text:
    Rhonda Sue EDGEWORTH v. FAMILY CHIROPRACTIC & HEALTH CENTER, P.C., et al.
    1041653.
    Supreme Court of Alabama.
    April 21, 2006.

      Jack Shores of The Shores Law Firm, Fairhope, for appellant.
    W. Boyd Reeves and Scott G. Brown of Armbreet Jackson, LLP, Mobile, for ap-pellee.
   HARWOOD, Justice.

Rhonda Sue Edgeworth, the plaintiff in the underlying medical-malpractice action against Family Chiropractic & Health Center, P.C., Kenneth A. Robinson, D.C., and Gregory A. Kuhlmann, D.C. (“the defendants”), appeals from the April 19, 2005, judgment entered in favor of the defendants, in response to the verdict of the jury.

On appeal, Edgeworth complains only about the content of the trial court’s instructions to the jury concerning the burden of proof applicable to a medical-malpractice action. Accordingly, the facts forming the basis of Edgeworth’s claims against the defendants are not pertinent to the issues on appeal, and we therefore do not discuss them.

Edgeworth asserts as her first issue on appeal that the trial court erred in instructing the jury that, because this was a medical-malpractice case, her burden of proof was higher than it would be in a normal civil case. The portion of the instruction at issue was as follows:

“If you are reasonably satisfied from the evidence in this case that the defendants complied with the standard set by the learning, skill, and care ordinarily possessed and practiced at the time in question by other chiropractors in the same general line of practice, under similar circumstances as shown by the expert chiropractic evidence in this case, then you should return a verdict for the defendants.
“Now, I’ve stated before that the burden of proof in this case is upon the plaintiff. The burden of proof is something that we hear about a lot of times on TV and other cases in which you may have served as a juror. In this case, which is a medical malpractice case, the burden of proof is a little different. Okay? In a medical malpractice case, the burden of proof is upon the plaintiff to reasonably satisfy you by substantial evidence of the truthfulness of the matters and things claimed by her before she would be entitled to recover.
“All right. Now, normally in a civil case, and this is a civil case, normally the burden of proof is upon the plaintiff to only reasonably satisfy you of the evidence. So this being a malpractice case, it bumps it up some.
“Now, we’ve all heard the burden of proof beyond a reasonable doubt. Beyond a reasonable doubt is the highest burden of proof we have and that burden of proof is only in criminal cases. So that burden of proof would be up here. The normal civil case is to prove to your reasonable satisfaction the truth of material averments contained in their complaint.
“In a medical malpractice case, it’s somewhere in between, not as high as beyond a reasonable doubt, but it’s higher than to your reasonable satisfaction. Again, the burden is to prove to the jury’s reasonable satisfaction by substantial evidence the truth of the matters and things claimed by her before the plaintiff would be entitled to recover.
“Now, normally in a civil case when the parties walk through the doors, and in this case also, when they walk through the doors of the courtroom, the scales of justice are equal. No one has an advantage and they’re equal.
“In a civil case, normal civil case, if you weigh out that evidence, if it’s weighted slightly or heavily in favor of the plaintiff, then you should rule in favor of the plaintiff. If it’s weighted slightly or heavily in favor of the defendant, you should rule in favor of the defendant. This being a medical malpractice case, that burden of proof is up a little bit from that. So it’s got to be more than slightly over 50 percent to slightly over 49 percent. It’s got to be more.
“And I’ll explain to you more. I’ll go ahead now. Substantial evidence is that character of admissible evidence that would convince an unprejudiced, thinking mind of the truth of the facts to which the evidence is directed.
“That’s the definition of substantial evidence. I’ll read that to you again.
“Substantial evidence is that character of admissible evidence that would convince an unprejudiced, thinking mind of the truth of the facts to which the evidence is directed.
“Okay. So it’s a little different burden of proof in this case because it is a medical malpractice case.”

The objection Edgeworth interposed to the trial court’s instruction on the burden of proof was as follows:

“[T]he plaintiff would except to the definition of the burden of proof. The suggestion was that the burden of proof is different in this case than in any other civil case. I believe that the statute says that the evidence to be considered by the jury is of a higher character or a higher quality, but that the burden of proof remains the same, that they be reasonably satisfied by a [sic] substantial evidence in this case, as opposed to reasonably satisfied by the evidence than [sic] in any other civil case.”

Previous discussions among the court and the parties contained in the record make it clear that “the statute” to which Edgeworth is referring is the Alabama Medical Liability Act of 1987, as codified at § 6-5-541 et seq., Ala.Code 1975, and as amended through the date of trial (“the AMLA”).

In 1987, the Alabama Legislature enacted a 10-bill package of “tort reform” legislation. Robert D. Hunter, Alabama’s 1987 Tort Reform Legislation, 18 Cumb. L.Rev. 281, 282 (1988). Included within that package was Act No. 87-184, Ala. Acts 1987, codified as § 12-21-12, Ala. Code 1975, abolishing “the ‘scintilla rule,’ requiring, instead, that ‘[i]n all civil actions brought in any court of the State of Alabama, proof by substantial evidence shall be required to submit an issue of fact to the trier of the facts.’ § 12-21-12(a).” Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319, 330 (Ala.2000).

In many respects the AMLA traveled a course quite distinct from the remainder of the tort-reform package, although it was at all times inseparable from the entire package. (Hunter, p. 308.) As introduced in the House of Representatives, the AMLA contained no definition of “substantial evidence,” and when a definition of that term was added by amendment in the Senate, the definition used in the “general” substantial-evidence bill, Act No. 87-184, was passed over in favor of a definition developed by the Supreme Court of Washington. (Hunter, p. 283.) “Substantial evidence” was defined in Act No. 87-184, codified as § 12-21-12(d), as “evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the facts sought to be proved.” In Hojem v. Kelly, 93 Wash.2d 143, 145, 606 P.2d 275, 276 (1980), the Washington Supreme Court, repeating a definition used by it in cases stretching back to Thomson v. Virginia Mason Hospital, 152 Wash. 297, 301, 277 P. 691, 692 (1929), stated that substantial evidence was that character of evidence “ ‘which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.’ ” (Thomson simply stated that definition without attribution or citation to any prior case or other source.) As codified, that definition appears in the AMLA as § 6-5-542(5): “Substantial evidence is that character of admissible evidence which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed.”

In explaining its subsequent construction of the general definition of substantial evidence appearing in § 12-21-12(d) and comparing that definition to the definition at § 6-5-542(5), this Court stated in Clem ents v. Dr. John Alvan Stewart, P.C., 595 So.2d 858, 860-61 (Ala.1992):

“The wording of the statements of the quality and weight of the evidence necessary to submit an issue of fact to the trier of fact differs. However, with the judicial interpretation of § 12-21-12(d) in West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989) (‘substantial evidence’ was there defined as ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved’), we cannot find that plaintiffs in actions against health care providers have a higher burden of proof under § 6-5-542 (which defines ‘substantial evidence’ as ‘admissible evidence which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed’) than under § 12-21-12(d), which the plaintiff describes as the ‘general law.’ This is a difference without a distinction.”

