author: SOUTHWICK, P.J.,

text:
    Eddie Mae TROTTER and William James Trotter, Appellants, v. FEDERAL INSURANCE COMPANY and Meyer & Rosenbaum, Inc., Appellees.
    No. 2002-CA-00155-COA.
    Court of Appeals of Mississippi.
    Feb. 10, 2004.

      Wynn E. Clark; Mark D. Lumpkin, Biloxi, attorneys for appellants.
    Charles G. Copeland, Ridgeland, Michael D. Simmons, Jackson; J. Wade Sweat; Rebecca Suzanne Blunden, attorneys for appellees.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Eddie Mae Trotter filed suit against her employer’s insurance company for bad faith failure to pay her claim. Trotter appeals the trial court’s grant of summary judgment in favor of the insurance company. There is no issue of material fact and no mistake of law. We affirm.

¶ 2. Trotter was employed as a nurse for Riley Home Health Services. In the course and scope of employment, Trotter was involved in a car accident with an uninsured motorist in her personal vehicle on May 30, 1997. In the employment agreement, Riley required that Trotter have her own automobile insurance. Trotter had purchased a policy from Atlanta Casualty Insurance Company, but it had lapsed by the time of the accident. Trotter’s claim for uninsured motorist coverage was denied by Riley’s insurance company, Federal Insurance Company. Trotter sued Federal claiming that the company had acted in bad faith in denying the claim. Also named in the suit was Meyer & Rosenbaum, Inc., the insurance agency that assisted Riley in obtaining the Federal policy.

¶ 3. The record of this case contains approximately 2000 pages of documents. Federal filed for summary judgment on the basis that Trotter did not qualify as an insured under the uninsured motorist section of Riley’s policy. Meyer & Rosen-baum filed a similar motion. The trial court granted both motions. Trotter appeals claiming that she was an insured under the policy and her vehicle was a covered auto, or in the alternative she should have been allowed to conduct more discovery before the motion for summary judgment was granted.

DISCUSSION

1. Uninsured motorist coverage

¶ 4. The issue in this case is whether Trotter is entitled to uninsured motorist coverage under the policy issued to Riley by Federal. This form of coverage is addressed by statute:

No automobile liability insurance policy or contract shall be issued or delivered ... unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for property damage from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law.... The coverage herein required shall not be applicable where any insured named in the policy shall reject the coverage in writing and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in any renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

Miss.Code Ann. § 83-11-101(2) (Rev.1999).

¶ 5. This statute states that this form of coverage exists unless any insured named in the policy rejects the coverage in writing. The Supreme Court has noted that the legislature created uninsured motorist coverage in 1956 because of the growth in the number of uninsured drivers. Glennon v. State Farm Mut. Auto. Ins. Co., 812 So.2d 927, 930 (Miss.2002). Later, the Mississippi Uninsured Motorist Act was enacted to require such coverage in all insurance policies unless the coverage was specifically rejected by the insured in writing. Id.; Miss.Code Ann. §§ 83-11-101 to -111 (Rev.1999). Whether an employee’s claims against an uninsured motorist are covered by the issued policy, and if not, whether the coverage was properly rejected, are the issues that face us.

2. Riley’s contract with Federal

¶ 6. Contract interpretation is a mixed question of law and fact. When there is no ambiguity in a contract, the court decides its meaning as a matter of law. Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1088 (Miss.2000). In these instances, “the contract must be enforced as written.” Id. If the contract is determined to be ambiguous, then the question of the meaning of its terms usually should be submitted to a jury. Clark v. State Farm Mut. Auto. Ins. Co., 725 So.2d 779, 781 (Miss.1998).

¶ 7. The trial court found that the contract was unambiguous. The court held that the only coverage that Riley had acquired for claims created by uninsured motorists was applicable to the vehicles that Riley owned. Trotter was driving her own vehicle when the accident occurred.

¶ 8. Two different types of coverage have been highlighted in the case. Even though the policy terms regarding uninsured motorist claims are directly applicable, Trotter also discusses the liability coverage and argues that the language in that section affects her claim for uninsured motorist protection. We will analyze both sections of the policy.

¶ 9. In the policy that was in effect at the time of this accident, a separate endorsement appeared regarding the uninsured motorist provisions. In this endorsement, coverage was provided to an “insured” for compensatory damages caused by the owner or driver of an uninsured motor vehicle. An “insured” was defined as the named insured, Riley, and anyone occupying a covered automobile. The policy identified the vehicles that were “covered” for purposes of each type of coverage. For uninsured motorist coverage, the policy provided that automobiles that Riley owned were the only ones that were covered.

¶ 10. Therefore, under the plain terms of the insurance contract, injuries suffered by an employee when driving her own vehicle would not be covered by the uninsured motorist provisions of her employer Riley’s policy. The trial court was correct that these terms were not ambiguous.

¶ 11. Trotter argues in the alternative that a separate endorsement to the policy redefined who was an insured for liability purposes, and that the result of that was to make all employees insured for uninsured motorist purposes unless they rejected coverage in writing. An endorsement entitled “Employees as Insureds” said that the “following is added to the LIABILITY COVERAGE WHO IS AN INSURED provision: any employee of yours is an ‘insured’ while using a covered ‘auto’ you don’t own, hire or borrow in your business or personal affairs.” This was doubtless a business decision to have coverage to protect Riley in case an employee caused injuries to others.

¶ 12. Trotter seeks to transform that provision, which protects Riley and the employees from liability claims, into one that protects employees from the risks of collisions with uninsured motorists. The argument is that this provision redefined the category of “insured” for present purposes. Of course, under the plain language of the endorsement, it altered the definition solely for liability purposes. Liability is a different type of coverage than uninsured motorist coverage. No issue is presented to us of Trotter or Riley’s liability for damages to the other driver. The issue Trotter makes actually concerns whether identifying an employee as an insured for any purpose then requires that the employee reject uninsured motorist coverage in writing. We consider that point in the subsequent section that addresses the issue of rejecting coverage.

¶ 13. This policy’s coverage for uninsured motorists was limited to accidents occurring in vehicles owned by Riley. The policy was a typical insurance contract, with its somewhat complicated language that must be examined with some care in order to determine its effect. Complicated language does not equate to ambiguity for purposes of permitting exploration of factual issues to address that ambiguity. We will discuss in the final issue whether additional discovery was needed in order to ferret out facts to clarify ambiguity. Absent ambiguity, further discovery was not needed.

¶ 14. The policy’s plain language did not extend coverage to an employee who was driving her own vehicle, for injuries caused by an uninsured motorist.

S. Rejection of uninsured, motorist coverage

¶ 15. Trotter argues that coverage for her claims existed because she did not sign a waiver. In the statute that we have already quoted, uninsured motorist coverage will not exist “where any insured named in the policy shall reject the coverage in writing....” Miss.Code Ann. § 83-11-101(2) (Rev.1999). This means that a writing is necessary to reject or to limit the statutorily-defined basic uninsured motorist coverage. There was a writing by which Riley’s agent at Riley’s direction limited coverage. Trotter’s argument is that this is not enough.

¶ 16. A preliminary issue made by Trotter is that a form for waiver of uninsured motorist coverage appears with the documents regarding this policy, and it was never signed. That one-page form provides two options for rejecting coverage: (1) refuse any uninsured motorist coverage in the policy, or (2) refuse the property damage portion of the coverage but retain the remainder. Neither of those options applies to Riley’s decision to maintain full uninsured motorist coverage for its own vehicles. That form could not be executed consistently with what Riley was acquiring.

¶ 17. Riley made a written request to limit its uninsured motorist coverage. It used the Meyer & Rosenbaum insurance agency to make its written application. We find no defect when a business or individual employs an agent to perform the acts that are necessary for effectively limiting uninsured motorist coverage. Here, too, the application is somewhat involved and codes are used to indicate what kind of coverage is wanted in various categories. There is complication but no ambiguity in sorting out that Riley requested coverage for damages caused by uninsured motorists only to accidents involving a Riley vehicle and not those, such as here, involving employee vehicles.

¶ 18. The central argument that Trotter makes to convince us that the requirements for waiving uninsured motorist coverage were not met is that until she signs a rejection of coverage on her employer’s policy, she cannot effectively be denied the coverage. Trotter alleges that as an insured for liability purposes, she must have uninsured motorist coverage unless she waives it in writing.

¶ 19. We look to the statute for an answer to this question. The Riley policy never rejected uninsured motorists coverage, but it limited the protection to those vehicles Riley owned. There was a written application for limited coverage made by the insured through its agent. The fact that the written application limited and did not reject coverage does not create a defect. We interpret the statutory right to reject coverage in writing to encompass the lesser act of limiting that coverage. This is sufficient insofar as Riley himself and his business are concerned. Insofar as whether the statute then requires each employee to reject the coverage, we examine the relevant language:

The coverage herein required shall not be applicable where any insured named in the policy shall reject the coverage in writing and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in any renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

Miss.Code Ann. § 83-11-101(2) (Rev.1999) (emphasis added). The named insured, who was Riley, certainly qualifies as “any insured named in the policy....” We do not interpret the statute to mean that “any insured” may only reject the coverage for itself.

¶20. For example, if a parent applies for a policy to cover the entire family, that applicant’s rejection of uninsured motorist coverage is enough. There are not multiple applications or signatures needed for the same policy. If instead it is a business entity that seeks to limit its policy, there are at least impracticalities of requiring each employee also to sign. Coverage is rejected when “any insured named in the policy” does so in writing. Further, only those present at the time the original policy was enacted would be available to sign that documentation. By statute, subsequent renewals do not require a new waiver: “such coverage need not be provided in any renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.” Id. Trotter in this case was an employee at the time that the original policy was issued. But it makes little sense as a matter of statutory language, of fair notice to employees, or for other reasons, to require those employees present at the time that a company acquires a policy to waive uninsured motorist coverage, but then not to require later employees to do so. No employee needs to waive or limit uninsured motorist coverage if the company itself does so in writing, either through a document that it signs or one signed by a properly authorized agent.

