author: PITTMAN, Judge.

text:
    DRUMMOND COMPANY, INC. v. Earl Wayne BONNER.
    2010111.
    Court of Civil Appeals of Alabama.
    May 24, 2002.
    Certiorari Denied Oct. 18, 2002
    Alabama Supreme Court 1011730.

      William Anthony Davis III and Philip G. Piggott of Starnes & Atchison, L.L.P., Birmingham, for appellant.
    John E. Warren III and Jonathan C. Sapp of Warren & Sapp, L.L.C., Jasper, for appellee.
   PITTMAN, Judge.

Earl Wayne Bonner (“the employee”) sued Drummond Company, Inc. (“the employer”), for workers’ compensation benefits. The employee alleged that he was injured in a work-related accident in December 1994 and in a second work-related accident in February 1997, and that he suffered a permanent disability as a result of either injury or both injuries.

The employer filed a summary-judgment motion, arguing that the employee’s workers’ compensation claims are barred because the employee failed to list those claims on his Chapter 7 bankruptcy petition, which he filed a few months after filing his workers’ compensation action. The trial court denied the employer’s summary-judgment motion. The trial court also denied the employer’s motion to stay the trial.

Following a bench trial, the trial court ruled that the employee’s failure to list his workers’ compensation claims in his Chapter 7 bankruptcy petition did not estop him from filing the workers’ compensation action. The trial court further found that the employee had a permanent total disability. The employer appeals.

The employer argues that the trial court (1) misapplied the doctrine of judicial es-toppel by allowing the employee to proceed with his workers’ compensation claims when the employee had failed to list his claims on his Chapter 7 bankruptcy petition; (2) erred by finding that the employee had proved legal causation; (3) erred by finding that the employee had proved medical causation; and (4) erred by finding the employee had suffered a permanent total disability.

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

I. The Doctrine of Judicial Estoppel

We first address the employer’s argument that the doctrine of judicial estoppel bars the employee’s workers’ compensation claims. Our supreme court discussed and clarified the doctrine of judicial estoppel in Jinright v. Paulk, 758 So.2d 553 (Ala.2000). The court stated:

“The doctrine of judicial estoppel ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Judicial estoppel looks to the connection between the litigant and the .judicial system!,] while equitable estoppel focuses on the relationship between the parties to the prior litigation.’ Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala.1992) (quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3rd Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988)). The doctrine is applied to uphold the integrity of the judicial system. Chandler v. Samford University, 35 F.Supp.2d 861 (N.D.Ala.1999). However, this court has recognized a number of limitations upon the rule against asserting inconsistent positions in judicial proceedings.
“ ‘ “[T]he following have been enumerated as essentials to the establishment of an estoppel under the rule that a position taken in an earlier action estops the one taking such position from assuming an inconsistent position in a later action: (1) The inconsistent position first asserted must have been successfully maintained; (2) a judgment must have been rendered; (3) the positions must be clearly inconsistent; (4) the parties and questions must be the same; (5) the party claiming estoppel must have been misled and have changed his position; and (6) it must appear unjust to one party to permit the other to change.” ’
“28 Am.Jur.2d § 70 Estoppel and Waiver (1966) (as quoted with approval in Porter v. Jolly, 564 So.2d 434, 437 (Ala.1990)). Thus, a party may not claim the benefit of the doctrine of judicial estop-pel unless the party can demonstrate that the party against whom the estop-pel is sought procured a judgment in its favor as a result of the inconsistent position taken in the prior proceeding. Moreover, the party claiming the estop-pel must have been misled by the conduct of the party against whom the es-toppel is sought, and consequently changed its position to its prejudice. Id."

758 So.2d at 555.

The employer argues that the application of the doctrine of judicial estoppel in this case should have precluded the employee’s workers’ compensation claim. We disagree. The employer cites Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 917, 918 (Ala.1993), in support of its argument. Luna was distinguished in Jinright, quoted above, because the plaintiff in Luna had sued a creditor after not listing the potential claim against the creditor on his Chapter 7 bankruptcy petition. The Jinright court also distinguished Luna because the plaintiff in Jinright had filed a Chapter 13 bankruptcy petition and the plaintiff in Luna had filed a Chapter 7 bankruptcy petition.

The employee in this case did not list his workers’ compensation claim as a potential claim on his Chapter 7 bankruptcy petition. The employer is not one of the employee’s creditors and was not a party to the bankruptcy proceedings. The employee testified that he did not list his workers’ compensation claim on the advice of his bankruptcy attorney, who is not representing him in the worker’s compensation case. The employee testified that the bankruptcy attorney advised him that workers’ compensation benefits would be exempt from the bankruptcy estate and that listing the claim was not necessary. We conclude that application of the doctrine of judicial estoppel does not preclude the employee’s workers’ compensation claim.

The Jinright court stated:

“[A] debtor’s mere knowledge or awareness of a potential claim and the debtor’s failure to include the claim as an asset on the bankruptcy schedules filed with the court, without more, are not sufficient to invoke the application of the doctrine of judicial estoppel.... Furthermore, ... a defendant (such as the employer) seeking to apply the doctrine must prove prejudice to the defendant.”

758 So.2d at 559. The employer has shown no prejudice caused by the employee’s failure to list his workers’ compensation claim as a potential asset of the bankruptcy estate. Although Jinright addressed a Chapter 13 bankruptcy, its requirement that the party seeking to preclude a claim via judicial estoppel must show prejudice has been followed in cases involving a Chapter 7 bankruptcy. See Hoffman v. Truck Driving Academy, Inc., 777 So.2d 151 (Ala.Civ.App.2000); and Battle v. Alpha Chem. & Paper Co., 770 So.2d 626 (Ala.Civ.App.2000) (both requiring a showing of prejudice in order to preclude a claim via judicial estoppel).

II.Legal Causation and Medical Causation

We next address the employer’s arguments that the employee failed to prove legal causation and medical causation. The employee testified that he suffered a work-related injury to his leg in December 1994 and another work-related injury to his neck in February 1997. The employee testified that the December 1994 injury was caused by a steel relay bar falling on his right leg and breaking it. He testified that the February 1997 neck injury was caused by his hitting a “low shield” in the coal mine. Therefore, we conclude that the employee presented substantial evidence of the legal causation of his injuries.

In order to prove medical causation, the employee must present substantial evidence showing that his work-related accidents are “a contributing cause of his injuries].” Patterson v. Clarke County Motors, Inc., 551 So.2d 412, 415 (Ala.Civ.App.1989). The employee presented evidence via his own testimony and that of his treating physicians indicating that his current medical problems were caused by his work-related injuries; therefore, we conclude that the employee presented substantial evidence of the medical causation of his injuries as well. See Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188 (Ala.Civ.App.2001) (holding that lay evidence as well as medical evidence is sufficient to prove medical causation).

III.Finding of Permanent Total Disability

The employer lastly argues that the trial court’s judgment finding the employee to have suffered a permanent total disability is not supported by substantial evidence. We disagree. The employee was 51 years old at trial. Since 1974, the employee has worked in heavy manual labor in the trailer manufacturing industry and in the coal mining industry. The employee has an eighth-grade education. He relies on his wife for reading and writing. The medical evidence indicates that the employee cannot stand, sit, or walk for sustained periods. The employee’s vocational rehabilitation expert witness, Dr. William Crunk, testified that the employee has a 100% loss of earning capacity. Therefore, we conclude that the trial court’s judgment finding the employee to have a permanent total disability is supported by substantial evidence.

IV.Conclusion

The employee’s workers’ compensation claim is not barred by the doctrine of judicial estoppel. Also, the trial court’s judgment finding the employee to have a permanent total disability is affirmed.

AFFIRMED.

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

      . This court will not address the correctness of the attorney's advice that workers’ compensation benefits are exempt from a bankruptcy estate.


source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    Clifford MELCHER v. AMERICAN CAST IRON AND PIPE COMPANY.
    2001279.
    Court of Civil Appeals of Alabama.
    June 7, 2002.
    Certiorari Denied Oct. 18, 2002
    Alabama Supreme Court 1011754.
    David Madison Tidmore of Cory, Watson, Crowder & DeGaris, P.C., Birmingham, for appellant.
    David A. Elliott and Reid S. Manley of Burr & Forman, L.L.P., Birmingham, for appellee.
   YATES, Presiding Judge.

Clifford Melcher sued his employer, American Cast Iron and Pipe Company (“ACIPCO”), on December 7, 1998, seeking to recover workers’ compensation benefits for an injury he sustained to his back during the course of his employment with ACIPCO. Melcher and ACIPCO entered into a settlement agreement whereby they agreed to settle Melcher’s workers’ compensation claim. The trial court approved the settlement on July 16,1999.

Thereafter, Melcher was terminated from his employment with ACIPCO for violating company Rule 23 regarding excessive absenteeism. On October 13, 2000, Melcher petitioned the court to reopen his workers’ compensation claim pursuant to § 25-5-57(a)(3)i., Ala.Code 1975, alleging that his employment with ACIPCO had been terminated. Following an ore tenus proceeding, the trial court entered an order denying Melcher’s petition. Melcher appeals.