In Campbell v. Williams, 638 So.2d 804, 817 (Ala.1994), we pointed out that

“this Court has held that the difference between the definition of ‘substantial evidence’ given in § 6-5-542(5) and the definition of the same term given in § 12-21-12(d) is a ‘difference without distinction,’ Clements, supra, 595 So.2d at 862.”

As amended in 1992, the Workers’ Compensation Act provided that a judgment based on pure findings of fact by the circuit court should not be reversed on appeal if supported by “substantial evidence.” § 25-5-81(e)(2), Ala.Code 1975. The Workers’ Compensation Act provided no definition for “substantial evidence,” and this Court adopted as a definition for that term the definition as restated by this Court in West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). Stating that “[w]e need look no further [than West ] for an adequate definition,” the Court in Ex parte Trinity Industries, Inc., 680 So.2d 262, 269 (Ala.1996), went on to state: “See, also, Ala. Code 1975, § 6-5-542(5); and Clements v. Dr. John Alvan Stewart, P.C., 595 So.2d 858, 861 (Ala.1992)(quoted with approval in Campbell v. Williams, 638 So.2d 804 (Ala.1994), cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994)), wherein the Court stated that the difference between the definition of ‘substantial evidence’ as that term is used in § 6-5-542(5) and the definition of that term as it is used in § 12-21-12(d) is a ‘difference without a distinction.’ ” This Court reaffirmed those determinations in Ex parte Northam, 689 So.2d 854, 856 (Ala.1996).

The AMLA provides that in any medical-malpractice action, “the plaintiff shall have the burden of proving by substantial evidence” that the defendant health-care provider failed to exercise the requisite care, skill, and diligence, § 6-5-548(a), and that in any such action, “the minimum standard of proof required to test the sufficiency of the evidence to support any issue or fact shall be proof by substantial evidence.” § 6-5-549. In 1996 the legislature added this sentence to § 6-5-549: “In the case of a jury trial, the jury shall be instructed that in order to return a verdict against a health care provider, the jury shall be reasonably satisfied by substantial evidence that the health care provider failed to comply with the standard of care and that such failure probably caused the injury or death in question.” Act No. 96-511, Ala. Acts 1996, § 3.

In Ex parte Gradford, 699 So.2d 149 (Ala.1997), a sharply divided Court concluded that it was reversible error for the trial judge to instruct the jury in a non-medical-malpractice action that the plaintiff had the burden to prove allegations of negligence “by substantial evidence.”

“Clearly, the substantial evidence rule pertains only to ‘rulings by the court’ on the sufficiency of the evidence as presented by motions for summary judgment or motions for judgment as a matter of law (the current terminology; see Rule 50, Ala. R. Civ. P.). No one would have suggested before the adoption of Act No. 87-184 that the burden of proof on a plaintiff was to ‘reasonably satisfy the jury by a scintilla of evidence’; the burden was simply to ‘reasonably satisfy you [the jury] by the evidence,’ Instruction 8.00, Alabama Pattern Jury Instructions: Civil (1st ed.1974). That burden was not changed by the adoption of Act No. 87-184, as the pattern jury instruction committee apparently recognized when it did not change Instruction 8.00 in the second edition.
“... [I]t is error to give a charge telling the jury that it must be ‘reasonably satisfied by substantial evidence.’
“The giving of such a charge is error, both because the substantial evidence rule has no place in the jury’s deliberations and because the charge has a tendency to mislead and confuse the jury. Although the circuit court here instructed the jury on the legal definition of ‘substantial evidence,’ the repeated use of that term may have confused the jury because of the ambiguity of the word ‘substantial.’ ‘Substantial’ may mean either ‘real, material, not seeming or imaginary’ or ‘considerable in amount, value, or worth.’ The former meaning seems to be what the ‘substantial evidence’ standard requires for an affirmative ruling on the question of sufficiency of the evidence, but the latter meaning is one that is commonly understood. Thus, the jury might well understand ‘substantial evidence’ to mean ‘more than a preponderance of the evidence.’
“This possibility of confusion is exacerbated by the fact that the jurors will probably not know about the shift in Alabama law from the scintilla rule to the substantial evidence rule. When ‘substantial’ is considered in relation to ‘scintilla,’ the term requires only that the evidence be material, of some substance. A circuit judge ruling on a summary judgment motion or a motion for a judgment as a matter of law will know this distinction and will look for substantial evidence with the correct threshold in mind. A jury, not knowing that ‘substantial’ should be contrasted with ‘scintilla,’ may well think that the requirement of ‘substantial evidence’ requires the plaintiff to prevail by some margin of evidence greater than the mere preponderance of the evidence, which is the true burden of proof.”

699 So.2d at 150-51 (footnote omitted).

Justice Houston, dissenting in Ex parte Gradford and joined by three other members of the Court, was of this opinion:

“After examining the entire jury charge, I am satisfied that even though the trial court’s references to ‘substantial evidence’ in connection with the negligence claims were erroneous, those references, when considered in the context of the entire charge, do not rise to the level of reversible error. The trial court clearly charged the jurors that before they could return a verdict for the plaintiff they had to be reasonably satisfied from the evidence that the plaintiff was entitled to prevail. Although the trial court went further in several instances and told the jurors that they had to be reasonably satisfied by ‘substantial evidence,’ the trial court defined ‘substantial evidence’:
“ ‘As to the allegation of negligence, the burden is on the plaintiff to prove each and every element of one or more of his claims by substantial evidence. Substantial evidence, members of the jury, is defined as evidence of such weight and quality that fair-minded persons, in the exercise of impartial judgment, can reasonably infer the existence of the fact sought to be proved.’
“In my view, this merely conveyed to the jurors the obvious — that the plaintiff had to present evidence from which they could reasonably find in his favor and that before they could so find they had to be reasonably satisfied that the plaintiff was entitled to prevail.
“Although I agree with the majority that the jury did not need to be told that the plaintiff had to prove his case by ‘substantial evidence,’ I nonetheless do not share the majority’s concerns that the jurors could reasonably have been confused or misled by having that information. I am not willing to go outside the trial court’s charge — to Webster’s Third New International Dictionary, for example — to find a basis for concluding that the jurors could have been confused or misled. So far as I know, the jurors did not have a dictionary with them during their deliberations, and I am not willing to assume that the jurors did not understand and follow the law as it was explained to them by the trial court.”

699 So.2d at 153-54 (footnote omitted).

In Hayes v. Luckey, 33 F.Supp.2d 987 (N.D.Ala.1997), the federal district court confronted the effect in a medical-malpractice case of the 1996 amendment to § 6-5-549 which requires the jury to be instructed that in order to return a verdict against the defendant, it “shall be reasonably satisfied by substantial evidence” of both the breach of the standard of care and the requisite level of causation. Noting the difference between a party’s “burden of production” relating to the sufficiency of the evidence as tested by pretrial and trial motions for a judgment as a matter of law, and a parties’ “burden of persuasion” relating to the weight of the evidence in the estimate of the jury following submission of issues to it, the court emphasized that “the concept of substantial evidence traditionally has been understood purely as a measure for testing the sufficiency of a party’s evidence to survive a motion for summary judgment, a motion for judgment as a matter of law, or a motion for judgment notwithstanding the verdict. It never has been employed (at least, not correctly employed) as a standard for a party’s burden of persuasion when advocating a claim or defense to a jury.” 33 F.Supp.2d at 991.