¶ 21. We find that the Supreme Court has already implicitly agreed with this position. In a recent precedent, an employee sued for coverage of her injuries in an automobile accident with an uninsured motorist. Travelers Prop. Cas. Corp. v. Stokes, 838 So.2d 270, 271 (Miss.2003). The employer had waived uninsured motorists coverage in its policy, but the waiver form could not be found. Id. at 272. The only issue in the case was whether the company had in fact waived the coverage even though the actual document could not be produced. Id. at 274. The Court found that the employer’s waiver could be proven even without the signed waiver form being found.

¶22. Most importantly for our purposes, there was no issue made by the parties nor noted by the Court that the employee who was suing must have individually waived coverage under the employer’s policy. The Court simply found that uninsured motorist coverage had been waived for the employee when the employer itself in acquiring the policy waived the coverage. Id.

¶23. We acknowledge that the issue might have been overlooked by the parties. There is no explicit holding on the point in Stokes. Overlooking that issue does not appear particularly likely. Moreover, independently of Stokes, we have already indicated that we find no basis on which to require every employee to sign an uninsured motorists waiver form before a limitation applies.

¶24. When an insured named in the policy, as Riley was, puts in writing the limits on uninsured motorist coverage that it wants, this satisfies the statute. Riley informed its employees of the need to obtain their own insurance. There were no surprises. The limits on uninsured motorist coverage solely to vehicles that Riley owned was properly requested in writing and is therefore effective.

A Denial of Trotter’s Rule 56(f) motion

¶ 25. Finally, Trotter argues that additional discovery was needed prior to a ruling on the defense motion for summary judgment. Trotter had filed a motion under the Mississippi Rules of Civil Procedure 56(f) so that she could depose additional witnesses. The trial court denied that motion and granted both Federal and Meyer’s motions for summary judgment.

¶ 26. Rule 56(f) is premised on the reality that completion of needed discovery may aid the court in its determination of whether there is a genuine issue of material fact. This is not the situation here. Since the contract between Riley and Federal was unambiguous, there was no factual issue. Therefore, there is no need to conduct additional discovery to reach this conclusion.

¶ 27. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Ex parte David L. LUCAS. (In re David L. Lucas v. State of Alabama).
    1001508.
    Supreme Court of Alabama.
    March 15, 2002.
    David L. Lucas, pro se.
    William H. Pryor, Jr., atty. gen., and Andy S. Poole, asst. atty. gen., for respondent.
   HARWOOD, Justice.

David L. Lucas petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals’ judgment affirming the trial court’s dismissal of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. We granted the petition to review Lucas’s claim that his trial counsel had rendered ineffective assistance at his sentence hearing in failing to object to the introduction of allegedly uncertified copies of prior felony convictions, resulting in the mandatory enhancement to life imprisonment without parole of each of his three sentences.

The Court of Criminal Appeals set out the pertinent facts of this case in its unpublished memorandum released on April 20, 2001:

“[Lucas’s] May 1996 convictions included burglary in the first degree, rape in the first degree, and sodomy in the first degree. He was sentenced as a habitual offender to life imprisonment without parole. His convictions and sentence were affirmed on direct appeal. See Lucas v. State, 725 So.2d 1075 (Ala.Crim.App.1997).
“In his [Rule 32] petition, filed on October 18, 1999, [Lucas] contends that his trial counsel was ineffective for failing to fully investígate the circumstances of his arrest and challenging the evidence obtained as a result of the arrest. The State denied the allegations in the petition and asserted that the substantive issues regarding [Lucas’s] arrest were precluded from review because they could have been raised at trial or on appeal. Rule 32(a)(3) and (5), Ala. R.Crim. P. Additionally, the State responded that [Lucas] failed to meet his burden of proving ineffective assistance of trial counsel. Rule 32.3, Ala. R.Crim. P.
“On January 10, 2000, [Lucas] filed a motion to amend his petition alleging that the evidence presented by the State to prove his prior felony convictions had not been properly authenticated and certified. The State, in its motion to dismiss, denied the allegations and asserted that [Lucas’s] argument was precluded from review because it could have been raised at trial or on appeal.
“On February 2, 2000, [Lucas] filed a second motion to amend his petition wherein he argued that the records of his prior felony convictions were not certified by the custodian of the records. Additionally, he alleged ineffective assistance of trial counsel for counsel’s failure to object to the admission of improperly certified records. In its answer and motion to dismiss, the State responded that [Lucas’s] claims are proeedurally precluded from appellate review because they could have been raised at trial and on appeal. Rule 32.2(a)(3) and (5), Ala. R.Crim. P. The State, in its motion, further responded:
“ “Without waiving any of the aforementioned procedural bars, [Lucas] claims that two of the priors admitted against him were not certified. [Lucas] admitted in a petition filed last month that the two priors from the U.S. Government were properly certified. He cites law that says the custodian of the records must certify. He then admits that the person who requested them for the State got them certified through the proper custodian. He somehow feels the State is in error because another Federal agent got the records for the State rather than the State going directly to the custodian. There is no legal basis for this claim. He does not seem upset that an investigator in the D.A.’s office requested them. This petition, same as the one last month, is due to be denied.
“ ‘Both convictions are properly certified. [Lucas] bears the burden of proving that the convictions are not his during the Rule 32 stage. In addition, the issue is proeedurally barred because it was neither raised at sentencing or on appeal. While [Lucas] may phrase the challenge in jurisdictional terms, it is really a procedural challenge.
“ ‘[The State] avers that no material issue of law or fact exists which would entitle [Lucas] to relief under Rule 32, and that no purpose would be served by any further proceedings. Rule 32.7, [Ala. R.Crim. P.]’ ”

The trial court summarily dismissed Lucas’s amended Rule 32 petition on March 2, 2000, by noting on its case action summary, “Motion to Dismiss Amended R. 32 is granted.”

The Court of Criminal Appeals affirmed the trial court’s dismissal of Lucas’s petition, stating:

“In providing for the summary disposition of a petition for postconviction relief, Rule 32.7(d), Ala. R.Crim. P., does not require a statement of the reasons for the dismissal. See Fincher v. State, 724 So.2d 87 (Ala.Crim.App.1998). Here, the record indicates that the appellant’s claims are either precluded under Rule 32.2(a)(3) [or] (5), Ala. R.Crim. P., and, therefore, fail to establish a facially valid ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984). Thus, the trial court was correct in dismissing [Lucas’s] petition based on the State’s motion to dismiss. See Swicegood v. State, 646 So.2d 159 (Ala.Crim.App.1994)(not-ing that a trial judge’s ruling on a Rule 32 petition may-be affirmed on appeal if it'is correct for any reason). Cf. Burton v. State, 728 So.2d 1142 (Ala.Crim.App.1997)(When a simple reading of a Rule 32 petition shows that, assuming the allegations of the petition to be true, it is obviously without merit or is precluded, the trial court may summarily dismiss the petition without, requiring ■ any response from the State.).”

Lucas argues that the Court of Criminal Appeals erred by concluding that his claim of ineffective assistance of trial counsel was precluded by Rule 32.2(a)(3) or (5), Ala. R.Crim. P., and by not addressing that claim on the merits.

The record reveals that Lucas was represented by the same counsel at trial and on direct appeal. This Court and the Court of Criminal Appeals have held that a claim of ineffective assistance of trial counsel is not precluded by the application of Rule 32.2(a)(3) or (5) when the same counsel has appeared on behalf of the defendant both at trial and on appeal. See Ex parte Besselaar, 600 So.2d 978 (Ala.1992); Strickland v. State, 771 So.2d 1123 (Ala.Crim.App.1999); Tarver v. State, 724 So.2d 59 (Ala.Crim.App.1998). As noted above, the Court of Criminal Appeals disposed of all of Lucas’s claims by stating that the record indicated that all of them were “either precluded under Rule 32.2(a)(3) [or] (5), Ala. R.Crim. P., and, therefore, failed to establish a facially valid ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984).” (Emphasis supplied.) The function of the adverb “therefore” is usually to connect a statement that follows it with a preceding statement, to show that the latter statement holds true because of the former. In the sentence under consideration in the Court of Criminal Appeals’ unpublished memorandum, read literally, the term “therefore” would seem to indicate that Lucas failed to establish a facially valid ineffective-assistance-of-counsel claim because his claim was precluded. The fact that a claim might be precluded under Rule 32.2(a)(3) or (5) would have no bearing on whether the statement of the claim was facially valid.

The State argues that, because Rule 32.3, Ala. R.Crim. P., imposes on a petitioner “the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief,” Lucas’s “allegations of ineffective assistance of counsel failed to meet the threshold showing that counsel’s performance was deficient and below an objective standard of reasonableness nor do they show any prejudice as required by Strickland.” (State’s brief at 15.) This argument by the State in its brief to this Court focuses on- Lucas’s alleged failure to prove the-dual requirements of ineffective assistance of counsel under Strickland, whereby, according to the State’s formulation, “[t]he party claiming constitutional error in the representation provided by trial counsel must show both that trial counsel’s actions or omissions were deficient and [that] these deficiencies resulted in actual prejudice to the defendant to such an extent that the validity of the judgment is called into question.” The State additionally contends that “[t]he burden of proof is not satisfied by showing some evidence of either of the two prongs of the Strickland test. Both prongs must be sufficiently pleaded and proved.” (State’s brief at 11.)

