author: THOMPSON, Judge. CRAWLEY, Judge,

text:
    Heather Teresa BERGOB and Charles T. Bergob v. George E. SCRUSHY. George E. Scrushy and Julie S. Scrushy v. Heather Teresa Bergob.
    2001252.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.
    Julie Scrushy’s Certiorari Petition Denied Jan. 24, 2003 Alabama Supreme Court 1012328.

      John M. Peek of Peek & Weaver, P.C., Andalusia, for appellants/cross-appellees Heather Teresa Bergob and Charles T. Bergob.
    Charles H. Volz III of Volz & Williams, P.C., Montgomery, for appellee George E. Scrushy and cross-appellants George E. Scrushy and Julie S. Scrushy.
   On Applications for Rehearing

THOMPSON, Judge.

The opinion of April 19, 2002, is withdrawn and the following is substituted therefor.

George E. Scrushy and Julie Scrushy (hereinafter together referred to as “the plaintiffs”) sued Heather Teresa Bergob and her father Charles T. Bergob (hereinafter together referred to as “the defendants”), seeking damages for injuries they sustained in an automobile accident. In their complaint, the plaintiffs alleged that Heather Bergob had negligently and/or wantonly caused the accident, and that Charles Bergob had negligently or wantonly entrusted his automobile to Heather Bergob. Heather Bergob answered and denied liability. Charles Bergob filed a motion for a summary judgment on the plaintiffs’ claims against him; on February 21, 2001, the trial court granted that motion. The defendants later filed an offer of judgment.

The case proceeded to trial, and the plaintiffs’ claims against Heather Bergob were submitted to a jury. The jury returned a verdict in favor of Heather Ber-gob on George Scrushy’s claims, and in favor of Julie Scrushy on her claim against Heather Bergob; the jury awarded Julie Scrushy $7,500 in damages. The trial court entered a judgment on the jury’s verdict.

The defendants filed a motion pursuant to Rule 68, Ala. R. Civ. P., seeking to tax costs against George Scrushy. The plaintiffs filed a postjudgment motion. The trial court conducted a hearing on the pending motions. The trial court entered an order denying the defendants’ motion, and stating that it was taking the plaintiffs’ motion “under advisement.” The plaintiffs’ postjudgment motion was denied by operation of law. The defendants appealed. The plaintiffs cross-appealed.

The parties were involved in an automobile accident. The accident occurred on June 12, 1996, in Troy, Alabama. The plaintiffs were traveling north on Highway 231, a four-lane highway with a middle turn lane. George Scrushy, the driver of the automobile in which the plaintiffs were traveling, testified that he activated his right-turn signal and then changed traffic lanes to travel in the right lane of northbound traffic.

Heather Bergob was driving an automobile owned by her father, Charles Bergob, and Joshua Sowell was the passenger in that automobile. Bergob and Sowell had purchased food from a McDonald’s restaurant and were preparing to leave the McDonald’s parking lot. The McDonald’s parking lot was located to the right and some distance north of where the plaintiffs’ automobile changed traffic lanes.

George Scrushy testified that after he changed lanes, he saw Heather Bergob’s automobile stopped in the McDonald’s parking lot waiting to turn onto the highway. Both George Scrushy and Julie Scrushy testified that Heather Bergob (hereinafter “Bergob”) was looking away from them and that she was talking to her passenger. George Scrushy testified that he was accelerating to a speed of 35 to 40 miles per hour and that he was not preparing to make a right turn.

Bergob testified that the turn signal on the plaintiffs’ automobile was blinking and that she assumed that George Scrushy planned to turn right before reaching her location. She testified that she believed the plaintiffs were traveling at approximately 35 to 40 miles per hour. Bergob testified that she “eased” into traffic and that her automobile collided with the plaintiffs’ automobile.

Neither Bergob nor Joshua Sowell was injured in the accident. Sowell testified that he did not think that the impact of the collision was jarring. Julie Scrushy testified that the impact was hard and that, given the nature of the accident, she believed she was lucky to be alive. Both plaintiffs refused to be taken by ambulance to a hospital for treatment of their injuries. Both plaintiffs testified that they became sore and began suffering pain in their necks in the hours following the accident.

The plaintiffs sought treatment for their neck injuries from their family physician on the day after the accident. The plaintiffs later sought further medical treatment for their necks and shoulders. Both George Scrushy and Julie Scrushy testified that, as a result of the accident, they suffer pain daily and that their activities were greatly curtailed by the injuries they suffered in the automobile accident. We note that Bergob presented evidence indicating that the plaintiffs had some preexisting medical conditions and that, before the accident, the plaintiffs had sought treatment for some symptoms similar to those they suffered after the accident. One of Julie Scrushy’s physicians, Dr. Swaid N. Swaid, testified that it was possible that Julie Scrushy might need disk fusion surgery in the future, but that he would not perform that surgery as long as conservative treatments such as medication and physical therapy worked to alleviate her pain.

The trial court granted Bergob’s motion for a judgment as a matter of law on the plaintiffs’ claim alleging wantonness, and it granted Julie Scrushy’s motion for a judgment as a matter of law on Bergob’s defense alleging contributory negligence. The plaintiffs’ claims of negligence and the issue whether Charles Scrushy was contributorily negligent were submitted to the jury. The jury found in favor of Bergob on Charles Scrushy’s claims, but it found in favor of Julie Scrushy on her claims and awarded her $7,500 in damages.

“Initially, we note that a jury verdict is presumed to be correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Crown Life Ins. Co. v. Smith, 657 So.2d 821 (Ala.1994). The presumption that a jury verdict is correct is further strengthened by the trial court’s denial of a motion for a new trial. Cobb v. MacMillan Bloedel, Inc., 604 So.2d 344 (Ala.1992). When reviewing a jury verdict, an appellate court must consider the evidence in a light most favorable to the prevailing party; we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. Crown Life Ins. Co. v. Smith, supra; Martino v. Bruno’s Inc., 681 So.2d 602 (Ala.Civ.App.1996).”

Thedford v. Payne, 813 So.2d 905, 907-08 (Ala.Civ.App.2001).

We first address the arguments raised in the plaintiffs’ cross-appeal. The plaintiffs have raised both individual and joint issues on appeal. Neither plaintiff has argued that the trial court erred in entering a summary judgment in favor of Charles Bergob.

Julie Scrushy argues that the trial court erred in excluding some parts of the testimony of Randal McDaniel, Ph.D., regarding the cost of certain medical treatment that she may need in the future. Initially, we note that Julie Scrushy prevailed on her claims against Heather Ber-gob, and that in Alabama, a party who prevails on his or her claims may appeal only as to the issue of adequacy of damages. Ex parte Weyerhaeuser, 702 So.2d 1227 (Ala.1996). However, that rule does not bar an argument that “amounts to a challenge to the adequacy of the jury verdict.” Ex parte Vincent, 770 So.2d 92, 93 (Ala.1999). We conclude that Julie Scrushy’s argument on this issue relates to evidence that might have affected the jury’s determination of the issue of damages; therefore, we address that issue. See Ex parte Vincent, supra.

Dr. McDaniel testified regarding the reasonable cost of possible future surgery for Julie Scrushy. Dr. McDaniel testified that he contacted various medical-services providers, obtained information regarding the cost of the proposed surgery, and then averaged those costs to determine a reasonable cost of that proposed surgery. Dr. McDaniel testified that the reasonable cost of the proposed surgery was $22,057. Julie Scrushy testified that she had Medicare and “C-Plus” insurance coverage. Bergob objected to Dr. McDaniel’s testimony, arguing that in calculating the reasonable cost of the proposed surgery, Dr. McDaniel had failed to consider the “Medicare assignment,” i.e., the amounts the medical-services providers would charge Medicare for the surgery. On cross-examination, Dr. McDaniel acknowledged that he had not considered the “Medicare assignment.” The trial court initially allowed Dr. McDaniel’s testimony, but, later in the trial, it determined that Dr. McDaniel’s testimony was “rendered incompetent” because he did not consider the Medicare assignment. The trial court excluded that part of Dr. McDaniel’s testimony relating to the reasonable cost of the proposed surgery. In so ruling, the trial court cited Marsh v. Green, 782 So.2d 223 (Ala.2000). In Marsh v. Green, supra, our supreme court overruled a previous determination that the collateral-source rule was unconstitutional.

Initially, we note that “[a] ruling on the admissibility of expert testimony is largely within the discretion of the trial court and will not be overturned unless there has been an abuse of discretion.” Tidwell v. Upjohn Co., 626 So.2d 1297, 1300 (Ala.1993). The scope of an expert’s testimony is also within the trial court’s discretion. W.S. v. T.W., 585 So.2d 26 (Ala.1991). “The competency and qualifications of a person offered as an expert witness are largely left to the trial court’s discretion.” Id. at 28.