The court went on to explain that the concept of sufficiency of the evidence was addressed to the court’s function, not the jury’s; “the weight of the evidence” “is usually used to refer to the jury’s function and of course the jury is concerned with the weight of evidence at least in the sense of its persuasive effect on their own minds.” 33 F.Supp.2d at 991. Nonetheless, the court concluded, it was “unequivocally clear the Alabama Legislature intends ‘the substantial evidence’ standard to be utilized as the plaintiffs burden of persuasion in [medical-malpractice] cases.” 33 F.Supp.2d at 993. Accordingly, the court considered itself obliged to apply this Alabama substantive law in the “diversity” action before it, “no matter how ludicrous it may seem.” 33 F.Supp.2d at 995. Consequently, the court explained its intention to instruct the jury that the burden was on the plaintiff “to prove by substantial evidence” all of the elements of her claim.

In Cackowski, supra, the response of the defendant health-care provider to the plaintiffs’ medical-malpractice claim included the assertion of the affirmative defense of contributory negligence. On appeal from a judgment entered on a verdict for the defense, the plaintiffs argued that the trial court erred by requiring them “to prove their case by ‘substantial evidence,’ ” as mandated by the AMLA, “while the court required [the defendant] to prove its affirmative defense of contributory negligence only to the jury’s reasonable satisfaction.” 767 So.2d at 327. The plaintiffs argued that such disparate treatment violated their right to due process and equal protection under the United States Constitution and the Alabama Constitution. This Court held that no unconstitutional inequalities would result from proper application of the interaction of § 6-5-549 and § 12-21-12, because the defendant should also have been required to prove its affirmative defense of contributory negligence by substantial evidence; “[bjecause each side was required to prove its case by substantial evidence” there was no unequal treatment. 767 So.2d at 330.

“[T]he trial court should have made it clear to the jury that each party was required to prove its case by substantial evidence to the reasonable satisfaction of the jury. We recognize that this decision conflicts with our holding in Ex parte Gradford [699 So.2d 149 (Ala.1997) ]. However, we note that Gradford remains the law except in the relatively rare situation, such as in the present case, where contributory negligence is an issue in a medical-malpractice case.”

767 So.2d at 330. In this regard, the Court implicitly equated the definition of substantial evidence found at § 6-5-549 with that in § 12-21-12 as restated in West, consistent with its earlier declarations that the differences between the two definitions were without a distinction.

Finally, in Hutchins v. DCH Regional Medical Center, 770 So.2d 49 (Ala.2000), the Court held that an instruction to the jury advising it, in accordance with § 6-5-549, that the plaintiff must prove her medical-malpractice claim “by substantial evidence” did not violate her equal-protection rights. Only one Justice concurred in that portion of the per curiam opinion, but two other Justices concurred specially as to it and four concurred in the result. In instructing the jury that it should find in favor of the plaintiff if the jury was “reasonably satisfied by substantial evidence” of her entitlement to recover, and that the verdict should be in favor of the defendants if the jury was “not reasonably satisfied by substantial evidence” of the plaintiffs entitlement to recover, the trial court defined substantial evidence using the language of § 6-5-542(5).

As noted earlier, this Court is committed to the proposition that the difference in wording in the “general” definition of substantial evidence in § 12-21-12(d) as reframed by this Court in West, supra, and the AMLA definition in § 6-5-549, is a difference without a distinction. In that regard, the Court has obviously understood the word “convince,” as used in § 6-5-542(5) to mean simply “persuade.” Although “convince” might be understood in some contexts to import a higher degree of certitude or conviction, it also has the accepted meaning of “persuade,” so that a requirement to convince someone may properly be understood as a requirement simply to persuade him or her. Thus, particularly in contemporary times, persuade is a synonym for convince. III Oxford English Dictionary, 879 (2d ed.1989); and Random House Webster’s Unabridged Dictionary, 445 (2d ed.2001).

At any rate, Edgeworth lodged no objection or criticism with the trial judge about the fact that it charged the jury that Edgeworth’s burden of proof was “to prove to the jury’s reasonable satisfaction by substantial evidence” the truth of her claims before she would be entitled to recover, or the fact that the trial judge advised the jury that substantial evidence was “that character of admissible evidence that would convince an unprejudiced, thinking mind of the truth of facts to which the evidence is directed.” Rather, Edge-worth stated to the judge that it was her position that the AMLA “says that the evidence to be considered by the jury is of a higher character or a higher quality.” The focus of Edgeworth’s objection was that the trial judge had suggested “that the burden of proof is different” in a medical-malpractice case, as contrasted with any other civil case, whereas, in Edge-worth’s view, “the burden of proof remains the same.” Edgeworth agreed, however, that due to the higher character or higher quality of evidence required by the AMLA, the jury in a medical-malpractice case must be “reasonably satisfied by a [sic] substantial evidence ... as opposed to reasonably satisfied by the evidence than [sic] in any other civil case.”

Rule 51, Ala. R. Civ. P., declares that “[n]o party may assign as error ... the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless the party objects thereto ... stating the matter objected to and the grounds of the objection.” “ ‘The essential purpose of Rule 51 is to give the trial court an opportunity to correct its instructions and to avoid the waste of time and money from reversals that result from oversight, technical omissions, or remediable mistakes.’” Alewine v. Southern Ry., 531 So.2d 315, 317 (Ala.1988) (quoting Grayco Res., Inc. v. Poole, 500 So.2d 1030, 1032 (Ala.1986)). Despite this Court’s repeated explanation that the difference in wording between the general definition of substantial evidence and the AMLA definition is a difference without a distinction, Edge-worth advised the trial court that the AMLA definition required the evidence to be considered by the jury to be “of a higher character or higher quality.” As noted, Edgeworth went on to state that the jury in a medical-malpractice action had to be “reasonably satisfied by substantial evidence,” whereas the jury in any other civil case had only to be “reasonably satisfied by the evidence.”

Against the backdrop of that objection, we review the portion of the jury instruction at issue in the context of the entire instruction; we conclude that, when it is viewed in its entirety, any error of phraseology by the trial judge did not constitute reversible error. That is because in every instance the trial judge explained the supposed difference between the burden of proof in a medical-malpractice action and a “normal” civil case in such a way as to clearly explain that the difference was simply that the plaintiff had to reasonably satisfy the jury by substantial evidence. For example, upon initially advising the jury that in a medical-malpractice action the burden of proof was “a little different,” the judge immediately explained that “the burden of proof is upon the plaintiff to reasonably satisfy you by substantial evidence of the truthfulness of the matters and things claimed by her before she would be entitled to recover.” The trial judge then explained that normally in a civil action the burden of proof was upon the plaintiff “to only reasonably satisfy you of the evidence.” This is exactly the same contrast Edgeworth made in her objection, except that she contended that “the burden of proof remains the same,” whereas the trial judge stated colloquially that the difference “bumps it up some.” Even though, standing alone, that phraseology would be potentially misleading, it nonetheless related back to the immediately preceding explanation, subsequently endorsed by Edgeworth in her objection, that a higher character or quality of evidence was required in a medical-malpractice action, whereby the jury would have to be reasonably satisfied by substantial evidence rather than reasonably satisfied merely by “the” evidence. We need not concern ourselves with whether these attempts to contrast the two standards are accurate in the abstract; we are concerned only with whether the trial court’s instruction, viewed in its entirety, represented reversible error in the face of the position taken by Edgeworth in stating her objection, and the grounds for it, to the trial court.