The State does not point to any inadequacy of pleading in Lucas’s petition; rather, it simply argues generally at several points in its brief that he failed to prove both prongs of the Strickland test. Rule 32.3 clearly imposes on Lucas “the burden of pleading ... the facts necessary to entitle [him] to relief,” as well as the burden of “proving [those facts] by a preponderance of the evidence”; Rule 32.6(b) requires that his petition “contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds,” offering the admonition that “[a] bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceeding.” Rule 32.7(d) states that “[i]f the court determines that the petition is not sufficiently specific ... and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.” Because the proceedings involving Lucas’s petition never reached the “proof’ stage, we must consider whether his “pleading,” i.e., his twice-amended petition, failed, in the words of the Court of Criminal Appeals, “to establish a facially valid ineffective assistance of counsel claim under Strickland v. Washington.”

Lucas charges in his petition that his trial counsel was ineffective for failing to challenge the sufficiency of the certifications of (1) the records for convictions in a military court for rape and sodomy that formed the basis for his general court martial and (2) the record for a conviction in the Circuit Court of Jefferson County for burglary in the third degree. Lucas attached as exhibits to his petition copies of what he asserts were the copies of those records introduced at the sentence hearing. Thus, he presented those records as a part of his “pleading.” The averments of the petition, including those records relating to the two court-martial convictions, persuade us that the Court of Criminal Appeals was correct in upholding the trial court’s denial of the petition, as it relates to those two convictions, on the basis that “when a simple reading of a Rule 32 petition shows that, assuming the allegations of the petition to be true, it is obviously without merit ..., the trial court may summarily dismiss the petition without requiring any response from the State” (paraphrasing the holding of Burton v. State, 728 So.2d 1142 (Ala.Crim.App.1997)).

The records pertaining to Lucas’s court-martial convictions, which occurred while he was serving as a seaman in the United States Navy, were obtained by “Participating Agent Bruce E. Knight, Special Agent, NCISFO Washington D.C.,” in response to a request he had received from “Morgan Knight, District Attorney Investigator, Birmingham, AL.” Agent Knight’s statement explaining the process he followed in obtaining “a certified true copy of S/Lueas’ 26 May 89 conviction at a general court marital for Article 120 (Rape) and Article 125 (Sodomy)” is a part of the records attached to the petition. He stated that he had “contacted Mrs. Anita Coley, Civ., Administrative Section, Navy Marine Corps Appellate Review Activity (Government Division), Building 111, Navy Yard, Washington, D.C.” and that she had provided him with “a certified true copy” of Lucas’s court-martial convictions. Lucas argues that this reference to Mrs. Coley establishes that she was the legal custodian of the records and that, because her signature appears nowhere on any of those records, the records were not properly certified under Ala.Code 1975, § 12-21-73(9), which reads:

“As an additional or alternative mode of proof, the following documents may be proved as follows: ... (9) Documents in the departments of the United States government by the certificate of the legal custodian thereof.”

Other features of the Navy records demonstrate that Lucas misreads the import of Agent Knight’s statement. Knight did not say that Mrs. Coley was the legal custodian or that she personally undertook to certify the records as true copies. Rather, she was the conduit through which he procured the certified copies. The actual certification endorsed on the records is “Certified To Be A True Copy,” signed by W.F. Reyes, identified under his signature as “Captain, USMC.” Elsewhere in the records Reyes is more fully identified as “Capt. William F. Reyes, USMC, JAGC, Administrative Assistant, Administrative Support Division, DON, Navy-Marine Corps Appellate Review Activity, Office of the Judge Advocate General, Washington Navy Yard, Bldg. Ill, Washington, DC.” Clearly both Captain Reyes and Mrs. Coley, the latter a civilian employee, worked in the same offices (Building 111), and Captain Reyes was the legal custodian of the records at the time Mrs. Coley obtained them from him for Agent Knight.

Lucas attached as an exhibit to his second amended petition a copy of the transcript of the sentence hearing. It reflects that at that hearing the trial judge discussed his prior familiarity with Lucas’s naval court-martial records as a result of having relied on them in an earlier case to enhance a sentence he had imposed on Lucas following his conviction for possession of burglar’s tools. After those comments, and after the records had otherwise been discussed in Lucas’s presence, and in the presence of his two attorneys and the district attorney, the trial judge addressed Lucas’s “lead counsel” as follows: “[M]ay we proceed to sentencing or is there something that suggests to you that you need more time to research the authenticity of these priors?” Counsel responded, “Judge, Mr. Lucas would have the court proceed to sentencing.” We conclude that Lucas’s challenge to his Navy court-martial convictions on the basis that the records of those convictions were not properly certified and his derivative claim of ineffective assistance of counsel for failure to object to admission of those records at the sentence hearing are refuted by the content of the records.

We turn our analysis next to the third conviction relied on to enhance Lucas’s sentence to life imprisonment without parole — a May 16, 1985, conviction in the Circuit Court of Jefferson County for burglary in the third degree. No certification of any sort appears on the face of any of the four pages of the ease action summary Lucas has attached as an exhibit to his first amended petition. The State attempts to explain and neutralize the absence of that certification by referring to the “Motion to Dismiss Amended Rule 32 Petition” it filed in the trial court, in which it asserted that what Lucas had submitted with his amended petition was “a Xerox copy” of the records, and that “[a] photocopy never shows the certification. The Clerk’s Office always stamps the back of one of the sheets, so as to not interfere with the written material on the case action summary.” The State reiterates this contention here, asserting further that “[t]he trial court was certainly aware of this practice of its own court.” That may well be, but we have nothing in the record before us to substantiate any reverse side certification in this case, or any general practice of that procedure, or the trial judge’s knowledge of any such practice.

Because we are bound by the contents of the record before us, and because we cannot base our decision on matters asserted outside the record, we find ourselves dealing with a properly pleaded claim of ineffective assistance of counsel based on counsel’s failure to object to the introduction of allegedly noneertified records of prior convictions. The records in question, attached as exhibits to the petition and purportedly complete, bear no certification. The only rebuttal by the State is the bare assertions contained in a motion to dismiss filed in the trial court. Finally, we have a summary dismissal. The validity of the third-degree-burglary conviction necessarily is of critical importance. With it, as the third qualifying felony conviction, each of Lucas’s three sentences for commission of a Class A felony was mandatorily enhanced to imprisonment for life without parole. § 13A.—5—9(c)(3), Ala.Code 1975 (as it read before it was amended effective May 25, 2000). Without it, the sentences would have been “only” life imprisonment or imprisonment for not less than 99 years. § 13A-5-9(b)(3), Ala.Code 1975.

Accordingly, the issue whether the case action summary record for this conviction, as relied on at the sentence hearing, was in fact properly certified on its reverse side must be resolved. This should be a relatively easy matter for the trial judge to resolve, one way or the other. We, however, have no way of doing that without remanding this case to the trial court. We cannot simply order a supplemental record because the record in this Rule 32 proceeding can show only what Lucas attached as exhibits to his petition—the face of each page of the case action summary sheets. It is the record of the sentence hearing, including both sides of the documents introduced at that hearing to prove the conviction in question, to which resort must be had. Accordingly, the only avenue open to us by which we can obtain copies of the reverse sides of the pages of the case action summary for the burglary conviction is to remand this case to the Court of Criminal Appeals for it, in turn, to remand the case to the trial court for that purpose.

Therefore, we remand this case to the Court of Criminal Appeals for it to remand the case to the trial court with instructions to review the record of the sentence hearing to ascertain the status of the reverse sides of the case action summary pages in question. The trial court shall then certify its findings in its order on return to remand, within 21 days from its receipt of the remand order.

REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and HOUSTON, LYONS, JOHNSTONE, WOODALL, and STUART, JJ., concur.

SEE, J., concurs in the result.

BROWN, J., recuses herself.

      . A conviction resulting from a court-martial proceeding conducted pursuant to the Uniform Code of Military Justice may, if it otherwise qualifies as a felony under Rule 26.6(b)(3)(iv), Ala. R.Crim. P., be used to enhance a sentence pursuant to the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975. Esters v. State, 480 So.2d 615 (Ala.Crim.App.1985).


author: HARWOOD, Justice. HARWOOD, Justice. JOHNSTONE, Justice

text:
    Kathy PRESKITT and Mr. Install, Inc. v. Brantley W. LYONS and Professional Staffing, Inc.
    1011575.
    Supreme Court of Alabama.
    March 7, 2003.
    Order Overruling Rehearing May 16, 2003.

      W. Eugene Rutledge, Birmingham; and Carrie Ellis McCollum of Sasser, Littleton & Stidham, P.C., Montgomery, for appellants.
    Alex L. Holtsford, Jr., and David P. Stevens of Nix, Holtsford, Gilliland, Higgins & Hitson, P.C., Montgomery, for ap-pellee Brantley W. Lyons.
    Brantley W. Lyons, Montgomery, for appellee Professional Staffing, Inc.
   HARWOOD, Justice.

This appeal arises from a second lawsuit between the parties. In the first lawsuit, Professional Staffing, Inc., an Alabama corporation (“Staffing”), represented by attorney Brantley Lyons, sued Mr. Install, Inc., an Alabama corporation, and Kathy Preskitt (hereinafter jointly referred to as “Preskitt”) on a breach-of-contract claim. This claim was in regard to moneys advanced to Kathy Preskitt for employee wages, payroll taxes, federal income taxes, health insurance premiums, and other fees. On December 18, 2000, the trial court entered a default judgment in favor of Staffing because Preskitt had failed to appear for trial. Preskitt moved to have the default judgment set aside, but the trial court denied that motion. On January 19, 2001, Preskitt’s attorney paid the judgment from his own funds, and on January 24, 2001, the trial court entered an order stating that the judgment was satisfied. Nevertheless, Preskitt appealed the trial court’s order refusing to set aside the default judgment. On December 21, 2001, the Alabama Court of Civil Appeals affirmed the judgment of the trial court, without an opinion. Preskitt v. Professional Staffing, Inc., (No. 2000468) 852 So.2d 851 (Ala.Civ.App.2001)(table).

