text:
    Francis LaJoy STEADMAN v. UPTOWN MOTORS, INC.
    2001168.
    Court of Civil Appeals of Alabama.
    March 15, 2002.
    Rehearing Denied May 24, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011705.

      Steven D. King, Oneonta, for appellant.
    Garve Ivey, Jr., of Ivey & Ragsdale, Jasper, for appellee.
   THOMPSON, Judge.

On December 8, 2000, Uptown Motors, Inc., sued Francis LaJoy Steadman; in its complaint, Uptown Motors sought a division of certain real property that it owned in joint tenancy with Steadman. The trial court conducted an ore tenus hearing. On June 29, 2001, the trial court entered a judgment ordering that the property be sold. Steadman appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

Pursuant to § 35-6-20, Ala.Code 1975, a joint owner of real property may seek to have property partitioned or sold for division. Ragland v. Walker, 387 So.2d 184 (Ala.1980). “The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common....” § 35-6-20, Ala. Code 1975.

“Before a sale under [§ 85-6-20, Ala. Code 1975,] is authorized, proof that the land cannot be equitably divided is required. Once a tenant in common has averred and proved that the parcel cannot be equitably divided, this Court has interpreted Code 1975, § 35-6-20, as giving that co-tenant the right to demand partition of the land held in coten-ancy.”

Watson v. Durr, 379 So.2d 1243, 1244 (Ala.1980) (footnotes omitted). If a joint owner is unable to demonstrate that the real property cannot be equitably divided among the joint owners, the property must be partitioned and not sold. Cotton v. McMurtry, 440 So.2d 1039, 1040 (Ala.1983). The party seeking the sale for division has the burden of proving that the property cannot be equitably divided between the joint owners. McGee v. McGee, 495 So.2d 1081 (Ala.1986); Cotton v. McMurtry, 440 So.2d 1039 (Ala.1983); Watson v. Durr, supra; Carden v. Vanderslice, 336 So.2d 1082 (Ala.1976). The trial court’s determination of whether the property may be divided equitably among the joint owners is entitled to the ore tenus presumption of correctness. English v. Brantley, 361 So.2d 549 (Ala.1978); Meador v. Meador, 255 Ala. 688, 53 So.2d 546 (1951).

The evidence in this case indicates that the property in dispute consists of 80 acres located in Walker County. Steadman testified that the property at issue in this case has been in his family for approximately 60 years, and that his mother owned the property at the time of her death. Stead-man has a number of siblings. Steadman testified that after his mother died, he and two of his sisters, Martha Steadman Lollar and Mary Myers, purchased all other heirs’ interests in that property. Thereafter, Steadman, Lollar, and Myers owned undivided one-third interests in the entire 80 acres. Myers later deeded one-half of her interest in the property to her daughter, Sherry Spain.

Uptown Motors conducts coal-mining operations. Uptown Motors owns much of the land surrounding the property at issue in this dispute, and it has conducted coal-mining operations on those lands. Uptown Motors wants to mine the coal on the property. It obtained preliminary permits to allow it to mine the property for coal, apparently assuming that it would eventually purchase the property. On June 5, 2000, Uptown Motors purchased the interests in the property held by Lollar, Myers, and Spain. On that same date, Uptown Motors contracted to return to Lollar, Myers, and Spain their interests in the property after it had completed its planned coal-mining operations on the property.

Steadman rejected Uptown Motors’ offers to purchase his interest in the property. Therefore, Uptown Motors filed a “complaint for division,” asking the trial court to order the property sold. Given the nature of the relief sought in its complaint, Uptown Motors impliedly asserted that the property could not be equitably divided between the joint owners. See Madison v. Lambert, 399 So.2d 840, 843 (Ala.1981) (holding that by seeking a sale for division, the plaintiff “conditioned his prayer for relief on the jurisdictional assertion that the property cannot be partitioned in kind”).

Steadman testified that the property could be divided so that he would receive his one-third interest; he believed the property “could be divided ... [in] any direction.” Steadman testified that he would like to have the northern portion of the property. Uptown Motors submitted as an exhibit a map depicting the areas for which it had obtained preliminary permits to mine coal; that map indicated that Uptown Motors planned to use the majority of the property for its mining operations. Steadman testified that according to that map, there was no way to divide the property so as to award him his proportionate interest in the property without including an area Uptown Motors wanted to use for coal mining. Thus, any partition of the property according to the parties’ interests would necessarily have included in any award to Steadman property that Uptown Motors wished to use for its proposed mining operation on the property.

Charles Justice, the president and owner of Uptown Motors, testified that the property consists of “just hills and hollows,” and that the property is unimproved and not used for cultivation. The property was cleared of its timber four to five years before the trial; the property is now wooded with volunteer growth. The property is not accessible by a passable road. Justice testified that, at least to him, the property had no economic value other than that derived from its use for coal mining.

Justice testified that Uptown Motors had invested money in the coal-mining operation for a large area that included the property in dispute in this action. Justice testified that Uptown Motors already intended to mine the majority of property at issue in this case; that it planned to investigate the feasibility of mining the remainder of the property; and that it intended to construct a sediment pond on the property that would serve not only the coal-mining operation on the property at issue but also the mining operations conducted on adjacent lands.

Justice testified that without knowing exactly where the coal deposits on the property were located, he “would not know where to divide” the property. Justice also testified that the property could not be partitioned in a manner that would allow Uptown Motors to perform its mining operations in a cost-effective manner, especially with regard to its other mining operations on nearby lands. Justice stated that he would prefer that the trial court order the property to be sold at auction.

Steven R. Ingle, a professional mineral engineer, testified regarding the areas of the property that Uptown Motors planned to mine. Ingle testified that because the ownership of the property was in dispute, he had not been able to conduct proper testing to determine the feasibility of mining the property for coal. Ingle testified, however, that his estimates derived from the nature of the coal reserves on adjacent property had formed the basis for Uptown Motors’ plans to mine the majority of the 80 acres of property in dispute. Ingle also testified that if Uptown Motors was not allowed to mine the property in accordance with its proposed mining plan, the costs of its mining operations both on the property at issue and on the adjacent lands would be increased. Ingle testified that dividing the property so as to award Steadman his one-third interest in the property would make Uptown Motors’ plans to mine the property economically inefficient.

In its judgment, the trial court determined that the property could not be equitably divided because the parties had differing opinions regarding the nature of the continuing use of the property. The trial court ordered that the property be sold.

Initially, we note that on appeal, Steadman raises two related procedural issues: whether the trial court should have considered Uptown Motors’ contract to deed its interests in the property back to Lollar, Myers, and Spain after Uptown Motors had conducted its planned coal mining as the functional equivalent of a lease, and, therefore, whether Lollar, Myers, and Spain were necessary parties to this action. In its judgment, the trial court found that because Steadman did not present any argument or evidence regarding the validity or the effect of the contract, that issue was not before the court. After examining the record, we conclude that the evidence supports that determination. We further note that issues not presented to and properly argued before the trial court may not be raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). Therefore, we agree with the trial court’s determination that the evidence indicated that only Steadman and Uptown Motors had interests in the property and, therefore, that they were the only parties necessary to the resolution of this dispute.

Steadman also argues that the evidence does not support the trial court’s determination that the property could not be equitably divided. Therefore, Steadman argues, the trial court erred in ordering that the property be sold. See Cotton v. McMurtry, supra.

Our supreme court has affirmed judgments in which a trial court found that property could not be equitably divided and ordered a sale for division where the evidence indicated that the property in dispute was of varied topography or use, or where the joint owners’ interests were small. See Williams v. McIntyre, 632 So.2d 446, 448 (Ala.1993) (affirming a judgment that ordered the sale of property “ ‘of a very diverse type and nature,’ ” where experts testified that the property could not be equitably divided); Irons v. Le Sueur, 487 So.2d 1352, 1356 (Ala.1986) (affirming a judgment determining certain property could not be equitably partitioned according to the interests of the 12 joint owners); Cotton v. McMurtry, supra (the property was of such diverse use and had so little area with access to a public road that a division among the joint owners was not feasible); English v. Brantley, 361 So.2d 549, 551-52 (Ala.1978) (affirming a judgment determining that 140 acres of property that varied in its use and quality could not be equitably divided among 57 joint owners with interests ranging from 1/6 to 1/396).

Our supreme court has reversed judgments ordering a sale for division where the evidence did not support the trial court’s determination that the property at issue could not be equitably partitioned. For example, the court held that where a party’s testimony that the property could be divided, but not equitably, was “conclu-sory” and “equivocal and very meagre,” that evidence did not support the trial court’s judgment that the property could not be equitably divided among the joint owners. Murphy v. Dees, 293 Ala. 529, 533, 307 So.2d 1, 4 (1975). The court reversed a judgment ordering a sale for division where the evidence indicated that the parties advocating the sale wanted only one-half of the jointly owned property; the court concluded that the trial court could have partitioned the property to award the other half of the property to the parties who opposed the sale for division. Fendley v. Lambert, 286 Ala. 179, 182, 238 So.2d 346, 349 (1970). Also, where the only evidence presented in support of a petition for a sale by division was that the property in dispute was “ ‘pretty hilly,’ ” the court concluded the trial court erred in determining the property could not be equitably partitioned. Raper v. Belk, 276 Ala. 370, 371, 162 So.2d 465, 466 (1964).

In this case, Uptown Motors had the burden of establishing that the property could not be equitably divided. McGee v. McGee, supra; Cotton v. McMurtry, supra. At the trial, Uptown Motors presented evidence indicating that the property is not accessible by a paved road, that it is not improved or in use for cultivation or forestry, and that its topography is essentially uniform. Steadman testified that the property could be divided in almost any manner. Justice and Ingle testified, however, that any division that would afford Steadman his one-third interest in the property would create economic inefficiencies for Uptown Motor’s proposed mining of the property and for its mining of the adjacent lands.