Although we do not approve of the trial court’s attempt to calibrate the burden of proof vis-á-vis a criminal case, the normal civil action, and a medical-malpractice action, particularly its statement that the burden of proof in a medical-malpractice action is “higher than to your reasonable satisfaction,” the purpose of the manner in which the trial judge then, and every other time, attempted to relate or explain how the burden was “higher” was to contrast the burdens in terms of the additional “substantial evidence” requirement. In other words, immediately following the statement that the burden of proof was “higher than to your reasonable satisfaction,” the trial judge reiterated, “Again, the burden is to prove to the jury’s reasonable satisfaction by substantial evidence the truth of the matters and things claimed by her before the plaintiff would be entitled to recover.” (Emphasis added.)

Admittedly, the trial court was not thereafter accurate in attempting to explain to the jury that in a medical-malpractice action “the burden of proof is up a little bit from” the burden in a normal civil action in which either party would be entitled to a verdict if the evidence was “weighted slightly or heavily” in his or her favor, the requirement in the medical-malpractice action being that “it’s got to be more than slightly over 50 percent to slightly over 49 percent. Its got to be more.” Nonetheless, the court once again immediately and clearly explained that difference exclusively in terms of the requirement of proof by substantial evidence. That is to say, after telling the jury “[fit’s got to be more,” the trial judge stated “I’ll explain to you [‘]more[’]. I’ll go ahead now,” and he then translated the “more,” explaining that “[substantial evidence is that character of admissible evidence that would convince an unprejudiced, thinking mind of the truth of the facts to which the evidence is directed.” Ensuring that the jury understood that to be the definition of substantial evidence, the trial judge repeated it to the jury, concluding with the explanation, “O.K. So it’s a little different proof in this case because it is a medical malpractice case.”

Viewing this charge in its entirety, we determine that all potentially erroneous phraseology used by the trial judge was immediately counteracted by his explanations that the difference in the burden of proof he was trying to communicate related solely to the fact that in a medical-malpractice action the burden was on the plaintiff to prove the truth of the claim to the jury’s “reasonable satisfaction by substantial evidence” whereas in a non-medi-eal-malpractice civil action that burden was only to prove the claims to the jury’s “reasonable satisfaction by the evidence.” Those being the same contrasting standards asserted by Edgeworth in her objection to the trial judge, we cannot condemn as reversible error its use by the trial judge.

We do not attempt in this opinion to anticipate and address all potential problems that may be associated with jury instructions that, conforming to the affirmative legislative mandate of the last sentence of § 6-5-549, instruct the jury that “in order to return a verdict against a health care provider, the jury shall be reasonably satisfied by substantial evidence that the health care provider failed to comply with the standard of care and that such failure probably caused the injury or death in question.” As we explained in Gradford, supra, the substantial-evidence rule traditionally pertains only to rulings by the court on the “question of law” based on the sufficiency of the evidence when those rulings are tested by a motion for a judgment as a matter of law.

As the federal district judge observed in Hayes, supra, quoting from an opinion by one of his fellow judges in that federal district, it is anomalous “ ‘to give to the jury a case which already has passed the court’s “substantial evidence” test and then to tell the jury that it can only find for the plaintiff in the event the plaintiff has proven his case by “substantial evidence,” which, incidentally, the court has just found to exist.’ ” 33 F.Supp.2d at 993 (quoting Gallups v. Crook, 792 F.Supp. 1231, 1233 (N.D.Ala.1992)). Nonetheless, the legislature, as is its prerogative, has required that the jury be so instructed, and we are required in this case to consider only the implications of that requirement in the unique context of the entirety of the charge at issue, when tested by the objection directed to it. Edgeworth states forthrightly in her principal brief that “[ajrgument is not made here for the purpose of asking the Court to address a constitutional conflict presented by the Alabama Medical Liability Act and the general laws of this State concerning evi-dentiary burdens and the conduct of jury trials.” (Edgeworth’s brief, pp. 15-16.) However, she takes the position that “[wjittingly or witlessly the Alabama Legislature intentionally created an evidentia-ry conflict in civil practice in this State.” (Edgeworth’s brief, p. 15.)

In consideration of the conceptual anomaly occasioned by the requirement of the last sentence of § 6-5-549 that the jury in a medical-malpractice action be instructed that it can return a verdict against the health-care provider only if it is “reasonably satisfied by substantial evidence” that the health-care provider breached the standard of care and that that breach caused the injuries, the trial court’s attempt here to relate and reconcile the applicable standards did not occasion reversible error, when its charge is considered in its entirety. All statements having a tendency to mislead concerning the burden of proof were promptly put in proper context and corrected by the trial judge’s technique of immediately following each statement with the explanation that the burden referenced was, in the final analysis, simply Edgeworth’s burden to prove her claims to the jury’s reasonable satisfaction by substantial evidence.

Edgeworth states in her principal brief that, although not apparent from the transcript of the trial judge’s instructions to the jury, the judge “used his hands to illustrate the scales of justice analogy that was given when discussing the burden of proof,” and she suggests that oral argument could help this Court “better understand what happened during the trial court’s instructions that are not reflected in the record.” (Edgeworth’s brief, p. 7, p. i.) Edgeworth did not at any time complain to the trial judge concerning any hand gestures, even in the motion for a new trial she later filed to argue extensively concerning the “burden of proof’ issue she now raises on appeal. Edgeworth has not otherwise attempted to supplement the record to introduce any description of the alleged hand gestures through any of the possibly applicable procedures available under Rule 10, Ala. R.App. P. Certainly, this Court could not allow the record to be supplemented by an explanation supplied for the first time at oral argument. The Court is not permitted to consider matters outside the record; therefore, we do not incorporate in our analysis of this issue any speculation concerning possible hand gestures by the trial judge. Etherton v. City of Homewood, 700 So.2d 1374, 1378 (Ala.1997).

The second, and related, contention Edgeworth raises on appeal is that the trial judge reinforced and compounded its erroneous instruction concerning the height of “the persuasion bar” by redundantly charging the jury, for a total of 17 times she says, that it was Edgeworth’s burden to reasonably satisfy the jury by substantial evidence. (Edgeworth’s brief, pp. 19-20.) Edgeworth’s objection in that regard, interposed at the conclusion of the charge to the jury, was phrased only in these terms:

“We would except as to that portion of the charge that was redundant in several areas and without being specific about which ones. Generally, what I’m talking about is the applicable standard of care and how that should be determined and applied by the jury in deciding whether or not these defendants were negligent or had breached that standard of care.
“I didn’t keep up with it exactly, but you went over that several times in different ways, and my fear is that the jury might be confused about what the issue is there.”