On February 4, 2002, Preskitt filed the second action, suing Staffing and Lyons on claims of extortion, attempted extortion, and abuse of process. Staffing and Lyons filed a motion to dismiss Preskitt’s claims pursuant to Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief can be granted. Preskitt filed a response asserting that Staffing and Lyons’s pleading was incorrectly styled, that a civil action for extortion exists at common law, and that a threat by Staffing to record the satisfied judgment constituted an abuse of process. With this response, Preskitt filed the supporting affidavit of Kathy Preskitt’s husband, Mike Preskitt, who was vice president of Mr. Install, Inc. Subsequently, Preskitt filed “Plaintiffs’ Motion for Summary Judgment” as well as a “Motion for the Court to Establish a Summary Judgment Discovery and Hearing Schedule.” Still later she filed “Plaintiffs’ Additional Submission on Summary Judgment” with supporting evi-dentiary documents.

The trial court granted Staffing and Lyons’s motion and dismissed Preskitt’s case with prejudice on April 5, 2002; it also denied Preskitt’s motion for a summary judgment. The order stated, in pertinent part:

“The complaint contains no allegations that [Staffing and Lyons] obtained any property of [Preskitt’s] or that [Staffing and Lyons] threatened physical harm or threatened to subject [Preskitt], or another, to physical confinement or restraint. Therefore, [Preskitt] cannot maintain an action pursuant to § 6-5-370, [Ala.Code 1975], based on the underlying felony of extortion in the First Degree.
“Extortion in the Second Degree is a class C felony and, therefore, pursuant to § 13A-4-2(d) [Ala. Code 1975], attempted extortion would be a Class A misdemeanor. Thus, assuming there was an attempted extortion, it would only be a misdemeanor and § 6-5-370 does not provide for a civil action for any injury amounting to a misdemeanor.
“[Preskitt] also allege[s] abuse of process by [Staffing and Lyons]. In Willis v. Parker, [814 So.2d 857, (Ala.2001) ], it was reiterated that in order to establish a claim for abuse of process, one must prove the existence of an ulterior motive, a wrongful use of process and malice. Suffice it to say that the letter sent to [Preskitt] does not constitute legal process much less abuse of legal process.”

Preskitt appealed to this Court; she argues (1) that Alabama recognizes a civil cause of action for extortion and attempted extortion; (2) that her complaint states claims on which relief can be granted, i.e., extortion, attempted extortion, and abuse of process; (3) that the trial court erred in denying her motion for a summary judgment; and (4) that the trial court erred by granting Staffing and Lyons’s Rule 12(b)(6) motion to dismiss.

We treat this appeal from the granting of Staffing and Lyons’s Rule 12(b)(6) motion to dismiss as being from a summary judgment because the trial court was presented with matters outside the pleadings, including the letter referred to in its order, and it did not expressly exclude them. “When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court.” Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997).

Our review of a summary judgment is de novo.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993)[overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003)]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Our review of the record shows that on January 24, 2002, approximately a month after the Court of Civil Appeals had affirmed the trial court’s refusal to set aside the default judgment, Lyons, on behalf of his client Staffing, mailed a letter to Preskitt; that letter stated, in pertinent part:

“As you know, my client obtained a judgment against you and the corporation jointly and severally. You then appealed the judgment as it related to you individually and said appeal was not successful. The appeal cost additional monies to my client. Because of these extra costs my client desires that I record the judgment for recording purposes even though the same had been paid. However, my client is willing to negotiate a further settlement with you to avoid recording a judgment against you. Please call me so we can discuss the matter.”

(Emphasis supplied.) Mike Preskitt’s previously referenced affidavit asserted that on January 29, 2001, Lyons telephoned Mike Preskitt’s office and offered “to have the judgment removed from Kathy’s name for the payment of an additional $35,000.00.” Mike Preskitt further affirmed that he was again approached by Lyons on January 31, 2001, at the Montgomery County courthouse, and that Lyons stated, “I am still interested in getting this satisfied against your wife.” That same evening, according to Mike Preskitt’s affidavit, Lyons telephoned him and reiterated that if they paid an additional $35,000, Lyons “would not represent any further claimants” against Kathy Preskitt.

On February 6, 2002, two days after the second action was filed, Lyons sent a second letter, this time to Preskitt’s attorneys, which stated, “[t]his letter serves as confirmation that neither I or Professional Staffing, Inc. intend to record a judgment against Kathy Preskitt or Mr. Install. There is no record of the judgement filed with the Probate Court.”

Preskitt first argues that the trial court in its order misconstrued her complaint, and that she was actually asserting a civil cause of action “under common-law rules” for her extortion and attempted extortion claims, as opposed to relying only on statutory law. Preskitt’s complaint stated that she had “a civil cause of action for damages through provisions of Code of Alabama, § 6-5-370 and under common law rules.” (Emphasis added.)

In support of her argument that she has a cause of action under the common law for the torts of extortion or attempted extortion, Preskitt cites to four cases she states demonstrate that “Alabama has long recognized the civil action for extortion under circumstances such as those in this case”: Dudley v. Stansberry, 5 Ala.App. 491, 59 So. 379 (1912), overruled on other grounds, Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So.2d 1280 (Ala.1993); Southern Cotton Oil Co. v. Currie, 20 Ala.App. 1, 2, 102 So. 149, 150 (1922); Ex parte McMahan, 507 So.2d 492 (Ala.1987); and Winn-Dixie Montgomery, Inc. v. Bryant, 421 So.2d 1254 (Ala.1982). Our analysis of the issues presented on appeal in those cases and of the actual holding in each persuades us that none of those cases actually recognized the existence of the tort of extortion under the common law.

In Dudley, the plaintiff alleged that the defendants had wrongfully levied a writ of garnishment on his wages “for the purpose of extorting” money from him. 5 Ala.App. at 494, 59 So. at 380. The Court of Appeals stated that the facts alleged were sufficient to constitute “an unlawful abuse of legal process” claim. Although Preskitt contends that this case “discussed the civil action of extortion at some length,” the opinion merely offered several definitions of extortion taken from Words and Phrases for the limited purpose of showing that an allegation of “extorting money” would serve to state the necessary elements of abuse of legal process, namely that the use of the process was done “wrongfully, without probable cause, and maliciously.” 5 Ala.App. at 495, 59 So. at 380.

Southern Cotton Oil Co., supra, involved a disputed accord and satisfaction. That case makes the statements, only in connection with the proposition that there must be a good-faith dispute as to the amount due before there can be an accord and satisfaction, that “[a] dispute cannot be raised for the mere purpose of extorting money. A person cannot create a dispute sufficient as a consideration for a compromise by a mere refusal to pay an undisputed claim. That would be extortion, and not compromise.” 20 Ala.App. at 2, 102 So. at 150 (citation omitted). Thus, Southern Cotton Oil Co. does not address the existence of a civil common-law action for extortion.

In Ex parte McMahan, supra, this Court issued a writ of mandamus vacating an order staying all discovery in a civil case pending the conclusion of a related criminal case. The civil case arose out of the defendants’ attorney sending the plaintiff a letter that threatened a civil action and criminal charges, if the plaintiff did not pay the defendants a sum of money as damages for the plaintiffs alleged fraudulent conduct. Although one of the claims in the multielaim complaint in that case was “attempted extortion,” this Court was called upon to consider only the issue whether discovery should have been stayed; the Court did not even peripherally address the merits of the civil case or discuss whether attempted extortion was a viable cause of action.

In Winn-Dixie Montgomery, Inc., supra, this Court held that the Birmingham Division of the Tenth Judicial Circuit, as opposed to the Bessemer Division, had jurisdiction of the disputes, and that the trial court had not abused its discretion by allowing the plaintiff to amend his complaint at the close of evidence to allege blackmail and extortion. The plaintiff had originally brought an action alleging false arrest, false imprisonment, malicious prosecution, slander, and involuntary servitude. The Court did not directly address the validity of the extortion and blackmail claims. Rather, after pointing out, with respect to the challenged amendment, the liberal policy of Rule 15, Ala. R. Civ. P., the Court simply stated, with respect to the notion of prejudice resulting from a tardy amendment, that “[t]he evidence supporting [the plaintiffs] claims of extortion and blackmail was the same evidence presented throughout the trial and argued before the jury.” 421 So.2d at 1257. This observation cannot, as Preskitt contends, be construed as a recognition of a civil cause of action for extortion independent of criminal statutes.

Accordingly, none of the actual holdings in the cases Preskitt relies on supports her contention that Alabama recognizes a civil cause of action for extortion or attempted extortion based upon the common law under the facts alleged by Preskitt. Our own research has located no such Alabama case. In addition, other jurisdictions have declined to recognize a civil cause of action for extortion or attempted extortion. See Printers II, Inc. v. Professionals Publ’g, Inc., 784 F.2d 141 (2d Cir.1986); Second & Ashbourne Assocs. v. Cheltenham Township, Ms. 88-6400, July 28, 1989 (E.D.Pa.1989)(not published in F.Supp.); Boschette v. Bach, 925 F.Supp. 100 (D.P.R.1996); Myers v. Cohen, 5 Haw.App. 232, 687 P.2d 6 (1984), rev’d on other grounds, 67 Haw. 389, 688 P.2d 1145 (1984); Niagara Mohawk Power Corp. v. Testone, 272 A.D.2d 910, 708 N.Y.S.2d 527 (2000); Carnemolla v. Walsh, No. CV990155192S, November 8, 2001 (Conn.Super.Ct.2001)(unpublished opinion).

Preskitt further asserts in her brief that “[t]he correct interpretation of the complaint is that it merely alleged that the charged conduct of [Staffing and Lyons] violated the criminal statutes cited and that in the absence of a criminal prosecution the conduct would not be civilly actionable but for § 6-5-370.” (Emphasis added.) Section 6-5-370, Ala.Code 1975, provides, “For any injury, either to person or property, amounting to a felony, a civil action may be commenced by the party injured without prosecution of the offender.” (Emphasis added.)