On appeal, Julie Scrushy argues that the trial court erred in excluding Dr. McDaniel’s testimony; in support of her argument, she cites only Joiner v. Medical Center East, Inc., 709 So.2d 1209 (Ala.1998). In Joiner v. Medical Center East, Inc., supra, our supreme court held that a hospital could recover the full amount of its charges for a patient’s medical treatment from the proceeds of the patient’s settlement with the liability insurer of the person who caused the patient’s injuries.

Relying on Joiner, supra, Julie Scrushy argues that the provider of her proposed surgery would have the right to obtain the full amount of its bill for that proposed surgery. However, she does not explain how that argument relates to the issue whether Dr. McDaniel’s testimony was admissible. We simply cannot say that Julie Scrushy has established in her brief on appeal that the trial court abused its discretion in excluding Dr. McDaniel’s testimony. See Tidwell v. Upjohn Co., supra; W.S. v. T.W., supra.

Julie Scrushy also argues that the trial court erred in denying her motion for a new trial on the issue of the adequacy of damages. An award of damages is a matter within the discretion of the jury. Smith v. Darring, 659 So.2d 678 (Ala.Civ. App.1995). Any award of damages must include an amount for the uncontradicted special damages, plus any amounts for pain and suffering. Posey v. McCray, 594 So.2d 152 (Ala.Civ.App.1992). Appellate courts afford a presumption of correctness in favor of a jury’s verdict, and that presumption is strengthened where the trial court denies a motion for a new trial. Thedford v. Payne, supra; Posey v. McCray, supra. A jury’s award of damages may not be set aside as inadequate unless it “ ‘is the result of passion, prejudice, or other improper motive.’ ” Kite v. Word, 639 So.2d 1380, 1381 (Ala.Civ.App.1994) (quoting Stricklin v. Skipper, 545 So.2d 55, 56 (Ala.Civ.App.1988)).

Although the party seeking damages is not required to prove damages to a mathematical certainty, an award of damages may not be based on speculation or conjecture. Jamison, Money, Farmer & Co. v. Standeffer, 678 So.2d 1061 (Ala.1996). See also Smith v. Darring, 659 So.2d 678 (Ala.Civ.App.1995). The burden is on the party claiming damages to present evidence regarding the amount of damages he or she allegedly suffered. Johnson v. Harrison, 404 So.2d 337 (Ala.1981).

In this case, Julie Scrushy argues that she presented undisputed evidence of special damages that far exceeded the jury’s award of $7,500 in damages. The “uncontradicted” damages to which Scrushy refers are a total of $21,749 in physical therapy expenses she incurred after the accident and before the date of the trial of this matter. Julie Scrushy also presented evidence regarding the cost of the proposed future surgery; that evidence was later excluded.

“A jury is not bound to award medical expenses merely because they were incurred. Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App.1990) (jury verdict of $907, when plaintiff proved special damages in excess of $100,000, upheld). The fact that a plaintiffs medical bills are admitted into evidence without objection does not necessarily mean that they are undisputed; it may be that the jury believed the plaintiffs medical expenses were not incurred as a result of the defendant’s negligence. Id. See also Stricklin v. Skipper, 545 So.2d 55 (Ala.Civ.App.1988).”

Bennich v. Kroger Co., 686 So.2d 1256, 1257 (Ala.Civ.App.1996).

Our review of the record indicates that the evidence regarding damages for Julie Scrushy’s pain and suffering was in dispute. Bergob disputed Julie Scrushy’s evidence that she required medical treatment after the accident. Bergob presented evidence indicating that Julie Scrushy had not reported to her physicians the symptoms to which she testified at trial, and she presented evidence indicating that before the accident, Julie Scrushy had many of the same symptoms. Dr. Swaid testified that it was possible, but not probable, that Julie Scrushy would need surgery in the future. Dr. Swaid testified that he would recommend that Julie Scrushy have the surgery only if the more conservative methods of treatment, such as pain medications and physical therapy, did not alleviate her pain. “Where there is conflicting evidence as to the proximate cause of the plaintiffs injuries, it is for the jury to determine whether the plaintiffs medical expenses were caused by the defendant’s negligence.” Bennich v. Kroger Co., 686 So.2d at 1257. Therefore, because the evidence in the record regarding Julie Scrushy’s damages was disputed, we are unable to say that Julie Scrushy has demonstrated that the jury’s damages award was inadequate.

George Scrushy appeals on the issue of contributory ’ negligence. We agree with George Scrushy’s contention that because the jury found in favor of Julie Scrushy, but against him, the jury found that he was contributorily negligent. See Banks v. Harbin, 500 So.2d 1027 (Ala.1986) (the negligence of a driver may not be imputed to his passenger); Barnett v. Norfolk S. Ry., 671 So.2d 718, 720 (Ala.Civ.App.1995) (any contributory negligence of a driver does not bar his passenger’s recovery in an action against a third party). George Scrushy argues that the trial court erred in submitting the defense of contributory negligence to the jury; he contends the trial court should have granted his motion for a judgment as a matter of law as to that issue.

“Our review of the trial court’s ruling on a motion for a directed verdict [now a judgment as a matter of law] is de novo. Driver v. National Sec. Fire & Cas. Co., 658 So.2d 390, 392 (Ala.1995).
“ ‘The standard of review applicable to a directed verdict or to a denial of a motion for a directed verdict is whether the nonmoving party has presented substantial evidence in support of his position. If he has not, then a directed verdict is proper. Bailey v. Avera, 560 So.2d 1038, 1039 (Ala.1990). A verdict is properly directed only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact for the jury to determine. Woodruff v. Johnson, 560 So.2d 1040 (Ala.1990). Moreover, whether to direct a verdict is not a matter within the discretion of the trial court; on review no presumption of correctness attaches to such a ruling. McCord v. McCord, 575 So.2d 1056, 1057 (Ala.1991); Barksdale v. St. Clair County Comm’n, 540 So.2d 1389 (Ala.1989).’
“K.S. v. Carr, 618 So.2d 707, 713 (Ala.1993).”

Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319, 326 (Ala.2000).

George Scrushy testified that he had deactivated his turn signal after he changed lanes of traffic and that his turn signal was not activated at the time of the accident. However, for the purposes of his argument on appeal as to the issue of contributory negligence, George Scrushy assumes that his turn signal was activated; he contends that even assuming that fact, the trial court erred in not finding, as a matter of law, that he was not contribu-torily negligent. In addressing George Scrushy’s argument as to this issue, we also assume that his automobile’s turn signal was activated.

“ ‘Contributory negligence is an affirmative and complete defense to a claim based on negligence.’ Ridgeway v. CSX Transp. Inc., 723 So.2d 600, 606 (Ala.1998). Furthermore, ‘the question of the existence of contributory negligence is normally one for the jury.’ Wyser v. Ray Sumlin Constr. Co., 680 So.2d 235, 238 (Ala.1996). It is ‘only when the facts are such that all reasonable men must draw the same conclusion that contributory negligence is ever a question of law for the court.’ Id.

Mitchell v. Torrence Cablevision USA, Inc., 806 So.2d 1254, 1257 (Ala.Civ.App.2000).

George Scrushy testified that he activated his turn signal to indicate his intention to change lanes of traffic and that the Alabama Rules of the Road required him to do so. See § 32-5A-133(a), Ala.Code 1975. George Scrushy testified that shortly after he changed lanes, he saw Bergob’s automobile waiting to enter traffic. George Scrushy testified that he was accelerating and that he did not intend to make a right turn off the highway before he reached her automobile. George Scrushy testified that just as he was drawing near the location where Bergob’s automobile sat, he realized that Bergob was going to pull into traffic and collide with his automobile.

Bergob testified that at the time she saw the plaintiffs’ automobile, the turn signal on the plaintiffs’ automobile was activated. Bergob further testified that, given the rate of speed of the plaintiffs’ automobile, she assumed George Scrushy planned to turn. Bergob then testified that the plaintiffs’ automobile was traveling at “a fast rate of speed.” She admitted that she normally did not make right turns at a speed of 35 miles per hour. Bergob stated that “[b]ecause he had his blinker on, I assumed that he was going to turn.” Ber-gob testified that she was looking in front of her automobile as she “eased” into traffic. It is undisputed that Bergob’s automobile entered the lane of traffic and struck the front passenger-side door of the plaintiffs’ automobile.