It is questionable that this generalized statement satisfies the requirement of Rule 51, Ala. R. Civ. P., that the objection state “the matter objected to and the grounds of the objection.” Moreover, in arguing the point in her principal brief, Edgeworth cites no legal authority except in this statement that concludes that portion of her argument:

“[A] medical malpractice case is a civil case like any other but for the unfortunate provision of Ala.Code § 6-5-549 that requires the court to charge the jury with making a determination concerning the quality of the evidence presented, a requirement that usurps the responsibility of the trial court and embraces concepts that, as pointed out above, is not always simple for an untrained mind to comprehend. (See Lyons v. Walker Regional Medical Center, Inc., 868 So.2d 1071, 1085 (Ala.2003)).”

(Edgeworth’s brief, p. 20.) At face value, this statement does not seem to have anything to do with redundancy in a jury instruction, and, additionally, we find nothing on the cited page of Lyons v. Walker Regional Medical Center, Inc., 868 So.2d 1071 (Ala.2003), relating to the statement. Rule 28(a)(10), Ala. R.App. P., requires that the argument portion of a party’s appellate brief include “citations to the cases, statutes, other authorities, and parts of the record relied on,” and that “[citations shall reference the specific page number(s) that relate to the proposition for which the case is cited.” We are unable to address the merits of a particular argument when the party asserting it presents no authorities in support of it. Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 97 (Ala.2003).

At any rate, at least six of the statements in the jury instructions to the effect that Edgeworth had the burden to reasonably satisfy the jury by substantial evidence were occasioned by the fact that the same statements were contained in written charges requested by Edgeworth, which the trial court gave. For example, in Edgeworth’s requested charge no. 20, that burden was stated three times, and substantial evidence was defined as “that character of admissible evidence that would convince [the] unprejudiced thinking mind of the truth of the fact to which the evidence is directed.” At the charge conference conducted by the trial court, all of the respective written charges requested by Edgeworth or the defendants were reviewed by the court seriatim, and they contained multiple references to the requirement that the jury must be reasonably satisfied by substantial evidence before it could return a verdict for Edge-worth. Edgeworth did not object to the repetition of those references, although she did twice comment about other supposed redundant features of the charge. In stating that one of the charges requested by the defendants was “part” of a charge requested by Edgeworth, she stated “we have no objection to it, but it is redundant.” At another point she commented concerning the fact that one of the defendants’ requested charges overlapped one of the other charges, albeit not with respect to the concept of substantial evidence, that “it’s redundant, but it’s not objectionable, except to its redundancy.”

Taking all of this into consideration, we do not consider Edgeworth to have preserved at the trial court level or to have adequately presented at the appellate court level any issue relating to possible excessive redundancy in the jury instructions concerning the requirement for proof by substantial evidence.

Conclusion

Edgeworth has not demonstrated reversible error in connection with either of the issues she has asserted on appeal; therefore, we affirm.

AFFIRMED.

NABERS, C.J., and SEE, STUART, and BOLIN, JJ., concur.

      . Mr. Hunter served as the Governor's special counsel on tort reform.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    James LAKE and Gregory Lake v. AVALANCHE INVESTMENTS, INC.
    2040036.
    Court of Civil Appeals of Alabama.
    April 14, 2006.

      Henry L. Penick of H.L. Penick & Associates, P.C., Birmingham, for appellants.
    James H. Greer of Key, Green, Frawley, Key & Harrison, Pelham, for appellee.
   MURDOCK, Judge.

James Lake and Gregory Lake appeal from a judgment of the Jefferson Circuit Court ejecting them from certain real property on which they resided. We affirm.

Frankie Mae Lake owned property in Jefferson County (“the property”). She died intestate in 1997, leaving four children: James Lake, Gregory Lake, Clifford Lake, and Hedy Fitts. Mrs. Lake had accumulated substantial medical bills before her death. In 1999, to pay Mrs. Lake’s outstanding medical bills, James, Gregory, and Clifford transferred, by deed, their interests in the property to Hedy. Hedy then mortgaged the property and, with the proceeds of the resulting loan, was supposed to pay Mrs. Lake’s medical bills.

Conseco Finance Corporation (“Conse-co”), which held the mortgage on the property, foreclosed on the mortgage due to nonpayment of the loan Hedy had obtained. On April 1, 2003, Avalanche Investments, Inc. (“Avalanche”), purchased the property at the foreclosure sale.

On May 19, 2003, Avalanche filed suit to obtain possession of the property. In its complaint, it named as defendants: “Gregory A. Fitts and Hedy Hill Fitts and/or Occupants of 6096 Service Road, Birmingham, Alabama 35235 [ (the address of the property) ], all of whose names are otherwise unknown to the Plaintiff but will be added by amendment when ascertained.” On August 25, 2003, Avalanche amended its complaint to substitute James Lake and Gregory Lake for Gregory Fitts and Hedy Fitts. Although the caption of its amended complaint retained the designation of “occupants” as a class of unknown defendants, Avalanche never substituted or added any named parties for this designation.

The trial court held a bench trial on June 10, 2004, and, on June 15, 2004, it entered a judgment in favor of Avalanche. Among other things, the trial court found that James Lake and Gregory Lake had wrongfully withheld possession of the property from Avalanche beginning in April 2003, and, after determining that $1,500 was a fair monthly rental value for the property, it awarded Avalanche $22,500. It also awarded possession of the property to Avalanche and thereby ejected James Lake and Gregory Lake.

On July 13, 2004, James Lake and Gregory Lake filed a motion for a new trial or, in the alternative, “to reconsider.” For the first time, they asserted that Frankie Mae Lake, before her death, had adopted two individuals, Ashley Lake and Ariel Lake. They argued that Ashley and Ariel were entitled, along with Mrs. Lake’s other four children, to a share in the property and that, because Ashley and Ariel did not join in the conveyance of the property to Hedy Fitts, Fitts could not have mortgaged them interests in the property. As a result, James and Gregory argued, Avalanche owned the property jointly with Ariel and Ashley, as tenants in common, and was not entitled to exclusive possession of the property.

The trial court denied James and Gregory’s postjudgment motion. James and Gregory appeal.

On appeal, James and Gregory contend that the trial court’s judgment “disturbed the possessory interest of Ariel and Ashley Lake,” because, according to their brief, Ariel and Ashley are minor children, of whom James is the physical custodian, and they resided with James on the property. Thus, James and Gregory argue, Avalanche ejected Ashley and Ariel from the property when it ejected James. James and Gregory argue that, because the judgment affected Ariel’s and Ashley’s rights, Ariel and Ashley should have been joined as indispensable parties to this action under Rule 19, Ala. R. Civ. P., and the trial court should have appointed guardians ad litem for them pursuant to Rule 17, Ala. R. Civ. P.

Generally, we do not address issues on appeal that were not raised in the trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). However, the failure to join a necessary party is a jurisdictional defect that can be raised for the first time on appeal. Burnett v. Munoz, 853 So.2d 963, 965 (Ala.Civ.App.2002). Rule 19(a), Ala. R. Civ. P., states, in pertinent part:

“(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.”