The application of § 6-5-370 was discussed in Lewis v. Fraunfelder, 796 So.2d 1067 (Ala.2000). In Lewis, the plaintiff sued the person who moved into the plaintiffs former residence, alleging civil mail fraud and civil credit-card fraud. The plaintiff alleged that the new resident had obtained a credit card in the plaintiffs name and had then incurred debts in her name. However, the plaintiff conceded that the new resident did not make a misrepresentation upon which she relied, and reliance is required in order to support a fraud claim. The Lewis Court held that there was no cause of action for civil mail fraud or civil credit-card fraud under these circumstances because “[s]ection 6-5-370 does not create a cause of action; rather it merely allows a plaintiff to commence a civil action [for any injury amounting to a felony] even if the plaintiff does not pursue criminal prosecution of the defendant.” 796 So.2d at 1070. Thus, § 6-5-370 only eliminates an obstacle for plaintiffs with a valid cause of action; it does not create a civil cause of action for any injury that amounts to a felony.

In order to determine if § 6-5-370 is applicable in the case at hand, we must first consider what constitutes the criminal offense of extortion, and under what circumstances it is classified as a felony. “A person commits the crime of extortion if he knowingly obtains by threat control over the property of another, with intent to deprive him of the property.” Ala.Code 1975, § 13A-8-13. (Emphasis added.) By definition, the facts of Preskitt’s case do not constitute the criminal offense of extortion because she has never alleged that Staffing and Lyons obtained control over any of her property. Accordingly, we need not consider whether a criminal extortion offense would give rise to a counterpart civil cause of action. Attempted extortion is Preskitt’s only possibly viable claim.

Because extortion is classified in varying degrees, we must determine which degree of extortion allegedly attempted corresponds with the facts of this case. Extortion in the first degree is defined in Ala. Code 1975, § 13A-8-14, and is inapplicable in this case because it requires a threat of physical harm or physical confinement or restraint, which are not alleged in this case.

Section 13A-8-15, Ala.Code 1975, in combination with § 13A-8-l(13)k.,' defines extortion in the second degree in terms presenting the only scenario possibly applicable to the facts of this case. It is extortion by means of a threat to, among other things,

“[d]o any other act which would not in itself substantially benefit the actor- but which is calculated to harm substantially another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.”

§ 13A-8-l(13)k., Ala.Code 1975:

Extortion in the second degree is a Class C felony. Ala.Code 1975, § 13A-8-15(c). Assuming for purposes of analysis that the facts in this ease are consistent with this definition of extortion in the second degree, an attempted extortion in the second degree would constitute only a Class A misdemeanor. See Ala.Code 1975, § 13A-4-2(d)(4). Therefore, the offense would not fall within the purview of § 6-5-370. The direct implication of § 6-5-370 is that a misdemeanor must first be prosecuted criminally before it can be civilly actionable. Moreover, Preskitt expressly acknowledges in her brief that, but for § 6-5-370, she would have to first prosecute her claims criminally. So, according to her own characterization of § 6-5-370, she is barred from pursuing a civil attempted extortion claim without prior criminal prosecution of the same claim.

Preskitt also contends that the trial court misconstrued her complaint as to her abuse-of-process claim. The trial court interpreted Preskitt’s complaint as alleging that the letter Lyons sent to her constituted the abuse of process. In her brief to this Court, Preskitt asserts that her abuse-of-process claim actually resulted from the threat made by Staffing and Lyons to record the fully paid default judgment. She contends that her complaint “alleges a threatened misuse of the legally issued process, i.e. the judgment.”

This Court has held that in order to prove the tort of abuse of process, a plaintiff must prove: “ ‘(1) the existence of an ulterior purpose; 2) a wrongful use of process, and 3) malice.’ ” Willis v. Parker, 814 So.2d 857, 865 (Ala.2001) (quoting C.C. & J., Inc. v. Hagood, 711 So.2d 947, 950 (Ala.1998)). Even if the first and third elements — existence of an ulterior purpose and malice — might be inferred from the evidence, the record does not establish the second element. It is undisputed that Staffing and Lyons never actually recorded the default judgment. In fact, Lyons mailed Preskitt a letter two days after this action was filed, confirming that Staffing and Lyons neither had filed nor intended to record the judgment. Legal process has been defined in Black’s Law Dictionary (6th ed.1990) as “a summons, writ, warrant, mandate, or other process issuing from a court.” In Dickerson v. Schwabacher, 177 Ala. 371, 376, 58 So. 986, 988 (1912), this Court listed the following examples of legal processes for which an action will lie if the process is abused:

“ ‘Entering up judgment and suing out execution after the demand is satisfied; suing out attachment for an amount greatly in excess of the debt; causing an arrest for more than is due; levying an execution for an excessive amount; causing an arrest when the party cannot procure bail, and keeping him imprisoned until, by stress thereof, he is compelled to surrender property to which the other is not entitled.’... Cooley on Torts, pp. 189-90.”

Thus, Staffing and Lyons would have had to have actually recorded the satisfied judgment, not just threaten to record it, in order to have misused the process of the judgment. The record thus does not support Preskitt’s abuse-of-process claim.

For the foregoing reasons, the trial court’s summary judgment in favor of Staffing and Lyons is due to be affirmed. In view of the fact that the trial court’s summary judgment in favor of Staffing and Lyons as to all of Preskitt’s claims is due to be affirmed, we need not address Preskitt’s motion for a summary judgment on the same issues.

AFFIRMED.

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

On Application for Rehearing

HARWOOD, Justice.

APPLICATION OVERRULED.

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

JOHNSTONE, J., dissents.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from overruling the plaintiffs’ application for rehearing. Further study of the cases cited by the plaintiffs and discussed in the main opinion on original submission persuades me that extortion is a common law tort in Alabama. Further study also persuades me that I should express no opinion on the viability of the plaintiffs’ abuse-of-process claim.

The defendants’ indisputable conduct in this case would seem actionable under the plaintiffs’ theory of common law extortion. Therefore, if I were voting today, I would dissent from the main opinion.

      . The record is unclear as to Kathy Preskitt’s relationship with Mr. Install, Inc.; the complaint alleges that Mr. Install, Inc., is the "alter ego” of Kathy Preskitt.

      . Preskitt contended that Staffing and Lyons’s motion to dismiss was actually a motion for a summary judgment because it referred to matters outside of the complaint.

      . Preskitt filed a copy of the order from the first lawsuit, which stated that the judgment was satisfied, and a copy of the letter written by Lyons, which she alleges threatens to record the satisfied judgment.

      . See note 3.


author: BROWN, Justice.

text:
    Ex parte WINN-DIXIE MONTGOMERY, INC. (In re Ex parte Winn-Dixie Montgomery, Inc. (In re Winn-Dixie Montgomery, Inc. v. Barbara Nipper)).
    1020774.
    Supreme Court of Alabama.
    May 16, 2003.
    John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for petitioner.
    J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for respondent.
   BROWN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the opinion released by the Court of Civil Appeals. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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


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

text:
    Ex parte WINN-DIXIE MONTGOMERY, INC. (In re Winn-Dixie Montgomery, Inc. v. Barbara Nipper).
    2010765.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2003.

      John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for petitioner.
    J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for respondent.
   On Application for Rehearing

YATES, Presiding Judge.

The opinion of October 25, 2002, is withdrawn, and the following is substituted therefor.

Barbara Nipper sued her employer, Winn-Dixie Montgomery, Inc., on May 5, 2000, seeking to recover workers’ compensation benefits for an injury to her back she sustained during the course of her employment with Winn-Dixie. Winn-Dix-ie answered the complaint, denying that Nipper was entitled to benefits. The parties agreed to mediate their dispute through the Ombudsman Program, pursuant to § 25-5-290 through § 25-5-294, Ala.Code 1975. On October 9, 2001, the parties entered into a settlement agreement following a benefit-review conference before Ombudsman Douglas R. Nelson. The settlement agreement provided, in part:

“All Alabama Workers’ Compensation benefits are settled and closed for a lump sum of ($21,500) twenty one thousand five hundred and no/100 Dollars. This includes settlement and closure of past, present, [and] future medical, settlement and closure of vocational rehabilitation service, and settlement and closure of all compensation including temporary total disability, temporary partial disability, and permanent partial disability including medical impairment, physical impairment, and vocational disability in Section 25-5-57(a)(3)i.”

Nipper signed an affidavit stating that she understood (1) that she had the right to be represented by counsel and to have the settlement reviewed by the trial court within 60 days of the date of the settlement, and (2) that, at the expiration of that 60-day period, the settlement would be final.

At the request of Winn-Dixie, Nipper, on October 22, 2001, presented the settlement agreement to the trial court for approval. Although the trial court did not enter an order expressly stating its reasoning for refusing to approve the settlement, Nipper alleges in her verified answer that the trial court refused to approve the settlement on October 22, 2001, because it determined that the agreement failed to adequately compensate her for future medical benefits. The trial court, on January 15, 2002, set the case for trial on March 25, 2002. On February 22, 2002, Winn-Dixie moved the court to dismiss Nipper’s workers’ compensation complaint, contending that the parties had entered into an enforceable settlement of Nipper’s claims; in the alternative, Winn-Dixie moved to enforce the settlement agreement. Nipper responded to the motion. The trial court, on March 25, 2002, entered an order denying Winn-Dixie’s motion. Winn-Dixie now petitions this court for a writ of mandamus directing the Monroe Circuit Court either to dismiss Nipper’s workers’ compensation claim with prejudice or to enter an order enforcing the settlement agreement reached between the parties following the benefit-review conference.