George Scrushy maintains that Bergob, as a driver of an automobile about to enter the road, failed to properly yield the right of way. “The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.” § 32-5A-114, Ala.Code 1975. “[T]he word ‘shall’ is to be afforded a mandatory connotation when it appears in a statute.” State Pers. Bd. v. Prestwood, 702 So.2d 176, 179 (Ala.Civ.App.1997). See also Hornsby v. Sessions, 703 So.2d 932 (Ala.1997); State of Alabama Dep’t of Transp. v. McLelland, 639 So.2d 1370 (Ala.1994). Bergob does not dispute that she failed to yield the right of way to the plaintiffs’ automobile. In support of her defense of contributory negligence, Bergob testified only that she “assumed” that George Scrushy planned to turn. However, § 32-5A-114 provides that Bergob, as a driver of an automobile about to enter a road, must yield to oncoming traffic. That section does not qualify that requirement with an exception in situations in which a driver makes an assumption regarding the actions another driver will take. Given the evidence in the record and the clear language of § 32-5A-114, Ala.Code 1975, we must conclude that the trial court erred, as a matter of law, in denying George Scrushy’s motion for a judgment as a matter of law on the issue of contributory negligence.

The plaintiffs argue in their brief on appeal that the trial court erred in granting Bergob’s motion for a judgment as a matter of law on their wantonness claim. The plaintiffs do not make any reference to the record in support of their argument, and they do not cite any law regarding the issue of wantonness, in contravention of Rule 28, Ala. R.App. P. Further, our review of the record indicates that the plaintiffs did not present evidence tending to support their claim that Bergob acted wantonly. We conclude that the plaintiffs have failed to demonstrate error as to this issue.

In their appeal to this court, the defendants argue that the trial court erred in refusing to require George Scrushy to pay the costs they incurred after they made an offer of judgment pursuant to Rule 68, Ala. R. Civ. P. That rule provides in part:

“At any time more than fifteen (15) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten (10) days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.”

Rule 68, Ala. R. Civ. P. (emphasis added).

Because this court has reversed the trial court’s judgment on the issue of the defense of contributory negligence, we cannot determine at this stage whether Ber-gob will ultimately obtain a verdict and judgment more favorable than her offer of judgment to George Scrushy. See Rule 68, Ala. R. Civ. P. Therefore, we pretermit discussion of this issue.

We affirm the trial court’s judgment as it relates to Julie Scrushy. Because we have concluded that the trial court erred in submitting to the jury the issue whether George Scrushy was contributorily negligent, we must remand this action to the trial court for a new trial on George Scrushy’s claims against Bergob.

OPINION OF APRIL 19, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATIONS OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and PITTMAN, J„ concur.

CRAWLEY and MURDOCK, JJ„ dissent.

CRAWLEY, Judge,

dissenting.

I believe the trial court erred by excluding parts of the testimony of Julie Scrushy’s expert, Dr. Randal McDaniel. I also believe the trial court correctly submitted to the jury the issue whether Charles Scrushy was contributorily negligent. Therefore, because I would reverse the trial court’s judgment as it relates to Julie Scrushy and affirm the trial court’s judgment as it relates to George Scrushy, I dissent.

Dr. McDaniel’s testimony as to the reasonable cost of possible future surgery for Julie Scrushy was admissible, despite the fact that McDaniel failed to consider the “Medicare assignment” for the surgery. Compare Haleyville Health Care Ctr. v. Winston County Hosp. Bd., 678 So.2d 789, 794 (Ala.Civ.App.1996) (recognizing that “a hospital’s charges for a Medicare patient ‘in part reflect what Medicare pays’ ”) with Joiner v. Medical Ctr. East, Inc., 709 So.2d 1209, 1210 (Ala.1998) (recognizing that Congress changed Medicare from a primary payer to a secondary payer “when proceeds covering a [Medicare] beneficiary’s medical bill are due from a third-party tortfeasor’s liability insurer” and holding that a hospital has the right under applicable federal law to obtain full payment of its charges from the proceeds of an insurance settlement with the Medicare-eligible plaintiff patient).

The question of George Scrushy’s contributory negligence was properly left up to the jury. See Bogue v. R & M Grocery, 553 So.2d 545, 547 (Ala.1989) (stating that contributory negligence is usually a question of fact for the jury). Although Judge Thompson’s opinion correctly states that § 32-5A-114 required Bergob, as the driver of an automobile about to enter a road, to yield the right-of-way to oncoming traffic, “right of way does not exist ... in isolation and is not absolute. Other factors must be considered.” Wardell v. Jerman, 18 Utah 2d 359, 362, 423 P.2d 485, 486 (1967).

In Wardell, the Utah Supreme Court decided that whether a driver was negligent in relying on another driver’s turn signal and assuming that the signaling driver was going to turn was a jury question. The court stated:

“It would not be at variance with reason for the jury to have visualized the situation thus: that the plaintiff’s left-turn signal was turned on so early that it [led] the defendant to believe that plaintiff was going to turn at this intersection; that the defendant reasonably could place some reliance on this indication and assume safety in making his own left turn; that the defendant’s conduct was thus within the standard of due care under the circumstances; and no more at fault than was plaintiff in causing the accident.”

Wardell, 18 Utah 2d at 362, 423 P.2d at 486.

There is a split of authority concerning whether a motorist’s failure to act in conformity with a turn signal he has given constitutes negligence or contributory negligence. See Michael J. Yaworsky, Annotation, Negligence or Contributory Negligence of Motorist in Failing to Proceed in Accordance With Turn Signal Given, 84 A.L.R.4th 124 (1991). In Jackson v. Warrum, 535 N.E.2d 1207 (Ind.Ct.App.1989), the Indiana Court of Appeals held that a question of fact as to contributory negligence was presented when a motorist signaled a turn but proceeded straight after signaling, despite the fact that the oncoming motorist, who collided with the signaling driver, had a statutory duty to yield before turning across a lane of traffic. The court stated:

“A motorist may be found negligent for proceeding straight after signaling a turn. The plaintiffs appear to argue ... that [their decedent] had no statutory duty to cancel his turn signal, and therefore, the fact that he did not cancel the turn signal should not have been presented to the jury. The plaintiffs’ argument fails. The issue of the motorist’s contributory negligence depends on all the facts and circumstances of the case including but not limited to the motorist’s use of a turn signal, the slowing of speed, the motorist’s lane of travel, and all other facts that bear on the motorist’s apparent intention to turn.”

535 N.E.2d at 1211 (citations omitted). Although there is contrary authority, I would affirm the trial court’s judgment because I believe the cases holding that negligence (or contributory negligence) is a jury question under all the circumstances are the better-reasoned decisions.

MURDOCK, J., concurs.


source: Caselaw Access Project

author: STUART, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte Heather Teresa BERGOB. (In re Heather Teresa Bergob and Charles T. Bergob v. George E. Scrushy George E. Scrushy and Julie S. Scrushy v. Heather Teresa Bergob).
    1012329.
    Supreme Court of Alabama.
    Feb. 7, 2003.
    Ronald G. Davenport and R. Austin Huf-faker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner.
    Submitted on petitioner’s brief only.
   STUART, Justice.

WRIT DENIED; NO OPINION.

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

MOORE, C.J., and WOODALL, J., dissent.

MOORE, Chief Justice

(dissenting).

I dissent from the decision to deny Heather Bergob’s petition for a writ of certiorari. The jury found in favor of Ber-gob on Scrushy’s negligence claim. The Court of Civil Appeals reversed the judgment entered on that jury verdict and remanded the case for the trial court to enter a judgment as a matter of law for Scrushy on the issue of contributory negligence.

The facts of the case as related in the opinion of the Court of Civil Appeals are necessary for an understanding of that decision and of why I must dissent from denying certiorari review.

“The parties were involved in an automobile accident. The accident occurred on June 12, 1996, in Troy, Alabama. The plaintiffs were traveling north on Highway 231, a four-lane highway with a middle turn lane. George Scrushy, the driver of the automobile in which the plaintiffs were traveling, testified that he activated his right-turn signal and then changed traffic lanes to travel in the right lane of northbound traffic.
“Heather Bergob was driving an automobile owned by her father, Charles Bergob, and Joshua Sowell was the passenger in that automobile. Bergob and Sowell had purchased food from a McDonald’s restaurant and were preparing to leave the McDonald’s parking lot. The McDonald’s parking lot was located to the right and some distance north of where the plaintiffs’ automobile changed traffic lanes.
“George Scrushy testified that after he changed lanes, he saw Heather Ber-gob’s automobile stopped in the McDonald’s parking lot waiting to turn onto the highway. Both George Scrushy and Julie Scrushy testified that Heather Bergob (hereinafter ‘Bergob’) was looking away from them and that she was talking to her passenger. George Scrushy testified that he was accelerating to a speed of 35 to 40 miles per hour and that he was not preparing to make a right turn.
“Bergob testified that the turn signal on the plaintiffs’ automobile was blinking and that she assumed that George Scrushy planned to turn right before he reached her location. She testified that she believed the plaintiffs were traveling at approximately 35 to 40 miles per hour. Bergob testified that she ‘eased’ into traffic and that her automobile collided with the plaintiffs’ automobile.
“Neither Bergob nor Joshua Sowell was injured in the accident. Sowell testified that he did not think that the impact of the collision was jarring. Julie Scrushy testified that the impact was hard and that, given the nature of the accident, she believed she was lucky to be alive. Both plaintiffs refused to be taken by ambulance to a hospital for treatment of their injuries. Both plaintiffs testified that they became sore and began suffering pain in their necks in the hours following the accident.”