Even if we were to assume that Frankie Mae Lake adopted Ariel and Ashley and that they each obtained a one-sixth interest in the property upon Mrs. Lake’s death, we cannot find, based on the record presented to us on appeal, that the trial court erred to reversal in entering the judgment that it entered. The only defendants in this action were James and Gregory. Ariel and Ashley were not defendants, and, from the state of the record, we fail to see how their rights in the property, to the extent they have any, have been litigated in this action. To the extent Ariel or Ashley may have a partial ownership interest in the property and, as a result, may have a possessory interest in the property, such interests would be independent of any interests of James or Gregory in the property. The final judgment of the trial court provides for the ejectment of James and Gregory from the property; it does not provide for the ejectment of anyone else from the property.

The fact that Avalanche may have owned the property jointly with Ashley and Ariel did not prevent it from seeking to eject James and Gregory from the property, nor did it mean that Ashley and Ariel, as tenants in common with Avalanche, were required to be joined as necessary parties. One who shares ownership of property with others as a tenant in common may seek to recover the entire tract of property from non-title holders and eject them therefrom. See Payton v. Madison, 251 Ala. 853, 855, 37 So.2d 588, 590 (1948) (“As against a stranger in possession of the property, a tenant in common is entitled to the whole property, and may recover it all in ejectment.”).

We find without merit James and Gregory’s assertion that because Ariel and Ashley resided with James and are minors the ejectment of James from the property resulted in the ejectment of Ariel and Ashley as well. First, as to the issue of possession of the property from and after the entry of the judgment, the judgment adjudicates the rights of James, personally; it does not adjudicate the right of Ariel or Ashley to possess the property, either with or without an accompanying custodian or other individual occupying the property at her behest.

Moreover, as to both the issue of possession of the property in the future and the issue of the money damages awarded by the trial court for the possession of the property in the past by James and Gregory, the record before us on appeal simply does not reflect that Ariel and Ashley resided on the property with James. Accordingly, the record does not provide the necessary factual predicate for James and Gregory’s assertion. See Adams v. Sanders, 811 So.2d 542, 545 (Ala.Civ.App.2001) (“ ‘ “We cannot consider factual matters outside of the record. The briefs of parties cannot enlarge, change, alter, or vary the record which must itself disclose the facts relied upon.” Consequently, we must consider only pertinent facts which the record reveals.’ ” (quoting Bowman Corp. v. Bama Bus. Machs., 504 So.2d 315, 316 (Ala.Civ.App.1987))).

Based on the foregoing, we conclude that James and Gregory have not affirmatively demonstrated: (1) that complete relief of the nature requested by Avalanche was not available in Ariel’s and Ashley’s absence; (2) that Ariel and Ashley are so situated that the trial court’s judgment impairs or impedes their ability to protect their asserted interests in the property; or (3) that any person already made a party to the action risks “incurring double, multiple, or otherwise inconsistent obligations.” Any claim Ariel or Ashley may have to the property can be advanced in a separate action.

James and Gregory also contend on appeal (1) that Hedy Fitts obtained the deed to the property through fraud and, as a result, the deed is void, and (2) that Conse-co and Avalanche were on notice of James’s, Gregory’s, Ashley’s, and Ariel’s interests in the property, and, therefore, Avalanche did not obtain an interest in the property by virtue of its purchase at the foreclosure sale. James and Gregory fail to support these arguments with any citation to legal authority, and, as a result, we will not address them. See Rule 28(a)(10), Ala. R.App. P.; and University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247-48 (Ala.2004).

AFFIRMED.

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

      . Mrs. Fitts is referred to in the record as both "Heddie Fitts” and "Hedy Fitts.” For the sake of consistency, we refer to her as "Hedy Fitts.”

      . Avalanche discontinued the designation of "occupants” in the caption of its filings at one point during the litigation, referring only to James Lake and Gregory Lake as the defendants.

      . James and Gregory, without explanation, argued that evidence of the adoptions of Ashley and Ariel was unavailable at the time of trial and that their counsel did not learn of the adoptions until after trial.

      . Nor does the record establish any kinship or custodial relationship between James and the girls.


author: BRYAN, Judge. CRAWLEY, Presiding Judge,

text:
    John Ronald STUCKEY v. Shannon STUCKEY.
    2040598.
    Court of Civil Appeals of Alabama.
    April 14, 2006.
    Trant Bullard, Dothan, for appellant.
    Shannon Stuckey, pro se.
   BRYAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.; Baggett v. Baggett, 855 So.2d 556, 559-60 (Ala.Civ.App.2003); Brasfield v. Brasfield, 679 So.2d 1091, 1095 (Ala.Civ.App.1996); and O’Neal v. O’Neal, 678 So.2d 161, 164-65 (Ala.Civ.App.1996).

THOMPSON and PITTMAN, JJ., concur.

CRAWLEY, P.J., concurs in part and dissents in part, with writing, which MURDOCK, J., joins.

CRAWLEY, Presiding Judge,

concurring in part and dissenting in part.

Although I agree that that portion of the trial court’s judgment making the husband responsible for a portion of the wife’s attorney fees should be affirmed, I reach a different conclusion as to the award of alimony in favor of the wife. The parties had a relatively short marriage during which the wife took ill. According to the testimony at trial, the parties entered Chapter 13 bankruptcy protection during the marriage. The husband testified that he was unable to make the Chapter 13 payments on his income and that he was likely to seek to convert the bankruptcy to one under Chapter 7. If the purpose of periodic alimony “is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage,” O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996), then the trial court was required to consider not only the status that the parties enjoyed during the marriage but also the ability of the husband to maintain the wife in that lifestyle upon the dissolution of the marriage. The evidence presented at trial reveals that the husband and wife failed to adequately manage their finances during the marriage and that, since the separation, the husband has struggled to maintain his own finances, including the house payments on the marital residence, which were in arrears at the time of trial. Once the additional strain of the wife’s medical expenses are added to the husband’s financial burden, the husband’s financial picture will become extremely bleak. I would, therefore, reverse the award of $1,400 per month in periodic alimony.

MURDOCK, J., concurs.


author: THOMPSON, Judge. CRAWLEY, Presiding Judge,

text:
    Henry A. TAYLOR and Patsy Taylor v. LONGRIDER SUPPLY COMPANY et al.
    2050329.
    Court of Civil Appeals of Alabama.
    April 21, 2006.
    Charles J. Lorant, Alabama Injury Lawyers, P.C., Birmingham, for appellants.
    Nickolas J. Steles, Tuscumbia, for appel-lees.
   THOMPSON, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.; Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049, 1054-55 (Ala.2003); Ex parte Ballew, 771 So.2d 1040 (Ala.2000); Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990); West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988); Marquis v. Marquis, 480 So.2d 1213 (Ala.1985); Quillen v. Quillen, 388 So.2d 985 (Ala.1980); Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978); Hillman Hotel, Inc. v. McHaley, 251 Ala. 655, 658, 38 So.2d 566, 568 (1948); Bain v. Gray, 835 So.2d 1034, 1037 (Ala.Civ.App.2002); Hartzog v. Compass Bank, 686 So.2d 325 (Ala.Civ.App.1996); and Collins v. Wilkerson, 679 So.2d 1100, 1103-04 (Ala.Civ.App.1996).

This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

PITTMAN and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

CRAWLEY, P.J., dissents, with writing.

CRAWLEY, Presiding Judge,

dissenting.