Mandamus is an extraordinary writ and will issue only when (1) the petitioner has demonstrated a clear legal right to the relief sought; (2) the respondent has a duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) appellate jurisdiction is properly invoked. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000). Because mandamus is an extraordinary remedy, this court’s standard of review on a petition for a writ of mandamus is simply to determine whether the trial court has clearly abused its discretion. Ex parte King, 776 So.2d 31 (Ala.2000).

The issue presented by Winn-Dixie is whether the trial court abused its discretion and violated § 25-5-292(b), Ala.Code 1975, when it refused to dismiss Nipper’s complaint, or, in the alternative, to enforce the settlement agreement. This court has stated:

“The court’s fundamental duty in interpreting a statute is to determine the legislative intent by examining the language used in the statute, as well as the policy to be promoted and the ends sought by the application of the statute. Ex parte Holladay, 466 So.2d 956 (Ala.1985). The court must interpret provisions of the workers’ compensation statute liberally to accomplish its ‘[beneficent] purposes, and all reasonable doubts should be resolved in favor of the [worker].’ American Tennis Courts, Inc. v. Hinton, 378 So.2d 235, 237 (Ala.Civ.App.), cert. den., 378 So.2d 239 (Ala.1979).”

Ross v. Ellard Constr. Co., 686 So.2d 1190, 1192 (Ala.Civ.App.1996). Section 25-5-292(a), Ala.Code 1975, provides, in part: “A settlement reached hereunder shall, unless otherwise provided herein, be effective on the date the settlement is signed unless one of the parties submits the settlement to the court for approval as provided in this article.” (Emphasis added.) Section 25-5-292(b), provides:

“(b) An agreement signed pursuant to this section shall be binding on all parties through the final conclusion of all matters relating to the claim, unless within 60 days after the agreement is signed or approved the court on a finding of fraud, newly discovered evidence, or other good cause, shall relieve all parties of the effect of the agreement.”

(Emphasis added.)

Relying upon Ex parte Ford, 782 So.2d 185 (Ala.2000), Winn-Dixie argues that Nipper did not move to set the agreement aside within 60 days of the settlement and that the trial court did not enter an order setting the agreement aside based on “fraud, newly discovered evidence, or other good cause” within 60 days of the settlement. Therefore, it says, the settlement agreement is enforceable. In Ex parte Ford, the employee and the employer agreed to participate in a benefit-review conference pursuant to the Ombudsman Program. The parties agreed to a settlement of the employee’s workers’ compensation claim and reduced that agreement to writing on January 20, 1998. The employee later changed her mind about the agreement. On March 19, 1998, the employer moved the court to enforce the settlement agreement. On April 8, 1998, the employee objected to the employer’s motion and moved to set the settlement agreement aside. The trial court granted the employer’s motion and this court affirmed that judgment without an opinion. Ford v. Cagles, Inc., (No. 2971331, April 16, 1999) 777 So.2d 328 (Ala.Civ.App.1999) (table). The supreme court granted the employee’s petition for certiorari. Ex parte Ford, 782 So.2d at 186.

Citing § 25-5-292(a) and (b), the supreme court noted that the employee did not submit the settlement agreement to the trial court for approval within 60 days of the date the settlement was reached. Therefore, the supreme court held, because the employee’s request to set the settlement agreement aside was made more than 60 days after the parties had entered into the settlement agreement, the trial court was without jurisdiction to set aside the settlement agreement. Ex parte Ford, 782 So.2d at 187.

We find the facts of Ex parte Ford to be distinguishable from the facts of this case. In this case, the settlement agreement was reached by the parties on October 9, 2001. According to § 25-5-292(a), the settlement agreement was effective on that date unless one of the parties submitted it to the trial court for approval. On October 22, 2001, Nipper, at the specific request of Winn-Dixie, presented the settlement agreement to the trial court for approval. Because the settlement agreement was submitted to the trial court for approval, we interpret § 25-5-292(a) to mean that the settlement agreement would not become effective unless or until it was approved by the court. The materials before this court on this petition indicate that the trial court refused to approve the settlement agreement on October 22, 2001, because that court determined that the settlement agreement failed to adequately compensate Nipper for future medical benefits. The trial court refused to approve the settlement agreement within 60 days of October 9, 2001 — the date the parties signed the settlement agreement. Nipper was not required to file a separate motion to set aside the settlement agreement based on “fraud, newly discovered evidence, or other good cause,” as Winn-Dixie contends, because the settlement agreement was presented to the trial court for approval and was rejected by the trial court within 60 days of the date it had been signed.

The dissent contends that the failure to adequately compensate an injured employee for future medical benefits is not “other good cause” to relieve the parties from the effect of their settlement agreement under § 25-5-292(b). This conclusion is reached by drawing an analogy between § 25-5-292(b) and Rule 60(b), Ala. R. Civ. P., and by narrowly construing § 25-5-292(b). The theory set forth in the dissent is not a theory that is raised or argued in Winn-Dixie’s petition.

The dissent also states that the result reached by this court in this case will have a chilling effect on the use of the Ombudsman Program in the future. The dissent states that the Legislature intended the Ombudsman Program to be a simpler, quicker, extrajudicial method for resolving workers’ compensation claims in this State. Although the Legislature may have intended the Ombudsman Program to be simpler and quicker, the Legislature surely did not usurp the intended beneficent purpose of the Act for the mere sake of simplicity and expedience. There is no chilling effect on the use of the Ombudsman Program when, as here, a settlement agreement is submitted to the trial court for approval, as provided for by § 25-5-292(a), and that settlement agreement is rejected by the court, thereby relieving the parties of the effect of the settlement agreement, which the court clearly had the right to do under § 25 — 5—292(b).

If this opinion has any chilling effect, hopefully that chilling effect will be on settling workers’ compensation claims through the Ombudsman Program that inadequately compensate the injured workers of this state.

Accordingly, based on the facts of this case, the language of § 25-5-292(a) and (b), and the arguments presented by Winn-Dixie, we conclude that Winn-Dixie has failed to demonstrate a clear legal right to the relief it seeks.

APPLICATION OVERRULED; OPINION OF OCTOBER 25, 2002, WITHDRAWN; OPINION SUBSTITUTED; PETITION DENIED.

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

PITTMAN, J., dissents.

THOMPSON, Judge,

concurring in the result.

Given the facts of this case, the language of § 25-5-292, Ala.Code 1975, and the arguments contained in the petitioner’s brief on appeal, I cannot say that the petitioner has demonstrated a clear legal right to the relief it seeks. See Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001) (“[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or abuse of discretion.”).

PITTMAN, Judge,

dissenting.

Because I would grant the petition for a writ of mandamus, I respectfully dissent.

To date only two cases have addressed the enforcement of settlements reached pursuant to the Ombudsman Program established by § 25-5-290 et seq., Ala.Code 1975. The first, Stubbs v. Brookwood Medical Center, 767 So.2d 359 (Ala.Civ.App.2000), held that a settlement reached under the Ombudsman Program does not have to receive court approval under § 25-5-56 or § 25-5-83 in order to be enforced as a valid agreement. Ex parte Ford, 782 So.2d 185 (Ala.2000), presented a similar situation. Our supreme court concluded that when the worker did not seek review of the settlement agreement reviewed by the trial court within the 60-day period, the trial court did not have jurisdiction, after the expiration of the 60-day period, to set the agreement aside.

While Stubbs and Ford both stand for the proposition that a settlement reached through the Ombudsman Program becomes final and binding after the 60 days have passed without trial court review, neither case addresses the application of § 25 — 5—292(b) to a settlement agreement. The facts in Stubbs and Ford are distinguishable from those in this case. Here Nipper submitted the settlement agreement to the trial court for approval within the statutory period. The statute specifically states that a settlement agreement reached through the Ombudsman Program becomes final in 60 days unless a trial court makes “a finding of fraud, newly discovered evidence, or other good cause.” Under what circumstances may a trial court reject a settlement?

When considering the reasons a trial court may relieve the parties from the effect of a settlement agreement reached through the Ombudsman Program, I must rely on traditional statutory construction rules. One such canon is “ejusdem gener-is” which provides that “ ‘where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.’ ” City of Huntsville v. Brown, 611 So.2d 372, 374 (Ala.Civ.App.1992) (quoting Ross Jewelers, Inc. v. State, 260 Ala. 682, 687, 72 So.2d 402 (1953)). Applying “ejusdem generis,” I conclude that the phrase “other good cause” is limited to the same category of grounds already listed in § 25-5-292(b).

The language used by the legislature in § 25-5-292(b) is very similar to that used in Rule 60(b), Ala. R. Civ. P., which lists the reasons a trial court may relieve a party from a final order or judgment. Under Rule 60(b) a party may petition for relief from a final judgment by making a showing of mistake, newly discovered evidence, or fraud within four months after the entry of the judgment or order. A party may also file, within a reasonable time, a motion for relief from a judgment by showing that the judgment is void, or has been satisfied, or “any other reason justifying relief.” Rule 60(b)(4)-(6).

This court has consistently held that relief under Rule 60(b)(6), i.e., for “any other reason justifying relief,” is an extraordinary remedy, permitted only in exceptional circumstances. See Daubert Coated Prods. v. Twilley, 589 So.2d 733 (Ala.Civ.App.1991). This rule “ ‘is not to be used to “reliev[e] a party from the free, calculated, and deliberate choices [s]he has made. A party remains under a duty to take legal steps to protect his [or her] own interest.” ’ ” Robinson v. Howell, 726 So.2d 283, 284 (Ala.Civ.App.1998) (quoting Watson v. Watson, 696 So.2d 1071, 1074 (Ala.Civ.App.1996)).