Bergob v. Scrushy, 855 So.2d 523, 527 (Ala.Civ.App.2002).

The Court of Civil Appeals rested its decision on the issue whether George Scrushy had been contributorily negligent in causing the accident. After reviewing Scrushy’s argument that the trial judge should have granted his motion for judgment as a matter of law as to the contributory-negligence issue, the Court of Civil Appeals reversed the trial court’s judgment on that issue. I disagree with that decision.

The Court of Civil Appeals began its discussion of the issue by quoting from prior cases the proposition that a jury verdict is entitled to great deference by an appellate court:

“ ‘ “[T]he question of the existence of contributory negligence is normally one for the jury.” Wyser v. Ray Sumlin Constr. Co., 680 So.2d 235, 238 (Ala.1996). It is “only when the facts are such that all reasonable men must draw the same conclusion that contributory negligence is ever a question of law for the court.” Id’
“Mitchell v. Torrence Cablevision USA, Inc., 806 So.2d 1254, 1257 (Ala.Civ.App.2000).”

Bergob, 855 So.2d at 531. But the Court of Civil Appeals then went on to define the issue in such a way as to render it a question of law and thus one not proper for jury determination.

The Court of Civil Appeals determined that Bergob’s decision to enter the lane of traffic in which Scrushy was driving placed upon Bergob a duty, as a matter of law, to yield to anyone in that lane. § 32-5A-114, Ala.Code 1975. However, the jury may have considered Scrushy negligent because of his speed, his inattentiveness, or because he failed to avoid an accident that he could have avoided. It is not the duty of appellate courts to usurp the deliberations of the jury.

“The strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So.2d 793 (Ala. 984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (Ala.1988). This presumption is strengthened by the trial court’s denial of a motion for a new trial.
“ ‘When a jury is the trier of fact, it is not for the trial judge, nor an appellate court, to attempt to determine with mathematical certainty that all of the various elements of evidence offered by the parties regarding specific costs and credits precisely equal the amount of the jury’s verdict. We do not have trial by computer, nor do we have post-trial, or appellate review by the computer. The reviewing court does not substitute its own judgment as to the amount of damages for that of the trier of fact.’
“G.M. Mosley Contractors, Inc. v. Phillips, 487 So.2d 876, 879 (Ala.1986). See, also, Hollis v. Wyrosdick, 508 So.2d 704 (Ala.1987).
“ ‘Upon review of a jury verdict, we presume that the verdict was correct; we review the tendencies of the evidence most favorably to the prevailing party; and we indulge such reasonable inferences as the jury was free to draw from the evidence. We will not overturn a jury verdict unless the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury’s verdict was wrong and unjust.’ ”

Charter Hospital of Mobile, Inc. v. Weinberg, 558 So.2d 909, 911 (Ala.1990).

An appellate court is ill-equipped to review all the different fact situations that are possible in this case. The jury apparently believed the testimony of Bergob over that of Scrushy because Scrushy claimed at trial that he did not have his right-turn signal on as he approached Ber-gob’s vehicle and that Bergob was not even looking at him when he was in the lane Bergob entered from the McDonald’s restaurant parking lot. We cannot know all the facts and circumstances the jury considered in reaching a verdict.

The trial court was correct in denying Scrushy’s motion for judgment as a matter of law on the contributory-negligence issue and in allowing that issue to go to the jury. Therefore, the opinion of the Court of Civil Appeals conflicts with precedent of this Court and of the Court of Civil Appeals, which says that a jury decides the issue of contributory negligence. I would grant the petition. Therefore, I respectfully dissent.


author:
THOMPSON, Judge.
      MURDOCK, Judge,

text:
    HOMES OF LEGEND, INC. v. Albert O’NEAL.
    2010949.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2003.

      David M. Wilson and Jonathan L. Ber-ryhill of Wilson & Berryhill, P.C., Birmingham, for appellant.
    Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, Gadsden, for appellee Albert O’Neal.
    Bennett L. Pugh, Joseph H. Driver, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, filed a brief for Amerigas.
   THOMPSON, Judge.

Albert O’Neal filed an action seeking workers’ compensation benefits from his former employer, Homes of Legend, Inc., for injuries he allegedly sustained to his back in on-the-job accidents on May 13, 1999, and November 13, 1999. O’Neal later amended his complaint to add Ameri-gas, a subsequent employer, as a defendant in his workers’ compensation action. In his amended complaint, O’Neal stated that on January 11, 2001, while he was working for Amerigas, he suffered an injury that might have aggravated his earlier work-related injuries. In essence, O’Neal sought a determination as to which employer was liable for his alleged disability.

Homes of Legend and Amerigas each answered and denied liability. The parties conducted discovery. After some discovery was completed, Amerigas, who had been paying for O’Neal’s medical treatment, stopped paying.

On March 18, 2002, O’Neal filed a motion to compel Homes of Legend, or in the alternative, Amerigas, to pay for his medical treatment for his alleged injuries while the issue of liability was being decided. Homes of Legend and Amerigas each responded to O’Neal’s motion to compel and each denied liability for the medical treatment. Amerigas argued that while working for it, O’Neal suffered a recurrence of, rather than an aggravation of, his earlier injury. Homes of Legend maintained that O’Neal aggravated his earlier injury while working for Amerigas. Each defendant submitted evidence in support of its position. The trial court also received evidence during an ore tenus hearing conducted on O’Neal’s motion to compel payment for his medical treatment.

On June 12, 2002, the trial court entered an order in which it found that while he was working for Amerigas, O’Neal suffered a recurrence, rather than an aggravation, of the back injury he sustained while he worked for Homes of Legend. Therefore, the trial court ordered that Homes of Legend pay for O’Neal’s medical treatment. Also on June 12, 2002, the trial court entered an order continuing the scheduled June 26, 2002, final hearing on O’Neal’s action, and ordered that the final hearing be rescheduled at a later date. Homes of Legend appealed from the trial court’s June 12, 2002, order finding it responsible for payment of O’Neal’s medical treatment.

O’Neal filed in this court a motion to dismiss the appeal; in that motion, O’Neal argued that the June 12, 2002, order was not final. Therefore, we must initially determine whether the trial court’s June 12, 2002, order was final so as to support an appeal.

This court has held that a workers’ compensation judgment similar to the one presently before this court was sufficiently final to support an appeal in cases in which the trial court reserved jurisdiction to later determine the issue of the worker’s permanent total disability, if any. BE & K, Inc. v. Weaver, 743 So.2d 476 (Ala.Civ.App.1999); Mike Makemson Logging v. Colburn, 600 So.2d 1049 (Ala.Civ.App.1992); Ex parte DCH Reg'l Med. Ctr., 571 So.2d 1162 (Ala.Civ.App.1990). However, in those cases, the trial court made findings that the injury was compensable and calculated the disability benefits due at the time the order was entered. In addition, in Ex parte DCH Regional Medical Center, supra, and BE & K, Inc. v. Weaver, supra, the trial courts also ordered that the employer was responsible for the payment for medical treatment related to the worker’s injury.

In International Paper Co. v. Dempsey, 844 So.2d 1236 (Ala.Civ.App.2002), the employer appealed an order finding that the worker was entitled to medical benefits under the Workers’ Compensation Act and to any workers’ compensation benefits that had accrued until the date of that order; in that order, the trial court reserved ruling on the issue of the worker’s permanent disability, if any. The trial court’s order, however, did not establish the nature of the workers’ compensation benefits due or the amount of benefit that had accrued until the date of the trial court’s order. For that reason, this court concluded that the trial court’s order in that case was distinguishable from the orders this court had concluded in BE & K, Inc. v. Weaver, Mike Makemson Logging v. Colburn, and Ex parte DCH Regional Medical Center were sufficiently final to support an appeal. This court determined that because the trial court’s order did not determine the amount or type of benefits due the worker on the date of the entry of the order, it was not sufficiently final to support an appeal; therefore, we dismissed the appeal. International Paper Co. v. Dempsey, 844 So.2d at 1238.