This case is governed by the 1992 Workers’ Compensation Act. This Act provides that an appellate court’s review of the standard of proof and its consideration of other legal issues shall be without a presumption of correctness. § 25-5-81(e)(l), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2). Our supreme court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: “The new Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

Melcher was 35 years old at the time of the hearing and had been employed with ACIPCO since April 1992. He suffered a back injury in a work-related accident in December 1996. Melcher sought treatment for his back injury and was diagnosed with a herniated disc at the L3-L4 level. He underwent surgery in April 1997 to repair the disc. Following the surgery, Melcher continued to complain of back pain; he was eventually diagnosed with a second herniated disc at the T12-L1 level. He underwent a second surgery in July 1997 to repair the disc. Melcher developed a chronic-pain condition in his back, for which he continued to be treated for his authorized treating physicians at ACIPCO Health Services.

After Melcher settled his workers’ compensation claim, he returned to work with ACIPCO. He worked in several transitional positions that had varying physical demands. He stated that these jobs caused him problems with his back. He continued to receive treatment from the ACIPCO physicians; he was also referred to Dr. Jack Denver, a pain-management specialist, and to Dr. Sean O’Malley for epidural injections. On May 25, 2000, Dr. Denver recommended that Melcher “discontinue working and to seek counseling with [Vocational Rehabilitation Services] for other possible job skills and education.” However, on the following day, Dr. Denver notified the ACIPCO physicians that Mel-cher should be placed in a position that was sedentary and that required no repetitive lifting, bending, squatting, or stooping. Dr. Denver also restricted Melcher from working at unprotected heights or operating equipment that vibrates; he also placed a lifting restriction on Melcher.

Melcher was eventually placed in a position in the human-resource department. He testified that in this position he would have to sit for extended periods of time answering the telephone; he would have to pull blueprints; make copies; walk up and down three flights of stairs; and run errands. He stated that this job also caused him back pain.

Melcher missed substantial amounts of time from work in May, June, July, and August 2000 because of his back condition. ACIPCO had a company policy in place dealing with excessive absenteeism. Rule 23 of ACIPCO’s policy provides:

“Excessive absenteeism: Eleven absenteeism points within 90 calendar days prior to and including the date of the last infraction or 25 points within 865 calendar days prior to and including the date of the last infraction.
“1st offense-Reprimand 2nd offense-One week layoff 3rd offense-Discharge “a. Justifiable absence: Employee hospitalized, illness verified by Company Doctor and reported to supervision 30 minutes before work time, death in immediate family, emergency hospitalization of member of immediate family, scheduled surgery of member of immediate family with minimum of one day prior notice to supervision, approved vacation, jury, military duty or FMLA Leave approved in advance .... 0 points.
“b. Absence, except above, requested and excused day before by supervision .... 1 point (employees with 9 or more active absentee points are not eligible for an excused absence) (*If absence is approved as FMLA Leave any points assigned will be removed.)
“c. Absence not excused day before but reported to supervision 30 minutes before work time .... 3 points (*If absence is approved as FMLA Leave, any points assigned will be removed.)
“d. Absence not excused but reported before end of shift .... 6 points (*If absence is approved as FMLA Leave ... .3 points.)
“e. Absence not excused and not reported before end of shift ... .8 points (*If absence is approved as FMLA Leave .... 5 points.)
“f. Getting off as much as two hours before end of shift will be counted 2 points if not arranged at least one day before; one-half point if arranged at least one day before; 0 point if for one of the justifiable reasons for absence. (*If absence is approved as FMLA Leave .... 0 points.)
“ *Points assigned for FMLA approved absences are assigned due to failure to properly notify and not for the actual absence.”

According to Rule 23, if an employee receives 11 absenteeism points within 90 calendar days, the employee is deemed to have violated Rule 23. The employee receives a reprimand for a first-offense violation, a one-week layoff for a second-offense violation, and the employee is discharged for a third-offense violation. Glenn Gardner, an assistant manager at ACIPCO, testified that if an employee is absent from work, the employee will receive no points if he or she notifies ACIPCO at least 30 minutes before the shift begins and is excused from work by a company physician. If the employee notifies ACIPCO 30 minutes before the shift begins that he or she will be absent, but fails to provide documentation from a company physician excusing the absence, the employee receives 3 points. Gardner also stated that if an employee notifies ACIPCO 30 minutes before the shift begins that he or she will be absent from work and is seen by a company physician who does not excuse the employee from work, that employee will receive no points, provided the employee returns to work. An employee receives 2 points for leaving work early.

Melcher testified that he had received a copy of Rule 23 and that he understood how Rule 23 worked, and he recited the point system under that rule. Melcher stated that he knew that he was accumulating points under Rule 23 by missing work and not following the procedures set forth in Rule 23.

Melcher was absent from work for all or part of his shift on May 1-5, 8-12, 16-19, 22-26, and 29-31. He was also absent for all or part of his shift on June 1-3, 5-10, 12-17, and 30. Additionally, Melcher was either absent for all or part of his shift on July 3, 5-7, 13, and 21, and August 1, 10-11,17-18, 23-25, and 29-31.

On May 9-11 and 17-19, Melcher telephoned the office 30 minutes before his shift started, stating that he was sick; however, he failed to produce an excuse from a company physician taking him off of work for those days. He was assessed 3 points for each of these absences, for a total of 18 points. On May 12, Melcher telephoned ACIPCO 30 minutes before his shift started, stating that he would be absent from work in order to attend to “personal business.” He received 3 points for this absence. Melcher left work early on May 8 and again on May 16 and was assessed 2 points on each of these days. He accumulated a total of 25 points for these absences, which put him in violation of Rule 23.

Gardner investigated the absences related to Melcher’s first violation of Rule 23. He testified that it was the employee’s responsibility to provide ACIPCO with an excuse from the company physician; however, before the company administers any form of discipline for a violation of Rule 23, it follows up with the physician to confirm that the employee was not excused from work on a day he received points for being absent. Gardner further stated that ACIPCO also confirms that none of the absences were approved as FMLA leave. Gardner confirmed that Melcher was indeed absent on those days for which he had received points; that no physician had excused those absences; and that none of the absences were approved as FMLA leave. Melcher was informed by the plant guard on May 25 that he was in violation of Rule 23 and that any further points he accumulated would be applied toward a second-offense violation.

Melcher telephoned ACIPCO on May 26, stating that he would be absent that day, but giving no reason for the absence. He received three points for that absence. Melcher called on May 29, 30, and June 2, stating that he would be absent because of sickness. He was assessed three points each for these absences. Melcher accumulated a total of 12 points and was in violation of Rule 23 a second time. He contends that he should not have received points for the June 2 absence, because, he says, he was excused from work by ACIP-CO physicians. Melcher was administered an epidural pain block on May 31. ACIP-CO physicians had noted that Melcher would need to be off work for one to two days after the block. However, the physician who performed the block released Melcher to return to work on June 1.

Gardner investigated Melcher’s absences related to his second violation of Rule 23. Gardner stated that he again confirmed that Melcher was indeed absent from work on the days he was assessed points; that no physician had excused the absence; and that none of the absences qualified as FMLA leave. Gardner recommended to the ACIPCO Board of Operatives (the “Board”) that it further investigate the matter to confirm that Melcher was in fact in violation of Rule 23 a second time, and that if its findings were consistent with his, Melcher be disciplined for a second-offense violation of Rule 23 by being laid off work for one week.

The Board is a group of 12 hourly employees, such as Melcher, elected to represent the interests of the other hourly employees in such matters as working conditions and disciplinary actions. The stated purpose of the Board is to make sure that the employees receive a “square deal.” The Board does not consist of any ACIPCO management personnel. Ronnie Green testified that he was a member of the Board and that he investigated on behalf of Melcher the absences related to his second violation. Green stated that Melcher was unable to provide any information that would aid the Board in its investigation of his absences. Green stated that the Board had no medical records “laying [Melcher] off’ for the days for which he had been assessed points. The Board voted unanimously to lay Melcher off work for one week for a second-offense violation of Rule 23. Gardner made a motion to the ACIPCO disciplinary committee that Melcher be laid off for one week; the motion was seconded by Green. The disciplinary committee voted unanimously to lay Melcher off work for one week. Melcher was informed that any additional points accumulated would go toward a third-offense.

Melcher telephoned the office on June 5-7, stating that he would be absent from work because of sickness; he was assessed three points for each of those three absences. He called on July 21, stating that he would be absent from work because of sickness; he was assessed three points for that absence. He was also assessed two points for leaving work seven hours early on August 29. Melcher had accumulated enough points to be in violation of Rule 23 for a third time. Melcher contends that he should not have been assessed points for the June 6 absence, because, he says, he had been referred to Dr. Luigi F. Bertoli on that day by ACIPCO physicians. The record indicates that Melcher had been referred to Dr. Bertoli on June 6 for treatment of hemochromatosis, a liver ailment unrelated to Melcher’s back condition. Melcher was assessed points because he failed to present documentation from a physician indicating that he would be unable to perform his job duties on that day.