When “ejusdem generis” is applied to Rule 60(b)(6), “any other reason justifying relief’ has been limited to exceptional situations not already listed in the rule. Similarly, applying “ejusdem generis,” to the phrase “other good cause” in § 25-5-292(b), I conclude that other good cause must be analogous to fraud or newly discovered evidence. Here the trial court refused to approve the settlement, stating that the agreement failed to include an adequate amount for future medical benefits. The subjective determination of the adequacy of a monetary settlement is not similar to fraud, mistake, or newly discovered evidence.

I conclude that the language of the statute does not encompass the reason given by the trial court for not enforcing the settlement agreement in this case. To be relieved from a settlement agreement reached through the Ombudsman Program, a party must present, and a trial court must find that there exists, a legal reason such as fraud, newly discovered evidence, or other similar legal grounds not specifically listed. I believe that our Legislature intended the Ombudsman Program to be a simpler, quicker, extrajudicial method for resolving workers’ compensation disputes than is available in our state court system. The majority opinion will have a chilling effect on the future use of the Ombudsman Program to resolve workers’ compensation disputes quickly and simply. Because I would order the enforcement of the settlement agreement, I must respectfully dissent.

      . Winn-Dixie prepared the document, entitled “Workers' Compensation Settlement Petition and Agreement," that the parties submitted to the trial court.

      . Winn-Dixie does not specifically deny or dispute this allegation in Nipper's answer, rather Winn-Dixie contends that such a finding is not supported by the evidence and that the trial court did not enter an order to that effect. Where the answer in response to a petition for a writ of mandamus is not controverted, the allegations of the answer will be taken as true. King v. Smith, 288 Ala. 215, 259 So.2d 244 (Ala.1972).

      . It is well settled that the Workers' Compensation Act must be liberally construed in order to accomplish its beneficent purpose. Be

        thea v. Bruno’s Inc., 741 So.2d 1090 (Ala.Civ.App.1999).


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

text:
    Carnell McALPINE v. Jessue Brown McALPINE.
    2010352.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2002.
    Rehearing Denied Feb. 7, 2003.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1020879.

      J. Cliff Heard of Benkwith & Heard, P.C., Montgomery, for appellant.
    Pam Gooden Cook, Montgomery, for ap-pellee.
   PER CURIAM.

On December 10, 2001, the trial court divorced Carnell McAlpine (“the husband”) and Jessue Brown McAlpine (“the wife”). The husband appeals from the trial court’s award of a portion of his monthly retirement benefits and periodic alimony to the wife, and its order that he provide the parties’ minor son a vehicle and that he pay three-fourths of the son’s college expenses. We affirm in part, reverse in part, and remand.

I. Retirement Benefits

The husband first argues that the trial court’s award of a portion of his retirement benefits to the wife was erroneous because, he says, (1) it includes benefits that accrued before the parties’, marriage and that will accrue after their divorce; and (2) the wife failed to introduce sufficient evidence to support an award of retirement benefits under § 30-2-51(b), Ala.Code 1975.

When the husband filed his petition for divorce on March 2, 2001, he was a federal-government employee. He had been a federal employee since March 1977, before the parties married in December 1977. During the nine years before the husband filed his petition for divorce, his yearly salary had approximately doubled. At trial, the wife’s counsel offered a document, which was admitted over the objection of the husband’s counsel, showing that as of January 14, 2001, the husband’s estimated retirement benefit, if he retired at age 55, was $3,417 per month; at the time of trial, the husband was 47. The amount the husband is eligible to receive as a monthly retirement benefit is calculated by using his highest salary for three consecutive years.

The trial court initially entered a final divorce judgment on October 3, 2001; however, on December 6, 2001, after conducting a hearing on the parties’ post-judgment motions, it entered an order that amended certain portions of the judgment. The trial court’s amended order, as it related to the husband’s retirement benefits, stated:

“17. The Wife has a current retirement through the school system, with the present value being approximately $27,701.00. The Husband has a retirement fund presently worth approximately $66,000.00; which leaves the Husband with $38,000.00 more than the Wife has currently in retirement. The Husband, Carnell McAlpine, will be eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. The Wife, Jessue Brown McAlpine, is entitled to twenty-one (21%) percent of Carnell McAlpine’s gross monthly annuity under the Civil Service Retirement System. The United States Office of Personnel Management is directed to pay the Wife’s share directly to Jessue Brown McAlpine.”

Section 30-2-51(b), Ala.Code 1975, which governs the award of retirement benefits, states:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

In construing this section, this court has stated:

“A reading of § 30-2-51(b) indicates that a trial judge has the discretion to divide a spouse’s retirement benefits if either of two conditions exists at the time the complaint for divorce is filed: a spouse must have a vested interest in or be receiving retirement benefits. Section 30-2-51(b) then states that the trial judge’s discretion to divide retirement benefits is further limited by three additional conditions: the 10-year marriage rule of subsection (1); the post-nuptial acquisition-of-benefits rule of subsection (2); and the 50-percent division rule of subsection (3). The apparent meaning of these provisions, when read as a whole, is that the trial judge may divide the value of any retirement benefits in which one spouse has a vested interest or is receiving on the date the action for divorce is filed, provided that the parties have been married for ten years as of that date, that the judge divides only those retirement benefits acquired during the marriage, and that the judge awards the noncovered spouse no more than 50 percent of the benefits that may be considered by the court.”

Smith v. Smith, 836 So.2d 893, 899-900 (Ala.Civ.App.2002).

From our review of the record, we cannot determine the method by which the trial court made its calculation in awarding the wife 21 percent of the husband’s retirement benefits and whether that award would necessarily comply with § 30-2-51(b). In any event, the trial court’s order awards the wife a percentage of the future value of the husband’s retirement benefits, not its present value, which violates § 30-2-51(b). Furthermore, the wife failed to present sufficient evidence to support an award of any portion of the husband’s retirement benefits. The $66,000 figure listed in the trial court’s order was not represented at trial to be the present value of the husband’s retirement, but was rather the amount he had contributed to his retirement plan during the course of his employment with the federal government. The husband’s retirement benefit was not to be based upon his contributions, but based upon his highest salary received for three consecutive years. The wife also failed to offer any evidence to show what portion of his retirement earnings the husband had earned before the parties’ marriage. Accordingly, the trial court had no discretion to award any portion of the husband’s retirement benefits to the wife. Its judgment is due to be reversed and this cause is remanded for the trial court to amend its judgment so as to not award the wife any portion of the husband’s retirement benefits.

II. Alimony

The husband next argues that the trial court erred in awarding periodic alimony to the wife because (1) the wife did not establish a need for support, and (2) the periodic alimony awarded is beyond the husband’s ability to pay. Our supreme court has observed:

“The standard appellate courts apply in reviewing a trial court’s judgment awarding alimony and dividing property is well established:
“ ‘A trial court’s determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). Moreover, issues of alimony and property division must be considered together, and the trial court’s judgment will not be disturbed absent a finding that it is unsupported by the evidence so as to amount to an abuse of discretion. Id’
“Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996). More recently, the Court of Civil Appeals has stated:
“ ‘The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Its judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence ... as to be unjustly and palpably wrong. Grimsley, 545 So.2d at 76. However, that judgment is subject to review and revision. Moody v. Moody, 641 So.2d 818, 820 (Ala.Civ.App.1994). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996), and, because the facts and circumstances of each divorce are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993).’
“Bushnell v. Bushnell, 713 So.2d 962, 964-65 (Ala.Civ.App.1997).”

Ex parte Drummond, 785 So.2d 358, 360-61 (Ala.2000).

The trial court ordered the husband to pay the wife $500 each month in alimony, to be increased to $750 a month once the parties’ minor son reached the age of majority. However, we cannot review the trial court’s periodic-alimony award because we have determined that the trial court’s judgment must be reversed and the case remanded based upon the trial court’s improper award of retirement benefits to the wife and because we must consider matters of property division and alimony together. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993), and Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1996). Thus, on remand the trial court will have the opportunity to reconsider its award of periodic alimony or its division of property based upon the wife’s having failed to present sufficient evidence to support awarding her a portion of the husband’s retirement benefits. See DuBois v. DuBois, 714 So.2d 308 (Ala.Civ.App.1998)(after reversing a trial court’s award of retirement benefits, this court was unable to review the trial court’s division of property or its failure to award periodic alimony for an abuse of discretion, and on remand the trial court was ordered to consider the entire judgment in making an equitable division).

III. Vehicle and College Expenses for the Minor Son

The husband argues that the trial court erred in ordering him to provide a vehicle for the parties’ minor son and in ordering him to pay three-fourths of the son’s college expenses. Further, in regard to the husband’s providing a vehicle to the son, the trial court stated in its amended order “that the Husband [was] not legally obligated to furnish insurance on the vehicle,” which the husband argues is contrary to the Alabama Mandatory Liability Insurance Act, § 32-7A-1 et seq., Ala.Code 1975.

At trial it was established that the minor son had the use of a 1993 Honda Civic automobile that was titled in the husband’s name. The husband testified that he sought to have the title to the vehicle transferred to the wife and to have the wife pay the insurance on the vehicle; however, at a later point, he stated that he didn’t mind paying the insurance so long as the vehicle was titled to an adult. The husband never objected to the minor son’s continued use of the vehicle. Accordingly, we affirm the trial court’s order insofar as it requires the husband to maintain title to the vehicle and to provide the vehicle to the minor son. However, the trial court’s statement that the husband is not legally obligated to pay the insurance on that vehicle is contrary to the Alabama Mandatory Liability Insurance Act. Section 32-7A-4, Ala.Code 1975, states, in pertinent part:

“(a) No person shall operate, register, or maintain registration of, and no owner shall permit another person to operate, register, or maintain registration of, a motor vehicle designed to be used on a public highway unless the motor vehicle is covered by a liability insurance policy, motor vehicle liability bond, or deposit of cash.”