The record contains no evidence indicating that the property could not be, because of its nature, topography, or current uses, divided among the joint owners. The evidence in the record supports only a conclusion that partitioning the property to award Steadman his proportionate ownership interest in the property would not be economically efficient for Uptown Motors. However, that is not the standard of proof necessary for obtaining a sale for division. “[T]he petitioning party has the burden to plead and prove that the property cannot be equitably partitioned.” McGee v. McGee, 495 So.2d at 1082.

We conclude that the evidence Uptown Motors presented was insufficient to support the trial court’s determination that the property could not be equitably partitioned among the joint owners. Therefore, we must reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

CRAWLEY, J., concurs in the result.


source: Caselaw Access Project

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

license: Public Domain

text:
    AAA COOPER TRANSPORTATION v. Jerry Wayne PHILYAW.
    2000643.
    Court of Civil Appeals of Alabama.
    March 15, 2002.

      Charles F. Carr and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for appellant.
    William D. Melton, Evergreen; and Max Cassady, Evergreen, for appellee.
   PITTMAN, Judge.

Jerry Wayne Philyaw (the “employee”) sued AlAA Cooper Transportation (the “employer”) for workers’ compensation benefits, alleging that he suffered a work-related injury in July 1998 and a second work-related injury in July 1999 and that those two injuries caused him to be permanently disabled. Following a trial, the trial court found that the employee was permanently totally disabled and awarded corresponding benefits and medical expenses.

The employer argues that the trial court erred by (1) admitting the testimony of the employee’s vocational-rehabilitation expert witness; (2) finding that the employee’s two injuries were work-related; (3) finding that the employee was permanently totally disabled; and (4) setting what it contends is an incorrect date on which the employee reached maximum medical improvement (“MMI”).

This court will not reverse a judgment based on the factual findings of the trial court in a workers’ compensation case if those findings are supported by “substantial evidence.” § 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 employer first argues that the trial court erred by admitting the testimony of the employee’s vocational-rehabilitation expert witness, Dr. Nancy Crumpton. The employer argues that the admission of this evidence is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that the admission of this evidence does not comply with the “scientifically reliable” test established by the Supreme Court.

Our supreme court has been confronted several times with whether to apply the requirements of Daubert in all civil cases The court refused each time. In Ex parte Diversey Corp., 742 So.2d 1250, 1253-54 (Ala.1999), the court would not consider Diversey Corporation’s argument that the expert testimony at issue did not satisfy Daubert because Diversey did not move the trial court to strike the expert testimony offered by the plaintiff Cooper in opposition to Diversey’s summary-judgment motion.

In Southern Energy Homes, Inc. v. Washington, 774 So.2d 505 (Ala.2000), the court mentioned the Daubert holding in footnote 5, recognizing that the United States Supreme Court replaced the “general acceptance” test for the admissibility of expert testimony established by Frye v. United States, 293 F. 1013 (D.C.Cir.1923), with the scientifically reliable test requirements of Daubert. The court further stated that it would not address the issue because neither party had argued that issue on appeal. 774 So.2d at 516-17 n. 5.

In Courtaulds Fibers, Inc. v. Long, 779 So.2d 198 (Ala.2000), the court refused to address the Daubert issue because the issue was not raised by the parties at trial, but rather by an amicus curiae on appeal. 779 So.2d at 202 n. 1.

The most recent discussion of this issue by our supreme court is in Slay v. Keller Industries, Inc., 823 So.2d 623 (Ala.2001). The court affirmed a summary judgment entered for Keller Industries, a defendant in an AEMLD case. 823 So.2d at 626. The Slays, the plaintiffs, appealed and argued that they had presented material issues of fact by way of the testimony of an expert witness. 823 So.2d at 624-25. Keller Industries had filed a motion in limine to exclude the expert’s testimony. 823 So.2d at 624. The trial court entered a summary judgment for Keller Industries, but did not state whether it had granted the motion in limine and excluded the expert’s testimony or whether it had denied the motion in limine, but concluded that the expert’s testimony was not substantial evidence to oppose the summary-judgment motion. 823 So.2d at 626.

The court concluded that the expert’s testimony did not satisfy either Frye or Daubert, and, therefore, that it was not substantial evidence to oppose the summary-judgment motion. 823 So.2d at 626. The court also stated that because the expert’s testimony did not satisfy the requirements of Daubert, “adopting that standard would make no difference in the outcome of this case. We therefore decline to address this issue.” 823 So.2d 623 at 625 n. 2.

In this case, the employer ably argued the Daubert issue in the trial court and in its appellate brief. The employer argues that Dr. Crumpton’s testimony regarding the employee’s loss of earning capacity is not “scientifically reliable” as required by Daubert and it argues, therefore, that her testimony should not have been admitted.

In its judgment, the trial court referred to Dr. Crumpton’s testimony as “credible,” “compelling,” and “persuasive.” The trial court also states in its judgment that, “even absent Dr. Crumpton’s testimony, the Court still concludes that the [employee] is permanently and totally disabled as a result of both the July 1998 and the July 1999 on the job accidents.” In essence, the trial court stated that had it relied on or not relied on Dr. Crumpton’s testimony, it would have reached the same conclusion — that the employee is permanently totally disabled.

The trial court’s judgment reflects the rule of law that in determining an employee’s loss of earning capacity the trial court is not bound by expert testimony. Ex parte Kmart Corp., 812 So.2d 1205 (Ala.2001); and Ex parte Beaver Valley Corp., 477 So.2d 408 (Ala.1985). The trial court may base its loss-of-earning-eapaeity determination on its own observations of the employee during the trial. Genpak Corp. v. Gibson, 534 So.2d 312 (Ala.Civ.App.1988). As will be discussed later in the opinion, substantial evidence, other than Dr. Crumpton’s testimony, supports the trial court’s finding that the employee is permanently totally disabled. Therefore, as the supreme court concluded in Slay v. Keller Indus., Inc., supra, we conclude that applying Daubert to Dr. Crump-ton’s testimony would not affect the outcome of the case; even if we concluded that Dr. Crumpton’s testimony was inadmissible, other admissible evidence supports the trial court’s finding of permanent total disability. Therefore, we will not apply the Daubert requirements in this case.

The employer next argues that the trial court erred by finding that the employee’s injuries were work related. The employer first argues that the employee did not prove legal causation. The employer specifically argues that the employee’s 1999 injuries were the result of a physical altercation with his wife. The employee testified that the 1999 injuries were caused by his misstep from his tractor-trailer and the resulting fall to the ground, which severely injured his back. The employer presented evidence that the employee and his wife had been involved in a physical fight shortly after the time that the employee testified that he was injured leaving his tractor-trailer. The employer contends that the overwhelming evidence indicates that the employee’s fight with his wife caused his injury. However, we conclude that the employee’s testimony about how his accident occurred is substantial evidence of the legal causation of his accident.

The employer also argues that the employee did not prove medical causation. We disagree. The employee presented evidence from several doctors who testified that the employee’s on-the-job accidents caused the employee to suffer injuries to his back, loss of bladder control, and loss of erectile function. Therefore, we conclude that the employee presented substantial evidence of medical causation.

The employer further argues that the trial court erred by finding the employee to be permanently totally disabled. The employee has a ninth-grade education and does not have a high-school diploma or a GED certificate. The employee has performed only manual labor. The trial court also emphasized the worker’s back pain and loss of bladder function in its judgment finding that the employee is permanently totally disabled. As this court has stated, “The test for permanent total disability is the inability to perform one’s trade or to obtain reasonably gainful employment. Total disability does not mean entire physical disability or absolute helplessness. Southern Prestressed Concrete, Inc. v. Thomas, 485 So.2d 772 (Ala.Civ.App.1986).” Genpak Corp. v. Gibson, 534 So.2d 312, 314 (Ala.Civ.App.1988). Therefore, we conclude that the trial court’s finding that the employee is permanently totally disabled is supported by substantial evidence.

The employer also argues that the employee is not permanently totally disabled because, it argues, the employee is capable of being retrained via vocational rehabilitation. Given the extent of the employee’s injuries, including loss of bladder control and continuous chronic pain, we conclude that the trial court did not err by not ordering the employee to undergo vocational rehabilitation. Furthermore, the record indicates that the employer did not request a vocational-rehabilitation plan before the trial.

The employer lastly argues that the trial court established an incorrect date as the date on which the employee reached MMI. Because we affirm the trial court’s finding that the employee is permanently totally disabled, the correct date of the employee’s MMI (the date that temporary total disability would end) does not affect the calculation of the employee’s permanent total disability benefits. In effect, the employee’s temporary total disability period never ends because the employee is permanently totally disabled. See § 25-5-57(a)(l) and (a)(4) (providing, respectively, the same rate of compensation for temporary total disability and permanent total disability).

The trial court’s judgment is due to be affirmed.

AFFIRMED.

THOMPSON, J., concurs.

YATES, P.J., concurs specially.

MURDOCK, J., concurs in the result.

CRAWLEY, J., dissents.

YATES, Presiding Judge,

concurring specially.

I write to point out that it is my belief that Daubert would never be applicable to a workers’ compensation case where the extent of disability is at issue. “It is the duty of the trial court to make some determination as to the extent of disability.” Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255, 1258 (Ala.Civ.App.1998). In making that determination, the trial court is not bound by expert testimony, even if that testimony is uncontroverted. Ex parte Kmart Corp., 812 So.2d 1205 (Ala.2001). Rather, the trial court may rely upon its own observations in making its determination. Genpak Corp. v. Gibson, 534 So.2d 312 (Ala.Civ.App.1988). Because a trial court is not bound to the testimony of experts and may consider its own observations in making a determination as to the extent of disability, I simply do not see where the application of Dau-bert would be relevant.

CRAWLEY, Judge,

dissenting.