In this case, the trial court’s June 12, 2002, order resolved only the issue of Homes of Legend’s liability for O’Neal’s medical treatment; it did not contain a provision pertaining to any workers’ compensation benefits accrued and payable at the time the order was entered. Accordingly, we find the order in this case to be more similar to the order in International Paper Co. v. Dempsey than to the orders in BE & K, Inc. v. Weaver, Mike Makemson Logging v. Colburn, and Ex parte DCH Regional Medical Center. We conclude that the trial court’s June 12, 2002, order does not “sufficiently ascertain[ ] and declare[ ] the rights of the parties” so as to lend that order sufficient finality to support an appeal. See Mike Makemson Logging v. Colburn, 600 So.2d at 1050. Therefore, we must dismiss the appeal.

APPEAL DISMISSED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached by the majority: the dismissal of this appeal. In doing so, I too conclude that the order of the trial court at issue is not a final judgment. This court therefore does not have appellate jurisdiction.

In arguing that this court does have jurisdiction, Homes of Legend emphasizes that the trial court intends its order for payment of the employee’s medical expenses to be immediately enforceable. The only issue in the case before us, however, is whether this court has jurisdiction over the attempted appeal of the trial court’s judgment. The lack of finality of that judgment is dispositive of that issue.

      . I note a tension in our caselaw, however, as to whether a complaint like the one in the present case, that seeks both workers' compensation benefits under § 25-5-57, Ala.Code 1975, and medical benefits under § 25-5-77, Ala.Code 1975, constitutes only one claim alleging several elements of damage or two claims. Compare Dunlop Tire Corp. v. Arch, 784 So.2d 1056 (Ala.Civ.App.2000), with Pike County Comm’n v. Green, 740 So.2d 1076 (Ala.Civ.App.1998), GAF Corp. v. Poston, 656 So.2d 1225 (Ala.Civ.App.1995), and City of Auburn v. Brown, 638 So.2d 1339 (Ala.Civ.App.1993). See also Ex parte Tuscaloosa County, 522 So.2d 782 (Ala.1988).


author: THOMPSON, Judge.

text:
    J.W. and K.W. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2011218.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2003.

      David K. Hogg, Dothan, for appellant J.W.
    William H. Pryor, Jr., atty. gen.; J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Judge.

J.D.W. (“the child”) was placed in the custody of the Houston County Department of Human Resources (“DHR”) by a July 5, 2001, order of the trial court shortly after she was born on June 27, 2001. Following a hearing on November 20, 2001, the trial court determined that the child was dependent. On May 16, 2002, DHR filed a petition seeking to terminate the parental rights of J.W. (“the father”) and K.W. (“the mother”) to the child. The petition indicated that the whereabouts of the mother was unknown. DHR filed an affidavit in support of serving notice on the mother by publication, and notice of the petition was subsequently published in the Dothan Eagle on May 19, May 26, June 2, and June 9. On August 13, 2002, the trial court conducted a hearing in which it received ore tenus evidence. The father was present and was represented by counsel at the hearing. The mother was not present at the hearing, but she was represented by her court-appointed counsel. On August 27, 2002, the trial court entered an order terminating the father’s and the mother’s parental rights to the child. The father appealed. The record indicates that the mother filed a notice of appeal on September 5, 2002, but failed to file a brief on appeal in this court. Therefore, we affirm the trial court’s order insofar as it terminates the mother’s parental rights.

The record reveals that both the father and the mother suffer from schizophrenia and from mild mental retardation. The father and the mother both receive Social Security disability benefits. The father has been committed to the state mental-health system at least twice, and the mother has been previously committed to four separate mental-health facilities. When the child was born, the father was 50 years old and the mother was 22 years old. After the child was born, the staff at the hospital where the child was born attempted to teach the father and the mother parenting skills, but both had difficulty performing basic tasks such as feeding and bathing the child. A hospital social worker telephoned DHR and requested an assessment of the father and the mother. DHR filed a petition for dependency, and the child was subsequently removed from the hospital and placed in foster care. The father visited the child every week following her removal from the parents’ care. However, the mother did not visit the child while she was in foster care.

Dr. Barry Funkhouser, a clinical psychologist, testified that the father was a regular patient of his and that he had seen the father 28 times since July 20, 2001. The father was initially referred to Dr. Funkhouser by DHR in order to help the father improve his parenting skills so that he could properly parent the child. Dr. Funkhouser initially met with the father after the father had threatened to commit suicide by taking an overdose of medication. Dr. Funkhouser noted that when he began his treatment, the father was not compliant with his prescribed medications for schizophrenia but that during treatment he became compliant. Dr. Funk-houser testified that the father was easily angered and was agitated when things did not go his way. In addition, Dr. Funk-houser testified that the father’s moods were unstable.

Dr. Funkhouser diagnosed the father with schizophrenia and mild mental retardation. Dr. Funkhouser stated that schizophrenia was a permanent condition. Because the father would always suffer from schizophrenia, Dr. Funkhouser determined that the father could not be the sole parent of the child. Dr. Funkhouser acknowledged that the father loved the child dearly; however, Dr. Funkhouser stated that love could not outweigh the problems the father would have with the day-to-day care of the child.

The father testified that he was disabled and that because of his disability he was currently unemployed; the last time he worked was in 1977. The father became physically disabled when he was working on a construction site and a steel beam fell on him. The father testified that as a result of his injury he now has only one kidney and a “bad liver.” The father currently receives $554 in Social Security disability benefits and is unable to pay child support from that income. The father testified that he has another child, by a woman other than the mother, who was 9 years old at the time of the termination hearing. That child receives $875 in Social Security benefits as a result of the father’s disability; however, the father has yet to apply for Social Security benefits for the child at issue in this appeal.

Cynthia Hobdy, a social worker with DHR, testified that she had never met the mother but that the mother had contacted her once. Hobdy testified that the mother had asked her about getting the child back. Hobdy also testified that the mother stated that she was living with her mother, A.L., and that A.L. would help her care for the child; however, A.L. is also mentally unstable. The mother did not leave a contact address when she spoke with Hobdy. Hobdy noted that, at the time of trial, neither the mother nor any of her immediate family had come forward to file a petition for custody. Hobdy had had no other contact with the mother.

Hobdy testified that the father generally became agitated when the child cried excessively. On the occasions the father visited the child while the child was in DHR’s custody, the father required assistance taking care of the child. Hobdy testified that a visitation specialist from DHR would ensure that the time the father spent with the child was meaningful, productive, and safe. According to Hobdy, DHR and the individualized-service-plan team decided that the permanent plan for the child should be adoption. Hobdy testified that she knew of a family who wished to adopt the child following the termination proceeding.

On appeal, the father contends that the trial court erred in terminating his parental rights and that the termination of his parental rights was premature. A trial court’s determination of factual issues following the presentation of ore tenus evidence is presumed correct and will not be disturbed on appeal absent a showing of palpable error. F.L.L. v. State Dep’t of Human Res., 612 So.2d 501 (Ala.Civ.App.1992). Section 26-18-7, Ala. Code 1975, sets forth the statutory authority for the termination of a parent’s parental rights, providing, in pertinent part:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for the needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

(Emphasis added.)

This court has stated:

“Every parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent’s custody would be in the best interests of the child. M.H.S. v. State Dep’t of Human Resources, 686 So.2d 419 (Ala.Civ.App.1994).
“ ‘The trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the children. § 26-18-7, Ala.Code 1975. The trial court shall consider whether the parents have abandoned their children, whether the parents have problems with drugs or alcohol, and whether reasonable efforts to rehabilitate the parents have failed. § 26-18-7(a), Ala.Code 1975. If the children are not in the physical custody of their parent or parents, the trial court shall also consider such circumstances as whether the parents have provided material needs for the children, whether the parents have maintained regular, scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially. § 26 — 18—7(b), Ala.Code 1975.’
“M.H.S. v. State Dep’t of Human Resources, 686 So.2d at 421.
“Where a nonparent petitions to terminate a parent’s parental rights, the trial court must apply a two-pronged test. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). The trial court must first determine that the child is dependent. Id. After finding the child dependent, the court must examine viable alternatives to the termination of parental rights. Id. On appeal, the trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. M.H.S. v. State Dep’t of Human Resources, supra. In a proceeding to terminate parental rights, the paramount consideration of the trial court, and of this court, is the best interests of the children involved. Id.”

A.R.E. v. E.S.W., 702 So.2d 138, 139-40 (Ala.Civ.App.1997).

The record indicates that the father suffers from schizophrenia and mild mental retardation. The father’s schizophrenia is a permanent condition. Because of his condition, the father becomes easily agitated and angered. The father is dependent on medication to control his schizophrenia. As a result of an on-the-job injury, the father is disabled and has limited finances with which to care for the child. Although the father regularly visited the child after DHR removed her from the hospital, the visits were monitored by a DHR employee to ensure the safety of the child. Hobdy testified that during those visits the father was not capable of caring for the child alone. In addition, Dr. Funkhouser testified that the father continued to experience periods of instability and uncontrolled anger. Dr. Funkhouser also testified that the father could never be the sole parent of the child.

