron Holly” by “Negligently disc-harg[ing]” him, “Negligently failing] to stabilize and treat” him, “negligently failing] to arrange for [him] to be admitted to the hospital,” and “Negligently fail[ing] to appreciate the severity and seriousness of [his] condition.”

The trial court did allow Dr. Weber and Dr. Kreplick to answer hypothetical questions limited to the issue of causation in testimony admitted into evidence before the jury. Both testified to the jury that, if Cameron Holly had been “admitted to the hospital [and] aggressively treated with regard to a diagnosis of tracheitis, and [if] steps [had been] taken to protect his airway,” he would have survived. (R. 330, 416.) While the evidence established that Cameron had not been so treated by the defendant Dr. Markushewski, neither plaintiffs’ expert was allowed to testify that these omissions constituted a breach of the applicable standard of care.

Law

A. Alabama Medical Liability Act

Section 6-5-548(a), Ala.Code 1975, a part of the Alabama Medical Liability Act, provides:

“(a) In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.” (Emphasis added.)

Section 6 — 5—548(b), applicable to defendant health care providers who are not specialists, provides:

“(b) ... [A] ‘similarly situated health care provider’ is one who meets all of the following qualifications:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same discipline or school of practice.
“(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.”

Section 6-5-548(c), applicable to defendant health care providers who are specialists, provides:

“(c) ... [A] ‘similarly situated health care provider’ is one who meets all of the following requirements:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same speciality.
“(3) Is certified by an appropriate American board in the same specialty.
“(4) Has practiced in this speciality during the year preceding the date that the alleged breach of the standard of care occurred.”

Section 6-5-548(e) governs the competency of expert witnesses to testify to breach of the standard of care in medical malpractice actions:

“(e) The purpose of this section is to establish a relative standard of care for heath care providers. A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a ‘similarly situated health care provider’ as defined above. It is the intent of the Legislature that in the event the defendant health care provider is certified by an appropriate American board or in a particular specialty and is practicing that specialty at the time of the alleged breach of the standard of care, a health care provider may testify as an expert witness with respect to an alleged breach of the standard of care in any action for injury, damages, or wrongful death against another health care provider only if he or she is certified by the same American board in the same specialty.”

(Emphasis added.)

B. Waddail v. Roberts

In Waddail v. Roberts, the plaintiff alleged that the defendant doctor, who was certified by the American Osteopathic Board of Family Physicians, had breached the standard of care applicable to a doctor practicing emergency medicine, which required the doctor to stabilize a diabetic patient before the doctor transferred the patient to another facility. To prove medical negligence, the plaintiff offered expert testimony by a doctor who was certified by the American College of Emergency Medicine. The trial court granted the defendant’s motion for a summary judgment; the plaintiff appealed the summary judgment to this Court; and this Court transferred the appeal to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975.

The Court of Civil Appeals acknowledged that “the medical negligence alleged in this case would have occurred during the practice of emergency medicine.” 827 So.2d at 788. Even though the defendant doctor was not board-certified in emergency medicine, the Court of Civil Appeals treated him as a specialist and applied § 6-5-548(c) to determine whether the proffered expert witness was “similarly situated” and therefore competent to testify under § 6-5-548(e). The Court of Civil Appeals “conclude[d] that, because [the defendant doctor and the proffered witness] were certified by different boards, [the proffered witness could not] testify as to the standard of care to which [the defendant doctor] is to be held.... ” 827 So.2d at 788.

C. Ex parte Waddail

Reversing the judgment of the Court of Civil Appeals, this Court, in Ex parte Waddail, held that the Court of Civil Appeals had erred in applying subsection (c) and the last sentence of subsection (e) of § 6-5-548 in the Alabama Medical Liability Act to determine whether the proffered expert witness was competent to testify against the defendant doctor on the issue of medical negligence.