I dissent because I believe the admission of the testimony of the worker’s vocational-rehabilitation expert witness was error. In Slay v. Keller Industries, Inc., 823 So.2d 623 (Ala.2001), our Supreme Court stated that it has not abandoned the “general acceptance” test stated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In Slay, it described the “general acceptance” test:

“Under this standard, a person who offers an opinion as a scientific expert must prove that he relied on scientific principles, methods, or procedures that have gained general acceptance in the field in which the expert is testifying.
“Mere assertions of belief, without any supporting research, testing, or experiments, cannot qualify as proper expert scientific testimony under either the ‘general-acceptance’ standard enunciated in Frye or the ‘scientifically reliable’ standard of Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ]. Both general acceptance in the scientific community and a reliable basis in the knowledge and experience of a discipline are lacking.... ”

823 So.2d at 626.

During voir dire examination, the expert testified that for about 15 years she had performed evaluations to determine vocational disability; that there are significant differences of opinion among vocational experts as to the percent of disability; and that “there is not one method that takes into account every single aspect of vocational disability.” On further questioning, the following occurred:

“Q. And it is a fair statement and you would agree that there are significant differences of opinion among vocational experts as to those figures of em-ployability or disability?
“A. Yes, there are, often times.
“Q. Can you explain to this Court why it would be on a fairly regular basis that vocational experts who testify in court can differ by as much as 80 'percent or more in the vocational disability of employees that they’re testifying about?
“A. All I can tell you in some of the cases where I have testified I may have administered different tests to get different areas of information to help me with my decision; maybe another expert has used a different test instrument or has maybe not obtained that particular piece of information to put in the profile of that person. Sometimes a vocational expert may not take into consideration a pain factor and others may. I think those may be the two areas where there’s the biggest difference.
“Q. Is there ... any particular manual that vocational people can turn to to give some uniformity or predictability in reaching employability opinions?
“A. We don’t have anything like that.”

(Emphasis added.) Over the company’s objection, the worker’s expert testified that the worker “would not be able to be employed at a competitive level.”

The foregoing testimony illustrates that the worker’s expert was not relying on any principle, method, or procedure that had gained general acceptance in the scientific community in order to form her opinion of the extent of the worker’s disability.

The majority concludes that admission of the vocational expert’s testimony was harmless error because the remaining evidence supported the trial court’s judgment. However, as our Supreme Court held in Liberty National Life Insurance Co. v. Harrison, 274 Ala. 43, 145 So.2d 219 (1962), the remaining evidence must be “without conflict.”

“It has long been the rule that where a cause is tried by the court without a jury, the admission of illegal evidence raises the presumption of injury, and requires the reversal of the judgment unless the remaining evidence is without conflict and is sufficient to support the judgment. When this announcement was made, over a vigorous dissent, in First National Bank of Talladega v. Chaffin, [118 Ala. 246, 24 So. 80 (1898) ], it overruled many cases. The rule has been adhered to in later decisions.
“In view of another trial, we are not to be understood as commenting on the evidence or its effect other than to say that with [the rebuttal witness’s] testimony excluded, the remaining evidence is in conflict. We cannot know how far the trial court was influenced in the finding of fact by the evidence erroneously admitted.”

274 Ala. at 48, 145 So.2d at 223-24 (citations omitted). The remaining evidence as to plaintiffs permanent and total disability was in conflict.

In her special writing, Presiding Judge Yates states:

“In making [a disability] determination, the trial court is not bound by expert testimony, even if that testimony is un-controverted. Ex parte Kmart Corp., 812 So.2d 1205 (Ala.2001). Rather, the trial court may rely upon its own observations in making its determination. Genpak Corp. v. Gibson, 534 So.2d 312 (Ala.Civ.App.1988).”

842 So.2d at 693 (Yates, P.J., concurring specially).

The issue in this case is not whether the evidence was sufficient to support the judgment, but whether the erroneous admission of the expert’s testimony probably injuriously affected substantial rights of the company. Rule 45, Ala. R.App. P. The trial judge specifically found “the testimony of [the worker’s expert] to be compelling and persuasive. However, even absent [the worker’s expert] testimony, the Court still concludes that the [worker] is permanently and totally disabled as a result of both the July 1998 and the July 1999 on-the-job accidents.”

I believe the trial court erroneously considered inadmissible evidence and that its error was not harmless. I would remand for a redetermination of the worker’s disability.

      . Section 36-18-30, Ala.Code 1975, applies the requirements of Daubert for the admission of DNA evidence used for “identification purposes.”

      . The opinion does not state whether Keller Industries argued in its motion in limine that the expert’s testimony did not satisfy the Dau-bert requirements.

      3. The Alabama Supreme Court has not adopted the Daubert standard in civil cases. Southern Energy Homes, Inc. v. Washington, 774 So.2d 505 (Ala.2000).

      4. The trial court also found the testimony to be credible.


text:
    Carol J. EARHEART v. Joel EARHEART.
    2000541.
    Court of Civil Appeals of Alabama.
    March 15, 2002.
    Rehearing Denied May 17, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011646.

      Donald C. Partridge, Mobile, for appellant.
    Claude D. Boone, Mobile, for appellee.
   PITTMAN, Judge.

This matter comes to us on appeal from the trial court’s order in a divorce case.

On December 1, 1999, Carol J. Earheart filed a complaint for divorce and a motion for a restraining order against Joel Earh-eart. In the complaint, the wife alleged that the parties were incompatible and that the husband had committed acts of domestic violence upon her. The wife asked for custody of the couple’s natural daughter and of her natural son, whom the husband had adopted. The wife also sought the following: an award of child support; an award of periodic alimony; an award of alimony in gross; division of the marital estate; payment of her health insurance; one-half of the husband’s retirement funds; and the designation of both children as irrevocable beneficiaries of the husband’s life-insurance policy until the daughter finished her education. The husband answered the complaint, denying the wife’s allegations, and cross-claimed for divorce based upon incompatibility. The husband also sought custody of both children, an award of child support, and an equitable division of the marital estate. The matter was tried, and the trial court entered its judgment on November 7, 2000. The wife appeals.

The wife makes three arguments on appeal. First, she alleges the trial court abused its discretion in its division of the marital estate. Second, she alleges that the trial court abused its discretion in failing to award her alimony. Last, she alleges the trial court’s award of child support is insufficient.

Both parties recognize that under Alabama law, we review the issues of property division and periodic alimony together to determine whether a divorce judgment is equitable. See Courtright v. Courtright, 757 So.2d 453 (Ala.Civ.App.2000). Therefore, both parties have briefed the first two arguments as one and we will consider them here in the same fashion. The pertinent parts of the trial court’s order relating to marital property and to alimony are as follows:

“2. THAT the Court finds that both parties have engaged in conduct which constitutes domestic violence; hence, any presumption resulting from the same is overcome by the evidence.
“7. THAT the Court will award to the [wife] the real property commonly known as 13505 and 13515 Dauphin Island Parkway.... Further, [wife] shall pay and be responsible for any indebtedness due on said property and shall indemnify and hold [husband] harmless therefrom.
“8. THAT the Court will award to the [wife] twenty-five percent (25%) of the value of the [husband’s] retirement as of October 30, 2000,....
“9. THAT the Court will award to the [husband] the businesses known as Dolphin Line Inc., Dolphin Properties, Inc., Bayside Properties Inc. and any other business venture which he may have a interest in.... Further, [husband] is to pay and be responsible for any indebtedness owed by either party to any of the corporations and shall indemnify and hold [wife] harmless therefrom.
“10. THAT the Court will award to the [wife] the furniture and furnishings in the bedrooms of the minor children. All other personal property, exclusive of the automobiles, acquired during the marriage shall be divided equally....
“11. THAT the Court will award to each of the parties the automobile the [sic] he or she customarily used during the marriage, and each party shall be responsible for the indebtedness due on their respective automobile....
“12. THAT the Court will award to the parties any financial accounts in his or her respective name.
“13. THAT the Court will order that the [wife] shall be responsible for any tax liabilities as a result of her gambling earnings.
“15. THAT the Court will reserve the issue of alimony.
“16. THAT the Court -will award the attorney of record a judgment against the [husband] in the amount of $5,000.00 as additional spousal support to be applied towards a reasonable attorney’s fee.
“17. THAT the Court will award to the [husband] a judgment against the [wife] in the amount of $585.00 representing expenses in production of documents.”

When evidence is presented ore tenus in a divorce case, the judgment of the trial court is presumed correct, and this court will not reverse that judgment absent a finding of a plain and palpable abuse of discretion. Brannon v. Brannon, 477 So.2d 445 (Ala.Civ.App.1985). The factors that a trial court considers in making a property division include each spouse’s earning ability, age, health, and conduct, and the length of marriage. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). A property division does not have to be equal to be equitable. Sketo v. Sketo, 608 So.2d 759 (Ala.Civ.App.1992).

The testimony in this case as to each of the factors listed above is contradictory. The wife alleges a great disparity in earning ability; she says the husband makes over $200,000 per year and she has no marketable job skills. The husband counters that his last annual paycheck was for $155,000, less various corporate taxes that were due based on his business’s having pass-through tax liability; he also notes that the wife testified that she had made approximately $125,000 in 1999 playing blackjack. Additionally, the husband notes that the wife, before their marriage, owned and ran a restaurant and had managerial and entrepreneurial skills.

The wife claims to have back problems and to suffer from panic attacks; she further claims that her health problems will hinder her employment capabilities. The husband notes that no medical evidence was offered as to the wife’s alleged medical problems and that there was no testimony that these alleged medical problems would hinder her ability to work.

Both parties had been previously married and were married to each other for 13 years.

The wife admits to misconduct in the marriage, but claims the husband’s misconduct, centering around allegations of abuse, was greater and more egregious than her misconduct. The husband notes that not only did the wife engage in physical abuse, but that she embezzled substantial sums from the husband’s company, where she worked, to pay her gambling debts.

A close review of the record reveals that this is exactly the type of divorce case that the ore tenus presumption is so adept at addressing. The trial court had the opportunity to observe the witnesses, their demeanor, and to weigh the veracity of their testimony as well as their documentary evidence. We find no error on the part of the trial court as to the property division or the reservation of the issue of periodic alimony.