The mother also suffers from schizophrenia. She is disabled and receives Social Security benefits. During the course of the proceedings with DHR, the mother failed to show for the dependency hearing or the termination-of-rights hearing. It appears from the record that the mother did not visit the child after DHR removed the child from the hospital. The mother telephoned Hobdy only once to ask about gaining custody of the child. Hobdy had no other contact with the mother.

The father contends that the trial court prematurely terminated his parental rights. In support of his contention, the father argues that DHR made no effort to rehabilitate him before terminating his parental rights. In addition, the father argues that his mental condition has improved and that he is now compliant with his medication. Contrary to the father’s assertion on appeal, DHR referred the father to Dr. Funkhouser in an attempt to help the father improve so that he could be a parent to the child. Following 28 visits with the father, Dr. Funkhouser was of the opinion that the father could never be the sole parent. There was no testimony or evidence to indicate that the father had any immediate family members who could help him care for the child. In addition, the record reveals that the mother is missing and that no one from her immediate family has come forward to petition for custody of the child. Given the evidence in the record on appeal, this court cannot say that the trial court’s termination of the father’s parental rights was plainly and palpably wrong. See A.R.E. v. E.S.W., supra.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . The record indicates that the mother also did not attend the November 20, 2001, dependency hearing.


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Ex parte AMERIGAS. (In re Albert O’Neal v. Homes of Legend and Amerigas).
    2020041.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2003.

      Bennett L. Pugh, Joseph H. Driver, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    David M. Wilson and Jonathan L. Ber-ryhill of Wilson & Berryhill, P.C., Birmingham, for respondent Homes of Legend, Inc.
    Myron K. Allenstein of Allenstein & Al-lenstein, Gadsden, for respondent Albert O’Neal.
   THOMPSON, Judge.

This petition for a writ of mandamus arises out of facts in a case in which an appeal is pending before this court. The facts are set forth in our opinion in that appeal:

“Albert O’Neal filed an action seeking workers’ compensation benefits from his former employer, Homes of Legend, Inc., for injuries he allegedly sustained to his back in on-the-job accidents on May 13, 1999, and November 13, 1999. O’Neal later amended his complaint to add Amerigas, a subsequent employer, as a defendant in his workers’ compensation action. In his amended complaint, O’Neal stated that on January 11, 2001, while he was working for Ameri-gas, he suffered an injury that might have aggravated his earlier work-related injuries. In essence, O’Neal sought a determination as to which employer was liable for his alleged disability.
“Homes of Legend and Amerigas each answered and denied liability. The parties conducted discovery. After some discovery was completed, Amerigas, who had been paying for O’Neal’s medical treatment, stopped paying.
“On March 18, 2002, O’Neal filed a motion to compel Homes of Legend, or in the alternative, Amerigas, to pay for his medical treatment for his alleged injuries. Homes of Legend and Ameri-gas each responded to O’Neal’s motion to compel and each denied liability for the medical treatment. Amerigas argued that while working for it, O’Neal suffered a recurrence of, rather than an aggravation of, his earlier injury. Homes of Legend maintained that O’Neal aggravated his earlier injury while working for Amerigas. Each defendant submitted evidence in support of its position. The trial court also received evidence during an ore tenus hearing conducted on O’Neal’s motion to compel payment for his medical treatment.
“On June 12, 2002, the trial court entered an order in which it found that while he was working for Amerigas, O’Neal suffered a recurrence, rather than an aggravation, of the back injury he sustained while he worked for Homes of Legend. Therefore, the trial court ordered that Homes of Legend was responsible for paying for O’Neal’s medical treatment. Also on June 12, 2002, the trial court entered an order continuing the scheduled June 26, 2002, final hearing on O’Neal’s action, and ordered that the final hearing be rescheduled at a later date. Homes of Legend appealed from the trial court’s June 12, 2002, order finding it responsible for payment of O’Neal’s medical treatment.”

Homes of Legend v. O’Neal, 855 So.2d 536, 537-38 (Ala.Civ.App.2003). This court today dismisses Homes of Legend’s appeal as being from a nonfinal judgment.

While the appeal in Homes of Legend v. O’Neal, supra, was pending in this court, O’Neal filed in the trial court a motion entitled “motion to compel medical treatment previously ordered.” In that motion, O’Neal sought to enforce the June 12, 2002, order and to require Homes of Legend to pay for his medical treatment while Homes of Legend’s appeal from that order was pending in this court. In his motion, O’Neal also asserted that “[i]f [the trial court] is reversed or if [the trial court] changes its order as to which employer is responsible, the [trial court] should order Amerigas to reimburse Homes of Legend for all medical care paid by Homes of Legend.” Homes of Legend moved this court to strike O’Neal’s motion seeking to enforce the June 12, 2002, order because, it alleged, that motion was not timely filed; this court denied Homes of Legend’s motion.

On August 13, 2002, the trial court entered a one-sentence order granting O’Neal’s motion to enforce the June 12, 2002, order. Homes of Legend filed a motion asking the trial court to reconsider its August 13, 2002, order. On August 30, 2002, the trial court entered an order reiterating that Homes of Legend was responsible for paying the costs of O’Neal’s medical treatment. That order also provided that if, on appeal, a court decided that issue in favor of Homes of Legend and determined that Amerigas was responsible for paying for O’Neal’s medical treatment, Amerigas was to reimburse Homes of Legend for any amounts it had expended for O’Neal’s medical treatment. The trial court’s August 30, 2002, order specifically provides that that order is not a final judgment.

Amerigas filed a petition for a writ of mandamus in this court, asking this court to order the trial court to vacate its August 30, 2002, order.

Mandamus is an extraordinary remedy. An appellate court will grant a petition for a writ of mandamus only when “(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citing Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala.1997)). Review by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal. Ex parte Jackson, 780 So.2d 681 (Ala.2000); Ex parte Inverness Constr. Co., 775 So.2d 153 (Ala.2000); Ex parte Walters, 646 So.2d 154 (Ala.Civ.App.1994).

In its petition for a writ of mandamus, Amerigas sets forth several arguments in support of its basic contention that the trial court erred in requiring, in its August 30, 2002, order, that Amerigas reimburse Homes of Legend should Homes of Legend prevail on its argument that Amerigas, and not it, is responsible for paying for O’Neal’s medical treatment. Based on those arguments, Amerigas maintains that the trial court’s August 30, 2002, order is due to be vacated. Thus, in its petition for a writ of mandamus, Ameri-gas asks this court to review the merits of the trial court’s August 30, 2002, order.

Our supreme court has held:

“ ‘The rules of law applicable to the case are simple and well settled. The writ of mandamus will lie from a superi- or to an inferior or subordinate court, in a proper case, to compel it to hear and decide a controversy of which it has jurisdiction; or, where the cause has been heard, to compel such inferior court to render judgment or enter a decree in the given case. But its use is not warranted to direct what particular judgment shall be rendered in a pending cause, nor is it the proper function of such remedial writ to re-examine, or correct errors in any judgment or decree so rendered. “The rale applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unperformed, and it be judicial in its character, the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be done; or if it be ministerial, the mandamus will direct the specific act to be performed.” — Ex parte Newman, [81] U.S. 152, 14 Wall. 152, 169, 20 L.Ed. 877 [(1871)]; High on Extr. Rem. §§ 150-152, 266; Ex parte Schmidt, 62 Ala. 252 [(1878)]; Ex parte Mahone, 30 Ala. 49 [(1857)]. The principle, of course, universally prevails, that in no event will the writ ever be awarded where full and adequate relief can be had by appeal, writ of error, or otherwise.’ ”

State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)) (some emphasis original; some emphasis added).

In this case, the trial court has issued an order, and Amerigas takes issue with the merits of that order; however, mandamus should not issue to “ ‘re-examine[ ] or correct errors in a[ ] judgment.’ ” State v. Cobb, 288 Ala. at 678, 264 So.2d at 526. The merits of the trial court’s August 30, 2002, order may be reviewed on appeal once the trial court enters a final judgment in O’Neal’s workers’ compensation action. A petition for a writ of mandamus may not be granted where the petitioner has an adequate remedy by appeal. Ex parte Jackson, supra; Ex parte Inverness Constr. Co., supra; In re State of Alabama v. Cobb, supra; Ex parte Walters, supra.

WRIT DENIED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Judge,

concurring in the result.

I do not find it necessary for this court to decide at this juncture whether Ameri-gas will have “an adequate remedy by appeal” if and when the time comes that Amerigas needs such a remedy. Amerigas is not yet confronted with a trial-court order requiring it, rather than Homes of Legend, to pay the employee’s medical expenses. Therefore, although I agree with the result reached in the majority opinion, I do so on the different ground set forth below.