Fred Phillips, a superintendent at ACIPCO, investigated the absences related to Melcher’s third violation of Rule 23. Phillips testified that he confirmed that Melcher was, in fact, absent on the days for which he had been assessed points; that none of the absences were excused by a physician; and that none of the absences qualified as FMLA leave. Phillips recommended that the Board further investigate the matter and that if its findings were consistent with his findings, that Melcher be disciplined for a third-offense violation of Rule 23 by terminating his employment. Green testified that the Board also investigated the absences related to Melcher’s third violation and that Melcher was unable to supply any information that would reduce the points received under Rule 23. The Board voted to terminate Melcher because of a third-offense violation of Rule 23. Phillips moved the disciplinary committee to discharge Melcher from his employment; that motion was seconded by Green. The disciplinary committee voted unanimously to terminate Melcher’s employment. Melcher was terminated on October 3, 2000.

Melcher argues that he should be permitted to reopen his workers’ compensation case, because, he says, injury-related absenteeism does not constitute misconduct. Section 25-5-57(a)(3)i., Ala.Code 1975, provides, in part:

“[I]f the employee has lost his or her employment under circumstances other than any of the following within a period of time not to exceed 300 weeks from the date of injury, an employee may petition a court within two years thereof for reconsideration of his or her permanent partial disability rating:
“(iv) The loss of employment is for actual or threatened misconduct committed in connection with his or her work after previous warning to the employee.”

The employer must prove by clear and convincing evidence that the employee’s loss of employment was due to actual or threatened misconduct. § 25-5-57(a)(3)i., Ala.Code 1975. This court has never decided the precise issue before the court— whether injury-related excessive absenteeism after a warning constitutes “actual or threatened misconduct committed in connection with ... work” under § 25-5-57(a)(3)i.(iv). However, this court has interpreted identical language in the context of unemployment-compensation cases. See § 25 — 4—78(3)(b), Ala.Code 1975. This court has defined employee-related misconduct as “ ‘conduct evincing ... a deliberate, wilful, or wanton disregard of an employer’s interests or of the standards of behavior which he has a right to expect of his employee.... ’ Annot., 26 A.L.R.3d 1356, 1359 (1969).” Davis v. Department of Indus. Relations, 465 So.2d 1140, 1142 (Ala.Civ.App.1984). Further, a deliberate violation of an employer’s rules constitutes deliberate misconduct and a continuing recurrence of such a violation over a period of time clearly establishes such a deliberate and willful intent to constitute willful misconduct. Johnson v. Director, Department of Indus. Relations, 470 So.2d 1274 (Ala.Civ.App.1985); Henley v. Housing Auth. for the City of Montgomery, 403 So.2d 265 (Ala.Civ.App.1981).

In Adams v. Allen, 586 So.2d 17 (Ala.Civ.App.1991), an unemployment-compensation case, the employee was terminated from her employment because she had violated the company’s absenteeism policy. The employee was denied unemployment-compensation benefits, because the trial court found that she was guilty of deliberate misconduct under § 25-4-78(3)(b). She claimed that she was too ill to work and that absenteeism based on illness does not constitute misconduct. This court affirmed the judgment of the trial court, but did not reach the issue whether absence because of illness constitutes misconduct. Evidence was presented indicating that the employee’s last absence from work was not because of personal illness, but rather, because the employee had traveled out of state to visit her brother, which would not have been a legitimate excuse and would have been in willful disregard of her employer’s interests. Adams, supra.

In Morrison v. U.S. Pipe & Foundry Co., 598 So.2d 946 (Ala.Civ.App.1992), an unemployment-compensation case, the employee was terminated from her employment because she had been disciplined on six occasions for tardiness within a two-year period. The employee’s unemployment-compensation benefits were denied pursuant to § 25-4-78(3)(b). The parties stipulated at trial that the issue was whether the employee was discharged for misconduct after previous warning pursuant to § 25-4-78(3)(b). The trial court decided the issue in favor of the employer. Morrison, supra.

In Morrison, the employee argued on appeal that she was tardy on her last offense because of an appointment with her attorney and that such an appointment constitutes a justifiable cause for tardiness or absence from work. This court noted that the employee had been warned numerous times about her tardiness, suspended twice for tardiness, and warned that any further tardiness would result in termination from her employment. In affirming the trial court, this court stated:

“The Personnel Director [of the employer] testified that absenteeism and tardiness are a cause of major inconvenience and expense to the company, and therefore, the company’s rules demand prompt and regular attendance. The uncontroverted evidence reflects that [the employee] received many prior warnings vis a vis tardiness. Nonetheless, [the employee] knowingly chose a course of action resulting in her being thirty minutes late to work, rather than timely departing her attorney’s office to avoid tardiness, or choosing to schedule the appointment differently.... The record supports a finding of deliberate misconduct and we must affirm.”

Morrison, 598 So.2d at 948.

In Henley v. Housing Auth. for the City of Montgomery, supra, an unemployment-compensation case, the City had adopted a rule whereby an employee who failed to report to work for three consecutive days without authority could be terminated from his employment. A number of employees went on strike and failed to report to work for 23 consecutive days. The employees were notified that they would be terminated if they did not report to work. The employees were eventually terminated and denied unemployment benefits; the trial court found that they were discharged for actual and deliberate misconduct after warnings pursuant to § 25-4-78(3)(b). Id. In affirming the judgment of the trial court, this court stated:

“The strike by these public employees and their failure to report to work for twenty-three days constitutes deliberate misconduct in violation of the statute. This is especially true since they knowingly broke the rule of the City and County of Montgomery Personnel Board, which authorizes the dismissal of any city or county employee who, without authority, fails to report to work for more than three days. Their strike and unauthorized absence from their public employment for that long period of time falls within the classic definition of misconduct. That misconduct was deliberate.”

Henley, 403 So.2d at 270.

Phillips testified that absenteeism is a cause of inconvenience and expense to ACIPCO and that if the employees fail to follow the rules and not report to work, it causes a loss of production and will require the company to pay overtime to another employee to cover the absent employee’s job. Melcher testified that he was aware of Rule 23 and how it worked and that he knew he was accumulating points under it. He was warned and disciplined for two violations of the rule before being terminated from his employment. The evidence indicates that Melcher was voluntarily absent from his employment on two occasions for which he was assessed points. He testified that on the other days that he was assessed points because he was absent from work without an excuse, he did not see the company doctors, because, he says, “it didn’t do any good”; he said that he had “already went to the doctor, and the only thing he would do is send me back to work.” The record indicates, however, that the ACIPCO physicians had taken Melcher off work and excused his absences at least 29 times between January 2000 and October 2000. Melcher also testified that he did not see the company doctors on the days in question because he would have to “sit four, five, six hours” in order to see them.

We conclude that clear and convincing evidence was presented indicating that Melcher knowingly and intentionally violated Rule 23, after previous warnings, by being absent from work and not obtaining an excuse from a physician, and that such absences constitute “actual or threatened misconduct committed in connection with his ... work after previous warning” under § 25 — 5—57(a)(3)i.(iv), Ala Code 1975. In so holding, we expressly state that absence from work due to illness or injury is not per se misconduct under § 25-5-57(a) (3)i. (iv); rather, the employer must demonstrate that the employee intentionally or deliberately violated a company rule and that the violation was a continuing recurrence after warning. Johnson, supra, and Henley, supra.

Melcher also contends that ACIPCO failed to follow its own policy regarding FMLA leave, because, he says, several of his absences were approved as FMLA leave and others were not. The record indicates that regarding the absences that were approved as FMLA leave, Melcher had followed company policy in obtaining FMLA leave. On the days that FMLA leave was denied, Melcher failed to follow company policy, because he failed to present the necessary documentation from a physician indicating that he was unable to perform his job on the day of the absence. Accordingly, there is no evidence indicating that ACIPCO improperly applied its FMLA policy.

Accordingly, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . Melcher had also sued ACIPCO alleging retaliatory discharge. Melcher moved to consolidate the retaliatory-discharge action with the workers' compensation action; however, the trial court denied the motion to consolidate.

      . These physicians are employees of ACIPCO.

      . All dates listed below are in the year 2000, unless otherwise specified.


text:
    MID-SOUTH ELECTRIC COMPANY, INC. v. Betty J. JONES.
    2010049.
    Court of Civil Appeals of Alabama.
    June 7, 2002.
    Rehearing Denied July 19, 2002.
    Certiorari Denied Oct. 18, 2002
    Alabama Supreme Court 1012072.

      Tom Burgess and Murray H. Gibson, Jr., of Burgess & Hale, L.L.C., Birmingham, for appellant.
    Douglas Burns of Burns, Burns, Burns & Morgan, Gadsden, for appellee.
   PITTMAN, Judge.