The only other issue on appeal is whether the trial court abused its discretion in its award of child support. The wife alleges that the trial court’s award of $1,500 per month for two children is less than the amount the Rule 82, Ala. R. Jud. Admin., child-support guidelines call for, and that the husband should pay additional sums because he has the financial capability to do so. Her contention is without merit. First, the husband is paying the amount under the child-support guidelines that two parents, combined, would pay for two children when the parent’s combined income exceeds the uppermost limits of the guidelines. Second, we have previously held that a child-support payment based solely on the ability of the noncustodial parent to pay is impermissible, and that a judgment ordering such a payment is an abuse of discretion by the trial court. Dyas v. Dyas, 688 So.2d 971 (Ala.Civ.App.1995).

For the above-mentioned reasons, the judgment of the trial court is due to be affirmed.

Both parties’ requests for an attorney fee on appeal are denied.

AFFIRMED.

THOMPSON, J., concurs in the result.

YATES, P.J., and MURDOCK, J., concur in part and dissent in part.

CRAWLEY, J., concurs in the result in part and dissents in part.

YATES, Presiding Judge,

concurring in part, dissenting in part.

I concur with the main opinion that the trial court did not abuse its discretion in applying the Rule 32, Ala. R. Jud. Admin., child-support guidelines.

I respectfully dissent regarding the issue of periodic alimony. The wife testified that she had worked in the husband’s company as a bookkeeper until she filed for a divorce and that she had previously operated a bar/eatery. The record contains a payroll statement indicating that the wife earned $800 per week; however, at the time of trial, she was unemployed. Her 1999 W-2 (form statement) showed that she had earned $38,599 in wages. The wife also stated that she thought she had received about $125,000 in gambling winnings during 1999; however, the statements submitted by several casinos indicated that the wife had suffered a net gambling loss for the past several years. We note that the wife admitted that she had a gambling addiction and the husband testified that she had written numerous checks from his company accounts to cover her losses at the casinos. I do not consider the wife’s gambling winnings to be a stable source of income.

In comparison, the husband’s individual federal income tax return listed an adjusted gross income of $453,845 for 1999, and his corporate income tax return showed a total income of $665,482 for 1999. An accountant testified that one of the husband’s company’s was valued at $1.2 million and that the husband had a 51% interest in that company.

Based on the length of marriage, the parties’ earning abilities, the current financial means of the husband, the significant disparity in their respective incomes, and the likelihood that that disparity will remain for the foreseeable future, I conclude that the wife is entitled to periodic alimony or rehabilitative alimony. “The purpose of alimony is to preserve, as closely as possible, the economic status quo of the parties after the divorce as it existed during the marriage.” Horwitz v. Horwitz, 739 So.2d 1118, 1122 (Ala.Civ.App.1999). Accordingly, I would reverse that portion of the trial court’s judgment and instruct the trial court to fashion a more equitable award.

MURDOCK, J., concurs.

CRAWLEY, Judge,

concurring in the result in part and dissenting in part.

I dissent as to the issue of determining the amount of child support, but concur in the result on the issues of division of marital assets and the failure to award alimony.


author: YATES, Presiding Judge.

text:
    Paula CREAN v. MICHELIN NORTH AMERICA, INC.
    2000788.
    Court of Civil Appeals of Alabama.
    April 12, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011513.

      J.E. Sawyer, Jr., Enterprise, for appellant.
    Jack Corbitt, Ozark, for appellee.
   YATES, Presiding Judge.

These parties have previously been before this court. See Crean v. Michelin North America, Inc., 782 So.2d 295 (Ala.Civ.App.1999), affirmed in part and reversed in part, 782 So.2d 298 (Ala.2000), for a detailed procedural and factual history of the case.

Paula Crean sued her employer, Michelin North America, Inc., seeking to recover workers’ compensation benefits for injuries she sustained during the course of her employment with Michelin. The trial court awarded Crean, among other things, $15,084 in temporary total disability benefits, $23,760 in permanent partial disability benefits that had accrued before trial, $220 per week in permanent partial disability benefits for 156 weeks, and $333.20 in filing fees and travel expenses. Id.

Crean moved the court to modify its judgment, seeking interest and a 15% penalty on the judgment, pursuant to §§ 25-5 — 59(b) and 25-5-86, Ala. Code 1975, alleging that Michelin had refused to pay any of the court-ordered benefit payments. Section 25-5-59(b) provides a 15% penalty where any installment of compensation payable is not paid, without good cause, within 30 days after it becomes due. Section 25-5-86 provides in pertinent part:

“(1) If the award, order, or settlement agreement is payable in installments and default has been made in the payment of an installment, the owner or interested party may, upon the expiration of 30 days from the default and upon five days’ notice to the defaulting employer or defendant, move for a modification of the award or settlement agreement by ascertaining the present value of the case, including the 15 percent penalty provision of Section 25-5-59, under the rule of computation contained in Section 25-5-85, and upon which execution may issue. The defaulting employer may relieve itself of the execution by entering into a good and sufficient bond, to be approved by the judge, securing the payment of all future installments, and forthwith paying all past due installments with interest and penalty thereon since due. The bond shall be recorded upon the minutes of the court.”

The court denied Crean’s motion seeking a penalty and interest on the judgment; however, it did order that Michelin make a lump-sum payment of benefits to Crean. Id.

Crean appealed the trial court’s judgment denying her interest on the judgment and the 15% penalty to this court. We affirmed the judgment denying the 15% penalty to Crean; however, we reversed the judgment insofar as it denied Crean interest on the judgment. We remanded the cause to the trial court for it to determine the present value of Crean’s benefits and to include an award of post-judgment interest; however, we did not instruct the trial court to award Crean the 15% penalty. Id.

Crean petitioned our supreme court for certiorari review, which the court granted. The supreme court affirmed this court’s judgment, instructing the trial court to award Crean postjudgment interest on her compensation award; however, the supreme court reversed that portion of this court’s judgment holding that Crean was not entitled to the 15% penalty, stating:

“We remand the cause to the Court of Civil Appeals for that court to instruct the trial court to award Crean the 15% penalty on those installments of benefits which have accrued and shall accrue since August 25,1997, and which have or shall become over 30 days delinquent and further to instruct the trial court to grant Crean that relief ordered by the Court of Civil Appeals for the lump-sum payment and interest.”

Ex parte Crean, 782 So.2d at 302.

On May 5, 1999, while the cause was pending on appeal, Michelin deposited $74,978.12 with the clerk of the trial court. Michelin purported that this amount represented the accrued and unaccrued benefits that had been awarded by the trial court on June 12,1997. The clerk deposited these funds and purchased a certificate of deposit in Crean’s name.

On remand, the trial court, on October 24, 2000, ordered Michelin to pay Crean “a 15% penalty on the installment benefits which have accrued and shall accrue since August 25, 1997, and which or shall become over thirty (30) days delinquent and further, Plaintiff Crean is awarded that relief ordered in the Court of Civil Appeals original Opinion for a lump sum payment and interest.” However, a dispute between the parties arose over the proper amount of benefits due Crean in accordance with the order on remand. On January 9, 2001, the trial court conducted a hearing and each party presented evidence from its own accountant as to the proper method of calculating the benefits owed to Crean. At the end of the hearing, the trial court stated that it would not impose the 15% penalty on installments due past May 5, 1999, the date that Michelin paid the $74,978.12 into court. On February 27, 2001, the trial court ordered that the $74,-978.12 held in the certificate of deposit be disbursed to Crean. On March 8, 2001, the trial court entered the following order:

“This cause coming on to be heard is submitted for a ruling on remand for the Trial Court to determine the present value of the award, including the proper amount of interest and penalty, on testimony taken in Open Court and the entire file and the Court having considered the same, the Court finds as follows:
“The accrued payoff and present value of the award as of May 5, 1999, was $89,068.33. The amount paid on the award on May 5, 1999, by deposit with the Clerk of the Court was $74,978.12. The difference of $14,090.21 deposited at 12% is $17,072.92.
“The Court finds that the Plaintiff is entitled to the proceeds from the Certificate of Deposit held by the Clerk of the Court and $17,072 plus interest at 12% from January 9, 2001.”

On March 19, 2001, Michelin paid $17,398.47 into the court. Crean appeals, following the denial of her postjudgment motion.

Crean argues that the trial court erred in its calculations, because it failed to impose the 15% penalty on installment payments of $220 of permanent-partial disability benefits owing from March 21,1997, through August 22, 1997. We agree. Pursuant to the trial court’s order of June 12, 1997, Michelin’s obligation to pay $220 of permanent-partial disability benefits began on March 21, 1997, and continued for 156 weeks. Installment payments of permanent-partial disability benefits from March 21, 1997, through August 22, 1997, accrued on August 25, 1997, the date the trial court denied Crean’s postjudgment motion and the judgment became final. Pursuant to § 25 — 5—59(b), these payments became past due 30 days later on September 24, 1997. Crean was, therefore, entitled to the imposition of the 15% penalty on payments owed from March 21, 1997, through August 22, 1997, plus interest. Michelin’s calculation of benefits, upon which the trial court relied, imposed the penalty beginning only after the August 29, 1997, payment. Accordingly, we conclude that the trial court erred in its calculation insofar as it failed to impose the 15% penalty on payments owed from March 21, 1997, through August 22,1997.

Crean next argues that the trial court improperly credited Michelin with payment of the $74,978.12 on May 5, 1999, because, she says, those proceeds were not ordered disbursed to her until February 27, 2001, and the trial court’s calculations did not include interest on the judgment past May 5, 1999. Again, the trial court relied on the calculations presented by Michelin, which did not calculate interest on the judgment past May 5, 1999. Interest does not continue to accrue on the entire judgment principal once a partial payment of the judgment has been made, rather, once a partial payment is made interest is calculated on the reduced principal from the date of the partial payment. Schulte v. Smith, 708 So.2d 138 (Ala.1997). The trial court concluded that the present value of the award as of May 5, 1999, was $89,068.33. This amount is incorrect — we have concluded that the trial court erred in failing to impose the 15% penalty on payments from March 21, 1997, through August 22, 1997. The trial court then reduced that amount by the $74,978.12 paid into court by Michelin and calculated interest on the difference. Although the trial court was incorrect in determining that $89,068.33 was the present value of the judgment on May 5, 1999, it was correct to calculate the interest on the reduced principal from the date of partial payment, i.e., May 5, 1999. The trial court was not required to calculate interest on the entire judgment through February 27, 2001, because Michelin had made a partial payment into the court on May 5, 1999. Id., See also Life Ins. Co. of Georgia v. Johnson, 725 So.2d 934 (Ala.1998).