“[The defendant doctor] is board-certified in family medicine; however, the alleged breach of the standard of care occurred while he was practicing emergency medicine. In Medlin [v. Crosby, 583 So.2d 1290 (Ala.1991)], this Court held that for the purposes of determining whether a defendant doctor is a ‘specialist’ under subsection (c), ‘the trial court should look to whether the defendant “health care provider” is board-certified in the speciality or discipline or school of practice that covers the area of the alleged breach.’ 583 So.2d at 1294 (emphasis added [in Ex parte Waddail]). [The defendant doctor], who is not board-certified in emergency medicine, ... is not a specialist.’ ” (Footnote omitted.)

Ex parte Waddail, 827 So.2d at 793. In other words, we held that a defendant board-certified health-care provider practicing outside his speciality in undertaking the allegedly negligent treatment is not a “specialist” protected by the more stringent qualifications imposed by subsection (c) (as compared with subsection (b)) of § 6-5-548 for adverse expert witnesses. We held further that the disqualification of any proffered adverse expert witness not “certified by the same American board in the same specialty” imposed by the “last sentence of subsection (e) [of § 6-5-548] applies only to cases involving specialists.” 827 So.2d at 794.

We held that, because the defendant doctor had been practicing outside his spe-ciality in committing the alleged medical negligence, he was not a “specialist” in the case then before us. We held that, because the defendant doctor was not a specialist, subsection (b) rather than subsection (c) of § 6-5-548 applied to determine whether the proffered expert witness qualified as “similarly situated” with the defendant. We concluded that the proffered expert witness met the qualifications of a “similarly situated health care provider” specified by § 6-5-548(b), which did not require board certification in the same specialty as the defendant’s, and therefore met the applicable criterion for competency to testify imposed by § 6-5-548(e).

Analysis

In reaching our conclusion in Ex parte Waddail, we recognized the three questions formulated in Medlin v. Crosby, 583 So.2d 1290 (Ala.1991), for determining whether a proffered expert witness qualifies as a “similarly situated health care provider” within the meaning of the Alabama Medical Liability Act:

“(1) What is the standard of care alleged to have been breached? (2) Is the defendant ‘health care provider’ a specialist in the discipline or school of practice of the standard of care that the court has previously determined is alleged to have been breached? (3) Does the proffered expert witness qualify as a ‘similarly situated health care provider’ under the subsection determined in the second step to apply?”

Medlin, 583 So.2d at 1293, and Ex parte Waddail, 827 So.2d at 793. Therefore, in the case now before us, we will answer the same three questions to determine whether the plaintiffs’ experts Dr. Weber and Dr. Kreplick are “similarly situated” with the defendant Dr. Markushewski and therefore competent to testify against him.

The defendants do not dispute that “the standard of care alleged to have been breached” was the standard of care applicable to doctors practicing emergency medicine. Likewise, the defendants do not dispute that “the defendant ‘health care provider’ [was not] a specialist” in emergency medicine. Because the defendant doctor was not “a specialist in the discipline or school of practice” subject to “the standard of care alleged to have been breached,” § 6-5-548(b) governs the issue of whether the plaintiffs’ experts Dr. Weber and Dr. Kreplick are “similarly situated” with the defendant doctor and therefore competent to testify against him. Medlin, supra, and Ex parte Waddail, supra. The record contains virtually uncontradicted evidence that both plaintiffs’ experts meet all three “qualifications” specified § 6-5-548(b) — the requirements of (1) the appropriate license, (2) the training and experience “in the same discipline or school of practice” as the defendant’s discipline or school of practice (emergency medicine) in his treatment of Cameron, and (3) the actual practice in that “same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.” The trial court did not find, and the defendants do not argue before us, any absence of any of these three § 6 — 5—548(b) qualifications in either of the plaintiffs’ two expert witnesses. Therefore, they are “similarly situated” with the defendant doctor under § 6-5-548(b) and are not disqualified from testifying by the last sentence of § 6-5-548(e). Ex parte Waddail, supra. Thus, the trial court erred in excluding the testimony of the plaintiffs’ expert witnesses Dr. Weber and Dr. Kreplick.

For virtually the same reasons, we hold that the trial court erred in instructing the jury that the plaintiffs’ experts were not qualified to testify to standard of care and breach of that standard. Likewise, we hold that the trial court erred in instructing the jury that the standard of care applicable to the defendant doctor was the standard of care applicable to family practice physicians as distinguished from physicians practicing emergency medicine.