Betty J. Jones (“the employee”) sued Mid-South Electric Company, Inc. (“the employer”), for workers’ compensation benefits, alleging that she was injured in the line and scope of her employment and that she had suffered a permanent disability. The employer answered and alleged that the employee did not give it notice of the alleged accident.

The employer filed a summary-judgment motion, arguing that the employee did not give proper notice of the accident. The trial court denied the motion. The case proceeded to trial. Following a bench trial, the trial court found that the employee had given oral notice of the accident and that the employee has a permanent total disability. The employer filed a post-judgment motion, which the trial court granted only as to the calculation of the benefits. The employer appeals.

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

The employer first argues that the trial court erred by finding that the employee gave oral notice of the accident. An employee is required to give the employer notice of a work-related accident. See Ala. Code 1975, § 25-5-78 (requiring written notice of a work-related accident). Alabama caselaw allows oral notice of the work-related accident to be sufficient notice even though § 25-5-78 explicitly requires written notice. See Ex parte Slimp, 660 So.2d 994 (Ala.1995); and Ex parte Stith Coal Co., 218 Ala. 399, 104 So. 756 (1925) (interpreting a prior statutory requirement of written notice and holding that actual notice is sufficient).

In finding that the employee had satisfied the notice requirement of § 25-5-78, the trial court relied on the employee’s testimony that she told her supervisor, Karen Holcombe, that she had injured her back. This testimony would normally be substantial evidence indicating that the employee gave the employer notice of the accident. See Steele v. General Motors Corp., 705 So.2d 402, 404 (Ala.Civ.App.1997) (holding that oral notice to a “supervisory or representative agent of the employer” is sufficient notice of the accident).

However, in this case, we are presented with undisputed evidence indicating that the employee told her treating physician that she had injured her back at home trying to pick up her grandchildren and that the employee was on disability leave unrelated to workers’ compensation for six months. The employer contacted the employee a few weeks before her six-month leave ended, and told her that she would have to report to work before the six-month period ended or that she would be terminated. The employee did not report to work after the six-month period ended and the employer terminated her. The employee then filed this workers’ compensation lawsuit.

The employee admits that she concealed that she had a work-related injury for several reasons. First, she testified that she did not want to file a workers’ compensation claim because she “wanted to go back to work.” Second, she testified that she wanted to be treated by Dr. White, who eventually performed three back surgeries on her, “because he had done my surgery before and I was back at work within eight weeks.” The employee admitted that she did not want to be treated by a physician selected by the employer.

We conclude that the employee cannot now, after making a deliberate decision not to elect workers’ compensation coverage and to receive extensive medical treatment (including two surgeries) from a physician of her own choosing, decide to seek workers’ compensation benefits. The employee testified that she was injured at work in January 1998. She filed her workers’ compensation action in November 1998. Dr. White performed surgery on the employee after the injury in January 1998 and again in 1999.

The purpose of the notice requirement of § 25-5-78 is to enable the employer to “ ‘make a prompt examination, provide proper treatment, and protect itself against simulated or exaggerated claims.’ ” Ex parte Brown & Root, Inc., 726 So.2d 601, 602 (Ala.1998), quoting Russell Coal Co. v. Williams, 550 So.2d 1007, 1012 (Ala.Civ.App.1989).

The employee’s deliberate decision to conceal the fact that she suffered a work-related injury defeats these purposes because the employer did not have the opportunity to investigate the employee’s injury and did not have the opportunity to monitor or manage the employee’s medical treatment. Therefore, we conclude that the employee is now barred from seeking workers’ compensation benefits after she made a deliberate and calculated decision to seek medical treatment under her health insurance coverage and to take disability leave from work instead of filing a workers’ compensation claim.

We reverse the trial court’s judgment awarding the employee workers’ compensation benefits, and remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur in the result.


author: MURDOCK, Judge.

text:
    Mike GUCK v. DANIEL & SON, INC.
    2000860.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Oct. 25, 2002.

      J. Matthew Folmar of Folmar & Curtis, P.C., Troy, for appellant.
    L. Merrill Shirley, Elba, for appellee.
   MURDOCK, Judge.

In January 2000, Mike Guck (“the employee”), a former employee of Daniel & Son, Inc. (“the employer”), brought an action against the employer in the Pike County Circuit Court seeking benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975; in his complaint, the employee alleged that on or about February 25, 1998, he had suffered an injury to his neck, shoulder, and back that had arisen out of and in the course of his employment. The case was subsequently transferred to the Bullock County Circuit Court.

The employer then filed a motion for a summary judgment, relying upon the pleadings and the transcribed depositions of the employee and Dr. D.L. Capistran, a chiropractor who had treated the employee during 1998. The employee filed a response in opposition to the summary-judgment motion in which he contended that factual issues remained to be decided; the employer filed a reply to that response. On April 11, 2001, the trial court rendered a summary judgment in favor of the employer; that judgment was entered on May 11, 2001. The employee timely appealed from that judgment.

The appropriate standard of review of a summary judgment is as follows:

“It is well settled that a motion for summary judgment is properly granted in situations where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Clay v. River Landing Corp., 601 So.2d 919 (Ala.1992). In considering a motion for summary judgment, the trial court must view all reasonable inferences from the evidence in a light most favorable to the non-moving party. Wills v. Klingenbeck, 455 So.2d 806 (Ala.1984). Further, the movant has the burden of establishing that there is no genuine issue of material fact. Burks v. Pickwick Hotel, 607 So.2d 187 (Ala.1992). If the movant meets its burden, then the burden shifts to the non-moving party, who must show by substantial evidence that a genuine issue of material fact does exist in order to withstand the motion for summary judgment. Burks, 607 So.2d 187; Clay, 601 So.2d 919.”

Rich v. Warren Mfg., Inc., 634 So.2d 1015, 1016-17 (Ala.Civ.App.1994).

The record reveals that the employee is currently 89 years old and that his vocational background is mainly in the logging and trucking industries. At his deposition, the employee testified to having been injured on either Friday, February 25 or Saturday, February 26, 1998, while working as a treecutter for the employer on land located north of Dadeville, Alabama. According to the employee, at about 1:30 P.M. on the day he was injured, a cable attached to a “skidder” caused a half-cut tree to splinter and strike a nearby dead tree that, in turn, fell and struck the employee as he ran to avoid the tree, knocking him down. The employee arose from the ground and completed his work shift; however, he testified that he had noticed after the accident that he “just didn’t feel right” in his back and neck.

The employee told his supervisor about the accident on the following Tuesday (which would have been February 29, 1998). The employee testified that his condition worsened thereafter, prompting the employer to refer the employee to Dr. Capistran. According to the employee, he consulted Dr. Capistran for a six-week period, but that consultation did not bring him any relief from the pain. The employee later consulted an orthopedic clinic in Opelika and was treated by two physicians, Dr. Taunton and Dr. Scott; he underwent physical therapy and was restricted to light-duty work. The employee was paid workers’ compensation benefits for four weeks starting in late May 1998 or early June 1998, and, for a short time, continued working for the employer after his injury.

On one day while the employee was restricted to fight-duty work for the employer, he was instructed to “get on” a loader; when the employee stated that he did not think he could perform the requested task, he was berated by his superior. Although the employee completed the requested task, the employee testified that he had known that day that he would not be able to perform that task regularly and that he “wasn’t going to take getting hollered at”; the employee then ceased working for the employer.

After leaving the employer’s service and after being discharged to return to full-duty work, the employee began working as a truck driver, first for Jimmy Golden Trucking and then for Culverhouse Trucking. The employee testified that he told Culverhouse Trucking when he was hired that he had had a back injury, but that he believed he was capable of working as a truck driver without restrictions. However, while working for Culverhouse Trucking, where he not only drove a large truck but also loaded plywood and electronic devices onto trailers for hauling, the employee continued to experience back and neck pain that ultimately caused him to conclude that he could not continue working as a truck driver. At the time of his deposition in July 2000, the employee testified that he undergoes “bad spells” in which he experiences severe pain in his right arm, burning sensations in his neck and shoulder, and numbness in his right arm and leg; that he had been restricted to fight-duty work by Dr. Scott since the preceding January; and that Dr. Scott had forbidden him to lift over 20 pounds or to operate heavy equipment, such as bulldozers or logging equipment. The employee currently takes a number of medications, including narcotic pain relievers and sleeping aids, prescribed by Dr. Scott.

This court has stated:

“For an injury to be compensable, it must be ‘caused by an accident arising out of and in the course of the employee’s employment. § 25-5-51, Ala.Code 1975. The phrase ‘arising out of an employee’s employment requires a causal connection between the injury and the employment. Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313 (Ala.Civ.App.1993). The phrase ‘in the course of the employee’s employment refers to the time, place, and circumstances under which the accident occurred. Id. In accidental cases, i.e., those involving a sudden and traumatic event, an employee must produce substantial evidence tending to show that the alleged accident occurred and must also establish medical causation by showing that the accident caused or was a contributing cause of the injury. Ex parte Trinity Indus., Inc., 680 So.2d [262] at 266 n. 3 [(Ala.1996)]. Medical causation may be found by the trial court without testimony from medical doctors. Ex parte Price, 555 So.2d 1060 (Ala.1989). The totality of the evidence, including both lay and expert testimony, may satisfy a showing of medical causation. U.S. Steel, A Division of USX Corp. v. Nelson, 634 So.2d 134 (Ala.Civ.App.1993).”