Crean next argues that the trial court erred because it failed to impose the 15% penalty on permanent-partial disability payments due after May 5, 1999. We disagree. Michelin was ordered to pay 156 weeks of permanent-partial disability benefits (March 21, 1997, through March 10, 2000). On May 5, 1999, Michelin paid $74,978.12 into the court; 45 weeks of permanent-partial disability benefits remained owing from that date. The trial court did not impose the 15% penalty on the installment payments due after May 5, 1999. Again, we note that the trial court relied upon Michelin’s calculations and determined that as of May 5, 1999, the present value of the judgment was $89,068.33. This calculation included the remaining 45 weeks of permanent-partial disability benefits payments at $220 from May 5, 1999, through March 10, 2000. We have already concluded that the $89,068.33 is incorrect, because it did not include the 15% penalty on payments from March 21,1997, through August 22, 1997. The $74,978.12 paid into the court on May 5, 1999, was insufficient to pay the value of the judgment at that time, including the benefits owed from May 5,1999, through March 10, 2000.

This court held in Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188, 199-200 (Ala.Civ.App.2001), that the 15% penalty in § 25-5-59 does not apply to “underpaid” benefits, but only to “unpaid” benefits. Therefore, Crean was not entitled to the 15% penalty on payments due after May 5, 1999.

Accordingly, we must reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . This case was originally assigned to another judge on the Court of Civil Appeals. It was reassigned to Presiding Judge Yates on January 28, 2002.

      . Crean actually received $ 81,009.11, because the original amount deposited had earned interest.

      . 15% of $220 equals $33.


author: CRAWLEY, Judge. YATES, Presiding Judge,

text:
    DEVAN LOWE, INC. v. Michael E. STEPHENS. Michael E. Stephens v. Devan Lowe, Inc.
    2001088.
    Court of Civil Appeals of Alabama.
    June 14, 2002.
    Certiorari Petitions Denied Aug. 16, 2002 Alabama Supreme Court 1011770 and 1011817.

      E. Allen Dodd, Jr., and J. David Dodd of Scruggs, Dodd, Dodd & Bazemore, Fort Payne, for appellant/cross-appellee Devan Lowe, Inc.
    G. Thomas Sullivan of Vincent, Hasty, Sullivan & Elliott, P.C., Birmingham, for appellee/cross-appellant Michael E. Stephens.
   On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued on April 26, 2002, is withdrawn, and the following is substituted therefor.

This is an appeal and a cross-appeal from a judgment in a garnishment. On November 3, 1999, Michael E. Stephens sued Carl Hubbard on a promissory note the parties had executed in 1994, seeking recovery of principal and interest in the amount of $323,633.11. On April 8, 2000, Stephens ultimately obtained a default judgment against Hubbard and at a separate hearing, conducted on June 16, 2000, proved damages in the amount of $336,339.94.

On August 11, 2000, Stephens filed a writ of garnishment against Devan Lowe Pontiac-Cadillac-GMC (Devan Lowe, Inc.) (hereinafter referred to as “Lowe”), an automobile dealership, seeking to garnish commissions Lowe owed Hubbard as a result of his employment at Lowe’s. Lowe filed an answer to the garnishment on September 7, 2000, stating that it was not indebted to Hubbard and that Hubbard was not in its employ. Thereafter on September 22, 2000, Stephens filed an answer contesting the veracity of the garnishee’s answer pursuant to § 6-6-458, Ala.Code 1975, and supported that pleading with an affidavit of one of Lowe’s staff members who confirmed that Hubbard continued to work at Lowe.

The matter was set for trial on January 12, 2001. The hearing proceeded as scheduled, and the testimony of only one witness was presented — Barbara Burks. Burks had served as Lowe’s office manager for the past 30 years. She testified that Hubbard had sold cars over the Internet on a commission basis for Lowe since 1998. Burks also testified that Hubbard had arranged for his commissions to be paid at the rate of $150 per one-week pay period and had arranged for his wife to receive the remainder of his pay (usually over $2,000). In addition, the couple received health-care benefits, the use of a demonstrator vehicle, and the use of a cellular phone. Burks testified that she understood that Devan Lowe, the owner of Lowe, became uncomfortable with this arrangement because he learned from Hubbard that he had devised the compensation plan so that it would not interfere with Hubbard’s disability benefits. Burks testified that her boss told her that he did not want to be involved in any type of “welfare fraud.” Burks testified that for this reason Hubbard was encouraged to devise another arrangement, and he created the Dolphin Developers, L.L.C.

Burks testified that she did not know if Dolphin Developers had a business license, or if it was registered to do business in the state of Alabama. Burks also testified that she did not know who the officers of the company were or who the owners were. She testified that, as office manager, she simply complied with a personal request made by Carl Hubbard and his wife Katrina Hubbard, that any check addressed to either of them be made out to Dolphin Developers, L.L.C., instead. Burks testified that there was no written agreement or contract between Lowe and Hubbard or Dolphin Developers reflecting the payment terms.

Burks testified that Katrina Hubbard gave her a letter with the new payment instructions for their future commissions on August 12, 2000. Burks testified that as of September 1, 2000, the Hubbards were dropped from Lowe’s group health insurance plan, and from August 12 until December 31, Burks reported their income by means of a 1099 statement. Burks maintained in her testimony that after August 12, 2000, the Hubbards were no longer employees of Lowe. The first check made out to Dolphin Developers, L.L.C., is contained in the record and is dated August 24, 2000. Burks testified that Lowe was not served notice of the garnishment action until August 30, 2000. However, Burks admitted that Carl Hubbard performed the same services for Lowe he had performed in the past; he was simply compensated for those services through a different entity — Dolphin Developers, L.L.C. Burks testified that she was not invoiced for the services; the compensation was paid on commission, exactly as it had been paid in the past. Burks also testified that Hubbard continued to have the use of a demonstrator vehicle and a cellular phone — privileges customarily reserved for Lowe’s employees.

The trial court entered a judgment in favor of Stephens in the amount of $24,350 or the amount Lowe had paid Dolphin Developers, L.L.C., on behalf of Carl Hubbard after it was served with the garnishment on August 30, 2000. Lowe appeals from the judgment, claiming that the evidence was insufficient to support the trial court’s finding that Hubbard was employed by Lowe. Stephens cross-appeals, claiming that the trial court erred in failing to award the entire amount of the default judgment entered against Hubbard against Lowe as the garnishee.

Lowe contends that the ore ten-us presumption does not apply in a case such as this, in which only one person testified. We disagree. It is not necessary that there be a dispute or absolute contradiction in the testimony in order to invoke the ore tenus presumption. That presumption is grounded on the trial court’s superior position to evaluate the witnesses’ demeanor and credibility and assess the weight of their testimony. Architectures, Inc. v. Miller, 769 So.2d 330 (Ala.Civ.App.2000). Recent cases in which trial courts have denied waivers of parental consent to minors seeking abortions have employed the ore tenus presumption, even though the minor seeking the waiver was the sole witness to testify at the hearing. Ex parte Anonymous, 810 So.2d 786 (Ala.2001); Ex parte Anonymous, 806 So.2d 1269 (Ala.2001); Ex parte Anonymous, 803 So.2d 542 (Ala.2001).

Hubbard was not performing body work, or cleaning cars, selling tires, or performing mechanical services for Lowe. These services would lend themselves far more easily to an independent-contractor payment arrangement. Hubbard was selling automobiles over the Internet on a commission basis. Lowe is an automobile dealership. Selling automobiles is the essence of Lowe’s business. Lowe has no independent contractors who sell cars for it on a commission basis. The evidence reflects that nothing significant changed about Hubbard’s employment between August, when he was employed by Lowe, and September, when Lowe was paying Hubbard’s commission to Dolphin Developers, L.L.C. Hubbard was receiving the same salary, he was receiving the same benefits through COBRA that he received when he was being paid by Lowe, and Hubbard still had the use of a demonstrator vehicle and a cellular phone. In reviewing the judgment of a trial court based on ore tenus evidence, a presumption of correctness attaches to the court’s conclusion on factual issues, and its factual determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Marvin’s Inc. v. Robertson, 608 So.2d 391 (Ala.1992). Before entering its judgment, the trial court stated in open court:

“You don’t have any kind of contract at all? Okay. I’m simply not going to let you just, at their request, make a check payable to somebody else. If you get a contract, we’ll have another argument about it later.... Starting with the September 6th [payment], that would make it at $24,350 that has been paid to Dolphin [Developers] but it’s a direct result of the work, apparently, of — from the evidence I have — of Carl Hubbard. And you’re entitled to [a] judgment for that amount.”

In light of the presumption accorded the trial court’s factual determination, there is evidence to support the trial court’s conclusion that Lowe, and not Dolphin Developers, L.L.C., was Hubbard’s employer.

Lowe also contends on appeal that the evidence does not support the trial court’s finding that Dolphin Developers, L.L.C., was a “mere sham or subterfuge.” The trial court heard Burks testify that Hubbard had admittedly devised a compensation plan shifting the bulk of his income to his wife to defraud the federal government so that he could continue to receive his full disability benefits. Further, Hubbard was served with Stephens’s suit on the promissory note on January 26, 2000. Sometime after April 28, 2000, Hubbard was served with the default judgment on that note. The record clearly indicates that Hubbard’s employer, Lowe, was not served with garnishment proceedings until August 30, 2000. Plaintiffs exhibit one reflects that on February 21, 2000, in the state of Georgia, Hubbard formed Dolphin Developers, L.L.C., in Fulton County, Georgia. Even though garnishment proceedings had not yet been instituted, it can easily be inferred from the evidence that the impetus for the formation of the L.L.C. was to evade Michael Stephens as a creditor. In sum, this purpose was fraudulent and illegal.