The defendants argue that any error by the trial court was harmless. In brief they write:

“Because the jury was presented with expert testimony sufficient to support a verdict for the plaintiffs, and the testimony of the plaintiffs’ experts as to the standard of care would have been cumulative, the jury’s verdict cannot properly be set aside simply because the experts were not allowed to testify on that issue. The same is true of the alleged error in instructing the jury that the applicable standard of care was that of a ‘family practice physician.’ Like the alleged error in excluding the experts’ testimony on the standard of care issue, the alleged error in instructing the jury not only had to be erroneous, but also prejudicial.”

(Appellees’ brief, p. 9.) Essentially, the defendants are arguing that the plaintiffs’ proof of a prima facie case renders harmless all of the errors committed against them.

“ ‘[T]he trial judge’s refusal to permit certain witnesses to testify will constitute reversible error if those witnesses are produced to give testimony which goes to settle an ultimate issue in the case and which is different from the testimony given by the witnesses who have already testified.’
“C. Gamble, McElroy’s Alabama Evidence § 10.06 at 34 (5th ed.1996).
“ ‘The integrity of our judicial system should be maintained by giving litigants a fair and just trial. The outcome may be the same, but the parties should be given an opportunity to present their evidence. Otherwise, the public’s respect for and trust in our judicial system cannot be maintained.’
“Morrison v. Morrison, 628 So.2d 839, 841-42 (Ala.Civ.App.1993) (Robertson, P.J., dissenting).”

State ex rel. Pryor v. Cupps, 770 So.2d 1111, 1112 (Ala.Civ.App.2000).

“Under Alabama law, ‘ “[a] party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for the granting of a new trial.” ’ King v. W.A. Brown & Sons, Inc., 585 So.2d 10, 12 (Ala.1991) (citation omitted). When an objection to a jury charge has been properly preserved for review on appeal, as this one was, we ‘ “look to the entirety of the [jury] charge to see if there was reversible error,” ’ and reversal is warranted only if the error is prejudicial. King, 585 So.2d at 12.
“... The defendants were entitled to instructions that were germane to the legal theories for which there was substantial evidence. Therefore, the trial court’s charge was prejudicial and constituted reversible error.”

George H. Lanier Mem’l Hosp. v. Andrews, 809 So.2d 802, 806-07 (Ala.2001). The only testimony the plaintiffs were allowed to introduce to prove the applicable standard of care and the defendant' doctor’s breach of that standard, and thereby to prove the ultimate fact of his medical negligence, consisted of his own admissions in response to the plaintiffs’ questions addressing the individual elements of the standard of care and of a hypothetical breach. The defendant doctor, answering his own counsel’s questions, however, testified positively that he did not breach the standard of care. The testimony of the plaintiffs’ proffered and qualified experts to the effect that the defendant doctor did breach the standard of care would have responded in like terms to the persuasive effect of the defendant doctor’s own testimony to the contrary. Therefore, the exclusion of this competent expert testimony proffered by the plaintiffs “has probably injuriously affected [the] substantial rights of the [plaintiffs].” Rule 45, Ala. R.App. P. The erroneous jury instructions to the effect that the plaintiffs’ experts were not qualified to testify to standard of care and breach can only have exacerbated the plaintiffs’ prejudice by diminishing their experts’ credibility on the one issue they were allowed to address: proximate causation. Finally, if the jury could deduce from the state of the evidence that the defendant doctor had breached the standard of care applicable to a doctor practicing emergency medicine, as the defendant doctor admittedly was, the jury can only have been bewildered, if not actually dissuaded from a verdict for the plaintiffs, by the instruction that the defendant doctor was subject to the standard of care applicable to family practice physicians.

Conclusion

The trial court committed errors which probably injuriously affected the substantial rights of the plaintiffs. Therefore, they are entitled to a new trial. Rule 45, Ala. R.App. P. This judgment must be reversed and the cause remanded.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., and STUART, J., concur in the result.