Pair v. Jack’s Family Restaurants, Inc., 765 So.2d 678, 681 (Ala.Civ.App.2000).

In this case, we are reviewing the propriety of a summary judgment in favor of an employer in a workers’ compensation action where the employee’s claimed injuries stem from an alleged sudden and traumatic event: an impact by a falling tree. Under Rich, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996), and Pair, supra, the employee’s burden at the summary-judgment stage is therefore to adduce “substantial evidence” supporting the propositions (1) “that the alleged ‘accident’ occurred”; and (2) “that the ‘accident’ ... was [at least] a contributing cause of the complained-of injuries.” Ex parte Trinity Indus., 680 So.2d at 266 n. 3; Pair, 765 So.2d at 681.

Under Rich, we must view the evidence in the light most favorable to the nonmoving party. Consequently, we must conclude that the employee has fulfilled both portions of his burden. First, the employee’s deposition testimony constitutes substantial evidence indicating that a tree fell on him while he was performing work duties for the employer. Second, the employee has adduced substantial evidence, again through his deposition testimony, indicating that the impact of the accident has caused him to suffer back, neck, and shoulder pain; that he has been placed on medical restrictions since the accident; and that he is partially disabled.

As in Rich, supra, our sole inquiry is whether the trial court properly entered a summary judgment in favor of an employer on an employee’s workers’ compensation claim, and “[w]e should not be understood as commenting upon what action should be taken by the trial court upon trial of this cause.” 634 So.2d at 1018. However, “factual disputes are to be resolved by the trial court on the merits,” and “[a] summary judgment is not proper if conflicting inferences can be drawn from the evidence.” Van Prewitt v. Mobile Policemen’s & Firefighters’ Pension & Relief Fund Bd., 664 So.2d 223, 224 (Ala.Civ.App.1994). Because genuine issues of material fact remain in this cause, we reverse the summary judgment in favor of the employer and remand the cause for further proceedings.

REVERSED AND REMANDED.

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

      . We note that ''[a]n injured employee's own subjective complaints of pain are legal evidence which may support a finding of disability.” Jim Walter Resources, Inc. v. Budnick, 619 So.2d 926, 927 (Ala.Civ.App.1993); accord, Brumett v. Everywhere Trucking, Inc., 741 So.2d 1086, 1089 (Ala.Civ.App.1999).


text:
    JoAnna RUTLEDGE v. WINGS OF TUSCALOOSA, INC.
    2010865.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2002.
    Kerry R. McDonald and Kristi A. Dowdy of McDonald & Dowdy, Birmingham, for appellant.
    Ralph D. Gaines III and Ronald J. Gault of Gaines, Wolter & Kinney, P.C., Birmingham, for appellee.
   YATES, Presiding Judge.

JoAnna Rutledge sued Wings of Tuscaloosa, Inc., a corporation operating a Wings restaurant, on November 13, 2000, seeking to recover damages for personal injuries she allegedly sustained when she slipped and fell on the premises of the restaurant. Rutledge alleged, among other things, “negligent and/or wrongful conduct” on the part of Wings in failing to place water-absorbent mats on the floor in the kitchen area of the restaurant. Wings filed its answer on December 13, 2000, denying liability and raising the affirmative defense of contributory negligence. Wings moved for a summary judgment on March 8, 2002, arguing, among other things, that it did not breach a duty owed to Rutledge. Rutledge responded. The trial court, on May 2, 2002, entered a summary judgment in favor of Wings, finding that Rutledge had failed to produce substantial evidence indicating that Wings had notice of the alleged unsafe condition of its premises. Rutledge appeals. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

In reviewing the disposition of a motion for summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the mov-ant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

The evidence viewed in a light most favorable to Rutledge indicates that at the time of the accident she was employed by the City of Tuscaloosa Board of Education as a special-education instructor. Rutledge instructed special-education students in acquiring basic job-related skills. The Board of Education had an arrangement with Wings whereby Wings would allow the special-education students to work at the restaurant. The students would perform various tasks at the Wings restaurant, such as cleaning baseboards, booths, blinds, tables, or any other basic tasks Wings may have needed done.

On November 13, 1998, Rutledge was on the premises of Wings supervising her students. Rutledge and the students arrived at the restaurant at approximately 9:00 a.m. At approximately 10:00 a.m., Rutledge walked from the dining area through the kitchen area to the supply room to check on a student she had sent to retrieve some cleaning solution. Rutledge testified that as she walked through the kitchen area to the supply room she did not see any water or other substance on the floor. She stated that when she walked back through the kitchen area to return to the dining area she slipped and fell, injuring her knee and her shoulder. She stated that she believed that there was water on the floor where she fell because her pants were wet and the floor looked as if it had been mopped. Rutledge stated, however, that she had not seen any employees mopping the restaurant on the morning of the incident. She testified that after she fell she noticed that the mat that was usually located in the area where she fell was not in place. Rutledge further stated that mats were used to prevent the employees from slipping and that had the mat been in place on this occasion she would not have slipped and fallen.

Scott Ramsey is the general manager of the Wings restaurant. On the date of the accident, he was the assistant manager. Ramsey testified that the floor in the kitchen area is tile and that at the time of the incident Wings had a company policy that required water-absorbent mats to be placed in that area. He testified that company policy required the kitchen manager to place mats on the floor in the kitchen area each morning. Ramsey had no knowledge of whether the mats had been put in place on the day of the incident.

A person who enters upon the premises of another with the landowner’s consent in order to bestow some material or commercial benefit upon the landowner is an invitee. Hambright v. First Baptist Church-Eastwood, 638 So.2d 865 (Ala.1994). Rutledge entered the premises with the consent of Wings in her capacity as supervisor of students who were to practice job-related skills at the Wings restaurant. Those skills included cleaning services. Although Rutledge was teaching the students job skills, Wings was, nevertheless, receiving a commercial benefit, i.e., free cleaning services. Accordingly, we conclude that Rutledge, as the supervisor of the students, held the status of an invitee.

In Nelson v. Delchamps, Inc., 699 So.2d 1259, 1261 (Ala.Civ.App.1997), this court stated:

“ ‘ “[A] storekeeper is under a duty to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers. However, the storekeeper is not an insurer of the customer’s safety, and is liable for injury only if he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition. The plaintiffs must prove that the injury was proximately caused by the negligence of [the storekeeper] or one of its servants or employees. Actual or constructive notice of the presence of the substance must be proven before [the storekeeper] can be held responsible for the injury. Furthermore, the plaintiffs must prove (1) that the substance slipped upon had been on the floor a sufficient length of time to impute constructive notice to [the storekeeper]; or (2) that [the storekeeper] had actual notice that the substance was on the floor; or (3) that [the storekeeper] was delinquent in not discovering and removing the substance.” ’
“Dunklin v. Winn-Dixie of Montgomery, Inc., 595 So.2d 463, 464 (Ala.1992) (quoting Maddox v. K-Mart Corp., 565 So.2d 14, 16 (Ala.1990)).”

However, in situations where the plaintiff has presented substantial evidence indicating that the defendant storekeeper has created the hazardous condition, the plaintiff is not required to prove that the storekeeper had actual or constructive notice of the hazardous condition; in such situations notice is presumed. Id.

In Nelson, the plaintiff was injured when she slipped and fell in some water located in front of an ice machine as she removed a bag of ice from the machine. The plaintiff sued, alleging that the defendant had negligently failed to maintain its premises in a reasonably safe condition by failing to provide appropriate safety mats next to an ice machine. The trial court entered a summary judgment in favor of the defendant, because it determined that the plaintiff had failed to present substantial evidence indicating that the defendant knew or should have known of the presence of water on the floor. Id.

In reversing the summary judgment, this court held that the plaintiff was not required to produce evidence indicating that the defendant had actual or constructive notice of the hazardous condition on the floor, because she presented evidence indicating that the defendant had created the hazard by failing to place safety mats in the area in front of the ice machine. Id.

After reviewing the record in this case in a light most favorable to Rutledge, we conclude that she produced substantial evidence indicating that she slipped on some water located in the kitchen area of the restaurant. Wings presented no evidence indicating that there was no water on the floor in the kitchen area, at the time of Rutledge’s fall. Rutledge testified that she noticed that her pants were wet after she fell and that the area appeared to have been recently mopped. Rutledge presented evidence indicating that it was company policy that the tile floor in the kitchen area be covered with mats and that it was the manager’s duty to place the mats each morning upon arriving at work. Rutledge testified that there was no mat in place when she slipped and fell and that had there been one in place she would not have slipped and fallen. Ramsey had no knowledge of whether a mat was in place at the time of the incident.