A garnishment is a statutory remedy; it is not, however, “like summary statutory proceedings, in derogation of the course of the common law, subjected to a strict construction.” White v. Simpson, 107 Ala. 386, 393, 18 So. 151, 152 (1895). Instead it is a “species of attachment, and falls within the influence of the statutory injunction, that ‘the attachment law must be liberally construed to advance the manifest intent of the law.’ ” Id. (quoting § 2998, Ala.Code 1886). Our early statutes authorizing attachments of property were designed to circumvent fraud and were liberally construed in furtherance of that objective. Ware v. Seasongood, 92 Ala. 152, 9 So. 138 (1891).

In Walker v. Carolina Mills Lumber Co., 429 So.2d 1065 (Ala.Civ.App.1983), this court determined that either the garnishee or the debtor must have fraudulently transferred the funds to escape garnishment but held that it was unnecessary to find that both had participated in the fraud to make a finding of a fraudulent transfer to avoid creditors. In this case there was clearly evidence that Hubbard knew of Stephens’s sizable default judgment against him; he realized he had insufficient assets with which to satisfy this judgment; and he likely kept track of the garnishment proceedings in order to have so accurately timed his departure from Lowe and enacted his new payment plan. There is ample evidence to support the trial court’s finding that Hubbard was actually employed by Lowe although he had his commissions made payable to Dolphin Developers.

We turn now to the cross-appeal, in which Stephens claims that, pursuant to § 6-6-460, he is entitled to a judgment against Lowe for the entire amount of his $323,633.11 default judgment against Hubbard. The trial court entered a judgment against Lowe for $24,350, or the amount in commissions it had paid Dolphin Developers, L.L.C., since the date it had been served with the writ of garnishment. We are not persuaded by Stephens’s argument.

Under Alabama garnishment law, the money sought “must be due absolutely and without contingency.” Escambia Chem. Corp. v. United Ins. Co. of America, 396 So.2d 66, 68 (Ala.1981). Further, property which does not presently belong to the defendant may not be garnished. Druid City Hosp. Bd. v. Epperson, 378 So.2d 696 (Ala.1979). “ ‘It is a universal rule that the garnishee is to be placed in no worse condition by operation of the proceedings against him than he would be if the defendant’s claim against him were enforced by the defendant himself.’ ” Jim Davis & Co. v. Albuquerque Fed. Sav. & Loan Ass’n, 536 So.2d 55, 57 (Ala.1988) (quoting Pettus v. Dudley Bar Co., 218 Ala. 163, 164, 118 So. 153, 154 (1928)).

Stephens bases his cross-appeal on the wording of the statute § 6-6-460, which addresses the procedural occurrences after judgment is rendered in favor of the plaintiff following a contest of liability after receipt of notice of garnishment. This section states in part: “If such issue is found against the garnishee, judgment must be entered against him in favor of the plaintiff, if necessary, to satisfy his claim or judgment against the defendant .... ” Stephens claims that the wording of § 6-6-460 means that because Lowe contested the garnishment and lost, Lowe is now liable, not only for the amount to which it is indebted to Hubbard, but — as a sanction — -for the entire amount of the judgment.

The following quotation represents a common and consistent objective and concept which currently runs through our garnishment caselaw and can be traced back as far as the late 1800’s:

“Garnishment proceedings were provided by statute to enable a creditor to reach property and funds of his unwilling debtor which cannot be reached by execution, but which, in equity and justice, should be applied to the payment of the debtor’s debts. They were not intended to enable the creditor to subject properties or funds which in truth do not belong to the debtor, and which should not, as a matter of equity, be applied to the payment of his debts.”

Allen v. Woodruff, 2 Ala.App. 415, 420, 56 So. 247, 249 (1911). We conclude that the trial court correctly limited the amount of the judgment to the amount in which Lowe was indebted to Hubbard. The judgment is affirmed in its entirety.

OPINION OF APRIL 26, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

PITTMAN and MURDOCK, JJ„ concur.

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

YATES, Presiding Judge,

concurring in the result.

I believe that the trial court was correct in concluding that Devan Lowe, Inc., was the employer of debtor, Carl Hubbard, and that, therefore, Lowe owed Hubbard $24,350 in wages that were subject to garnishment by Michael Stephens. The basis of a garnishment is not that the garnishee (Lowe) owes any money to the creditor (Stephens); instead, the debtor (Hubbard) owes the money, and the garnishee is required to pay it only if the garnishee is found to owe money to the debtor.

      . It is undisputed that Hubbard’s wife made a fraction of the sales that he completed.

      . The record indicates that although the company had carried family coverage on the Hub-bards before August 12, 2000, the Hubbards had paid for that coverage.

      . The record indicates that Hubbard had already liquidated most of his properties to settle a suit on a promissory note of equal value to another lender.


author: PER CURIAM.

text:
    John D. ROBERSON v. STATE ex rel. Al SMITH, Assistant District Attorney.
    2001174.
    Court of Civil Appeals of Alabama.
    Aug. 2, 2002.

      John D. Roberson, pro se.
    William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, asst. atty. gen., for appel-lee.
   PER CURIAM.

John D. Roberson, a prisoner proceeding pro se, appeals from the trial court’s order enforcing a stipulation agreement entered into by the parties whereby certain moneys and properties were forfeited to the State of Alabama pursuant to § 20-2-93, Ala.Code 1975.

On May 11, 1995, members of the Twelfth Judicial Circuit drug task force executed a search warrant against Roberson and confiscated various amounts of controlled substances, several firearms, a 1989 Mazda automobile, and currency. Roberson was arrested; he was later convicted of violating Alabama’s Controlled Substances Act, § 13A-12-201 et seq., Ala. Code 1975.

On June 27, 1995, the State, pursuant to § 20-2-93, Ala.Code 1975, filed an action against Roberson seeking to condemn the following items: (1) a 1989 Mazda automobile; (2) $1,697 in currency; (3) a Smith & Wesson .357-caliber revolver; (4) a Davis Industries .380-caliber pistol; and a FIE .22-caliber revolver. On June 29, 1995, the State filed a second complaint, pursuant to § 20-2-93, Ala. Code 1975, against Roberson seeking to condemn $507 in currency. On August 2, 1995, attorney Malcolm Newman entered an appearance on the record on behalf of Roberson and, on that same date, answered the forfeiture complaints. In the answer, Roberson denied ownership of the Mazda, but claimed ownership of the currency. In November 1995,_ the State, through its representative A1 Smith, and Newman, purportedly on behalf of Roberson, entered into the following agreement:

“1. The 1989 Mazda automobile is not claimed by the defendant and will be returned to Minnie Wilson, sister of the defendant. The State mil pursue no further proceedings regarding this vehicle for alleged past conduct.
“2. The defendant Roberson makes no claim involving the firearms named herein and same are to be declared contraband and forfeited to the Twelfth Judicial Circuit Drug Task Force.
“3. Any ruling or hearing concerning the currency listed herein will be deferred until the disposition of the pending criminal cases. Upon resolution of the criminal cases the disposition will be filed with this Court and same will be submitted as dispositive of the issues regarding the currency, i.e., if the defendant is acquitted the currency will be returned, if convicted, the currency will be forfeited.”

On December 7, 1995, Roberson was found guilty of six counts of unlawful distribution of a controlled substance. On July 23, 2001, the trial court entered the following order in the forfeiture action:

“This matter came before the Court on July 10, 2001, upon the attached stipulation of the parties concerning the return of a seized automobile and the condemnation and forfeiture of certain firearms and currency. The Court being informed that the 1989 Mazda automobile has been returned to one Minnie Wilson, sister of the Defendant, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
“1. The firearms made a part of the stipulation between the parties ... are hereby declared contraband and are ordered condemned and forfeited to the Twelfth Judicial Circuit Drug Task Force, to be used exclusively by said Task Force in the enforcement of the law, or to be destroyed, if in the discretion of the Task Force said firearms are not appropriate for law enforcement use.
“2. The Defendant, John Deavie Roberson, having been convicted in Pike County case number CC-95-166 and Coffee County case numbers CC-95-339-344, and pursuant to the stipulation of the parties dated November 14, 1995, the One Thousand Six Hundred Ninety-seven Dollars ($1,697.00) of lawful United States currency in case number CV-95-121 and Five Hundred Seven Dollars ($507.00) of lawful United States currency in case number CV-95-128 is hereby condemned and forfeited to the Twelfth Judicial Circuit Drug Task Force for the official use by said agency in the enforcement of the laws of this State.”

Roberson moved for a new trial in the forfeiture action, arguing, among other things, that he had not authorized his attorney to enter into the. stipulation agreement. In support of his motion, Roberson filed his affidavit in which he testified that Newman did not have the authority to enter into the stipulation agreement. Roberson’s motion was denied by operation of law on November 5, 2001.

Roberson argues on appeal that the stipulation agreement entered into in this case is void, because, he says, his attorney was not authorized to enter into the agreement. He further contends that the trial court made insufficient findings of fact to support its decision to enforce the settlement agreement. Section 34-3-21, Ala.Code 1975, provides: “An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.” Whether an attorney is authorized to bind his client is a question of fact to be determined by the fact-finder. Pipkin v. Lucas, 451 So.2d 846 (Ala.Civ.App.1984). This court has stated:

“ ‘An attorney may not consent to a final disposition of his client’s case without express authority. Although an attorney of record is presumed to have his client’s authority to compromise and settle litigation, a judgment entered upon an agreement by the attorney may be set aside on affirmative proof that the attorney had no' right to consent to its entry.’ ”

Warner v. Pony Express Courier Corp., 675 So.2d 1317, 1320 (Ala.Civ.App.1996), quoting Blackwell v, Adams, 467 So.2d 680, 684-85 (Ala.1985). Further, “ ‘[A]n attorney in this state may not “compromise” his “client’s cause of action” except on the “express authority of the client.” ’ ” Warner, 675 So.2d at 1320, quoting K.P. v. Reed, 626 So.2d 1241, 1242-43 (Ala.1992). Finally, where the trial court fails to make a specific finding of fact as to whether a party’s attorney is authorized to enter into a stipulation or compromise, such a finding is implicit in the trial court’s order. Pipkin, supra; Young v. Reddock, 437 So.2d 1247 (Ala.1983).