Amerigas complains that the trial court’s August 30, 2002, order “holds Am-erigas immediately liable for” the employee’s medical expenses despite the fact that there “has been no final adjudication on the merits of [the employee’s] claim for benefits.” (Emphasis added.) However, as to Amerigas, the trial court has ordered only that it will be responsible for reimbursement of the employee’s medical expenses “[i]n the event that Homes of Legend, Inc., is successful on appeal as currently pending or at [some] later time in [the trial court] or in an appellate court.” I therefore conclude that Amerigas has failed to make a sufficient showing to satisfy the second element necessary to establish a right to a writ of mandamus — an “imperative duty” on the respondent to perform.- See Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000).

        . In a related case, this court today dismisses the appeal by Homes of Legend of the trial court’s June 12, 2002, order finding it responsible for payment of the employee’s medical expenses. The appeal is dismissed as not being from a final judgment. See Homes of Legend v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003).


author: PER CURIAM.

text:
    Ralph D. LONG v. CITY OF HOOVER et al.
    2011246.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2003.
    Ralph D. Long, pro se.

      Stephen B. Griffin of Stephen B. Griffin & Associates, Hoover, for appellee City of Hoover.
   PER CURIAM.

Ralph D. Long appeals from a summary judgment entered by the Jefferson Circuit Court on February 27, 2002. This case was transferred to this court by the Supreme Court, pursuant to § 12-2-7(6), Ala. Code 1975. For the reasons stated herein, we dismiss the appeal.

This case has previously been before this court. See Long v. City of Hoover; 844 So.2d 1273 (Ala.Civ.App.2002) (“Long I”). We quote from the pertinent procedural history summarized in Long I:

“On December 20, 1999, Ralph D. Long, a City [of Hoover] police officer holding the rank of lieutenant, sued the City and the members of the city council in their official capacity, seeking to enjoin the City from employing [Edward RJ Braden at the rank of captain and to request the City to employ the most qualified person as captain; he argued that by hiring Braden as captain the City was violating its civil service merit system and that he should be considered for the position. On January 5, 2000, several taxpayers sued the City and the members of the city council in their official capacity, seeking to prohibit the City from violating its civil service merit system, by enjoining enforcement of Braden’s settlement agreement.
“On January 11, 2000, the trial court held a hearing on Long’s motion for a preliminary injunction. On January 12, 2000, the City and all the defendants, except Barbara McCollum, who was separately represented by Steve Griffin, moved to consolidate Long’s action and the taxpayers’ action. On February 2, 2000, McCollum filed a cross-complaint against the City and the other members of the city council alleging that if she was liable to Long, she was liable because the City and the other members of the city council had violated the City’s civil service merit system.
“The City opposed the preliminary injunction, arguing, among other things, that Braden had been properly employed as a police captain pursuant to the settlement agreement. On February 15, 2000, the trial court denied Long’s motion for a preliminary injunction. On March 2, 2000, the trial court consolidated the two cases. In September 2000, Barbara McCollum was elected mayor of the City. The elections also changed the composition of the city council. Subsequently, Steve Griffin, who had been representing McCollum, filed a notice of appearance on behalf of all of the defendants. On November 15, 2000, the parties agreed to submit the case for mediation.
“A letter irom Long’s attorney indicates that the parties agreed to the essential terms of a settlement as a result of mediation on April 5, 2001. However, the mediator did not reduce the settlement to writing until June 1, 2001. The terms of the settlement included demoting Braden from captain to lieutenant.
“On April 16, 2001, Long, who is also an attorney, filed a motion, stating that he had asked Gray to withdraw as his counsel and that he wanted to enter a notice of appearance. On April 19, 2001, Long filed an amended complaint, alleging negligence, defamation, and fraud against the members of the city council individually, certain City employees, and Braden, and seeking compensatory and punitive damages. Long’s [amended] complaint arose out of certain communications made during the hearing on the preliminary injunction relating to his service record as a police officer and his qualifications for the position of police captain. On May 22, 2001, the members of the city council, the City employees, and Braden moved to dismiss Long’s amended complaint because of failure to properly serve the defendants. On June 11, 2001, Long moved for a declaratory judgment. Following a hearing, the trial court, on June 12, 2001, found that the motion to dismiss was premature because the defendants had not been properly served with the amended complaint. The trial court denied Long’s motion for a declaratory judgment. On July 10, 2001, the City moved to enforce the June 1, 2001, settlement agreement. On August 13, 2001, the parties agreed to dismiss Long’s amended complaint without prejudice. On August 14, 2001, Long filed a second amended complaint against the city council members individually, certain City employees, and Bra-den, seeking compensatory and punitive damages, again based on the communications made during the litigation relating to Long’s qualifications for the position of police captain.
“On August 20, 2001, the trial court rendered a ‘final decree’ enforcing the settlement agreement reached by the parties, which was entered by the clerk of the court on August 23, 2001. On August 21, 2001, the trial court entered an order dismissing Long’s first amended complaint based upon the parties’ agreement. The court noted that Long’s second amended complaint remained pending.
“On September 6, 2001, Braden moved to intervene as a matter of right pursuant to Rule 24(a), Ala. R. Civ. P.; he challenged his demotion. On September 7, 2001, he sued the City. Bra-den also filed a petition for a writ of mandamus with this court, seeking a stay of his demotion, which the trial court denied on September 13, 2001. On September 14, 2001, the supreme court entered an order that stated, in part:
“ ‘It is further ordered that the order of August 20, 2001, entered by Judge Jack Carl in the Circuit Court of Jefferson County, Alabama is stayed pending the disposition of this petition for writ of mandamus, but the hearing currently scheduled for September 25, 2001, on petitioner’s motion to intervene is not stayed.’
“On December 28, 2001, the supreme court denied Braden’s petition for a writ of mandamus. On January 2, 2002, Bra-den filed a Rule 60(b), Ala. R. Civ. P., motion for relief from the August 20, 2001, judgment. On January 9, 2002, Long filed a response, and also filed a Rule 60(b) motion of his own. In his Rule 60(b) motion, Long alleged that fraud and misconduct on the part of his former attorney and Steve Griffin, an attorney for the defendants, warranted relief from the judgment. On January 10, 2002, Long filed his notice of appeal. On February 6, 2002, the trial court denied Braden’s motion to intervene, from which Braden timely appealed. The trial court did not rule on Braden’s Rule 60(b) motion or on Long’s Rule 60(b) motion. On February 27, 2002, the trial court purported to enter a summary judgment in favor of the defendants on all of the remaining claims.”

Long I, 844 So.2d at 1278-79 (emphasis added; footnotes omitted).

In Long I, Long argued that he was appealing from the trial court’s failure to grant his motion for relief from the August 21, 2001, order, rather than from the order itself, and that his appeal was therefore proper. We dismissed the appeal as having been taken from a nonfinal judgment. See Long I, 844 So.2d at 1279. However, in so ruling, we also stated:

“The August 20, 2001, order enforcing the settlement was not a final judgment. Long’s second amended complaint, which sought compensatory and punitive damages, was still pending. On February 27, 2002, the trial court purported to enter a summary judgment in favor of the defendants on all the pending claims.
“When the trial court granted the defendants’ motion to enforce the settlement agreement, it specifically noted that Long’s second amended complaint — wherein he sued the city council members individually and added new parties — was still pending. Because claims were undecided, there was no final judgment.
“Long’s appeal, although premature because it was not from a final order, divested the trial court of jurisdiction over the case. ‘ “Once an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.” ’ Horton v. Horton, 822 So.2d 431, 434 (Ala.Civ.App.2001), quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala.Civ.App.1982). Long’s notice of appeal had the effect of divesting the trial court of jurisdiction to rule on his remaining claims. Therefore, the trial court’s judgment of February 27, 2002, is a nullity because of Long’s appeal.”

Long I, 844 So.2d at 1279-80.

Because this court has previously determined that the February 27, 2002, summary judgment is void, Long’s claims remain to be adjudicated by the Jefferson Circuit Court. The law is well-settled that a void judgment will not support an appeal. See Watson v. Terminix Int’l Co., 810 So.2d 689 (Ala.2001). Thus, Long’s current appeal, like his first appeal, must be dismissed. In dismissing the appeal, however, we specifically instruct the trial court to set aside the void February 27, 2002, summary judgment.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE TRIAL COURT.

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

MURDOCK, J., recuses himself.


author: CRAWLEY, Judge.

text:
    Jennifer L. ESTRADA v. Carl J. REDFORD.
    2010758.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2003.