We conclude that Rutledge presented substantial evidence indicating that Wings had created the hazardous condition by failing to follow company policy and place the mats on the tile floor in the kitchen area. Therefore, Rutledge was not required to produce substantial evidence indicating that Wings had actual or constructive notice of the alleged hazardous condition of the floor. Accordingly, the judgment is reversed and the case remanded for further proceedings.

REVERSED AND REMANDED.

PITTMAN, J., concurs.

THOMPSON, J., concurs in the result.

      . Ramsey testified that Wings later abandoned the company policy requiring mats in favor of requiring its employees to wear nonslip shoes.


text:
    Fannie BURTON v. TEACHERS’ RETIREMENT SYSTEM OF ALABAMA.
    2010715.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2002.

      James Mendelsohn, Birmingham, for appellant.
    William F. Kelley, Jr., gen. counsel, Teachers’ Retirement System of Alabama, for appellee.
   YATES, Presiding Judge.

On May 11, 2001, Fannie Burton sued the Teachers’ Retirement System of Alabama (“TRS”) in Jefferson County, seeking to have TRS posthumously change her deceased husband’s retirement-benefits election, alleging that a TRS employee had mistakenly typed an “X” in the wrong box on the employee-benefits form. Upon a motion for a change of venue filed by TRS, the case was transferred to Montgomery County. TRS answered Burton’s complaint and alleged that Burton had failed to state a claim upon which relief can be granted, among other things. Although the record does not contain the motion for a summary judgment, TRS apparently filed such a motion on March 15, 2002; that filing is reflected on the case action summary. The trial court set the motion for a hearing. Burton filed her opposition to TRS’s motion and submitted an affidavit on March 25. Following an ore tenus hearing, the trial court entered a summary judgment in favor of TRS; that judgment stated, in part:

“... [T]he Court is of the opinion that no material issues of fact exist which would preclude summary judgment in reference to [TRS’s] assertion of [Burton’s] now deceased husband, election of retirement benefits. This Court finds that the evidence and arguments put forth by counsel do not present questions of fact that should be resolved by a jury.”

Burton appealed.

In reviewing the disposition of a motion for summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Burton and her deceased husband, Johnny, were married for over 30 years. According to Burton, Johnny taught automobile body repair at Shelton State Community College for approximately 18 years. In 1997, Johnny was diagnosed with lung cancer and, on the instruction of his physician, resigned from his teaching position because of disability from his failing health. Johnny died in 1998, at age 51.

Burton says that she has reviewed the member’s election of retirement benefits form her husband signed on March 18, 1998. She further stated that everything on the page was typewritten, except for Johnny’s signature. She claims that an employee of Shelton State Community College, Minnette L. Smith, who completed the form for Johnny, mistakenly selected the wrong benefit option by marking the inappropriate box on the form and that Johnny, in his weakened condition, did not notice the error. Burton further states that Smith was aware of her husband’s terminal condition and that she had previously assisted Johnny when he applied for retirement in February 1998, when he listed Burton as his beneficiary.

Burton claims that Smith incorrectly marked the box beside option II, maximum retirement, on the form, instead of the box beside the option that would provide income to the retiree’s beneficiary for the beneficiary’s lifetime. She claims that any other choice would have been irrational and contrary to common sense, considering Johnny’s terminal condition.

Burton stated that her husband was very concerned with making final arrangements to take care of her before he died. She stated that she spoke with her husband after his meeting with Smith, and he told her, “I’ve taken care of you. You’ll be getting monthly checks from the State Retirement after I ‘leave.’ ”

Burton argues that § 16-25-24(b), Ala. Code 1975, requires TRS to correct the error:

“(b) Should any change or error in the records result in any member or beneficiary receiving from the retirement system more or less than he would have been entitled to receive had the records been correct, the Board of Control shall correct such error and as far as practicable shall adjust the payment in such a manner that the actuarial equivalent of the benefit to which such member or beneficiary was correctly entitled shall be paid.”

In Ex parte Employees’ Retirement System Board of Control, 767 So.2d 331, 334-35 (Ala.2000), our supreme held:

“Once a recipient has made a benefit election, however, if that election is clear on its face then ERS should be able to rely on that election.
“... When ERS receives a clear and unambiguous election-of-benefits form, we will not require ERS to look beyond the face of the form. This Court has applied this principle in cases involving other documents. This Court has stated that in interpreting a will ‘[ejxtrinsic evidence is not admissible to vary, contradict or add to the plain and unambiguous language of the will.’ This Court often has stated that it will not look beyond the four corners of an instrument unless the instrument contains latent ambiguities. Martin v. First Nat’l Bank of Mobile, 412 So.2d 250, 253 (Ala.1982).”

(Citation omitted.) Although the record does not contain a copy of the election-of-benefíts form, Burton concedes that it was unambiguous on its face.

After thoroughly reviewing the record, we find that TRS has fulfilled the deceased’s clearly stated intent from the face of the form, pursuant to Ex parte Employees’ Retirement System Board of Control. We concede that our decision in this case seems harsh and leaves Burton facing possible unknown financial hardship; however, we must follow the law set out by our supreme court, which reasoned in Ex parte Employees’ Retirement System Board of Control:

“[W]e cannot sustain a posthumous challenge to a clear, unambiguous election of retirement benefits. To permit a surprised, disappointed, or disgruntled beneficiary to change an ERS member’s retirement-benefits election that is clear on its face, after events have made the election undesirable, would wreak havoc on the retirement system.”

767 So.2d at 335. Accordingly, we affirm the trial court’s summary judgment in favor of TRS.

AFFIRMED.

THOMPSON and PITTMAN, JJ, concur.

      . The box was apparently marked with a typed “X.”


author: CRAWLEY, Judge.

text:
    M.H. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2010721.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2002.

      Wendy Ghee Draper, Anniston, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.
   CRAWLEY, Judge.

In February 1999, the Calhoun County Department of Human Resources (“DHR”) became involved with M.H. (“the mother”), H.H. (“the daughter”), and J.A.H., the mother’s husband and H.H.’s father. In July 1999, DHR removed the daughter from the mother’s home and placed the daughter in the home of L.D., the maternal grandmother. The maternal grandmother also had custody of the mother’s son, Z.L. In February 2000, DHR placed the daughter in foster care. DHR returned the son to the mother’s custody in March 2000; he was removed from her custody and placed in foster care in April. By January 2001, DHR determined that it should proceed with termination. On October 31, 2001, DHR filed its petition to terminate parental rights. After a trial in April 2002, the trial court terminated the parental rights of the mother to both children. She appeals.

The mother argues that DHR failed to present clear and convincing evidence that termination of her parental rights was in the best interest of the children. She argues that DHR did not present clear and convincing evidence that her current situation warranted termination. See T.H. v. State Dep’t of Human Res., 740 So.2d 1089, 1092 (Ala.Civ.App.1998) (stating that “[a] requirement of evidence of current conditions or conduct relating to a parent’s ability or willingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence”). She also argues that DHR failed to provide the necessary services to rehabilitate her once she moved from Alabama to Iowa in January 2001. After a thorough review of the record, we conclude that clear and convincing evidence supports the trial court’s judgment terminating the mother’s parental rights.

“The right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution. Pursuant to this right, Alabama courts recognize a presumption that parental custody will be in the best interests of a child. This prima facie right of a parent to custody of his or her child can only be overcome by clear and convincing evidence that permanent removal from the parent’s custody would be in the child’s best interests, but the primary consideration in any proceeding to terminate parental rights is always the best interests and welfare of the child. In making that determination, the court must consider whether the parent is physically, financially, and mentally able to care for the child. If the court finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child, his or her parental rights can then be terminated, pursuant to § 26-18-7(a), Ala.Code 1975.”

Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988) (citations omitted). The juvenile court’s decision to terminate parental rights, which is based on evidence presented ore tenus, is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995).

To terminate parental rights, the juvenile court must first determine from clear and convincing evidence that the child or children are dependent. S.F. v. Department of Human Res., 680 So.2d 346 (Ala.Civ.App.1996). The court must then determine that there exists no alternative to termination. L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996). A court may terminate parental rights when “the parents of [the] child are unable or unwilling to discharge their responsibilities to and for the child ... and ... such conduct or condition is unlikely to change in the foreseeable future.” Ala. Code 1975, § 26-18-7(a).

Sections 26-18-7(a)(l) through (6) and (b)(1) through (4), Ala.Code 1975, list factors the juvenile court must consider in making' the difficult decision to terminate parental rights. Among those factors are that emotional or mental illness or excessive use of alcohol or controlled substances have rendered the parent unable to meet the needs of the child, § 26-18-7-(a)(2), that reasonable efforts at rehabilitation of the parent have failed, § 26 — 18—7(a)(6), and that the parent has shown a lack of effort to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached with caseworkers. § 26 — 18—7(b)(4). A reading of the record indicates that the mother has a history of alcohol and drug dependency, that she has not been able to maintain steady and suitable housing, and that she has not been able to adjust her circumstances to meet the needs of her children for safety and stability.