I dissent from the no-opinion affirmance of the trial court’s summary judgment in favor of Longrider Supply Co. Based on the following evidence, I believe there was a genuine issue of material fact as to whether the dangerous condition on Lon-grider’s premises was open and obvious to Henry A. Taylor: (1) William B. Johnson, Longrider’s proprietor, instructed Taylor to enter the building through the loading dock opening; (2) Johnson actually demonstrated for Taylor how to walk up the retaining wall to the right of the loading-dock opening, grab onto a piece of metal trim, and “sidestep” his way into the building; (3) Taylor saw that Johnson had sustained no injury when he entered the building in the manner described; and (4) Taylor, who was injured while entering the building in the described manner in August 2002, had entered the building in the same manner since 2000 without injury, and he had witnessed other drivers do the same.

Longrider’s argument that the condition that caused Taylor’s injury was open and obvious is an affirmative defense upon which Longrider bears the ultimate burden of proof. Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala.2002).

“ ‘ “ ‘[(Questions of openness and obviousness of a defect or danger and of [an invitee’s] knowledge are generally not to be resolved on a motion for summary judgment.’ ” Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 463 (Ala.1993) (quoting Harvell v. Johnson, 598 So.2d 881, 883 (Ala.1992)).’ Harley v. Bruno’s Supermarkets, Inc., 888 So.2d 525, 526-27 (Ala.Civ.App.2004). This rule is particularly applicable when, as in the present case, the defendant has taken steps to make what might other-ivise be an open and obvious condition on the premises less apparent to an invitee. Cf. Howard v. Andy’s Store for Men, 757 So.2d 1208 (Ala.Civ.App.2000).” ’ ”

Fender v. CEC Entertainment, 921 So.2d 428, 434-35 (Ala.Civ.App.2005) (Crawley, P.J., concurring in part and dissenting in part) (emphasis added).


author: CRAWLEY, Presiding Judge.

text:
    Jimmie Lucile HOOKS v. Theodore PICKENS d/b/a Pickens Home Repair.
    2040569.
    Court of Civil Appeals of Alabama.
    April 21, 2006.

      Robert J. Hayes and Heather K. Jackson of Hayes & Swinford, Birmingham, for appellant.
    Barry E. Vickery, Birmingham, for ap-pellee.
    Troy King, atty. gen., and Kathy Perry Brasfield and Jamie Ayers Durham, asst, attys. gen., for amicus curiae Alabama Home Builders Licensure Board, in support of the appellant.
   CRAWLEY, Presiding Judge.

Jimmie Lucile Hooks desired to remodel a portion of her residence. She engaged an architect, George Hunter, Jr., to draw the necessary plans. Hunter suggested to Hooks that she employ Theodore Pickens d/b/a Pickens Home Repair (“Pickens”) to complete the remodeling work. Hooks and Pickens entered into a contract for the remodeling work. Ultimately, Hooks became dissatisfied with Pickens’s work and she refused to pay him.

Pickens then sued Hooks, alleging breach of contract and seeking $8,685 for labor, materials, and interest. Hooks counterclaimed seeking damages for poor workmanship and specified damages in the amount of $1,900, which she had expended to complete the remodeling work to her satisfaction. Hooks filed a motion for a summary judgment, arguing that Pickens, who was not licensed by the Home Builders Licensure Board, had no standing to sue alleging a breach of contract. See Ala.Code 1975, § 34-14A-14; see generally Ala.Code 1975, § 34-14A-1 et seq. (“the home builders licensure statute”). Pickens responded by arguing that he was not required to have a license pursuant to an exemption in the home builders licensure statute applicable to property owners like Hooks who were acting as their own contractors. See Ala.Code 1975, § 34-14A-6(5). The trial court denied Hooks’s summary-judgment motion, and the case proceeded to trial. After the trial, the trial court entered a judgment awarding Pick-ens $6,785. Hooks appeals.

In 1992, the Alabama Legislature enacted a statutory scheme designed “to regulate the residential home building and remodeling construction industries.” See Ala.Code 1975, § 34-14A-1. The home builders licensure statute requires that residential home builders be licensed. § 34-14A-5. A “residential home builder” is defined in the statute as:

“One who constructs a residence or structure for sale or who, for a fixed price, commission, fee, or wage, undertakes or offers to undertake the construction or superintending of the construction, of any residence or structure which is not over three floors in height and which does not have more than four units in an apartment complex, or the repair, improvement, or reimprovement thereof, to be used by another as a residence when the cost of the undertaking exceeds ten thousand dollars ($10,-000).”

§ 34-14A-2(10). The statute, among other things, also created the Home Builders Licensure Board, § 34-14A-3, set certain licensing requirements, §§ 34-14A-5 and -7, provided a procedure for the revocation or suspension of licenses, § 34-14A-8, and established a Homeowner’s Recovery Fund, § 34-14A-15. In addition, the home builders licensure statute provides certain penalties for the failure to obtain a license. § 34-14A-14. The statute further provides for exemptions from the requirement that a person performing home building or remodeling be licensed. § 34-14A-6.

In order to determine whether Pickens was properly awarded damages on his breach-of-contract claim, we must construe certain sections of the home builders licensure statute.

“ ‘ “In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ““ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ” ’
“Richardson v. Terry, 893 So.2d 277, 283 (Ala.2004) (quoting DeKalb County LP Gas Co. v. Suburban Gas, 729 So.2d 270, 275-76 (Ala.1998)). ‘ “When ascertaining legislative intent, statutes which are in pari materia ... must be interpreted as a whole in light of the general purpose of the statute.” ’ Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting Kirkland v. State, 529 So.2d 1036, 1038 (Ala.Crim.App.1988)).”

Blackmon v. Brazil, 895 So.2d 900, 907 (Ala.2004).

The legislature expressed its intent in enacting the home builders licensure statute in § 34-14A-1, which reads, in part, as follows:

“In the interest of the public health, safety, welfare, and consumer protection and to regulate the home building and private dwelling construction industry, the purpose of this chapter, and the intent of the Legislature in passing it, is to provide for the licensure of those persons who engage in home building and private dwelling construction, including remodeling, and to provide home building standards in the State of Alabama. ... Home builders may pose significant harm to the public when unqualified, incompetent, or dishonest home building contractors and remodelers provide inadequate, unsafe or inferior building services.... ”

Thus, the purpose behind the licensing requirements of the home builders licensure statute is the protection of the public from “unqualified, incompetent or dishonest home building contractors and remodelers.” In furtherance of the protection of the public, the legislature made engaging in the home-building business without a license a Class A misdemeanor. § 34-14A-14. In addition, and in recognition of the “well-established rule that if the purpose of a licensing statute is the regulation of the business licensed and not merely the collection of revenue, a person not licensed cannot enforce a contract for services rendered within the scope of the regulated business,” Tucker v. Walker, 293 Ala. 589, 592, 308 So.2d 245, 247 (1975), the legislature made it impossible for an unlicensed home builder to maintain an action to enforce any provision of a contract for home-building services. § 34-14A-15.