In Warner, supra, the plaintiffs attorney in a negligence action arising out of an automobile accident entered into a settlement agreement on behalf of his client, and the trial court dismissed the case based on the settlement. Thereafter, the plaintiff, acting pro se, filed a motion to set the dismissal aside, alleging that he had no knowledge of the settlement and that he did not accept the terms of the settlement. The trial court denied the motion and the plaintiff appealed. This court stated:

“In two recent cases, our supreme court has held that if a party is present when a settlement agreement is announced by counsel in open court and the party fails to object to the settlement, the trial court is warranted in concluding that counsel has the apparent authority to settle the dispute. See Jones v. Blanton, 644 So.2d 882 (Ala.1994); Jones v. Stedman, 595 So.2d 1355 (Ala.1992).
“There is no indication in the record before us that [the plaintiff] was present during the settlement discussion in chambers. The trial court’s order indicates that it relied upon an agreement between counsel to settle the case.
“The implicit holding of Blanton, Stedman, and the other authorities cited above is that an attorney’s authority to settle a case for his client may not, in the absence of the client, be presumed. ‘[B]ecause [the client] was present when the settlement agreement was announced in open court and failed to object to it, [the lawyer] had the apparent authority to settle the dispute with the contestants.’ Blanton, 644 So.2d at 884 (explaining the holding in Stedman). See also Davis v. Turner, 337 So.2d 355 (Ala.Civ.App.1976) (client who was present when her lawyer made stipulation in open court was bound by that stipulation).
“[The plaintiff], acting pro se, filed a document alleging that he had been unaware of, and had not consented to, his attorney’s settlement of the case. This document, based on [the plaintiffs] own knowledge and signed by him, satisfies the ‘personal knowledge’ requirement for an affidavit. See Rule 56(e), Ala. R. Civ. P. Under the circumstances, we find that the trial court abused its discretion by summarily denying [the plaintiffs] pro se motion to set aside the order of dismissal without at least holding a hearing on the issue of the attorney’s authority to settle the case.”

Warner, 675 So.2d at 1320-21.

The record indicates that Newman entered an appearance on behalf of Roberson and that he filed an answer to the forfeiture complaint. Newman, purportedly on behalf of Roberson, entered into a stipulation agreement with the district attorney’s office in November 1995 regarding the property that was subject to the forfeiture proceeding. Thereafter, the forfeiture action was continued on several occasions. On February 25, 2000, the trial court entered an order setting the forfeiture action for trial on June 21, 2000, and ordering the sheriffs department to transport Roberson from the state prison system to the Pike County jail for the purposes of trial, and stating that Roberson should remain housed in the county jail until further order of the court. However, on June 20, 2000, the trial court notified the sheriffs department that it would not “need to see” Roberson the following day and not to transport him. The case was continued yet again, and, on June 11, 2001, the trial court entered an order setting the matter for trial on July 9, 2001. The case action summary indicates that a request was filed seeking Roberson’s presence at the trial scheduled for July 9, 2001; however,. this court cannot discern from the record whether this request was granted or whether Roberson was present at the trial. The case was submitted to the trial court upon the stipulation of the parties and the trial court entered an order enforcing the stipulation agreement. Following the entry of the trial court’s order, Roberson moved the court for a new trial and filed his affidavit in support of that motion, stating that he had no knowledge of the stipulation agreement and that Newman did not have the authority to enter into the stipulation agreement and thereby to bind him to its terms. The trial court did not hold a hearing on the motion and it was denied by operation of law.

We cannot discern from the record whether Roberson was present when the stipulation agreement was entered into or whether he was present in the trial court on the day the case was submitted to the court on stipulation of the parties. Based on Warner, Blanton, Stedman, and the record in this case, this court cannot presume that Newman had the authority to enter into the settlement agreement on behalf of Roberson. Accordingly, we conclude that the trial court abused its discretion in failing to hold a hearing on the issue whether Newman had the authority to enter into the stipulation agreement on behalf of Roberson. Therefore, we must reverse the judgment and remand this case to the trial court for it to conduct a hearing to determine whether Newman had the authority to enter into the settlement agreement on behalf of Roberson.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

CRAWLEY, J., recuses himself.

      . Minnie Wilson, Roberson's sister, also proceeding pro se, filed numerous handwritten documents with the court regarding the forfeiture action; those documents were frivolous and meritless. However, Wilson did move to intervene in the action, alleging that she was the rightful owner of an automobile and certain moneys that were subject to the forfeiture action filed by the State against Roberson. The trial court denied Wilson’s motion. Wilson has not appealed the denial of the motion to intervene; therefore, she is not a party to this appeal.
      Roberson also filed numerous handwritten motions with the trial court, most of which were meritless and frivolous. Roberson filed a document with the court seeking to have Jeffery Baker, who is apparently Roberson’s brother-in-law and not a lawyer, appointed to an "advisory” position on his defense team. Baker later filed a document entitled "Complaint and Affidavit in Support of Malicious Prosecution and for Special Prosecutor/Protective Order,” alleging that he had an "interest” in a number of pending cases in the circuit court and that during the course of those cases he had been "unduly harassed, physically assaulted, slandered, emotionally and psychologically intimidated, caused to fear unreasonably, subjected to governmental threat, garnishment, reprisal, etc., etc.” This purported complaint has nothing at all to do with the forfeiture action against Roberson, but appears to involve his removal from a County Commission hearing and from a court hearing in an unrelated case. Thereafter, Baker filed a document entitled "Motion for Joinder of Parties,” seeking to be named a "plaintiffidefendant” in the forfeiture case against Roberson and alleging an interest in certain property made the subject of the forfeiture action against Roberson. This motion is more akin to a motion to intervene; therefore, we will treat it as such. The trial court denied the motion. Baker has filed a notice of appeal from the trial court's final judgment in this case; however, he has not sought to appeal the denial of his motion to intervene. Therefore, he is not a party to this appeal.

      . These cases were consolidated for purposes of trial. The cases were also consolidated on appeal.


author: PITTMAN, Judge.

text:
    Tony GOOLESBY v. Aimon WILKS.
    2010376.
    Court of Civil Appeals of Alabama.
    Aug. 9, 2002.

      Jack Floyd of Floyd, Floyd & Floyd, Gadsden, for appellant.
    David Killian of Killian & Killian, P.C., Fort Payne, for appellee.
   PITTMAN, Judge.

Aimon Wilks sued Tony Goolesby, alleging conversion of personal property and seeking compensatory damages, damages for mental anguish, and punitive damages. Goolesby counterclaimed, alleging breach of a real estate sales contract, intentional interference with business relations, and trespass; he sought compensatory damages. Wilks filed a motion for summary judgment, which the trial court denied. The case proceeded to a jury trial. The jury returned a verdict for Wilks on his claim for $1,717 compensatory damages and returned a verdict for Goolesby on his counterclaim for $2,000. The trial court entered judgment on the jury verdict on November 21, 2000.

Wilks filed a posttrial motion on December 15, 2000, arguing, among other things, that the $2,000 damages verdict awarded to Goolesby was excessive. On February 13, 2001, the trial court granted Wilks’s posttrial motion, finding that the $2,000 damages verdict awarded to Goolesby was excessive. The trial court remitted the $2,000 damages verdict to $600; the trial court stated that if Goolesby did not accept the remittitur within 21 days the trial court would grant Wilks a new trial.

Goolesby did not accept the remittitur; however, instead of granting Wilks a new trial, the trial court, on April 27, 2001, granted Wilks a judgment as a matter of law as to Goolesby’s counterclaim. On May 15, 2001, Goolesby filed three motions; each requested that the trial court set aside the April 27, 2001, judgment and grant him a new trial. One of the May 2001 motions was entitled “motion by defendant for new trial”; the second motion was entitled “motion by defendant to alter, amend, or vacate the judgment”; and the third motion was entitled “motion of defendant for relief from judgment, order or proceeding under Rule 60(b)[, Ala. R. Civ. P.].”

On May 30, 2001, the trial court set the hearing on the May 2001 Rule 60(b) motion, for August 14, 2001. The trial court continued the hearing to September 10, 2001, and held a hearing on that date, and on December 11, 2001, the trial court set aside the April 2001 order and reinstated its November 2000 judgment entered on the jury verdict. The court stated that it had lost jurisdiction, pursuant to Rule 59.1, Ala. R. Civ. P., to issue the April 2001 order. Goolesby appeals.

Goolesby argues that the trial court erred in its December 2001 judgment, which reinstated the November 2000 judgment it originally entered on the jury verdict. Goolesby argues that the December 2001 judgment vacates the February 2001 order as well as the April 2001 order, and that the trial court erred by vacating the February 2001 order because neither party requested that relief. Wilks contends that the trial court had jurisdiction to set aside the February 2001 order and to reinstate the November 2000 judgment because, he argues, the trial court was merely correcting errors it had made in the February 2001 order and the April 2001 order. To correct those errors, Wilks contends, the trial court reinstated the November 2000 judgment. Wilks further contends that the trial court had the authority, without either party’s moving for the relief, to correct the errors it made in the February 2001 and April 2001 orders.

We will first determine whether the trial court had the authority to enter the April 2001 order. As stated above, the trial court concluded that, under Rule 59.1, Ala. R. Civ. P., it did not have the authority to enter the April 2001 order. We conclude that the April 2001 order is void, but not because of Rule 59.1.