At the time H.H. was removed from her custody, the mother was using marijuana and was unable to maintain stable living conditions. DHR provided services, including both individual and marital counseling, to the mother. Despite her attempts, the mother was unable to maintain stable housing or consistently abstain from drug use. During the trial, two of the mother’s counselors, Jim Holiday and Lorna Usrey, testified concerning the mother’s mental state and her drug problems.

Holiday, who had been assigned to counsel both the mother and her husband, J.A.H., as a couple, testified that the mother and J.A.H. had a pattern of marital discord and domestic violence. He commented that the mother and J.A.H. had very unstable living conditions, which he felt were somewhat rooted in their inability to meet their financial obligations. He mentioned that the mother had admitted to using marijuana and alcohol. However, Holiday, who had counseled the mother in her home in the presence of the son, noted that the mother was an attentive caretaker. According to Holiday’s notes, the mother had reported to Holiday that she had a history of depression, that she had been in foster care for “a good deal of time,” that she was in a residential treatment facility for two and one-half years because she had attempted to kill her sister, and that she had attempted suicide after the birth of her son. Holiday also explained why the mother and J.A.H. separated, saying that J.A.H. had reported that he permitted the mother, as a “gift,” to have sexual relations with another man. According to Holiday, J.A.H. became upset with the mother when the one-night encounter became a relationship, and he separated from the mother in September 2000. After the separation, Holiday no longer counseled the mother.

Lorna Usrey counseled the mother, individually at most visits, between November 1999 and January 2001; however, according to Usrey’s records, the mother did not attend any counseling sessions between August 15, 2000, and January 8, 2001. Us-rey opined that the mother was very depressed, even suicidal, in November 1999. Throughout 2000, according to Usrey, the mother’s depression appeared to improve and she occasionally abstained from drug use. However, at the mother’s last session with Usrey in January 2001, Usrey again believed the mother to be very depressed and suicidal. Usrey described the mother as a talkative and honest patient who would discuss all problems openly. Although Usrey commented that the mother had gained “insight” into the fact that her use of drugs and alcohol was a problem, Usrey felt that the mother had not improved because she continued to use drugs. Usrey said that the mother was aware of what DHR required of her in order for her to regain custody of her children — abstaining from drug use, stable housing with utilities, continued counseling, and achieving and maintaining emotional and physical health. Usrey also said that the mother was unable to consistently meet those requirements.

Elaine Hubbard, the mother’s DHR caseworker testified concerning DHR’s past attempts to rehabilitate the mother and the search for alternatives to termination. Hubbard was assigned the case in late September 2001, after the decision to proceed with termination had been made. According to Hubbard, at the time she was assigned the case the mother was living in Iowa and had not provided DHR with an address or telephone number. Hubbard said she spoke with a friend of the family, who somehow contacted the mother and informed her that DHR was trying to contact her. The mother contacted Hubbard, and they discussed the most recent individualized service plan (“ISP”) meeting, which the mother was unable to attend. Hubbard said that, while she was caseworker, the mother did not attempt to contact the children by telephone and sent no cards or gifts to the children.

Hubbard explained that DHR had considered K.L., the paternal grandmother, and the maternal grandmother as possible relative resources. However, according to Hubbard, they were not viable alternatives for various reasons. The home study on the paternal grandmother revealed that her expenses already exceeded her income, that she lived with her 15-year-old daughter and a man named J.H. (“the family friend”) in a two-bedroom trailer. The paternal grandmother and the family friend were not romantically involved and he slept in a separate room. The paternal grandmother was not approved as a relative resource.

The maternal grandmother, who had custody of the son and the daughter at different periods during the family’s involvement with DHR, had since moved to Iowa. DHR did not do a home study on her home in Iowa. However, Hubbard said that the records revealed that the maternal grandmother had returned the daughter to DHR custody because she was not financially able to support herself and the daughter. The mother later testified concerning the maternal grandmother’s health, stating that her mother had had two heart attacks and had recently had surgery on her mouth. DHR did not consider the maternal grandmother, because she had returned the daughter to DHR because of her financial problems, to be a viable alternative to termination.

The mother testified. She insisted that she loved her children and that she cared for her children’s needs while they were in her custody. She said she never took drugs or drank alcohol while she was in her children’s presence. However, she admitted that she did use illegal drugs and that she drinks “all of the time constantly.” The mother said that the daughter was removed from her home because the mother had failed a drug test. She also candidly admitted that she would fail a drug test if one were administered to her on the day of the termination trial. She said she had smoked marijuana the Saturday before the trial and indicated that she had also taken a prescription medication she called Se-roquel, which she says her sister had provided her.

The mother admitted that she had been diagnosed with manic depression and bipolar disorder, that she had “alcohol syndrome,” and that she had been diagnosed with other disorders during her stay in the residential treatment facility but that she did not recall the specific diagnoses. The mother said she had been prescribed Clo-nopin in 2001 for her nerves and that she had overdosed on the medication. The mother is illiterate and receives $363 per month in Social Security disability payments. She said she had “a nervous stroke” in November 2001 while in Alabama for another hearing concerning the termination petition. According to the mother, the doctors told her that more stress could cause her to have another stroke and that another stroke could kill her.

The family friend testified. He admitted that he was not a blood relative of the mother or of either of the children. However, he explained that he had lived with the mother and J.A.H. quite often and that he had seen the mother interact with and care for the children. He thought she was a good mother. He denied using drugs or abusing alcohol and said that the mother did not use drugs in his presence. When questioned further, he admitted that he knew that the mother did use drugs because he could smell the marijuana and because of the look in her eyes when she was “high.” The family friend testified that he had exercised the paternal grandmother’s visitation with the children, often without the paternal grandmother’s being present. He said the previous caseworker had encouraged him and the paternal grandmother to seek placement of the children as a “group effort”; however, he said he was later informed by letter that DHR would not permit the children to live with him and the paternal grandmother because they were living together without being married.

The testimony at trial revealed that the mother loved her children. However, her continued dependence on marijuana and alcohol had not improved despite counseling and despite the fact that DHR had stressed that she would have to maintain sobriety and pass drug screens before her children would be returned to her. DHR did not perform a home study on the mother’s home in Iowa; however, the mother’s own testimony indicated that she had yet to establish a permanent home in Iowa, that she was currently living with her mother, and that she had lived in at least three other places in the eight months preceding the termination hearing.

Under these circumstances, DHR’s decision not to request a home study does not require the conclusion that it failed to meet its burden of demonstrating that the current conditions or conduct of the mother warranted termination. See T.H., 740 So.2d at 1092. This court has explained that DHR does not have to prove that a parent’s condition is permanent, only that the condition is of such duration and nature as to render the parent unwilling or unable to discharge his or her responsibilities as a parent. See T.L.W. v. State Dep’t of Human Res., 678 So.2d 128 (Ala.Civ.App.1995) (quoting J.R. v. D.A.M., 615 So.2d 609, 612 (Ala.Civ.App.1992)). By the time the mother had moved to Iowa, DHR had made the decision to seek the termination of the mother’s parental rights based on the continued failure of the mother to adjust her circumstances to meet the needs of her children. One of the circumstances the mother was unable to adjust was her lack of stable housing. We cannot hold that DHR was required to perform a home study on the mother’s “home” in Iowa before proceeding with its plans to terminate her parental rights.

The mother also argues that DHR failed to offer her rehabilitative services once she moved to Iowa. Although we have held that DHR is required to investigate and, if necessary, to provide rehabilitative services to a parent who resides in another state before proceeding with a termination of that parent’s parental rights, see D.S.S. v. Clay County Department of Human Resources, 755 So.2d 584, 590-91 (Ala.Civ.App.1999), we cannot agree that D.S.S. supports the mother’s argument in this case. The failure of DHR to provide services to the mother upon her move to Iowa cannot be considered in isolation. In D.S.S., DHR had failed not only to offer any rehabilitative services to the father, who resided in Georgia, but also to even investigate the father’s circumstances to determine if he needed those services. In the present case, DHR provided services to the mother for almost two years, during which time the mother made little and unsustained improvement. The record compels the conclusion that, despite DHR’s attempts to rehabilitate her, the mother, for whatever reason, has been unable to commit to making the changes necessary to entitle her to the return of her children. Therefore, we affirm the trial court’s judgment terminating the mother’s parental rights because DHR’s attempts to rehabilitate her have failed and because of her failure to adjust her circumstances to meet the needs of her children.

AFFIRMED.