      R. Eric Summerford, Sr., Decatur, for appellant.
    Shane Hollaway of Hollaway Law Office, Guntersville, for appellee.
   CRAWLEY, Judge.

The parties were divorced in Texas in 1992. Jennifer Lynn Estrada (“the mother”) was awarded custody of the parties’ two sons, who were then two years old and four years old. Carl J. Redford (“the father”) was ordered to pay child support. In 1996, the father moved to modify the divorce judgment, seeking custody of the children. The Morgan Circuit Court modified the judgment, awarding custody of the children to the father and ordering the mother to pay $320 per month in child support.

In December 2000, the mother moved to modify the 1996 judgment, seeking to have the children returned to her custody. She alleged that the children were being emotionally scarred by their relationships with the father and his current wife. She also alleged that the father and his wife had unreasonably interfered with the children’s visitation with their maternal grandparents. The father denied those allegations and counterclaimed, seeking an increase in child support from the mother. Pursuant to the mother’s request, the trial court appointed a guardian ad litem for the children. After a hearing in October 2001, the trial court, on January 15, 2002, denied the mother’s request for a modification of custody. It also ordered the mother to pay the father $450 per month in child support.

On February 8, 2002, the mother filed a postjudgment motion, alleging, among other things, that since the hearing in October 2001 she had been laid off from her job, that she was presently drawing only $247 per week in unemployment-compensation benefits, and that she was unable to pay $450 per month in child support. On March 21, 2002, the trial court entered the following notation on the case action summary sheet:

“Motion for new trial denied. Court will consider modification of support upon submission of new CS-41’s. Both parties ordered to submit CS-41’s within 30 days hereof. Either party may ask for a hearing on recalculation; otherwise, the court will recompute child support.”

On April 4, 2002, the father submitted a CS-41 form. The mother, who did not submit a new CS-41 form, filed her notice of appeal on May 1, 2002. On that same date, the trial court noted on the case action summary sheet that the mother’s pending motion was “moot.”

I.

The mother filed her notice of appeal when the trial court had not yet ruled on her postjudgment request for a modification of her child-support obligation. On the same day the mother appealed, the trial court determined that the mother’s request was “moot.” An appeal ordinarily lies only from a final judgment. See § 12-22-2, Ala.Code 1975; Bean v. Craig, 557 So.2d 1249,1253 (Ala.1990). An order is generally not final unless it disposes of all claims or the rights or liabilities of all parties. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). Because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu,’ ” Wallace v. Tee Jays Manufacturing Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)), we must determine whether we have jurisdiction over this appeal or whether this appeal is from a nonfinal judgment.

A change in the mother’s income that occurred after the trial is “new evidence,” not “newly discovered evidence.” See Ex parte Patterson, 853 So.2d 260, 263 (Ala.Civ.App.2002) (Yates, P.J., concurring specially). When a party has new evidence as to her income, she may be entitled to a modification of her child-support obligation if she files a petition to modify. See Rule 32(A)(3)(b), Ala. R. Jud. Admin, (establishing a rebuttable presumption that child support should be modified when “the difference between the existing child support award and the amount determined by the application of [the Rule 32 Guidelines] varies more than ten percent (10%)”).

A petition to modify, however, is a separate action that requires a proper filing, the payment of a filing fee, and service. See Ex parte Davidson, 782 So.2d 237, 240 (Ala.2000); Farmer v. Farmer, 842 So.2d 679 (Ala.Civ.App.2002). The mother did not pay a filing fee for, and did not serve the father with, a petition to modify her child-support obligation. Therefore, the mother’s request to modify child support was not properly before the trial court. Because the mother’s request was not properly before the trial court, the trial court’s failure to rule on the request does not prevent the trial court’s judgment from being final. See Ex parte Davidson; Farmer v. Farmer, and Ex parte Patterson, supra.

II.

The trial court determined that the mother had failed to meet her burden under Ex parte McLendon, 455 So.2d 863 (Ala.1984); that determination is due to be affirmed.

Both parties have remarried since their divorce. The mother, her husband, and their two children (an eight-year-old boy and a two-year-old girl) live in Nashville, Tennessee. The father and his wife live in Marshall County, Alabama, with 5 children: their 6-year-old daughter; the wife’s 2 children from a prior marriage (a 13-year-old girl and a 10-year-old boy); and the 2 children whose custody is at issue in this case and who, at the time of trial, were 10 and 13 years old.

The mother presented evidence indicating that the father’s relationship with the older son was strained as a consequence of what, she thought, were the father’s overly harsh methods of discipline. The evidence tended to show that the father occasionally slapped or spanked the children; the mother did not use corporal punishment. The mother presented evidence indicating that the father and the older son had had several physical altercations. The older son testified that his father had sometimes lost his temper; he denied, however, feeling “unsafe” in his father’s presence. The older son said that he believed the father and his wife favored their child and the wife’s children from a former marriage over his brother and him. He told the trial court that he wanted to live with his mother because the schools in Tennessee were better than those in Marshall County, because he would be able to play soccer for two seasons during the year instead of one, because his mother’s house was cleaner and less crowded than his father’s, and because his mother had promised him an allowance. He said he liked his mother’s husband because he played basketball with him.

Although the younger son also testified that he wanted to live with his mother, he was more equivocal and did not criticize his father and stepmother. He testified that his father had spanked him on occasion, but he said that the spankings were not abusive and that he had “probably deserved” to be spanked. The older brother acknowledged that it was he who had asked the mother to petition for a modification of custody and that the younger brother had no real preference for which parent had custody.

The mother presented evidence indicating that the father and his wife had hindered or prevented the children’s visitation with their maternal grandparents, who live in Marshall County. The mother testified that the father would not allow the maternal grandparents to pick the children up at the father’s home on the weekends when the mother had visitation and he had refused to allow the maternal grandparents to keep the children at their home until the mother arrived from Tennessee. The father presented evidence tending to show that his relationship with the wife’s parents had become strained because he suspected that they had reported him to the Department of Human Resources (“DHR”) for suspicion of child abuse and for having an unclean house.

The guardian ad litem recommended that custody be changed to the mother. The trial court rejected that recommendation.

When there is a prior custody judgment, the parent seeking a change in custody has a heavy burden of proof. Merely showing a material change of circumstances is insufficient. The petitioner must establish that a change in custody will materially promote the child’s best interests and that the benefits of the requested change will more than offset the inherently disruptive effect of uprooting the child. Ex parte McLendon, 455 So.2d 863 (Ala.1984). The ore tenus rule applies to custody-modification proceedings. Ex parte Patronas, 693 So.2d 473 (Ala.1997).

“When [an appellate court] reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: ‘“A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).”

Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). This court is not allowed to reweigh the evidence or to substitute its judgment for that of the trial court. Ex parte Bryowsky,, 676 So.2d 1322 (Ala.1996).

In the present case, the trial court found that both parents loved the children and that both homes were “suitable in all respects.” Its judgment provides that the maternal grandparents may pick the children up at the father’s home on Friday night of the weekends when the mother has visitation and may keep them until the mother arrives from Tennessee or until 11:00 a.m. Saturday, whichever is earlier. The judgment also states, in pertinent part:

“The court finds relevant law to be set forth in Pullum v. Webb, 669 So.2d 925 [(Ala.Civ.App.1995)], wherein the Alabama Court of Civil Appeals found that a simple change in circumstances such as the erosion of the relationship between the mother and the children is insufficient to support the change of custody. While the court found that the [children’s] preference is an important factor of ... consideration, it also found that it was not controlling.... The court notes the report of the Guardian Ad Litem and his recommendation in this case and is in accord with the Guardian with respect to the father’s bizarre and self-centered behavior.
“Although the court is impressed with the mother’s commitment to [the children], it is not satisfied that she has met the standards set by Ex parte McLen-don with regard to overcoming the inherently disruptive effects of the relocation. From all the court was able to determine from the testimony offered at trial on behalf of the father, the children were extremely well adjusted. The court’s observation of the children during the time that they testified out of the presence of their parents confirmed that they were fine young men who are doing well in school and in their interpersonal relationships with friends and family.
“The father is encouraged to seek counseling for his sons and himself in order to enhance his relationship with them. While the court does not doubt his commitment to his children, it is obvious that the father engages in behaviors which are counter-productive and not in the best interest of the children.”

The trial court correctly concluded that neither the preferences of the children, see Trusty v. Newton, 678 So.2d 1173, 1175 (Ala.Civ.App.1996), nor the recommendation of the guardian ad litem, see Moody v. Nagle, 811 So.2d 546, 548 (Ala.Civ.App.2001), is controlling. The evidence in the record fully supports the trial court’s factual findings and legal conclusions. Its judgment is therefore affirmed.

AFFIRMED.

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

THOMPSON, J., concurs in the result.

MURDOCK, J., dissents.