The trial court entered a judgment on the jury verdict on November 21, 2000. Wilks timely filed a motion for a new trial on December 15, 2000. See Rule 59, Ala. R. Civ. P. (requiring a postjudgment motion to be filed within 30 days of the judgment). The trial court granted Wilks’s postjudgment motion on February 13, 2001, which was within 90 days of December 15, 2000. As stated above, the February 2001 order remitted Goolesby’s counterclaim from $2000 to $600. The trial court further stated that if Goolesby rejected the remittitur, the trial court would grant Wilks a new trial. Goolesby rejected the remittitur on February 20, 2001. Instead of granting Wilks a new trial upon Goolesby’s rejection of the re-mittitur, on April 27, 2001, the trial court, on its own motion, granted Wilks a judgment as a matter of law and found, as a matter of law, that Goolesby was not entitled to any damages on his counterclaim.

We conclude that the trial court did not have authority to enter the April 2001 order. This court explained the trial court’s authority to order a remittitur following a jury trial in Tinsley v. Talbott, 408 So.2d 148, 149 (Ala.Civ.App.1981). In Tinsley we stated:

“Rule 59(d), [Ala. R. Civ. PJ, authorizes a trial court on its own initiative to order a new trial, within thirty days of the entry of the judgment, for any reason for which it might have granted a new trial on motion of a party, with the court being required to specify in its order its reasons for such action. In construing rule 59(d) and 59(f) together, a trial court, on that court’s own initiative, may order a remittitur as a condition to the court’s not granting a new trial. However, in such event, the plaintiff must be given the choice either of accepting the remittitur or of suffering a new trial. In no event can the trial court enter a judgment for an amount less than that awarded by the jury unless the plaintiff consents to a remittitur under Rule 59(f). McCormick v. Alabama Power Company, 298 Ala. 481, 306 So.2d 233 (1975).”

(Emphasis added.)

Applying the Tinsley holding to this case, we conclude that the trial court, in its April 2001 order, did not have the authority to grant Wilks a judgment as a matter of law and to amend the jury verdict for Goolesby on his counterclaim so as to change the award from $2,000 to $0. The February 2001 order provided that Gooles-by either accept the remittitur to $600 or the trial court would order a new trial. As stated in Tinsley, the trial court could not further reduce the jury verdict for Gooles-by to $0; all the trial court could do was to offer Goolesby a choice between the reduced verdict of $600 or a new trial. Therefore, the April 2001 order is void, but not for the ground stated by the trial court. As stated above the trial court concluded that the April 2001 order violated Rule 59.1; however, we conclude that the April 2001 order violates Rule 59(d) and (f) as interpreted in Tinsley.

We next determine whether the trial court had the authority, in its December 2001 order, to vacate the February 2001 order. Rule 59(d) states:

“Not later than thirty (30) days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.”

Goolesby argues that the December 2001 order was entered more than 30 days after the February 2001 order, and, therefore, that the December 2001 order is void and cannot operate to set aside the February 2001 order. Wilks contends that the trial court had the authority, in its December 2001 order, to set aside the February 2001 order, even though neither party requested that the February 2001 order be set aside.

Wilks cites Henderson v. Koveleski, 717 So.2d 803 (Ala.Civ.App.1998), to support his contention. In Henderson, this court stated:

“Although a trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment (see Ex parte Owen, 420 So.2d 80, 81 (Ala.1982)), a trial court retains the power to correct sua sponte any error in its judgment that comes to its attention during the pendency of a party’s Rule 59(e) motion to alter, amend, or vacate the judgment, regardless of whether the error was alleged or not alleged in the motion.”

717 So.2d at 806.

As stated above, Goolesby filed three motions attacking the April 2001 order; two of the motions were filed pursuant to Rule 59(a) (motion for a new trial) and Rule 59(e) (motion to alter, amend, or vacate the judgment), and the third was filed pursuant to Rule 60(b) (relief from judgment). Wilks contends that the December 2001 order resolved the pending Rule 59(a) and Rule 59(e) motions; therefore, Wilks contends, the trial court could correct any errors in its prior orders, whether those errors were raised by the parties or not.

We disagree with Wilks’s reasoning. First, Henderson states that a trial court may correct errors not raised by the parties during the pendency of a Rule 59(e) motion as to the order being challenged. The motions styled by Goolesby as Rule 59(a) and (e) motions challenged the April 2001 order; they did not challenge the February 2001 order. No postjudgment motions were filed challenging the February 2001 order. Second, we conclude that to the extent Goolesby sought relief under Rule 59, Ala. R. Civ. P., from the April 2001 judgment as a matter of law in two of his May 2001 motions, those two motions were denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., no later than August 13, 2001, the 90th day after the motions were filed. However, Goolesby’s motion seeking relief from the judgment under Rule 60(b), Ala. R. Civ. P., ripened only after the Rule 59 motions were denied as a matter of law, at which time the underlying order of April 2001 became “final” within the contemplation of Rule 60(b). See Ex parte Gamble, 709 So.2d 67, 70 (Ala.Civ.App.1998). Because Goolesby contended, in his Rule 60(b) motion, that the trial court lacked the authority to enter its April 2001 judgment as a matter of law, we interpret that motion as having properly sought relief pursuant to Rule 60(b)(4), which addresses void judgments.

Goolesby’s motion challenged the validity of only the April 2001 order; it did not challenge the validity of the February 2001 order. As stated above, we conclude that the April 2001 order is void. The trial court did not have the authority to vacate the February 2001 order because that order was not challenged in Goolesby’s Rule 60(b)(4) motion.

Therefore, the trial court’s December 2001 order is reversed, and the cause is remanded for the trial court to reinstate the February 2001 order. Following the holding of Tinsley v. Talbott, 408 So.2d 148 (Ala.Civ.App.1981), the trial court is instructed to hold a new trial because Goolesby rejected the remittitur ordered in the February 2001 order.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: PER CURIAM. CRAWLEY, Judge,

text:
    William Michael DEXTER v. STATE of Alabama.
    2010895.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2002.
    William Michael Dexter, pro se.
    Nancy S. Jones, asst. atty. gen., Alabama Department of Mental Health and Mental Retardation, for appellee.
   PER CURIAM.

On May 23, 2001, the trial court entered a judgment in which it found William Michael Dexter not guilty by reason of insanity on charges of assault. In that same judgment, the trial court ordered that Dexter be involuntarily committed to the custody of the Department of Mental Health and Mental Retardation for treatment. Dexter was confined at Taylor Hardin Secure Medical Facility.

On February 22, 2002, Dexter, acting pro se, filed a petition for a writ of habeas corpus, in which he alleged that he no longer met the requirements under § 22-52-37, Ala.Code 1975, for civil commitment. The trial court denied Dexter’s petition. Dexter appealed to this court.

In his brief on appeal, Dexter contends, among other things, that he would like to enter a plea of not guilty to the charges lodged against him (apparently the assault charges), and that his confinement has caused him to suffer from claustrophobia. However, Dexter’s brief on appeal contains no citations to supporting legal authority, in contravention of Rule 28, Ala. R.App. P. Although this court is not unsympathetic to a pro se litigant such as Dexter, he must, nonetheless, comply with legal procedures and court rules in the same manner as a litigant represented by counsel. Jones v. Seibert, 624 So.2d 689 (Ala.Civ.App.1993); Bowman v. Pat’s Auto Parts, 504 So.2d 736 (Ala.Civ.App.1987). “The operation of the courts of this state is governed by rules which are no more forgiving to a pro se litigant than to one represented by counsel.” Black v. Allen, 587 So.2d 349, 349 (Ala.Civ.App.1991).

Dexter’s failure to comply with Rule 28, Ala. R.App. P. leaves this court with nothing to review; we must affirm the trial court’s judgment. Sullivan v. Alfa. Mut. Ins. Co., 656 So.2d 1233 (Ala.Civ.App.1995).

AFFIRMED.

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

CRAWLEY, J., concurs specially.

CRAWLEY, Judge,

concurring specially.

Dexter was adjudged not guilty of assault by reason of mental disease or defect and committed for treatment to the Department of Mental Health and Mental Retardation. The commitment of a criminal defendant found not guilty by reason of insanity is not a commitment pursuant to a civil commitment proceeding of § 22-52-37, Ala. Code 1975, but rather is pursuant to § 15-16-43, Ala.Code 1975, and Rule 25.6, Ala. R.Crim. P.

“ ‘Under Alabama law, civil commitments and commitments of persons found not guilty by reason of mental disease or defect are governed by separate statutes. Civil commitments are handled by the probate court.’ Committee Comments, Rule 25.2, Ala. R.Crim. P. Furthermore, initiation of commitment proceedings of a criminal defendant found not guilty by reason of mental disease or defect is mandated by § 15 — 16—41 and Rule 25.2(a), not initiated by the state. Section 15-16-41 states, in part, ‘If a defendant in a criminal case is found not guilty by reason of insanity, the court shall forthwith determine whether the defendant should be held for a hearing on the issue of his involuntary commitment to the Alabama State Department of Mental Health.’ Rule 25.2(a) reads, ‘If the defendant is found not guilty by reason of mental disease or defect, or not guilty and not guilty by reason of mental disease or defect, the court shall forthwith determine whether the defendant should be held for hearing on the issue of his involuntary commitment under Rule 25.3.’ It is not the state’s responsibility, but the court’s responsibility to follow the mandates of § 15-16-41 and Rule 25.2(a) and initiate commitment proceedings.”

Ivery v. State, 686 So.2d 495, 511 (Ala.Crim.App.1996).

Dexter’s habeas petition alleging that he no longer meets the requirements for a civil commitment under § 22-52-37 was due to be dismissed because it failed to state a claim upon which relief could be granted. If Dexter has a remedy, it is pursuant to Rule 25.8, Ala. R.Crim. P., and he is entitled to counsel, see § 15-16-65, Ala.Code 1975; Rule 25.9, Ala. R.Crim. P.