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

      . The mother was married to and living with J.A.H., who was H.H.'s father. The father appealed the judgment terminating his parental rights to H.H., and this court reversed that judgment because the trial court had failed to appoint substitute counsel for J.A.H. J.A.H. v. Calhoun County Dep’t of Human Res., 846 So.2d 1093 (Ala.Civ.App.2002). Because another hearing on the termination of J.A.H.’s parental rights will occur, we shall endeavor not to discuss facts concerning his conduct. However, we take judicial notice of the fact that he is currently incarcerated after having been convicted of robbery.

      . The case was originally tried on February 7, 2002. The mother was not present at that trial. She filed a motion for a new trial, which the trial court granted. The case was retried in April.

      . The trial court also terminated the parental rights of A.H., the father of the son. He does not appeal.


author: WISE, Judge.

text:
    Denver Jeff HOLLOWAY v. STATE of Alabama.
    CR-00-1440.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.

      Denver Jeff Holloway, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Denver Jeff Holloway, appeals from the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his 1998 conviction for attempted murder. We affirmed Holloway’s conviction on direct appeal, by unpublished memorandum. Holloway v. State, (No. CR-97-2054) 768 So.2d 1021 (Ala.Crim.App.1999) (table). Holloway petitioned the Alabama Supreme Court for certiorari review. The petition was denied as untimely filed, and this Court issued a certificate of judgment on December 7, 1999.

On January 20, 2000, Holloway filed a Rule 32 petition, challenging his attempted murder conviction. The petition sought relief on numerous grounds. On March 5, 2001, the circuit court denied Holloway’s petition. This appeal followed.

Holloway raises many issues in this appeal. However, we must remand this case to the Calhoun County Circuit Court for that court to make specific findings of fact concerning the allegations that are not procedurally barred in Holloway’s postcon-viction petition — namely, Holloway’s claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel.

On March 5, 2001, the circuit court entered an order summarily denying all of Holloway’s claims, except his claim of ineffective assistance of appellate counsel. The court’s order stated:

“Upon consideration of the Petitioner’s allegation of ineffective assistance of trial counsel this Court finds this issue to be precluded under Rules 32.2(2), 32.2(3) and 32.2(5), Ala.R.Crim.P. Assuming the same not to be precluded, the undersigned Judge was the trial judge in this case. The undersigned judge is well aware of the representation Petitioner received from his trial counsel, observing trial counsel before and during the trial. This Court finds Petitioner’s trial counsel’s representation to have been well above the minimum standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel’s representation was not deficient in any manner and, therefore, Petitioner cannot prove the result of his trial would have been any different with the representation of any other attorney. This Court finds that no purpose would be served by any further proceedings on Petitioner’s allegation of ineffective assistance of trial counsel, and all allegations based upon the same are hereby DISMISSED.
“This Court further finds all other allegations made pursuant to Rule 32.1(a), other than the allegations of ineffective assistance of appellate counsel set out in paragraphs A7 and A8 of Petitioner’s Rule 32 Petition, either to be precluded by Rules 32.2(2), 32.2(3) or 32.2(5), Ala.R.Crim.P. or to be without merit, stating no claim or material issue of fact or law which would entitle the Petitioner to relief under Rule 32, Ala. R.Crim.P. This Court further finds that no purpose would be served by any further proceedings on any allegation made by Petitioner pursuant to Rule 32.1(a), Ala.R.Crim.P., other than ineffective assistance of appellate counsel and all claims made by Petitioner under Rule 32.1(a), other than ineffective assistance of appellate counsel, are hereby DISMISSED.
“Upon review and consideration of Petitioner’s claim pursuant to Rule 32.1(e), Ala.R.Crim.P., this Court finds that same to be without merit, states no newly discovered evidence and that no purpose would be served by any further proceedings on this issue. Therefore, all allegations made by Petitioner pursuant to Rule 32.1(e), Ala.R.Crim.P., are hereby DISMISSED.”

(C. 256-57.)

On March 5, 2001, the circuit court also conducted an evidentiary hearing on Holloway’s claims of ineffective assistance of appellate counsel. After hearing the evidence presented, the court entered a written order, stating:

“Upon consideration of the evidence presented by the Petitioner in this case, this Court finds that the Petitioner has failed to meet his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner’s Rule 32 Petition is hereby DENIED.”

(C. 255.)

Following the trial court’s entry of the written orders denying Holloway’s petition, Holloway filed a “motion to alter, amend, or vacate judgment,” objecting to the trial court’s failure to enter a written order that made specific findings of fact relating to each material issue of fact presented. Holloway requested that the circuit judge enter a written order that complied with Rule 32.9(d), Ala.R.Crim.P. See Whitehead v. State, 593 So.2d 126 (Ala.Crim.App.1991).

Rule 32, Ala.R.Crim.P., requires the circuit judge to conduct an evidentiary hearing on a Rule 32 petition that is meritorious on its face. However, the Alabama Supreme Court has held that the circuit judge who presided over the petitioner’s trial and observed the conduct of the petitioner’s attorneys at trial need not hold a hearing on the effectiveness of those attorneys based upon conduct that he observed. Ex parte Hill, 591 So.2d 462, 463 (Ala.1991). The fact that the circuit judge is not required to conduct an evidentiary hearing on a petitioner’s claims of ineffective assistance of trial counsel if that judge personally observed the conduct of those counsel does not, however, relieve the judge of the responsibility of entering a sufficiently specific order addressing each of the petitioner’s claims of ineffective assistance of trial counsel. See Alvis v. State, 762 So.2d 380 (Ala.Crim.App.1999); Benefield v. State, 583 So.2d 1370, (Ala.Crim.App.1991) (wherein this Court noted in both eases that meritorious allegations “warrant either an evidentiary hearing or an adequate explanation for their denial”). Our review of Holloway’s petition reveals that he was represented at various stages during the trial proceedings by three different attorneys. Holloway made specific claims of ineffective assistance against all three appointed trial counsel. Moreover, Holloway’s claims of ineffective assistance of trial counsel are not precluded because Holloway could not have reasonably presented his ineffective-assistance-of-trial-counsel claim in a motion for a new trial. See Ex parte Ingram, 675 So.2d 868, 866 (Ala.1996) (the proper method for presenting an ineffective-assistance-of-trial-counsel claim that cannot reasonably be presented in a motion for a new trial is by filing a Rule 32 petition). Therefore, this case will be remanded for the trial court to enter an order setting out its reasons for denying Holloway relief on this ground in sufficient detail to allow this Court to review the correctness of its findings on appeal.

Although the circuit court conducted an evidentiary hearing on Holloway’s claims of ineffective assistance of appellate counsel, it made no specific findings in its written order denying relief. Instead, the court’s order merely noted that the petitioner had failed to meet his burden of proof under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the event that the circuit court conducts an evidentiary hearing on a petitioner’s Rule 32 petition, Rule 32.9(d) requires the court to “make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); Smith v. State, 665 So.2d 954 (Ala.Crim.App.1994). As we have stated, “[a] statement of the basis of the [circuit] court’s decision is essential to afford the appellant due process.” Owens v. State, 666 So.2d 31, 32 (Ala.Crim.App.1994). Thus, following the evidentiary hearing, the circuit court should have entered an order that complied with the requirements of Rule 32.9(d).

This is a complicated case, with Holloway asserting numerous claims against four different attorneys. Our review of the allegations Holloway raises in his brief on appeal is hampered because the circuit court failed to make written findings of fact concerning each material issue of fact presented. Indeed, it would be premature for this Court to review the issues without the circuit court’s first making such findings of fact. See Ex parte Gran, 791 So.2d 345, 346-47 (Ala.2000); Adkins v. State, [Ms. CR-99-0834, February 9, 2001] — So.2d-(Ala.Crim.App.2001).

Based on the foregoing, this case is remanded to the Circuit Court for Calhoun County for that court to set out its reasons for denying Holloway’s claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The circuit court should “make specific findings of fact relating to each material issue of fact presented.” Rule 32.9(d), Ala. R.Crim.P. It is not necessary, however, for the circuit court to address the remaining issues it had determined were procedurally barred.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, PH., and COBB, BASCHAB, and SHAW, JJ., concur.

      . Holloway appears to have had difficulty getting along with his appointed trial counsel. Trudy Ann Phillips was the first attorney appointed to represent Holloway. She represented Holloway at the initial proceedings immediately following his arrest. The trial court allowed Phillips to withdraw after difficulties arose between the two. The court next appointed Fred Lawton III to represent Holloway. Lawton represented Holloway during the pendency of various pretrial proceedings. However, Holloway became dissatisfied with Lawton’s representation and filed a complaint against Lawton with the State Bar Association. The trial court allowed Lawton to withdraw and appointed Ray Bryan to represent Holloway. Bryan represented Holloway at trial, but he was allowed to withdraw following trial. A fourth attorney, Randy Moeller, represented Holloway on direct appeal of his conviction to this Court.

      . We have reviewed our records of Holloway’s direct appeal of his conviction, see Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992) (this Court may take judicial notice of its own records), and determined that Holloway was sentenced on June 25, 1998. However, the entire trial transcript was not available until September 28, 1998, well beyond the 30-day deadline for filing a motion for a new trial.