Section 32-7A-2(13)a., Ala.Code 1975, defines an owner as “[a] person or persons holding the legal title to a motor vehicle.” Therefore, if the husband holds title to the vehicle, he does have a legal obligation to maintain liability insurance on the vehicle. The judgment of the trial court is due to be reversed insofar as it does not require the husband to maintain insurance on the vehicle; on remand it should amend its order so that it is consistent with the Alabama Mandatory Liability Insurance Act.

The husband also argues that the trial court erred by ordering that he pay three-fourths of the minor son’s college expenses because, he says, the wife failed to present sufficient evidence of the costs of the son’s attending Alabama A & M from which the trial court could have determined whether paying three-fourths of those costs would cause an undue financial hardship on the husband. At trial, on cross-examination by the husband’s counsel, the wife testified concerning those costs as follows:

“Q. Now, do you know the costs of tuition, fees, books, room and board at Alabama A & M on a quarterly basis?
“A. On a quarterly?
“Q. I’m sorry. Semester, on a semester basis.
“A. I think it’s three thousand and something per semester.
“THE COURT: I can’t hear you.
“THE WITNESS: Three thousand something a semester, I think. I am not sure.
“Q. So at this point....
“A. I’m not sure.”

The wife argues in her brief to this court that her testimony concerning the minor son’s college expenses is consistent with her other testimony, based upon student loan documents presented into evidence by the husband, that the minor son’s college expenses are $7,000 per year. However, a review of those documents show that they related to a student loan for the parties’ eldest son, a senior at Alabama A & M, and that they do not represent the total of the costs to attend Alabama A & M, but only the amount the eldest son received in student loans for the 2001-2002 academic year.

This court has stated:

“This court has previously held that without legal evidence as to the amounts required for books and tuition or for actual costs of room and board, we cannot determine whether the sums a parent is required to pay for postminority educational support would cause undue hardship. [Penney v. Penney, 785 So.2d 376 (Ala.Civ.App.2000) ]; Thrasher v. Wilburn, 574 So.2d 839 (Ala.Civ.App.1990)....
“... In the absence of evidence regarding actual costs, neither this court nor the trial court can properly determine whether the portion of expenses the father was ordered to pay constitutes an undue hardship. Therefore, that part of the trial court’s judgment awarding prospective postminority educational support is reversed. On remand, the parties may present evidence of the actual costs of the institution which the child plans to attend. This evidence would then allow the trial court to consider the father’s claim of an undue hardship, based on concrete numbers.”

Bowen v. Bowen, 817 So.2d 717, 718-19 (Ala.Civ.App.2001). Similarly, there are no “concrete numbers” in this record from which we can determine whether the portion of college expenses the trial court ordered the husband to pay would cause an undue hardship. Therefore, as we did in Bowen, we reverse the trial court’s order as it relates to the payment of college expenses and remand the case so that the parties can present evidence of the actual costs of the minor son’s attending Alabama A & M.

The appellee’s request for an attorney fee on appeal is denied.'

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.

YATES, P.J., concurs specially.

MURDOCK, J., concurs in part and concurs in the result in part.

CRAWLEY, J., concurs in the result.

YATES, Presiding Judge,

concurring specially.

I write specially to note that a remand to allow a parent to present additional evidence of college expenses is not a second bite at the apple. The trial court shall consider all relevant factors that appear reasonable and necessary, including primarily the parents’ financial resources and whether the child shows a commitment to and aptitude for the requested education. Ex parte Bayliss, 550 So.2d 986 (Ala.1989). A parent must seek postminority support for college expenses before the child reaches the age of majority. We have had cases where a parent sought and the trial court awarded postminority support prematurely. See Murrah v. Turnipseed, 578 So.2d 1340 (Ala.Civ.App.1991)(award of college expenses for 16-year-old high school student was premature).

Unlike other petitions for support, petitions for postminority support are unique in that the timing of the filing of the petition is crucial. Therefore, there is a narrow window of time within which a parent must seek postminority support that, as a practical matter, may leave the petitioner at an unfair disadvantage at trial. Inherent within these petitions are a number of factors that could affect the parent’s ability to provide the amount of college expenses within the time period the petition is filed and heard by the court. For example, availability of scholarships or grants may be unknown, as well as whether the child has been accepted to a particular institution. Unlike the case where a party is simply not prepared for trial, the peculiar circumstances surrounding the nature of postminority support warrant a remand for the presentation of actual costs.

MURDOCK, Judge,

concurring in part and concurring in the result in part.

I concur in Part I of the per curiam opinion. I concur in the results reached by the remainder of that opinion, but write separately simply to comment briefly on the issue of the legal responsibilities of various parties to pay for automobile insurance. The responsibilities imposed by Ala.Code 1975, § 32-7A-4, are clear enough. I see nothing in that statute, however, that would prevent the trial court from making adjustments in the final judgment on remand to require one party to pay or to reimburse all or part of the expense incurred by the other party in fulfilling a legal obligation to maintain insurance on a vehicle the court ultimately orders to be made available for the child’s use.

CRAWLEY, Judge,

concurring in the result.

While, based on the current state of our caselaw, it is proper to remand this case to the trial court to allow the wife to present additional evidence of college expenses, I believe that this court should make a prospective ruling that petitioners should no longer be afforded the opportunity to submit sufficient evidence of college expenses on remand. This court has reversed judgments because the petitioner seeking post-minority educational support, pursuant to Ex parte Bayliss, 550 So.2d 986 (Ala.1989), has not presented sufficient evidence to support an award of postminority educational support. See, e.g., Smith v. Terry, 820 So.2d 839 (Ala.Civ.App.2001); Bowen, supra; Gordon v. Gordon, 804 So.2d 241 (Ala.Civ.App.2001); Penney v. Penney, 785 So.2d 376 (Ala.Civ.App.2000); Dennis v. Dennis, 777 So.2d 712 (Ala.Civ.App.2000); Thompson v. Thompson, 689 So.2d 885 (Ala.Civ.App.1997); Meador v. Meador, 628 So.2d 907 (Ala.Civ.App.1993); Hocutt v. Hocutt, 591 So.2d 881 (Ala.Civ.App.1991); Hooker v. Hooker, 593 So.2d 1023 (Ala.Civ.App.1991); Cannon v. Cannon, 585 So.2d 82 (Ala.Civ.App.1991); and Thrasher v. Wilburn, 574 So.2d 839 (Ala.Civ.App.1990).

Since Thrasher, supra, was decided more than 10 years ago, trial courts, as well as petitioners seeking postminority educational support under Bayliss, have been on notice that the reviewing court will require evidence as to the costs of the proposed college expenses in order to be able to review whether those costs are an undue hardship on the parent ordered to pay. I advocate that a petitioner should not be given “a second bite of the apple.” That is, if a petitioner fails to present evidence of the costs involved, then the petitioner should not be allowed to present additional evidence on remand. Instead, the petitioner should be foreclosed from presenting additional evidence, and this court should render a judgment or the trial court’s judgment should be reversed and the case remanded with instructions to enter a judgment adverse to the petitioner. See, e.g., Gus Mayer Co. v. Louisville & N.R. Co., 228 Ala. 290, 291, 153 So. 249, 250 (1934)(“When the lower court tries a cause without a jury, if the judgment is not justified by the evidence, a final judgment may be rendered by the appellate court in accordance with the law and the evidence.”) (citations omitted); and Gardner v. Ruffner, 206 Ala. 666, 91 So. 580 (1921) (on rehearing)(refusing to allow further testimony on remand for an issue clearly made by the pleadings).

In other types of civil cases, we do not allow a party who fails to present substantial evidence to overcome a judgment as a matter of law a second chance to present additional evidence to support the party’s claim. See, e.g., G.UB.MK. Constructors v. Carson, 812 So.2d 1175 (Ala.2001); Arthur Rutenberg Homes, Inc. v. Norris, 804 So.2d 180 (Ala.2001); Thedford v. Payne, 813 So.2d 905 (Ala.Civ.App.2001); Tom Jones Insurance, Inc. v. Sinclair-Lawrence & Associates, Inc., 775 So.2d 211 (Ala.Civ.App.2000). The practice of reversing a judgment because of insufficient evidence and remanding for the taking of additional evidence rewards a party who failed to meet its burden of proof and punishes the other party, who was not at fault, by requiring the expenditure of time, effort and expense in conducting further evidentiary proceedings.

I advocate treating a Bayliss petition in the same manner — i.e., no “second bite of the apple.” It is not an unreasonable requirement that a petitioner in a postminority educational support case come to court with the required evidence of the costs involved in order to be eligible for the postminority educational support. The concerns raised in Presiding Judge Yates’s special concurrence can be alleviated in a case where a petitioner does not have the proper evidence to go forward with his or her petition for postminority support when the hearing on the matter has been scheduled on the trial court’s docket by the petitioner’s seeking a continuance in order to allow the petitioner to gather needed evidence. See McClendon Trucking Co. v. Jones, 729 So.2d 349 (Ala.Civ.App.1999)(the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court); Lane v. Lane, 716 So.2d 1232 (Ala.Civ.App.1998)(same). As noted in Presiding Judge Yates’s special concurrence, it is the timing of the filing of the petition for postminority support that is crucial, not the timing of the hearing and presentation of evidence on the petition.

      . We note that the valuation of retirement benefits can be a difficult task that may require expert testimony from a certified public accountant or an actuary. See Joy M. Feinberg, Sizing Up the Pension Pot, 24 Fam. Advoc. 12 (Fall 2001).

      . If the parents have made an agreement to pay for college expenses then that agreement is enforceable even if the child has reached the age of majority. See Procise v. Marler, 833 So.2d 650 (Ala.Civ.App.2002).

      . In most cases, however, a petitioner would have the time necessary to gather the proper evidence to support his or her petition for postminority support. In this case, almost four months elapsed between the mother's filing of her petition seeking postminority support and the trial court's hearing on the matter.