However, the legislature determined that certain individuals would not be required to be licensed. Those individuals, as enumerated in § 34-14A-6, are:

“(1) Any employee of a licensee who does not hold himself or herself out for hire or engage in contracting, except as such employee of a licensee.
“(2) An authorized employee of the United States, the State of Alabama, or any municipality, county, or other political subdivision, if the employee does not hold himself or herself out for hire or otherwise engage in contracting except in accordance with his or her employment.
“(3) General contractors holding a current and valid license, issued prior to January 1, 1992, under Sections 34-8-1 through 34-8-27.
“(4) Licensed real estate agents operating within the scope of their respective licenses on behalf of clients.
“(5) Owners of property when acting as their own contractor and providing all material supervision themselves, when building or improving one-family or two-family residences on such property for the occupancy or use of such owners and not offered for sale.”

Because Pickens does not contest that he is a residential home builder as defined in § 34-14A-2(10), the present case turns primarily on the application two other sections of the home builders licensure statute — §§ 34-14A-14 and 34-14A-6. Hooks argues that, pursuant to § 34G14A-14, Pickens is not entitled to “bring or maintain [an] action to enforce the provisions of [the] contract for residential home building which he ... entered into in violation of this chapter.” Pickens, however, contends that, pursuant to the exemption for “[o]wners of property when acting as their own contractor and providing all material supervision themselves,” § 34-14A-6(5), he was not required to be licensed; he also argues that Hooks waived her rights under the statute by qualifying for the exemption. The trial court, in ruling in favor of Pickens, must have determined that Hooks had qualified for the exemption in § 34-14A-6(5); that Pickens, by virtue of Hooks’s exemption, was also exempt from the requirement that he be licensed; and, therefore, that Pickens was not prohibited by § 34-14A-14 from maintaining his breach-of-contract action. In order to determine if the trial court correctly concluded that Pickens was entitled to maintain his breach-of-contract action, we must determine whether § 34-14A-6(5) applies to exempt not only Hooks, but also Pick-ens, from the licensing requirements of the statute.

The testimony at trial established that Hooks, through her son Darrell Hooks, applied for a building permit with the City of Birmingham. The service manager and custodian of records for the building department of the city, Cory Smith, testified that “[w]hen an owner comes in and wishes to take out an application for a permit, we have them sign an affidavit stating that they are going to act as the general contractor for the work being done.” According to Smith, a homeowner who signs such an affidavit is exempted from the protection of the statute. However, Pickens did not produce a copy of an affidavit signed by either Hooks or her son Darrell as her agent, and, in fact, Smith testified that the building department had no such document. Thus, Hooks contends that the trial court’s apparent conclusion that she applied for the exemption under the statute is not supported by the evidence and, therefore, the trial court’s judgment must be reversed. In addition, Hooks argues that she could not have qualified for the exemption because she did not “provid[e] all material supervision” herself, as § 34-14A-6(5) requires. Instead, she points out, the testimony at trial revealed that Pickens did not need or take any construction advice from her.

We see an even more basic reason that Pickens could not have availed himself of Hooks’s exemption, provided she qualified for one — the language of the home builders licensure statute precludes it. Section 34-14A-6(5) exempts from the licensing requirements “[ojwners of property” provided they meet certain criteria. Nothing in the statute indicates that a residential home builder who performs residential construction or remodeling at the request of an owner is exempt under § 34-14A-6(5). The plain language of the statute extends the exemption only to the owner of the property, not to those who may perform the work at his or her direction. As the Alabama Home Builders Licensure Board argues in its amicus curiae brief, if we were to hold otherwise, residential home builders and remodelers could avoid the licensure requirements by simply having owners of property take out permits in their own name and relying on § 34-14A-6(5), thus defeating the purpose of the home builders licensure statute.

Even if § 34-14A-6(5) applied to exempt Hooks under these circumstances, which we need not and do not decide, it could not, as Pickens argues and the trial court must have determined, exempt Pickens from the licensure requirements of the home builders licensure statute. Because Pickens was not licensed and was not exempt from the licensing requirement of the home builders licensure statute, Pickens was not entitled to maintain a breach-of-contract action against Hooks. § 34-14A-14. The trial court’s judgment in Pick-ens’s favor on his breach-of-contract claim is therefore reversed.

REVERSED AND REMANDED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.

      . Although the judgment did not specifically mention Hooks’s counterclaims, the trial court’s judgment awards Pickens an amount equal to his requested damages minus the amount of Hooks’s requested counterclaim damages for completion of the remodeling work; thus, we conclude that the trial court adjudicated Hooks’s counterclaims in part in her favor and set off the amount of damages she was entitled to receive against Pickens’s recovery. See Lowe v. Morrison, 412 So.2d 1212, 1213 (Ala.1982) ("There is ample authority for allowing a contractor to recover for a balance due on his contract, while at the same time allowing the owner to recover ... damages for unworkmanlike or incomplete performance.”); see also Rose v. Davis, 474 So.2d 1058 (Ala. 1985) (stating that an owner may set off damages he is awarded against those awarded a contractor in the same action). See, generally, Roberts v. Security Trust & Sav. Bank, 470 So.2d 674, 675 (Ala.1985) (holding that when a trial court enters a judgment in favor of a plaintiff in full, the defendant's counterclaim is implicitly denied). Hooks does not raise any issues pertaining to the adjudication of her counterclaims on appeal.

      . The Alabama Home Builders Licensure Board sought and received permission to appear as amicus curiae in support of Hooks’s position on appeal.


text:
    M.V.N. v. D.L.C.
    2050097.
    Court of Civil Appeals of Alabama.
    April 21, 2006.

      Arlene M. Richardson of Richardson Legal Center, L.L.C., Hayneville, for appellant.
    D.L.C., pro se.
   CRAWLEY, Presiding Judge.

M.V.N. (“the mother”) appeals from a judgment awarding custody of D.C. (“the child”) to D.L.C. (“the father”). The mother and the father were never married. After a default paternity adjudication in 1997, the father was ordered to pay child support. When the mother sought a modification of child support in 2002, the father challenged paternity; after the conclusion of genetic testing, the juvenile court again established paternity and entered a support order. In 2004, the father moved to modify custody. After a trial, the juvenile court entered an order awarding custody of the child to the father.

The mother makes two arguments on appeal. She first argues that the juvenile court improperly used the “best interest” standard instead of the standard required by Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)), which requires that to support a change of custody the noncustodial parent must “show that the child’s interests are promoted by the change, i.e., that [ ]he produce evidence to overcome the ‘inherently disruptive effect caused by uprooting the child.’ ” She also argues that the guardian ad litem’s report, which was filed with the juvenile court after the trial, violates her due-process rights.

The juvenile court certified the record as adequate in compliance with Rule 28(A)(1)(a), Ala. R. Juv. P.. However, no transcript of the trial was produced. The juvenile court’s certification notwithstanding, this court does not have an adequate record to review. The mother’s appeal should have been brought in the circuit court of Lowndes County. Rule 28(B), Ala. R. Juv. P. Rule 28(D), Ala. R. Juv. P., permits this court to transfer an appeal improperly brought in this court to the circuit court for review. Accordingly, we transfer this appeal to the Lowndes Circuit Court for a trial de novo.

APPEAL TRANSFERRED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.


text:
    Richard OWENS and Sara Owens v. PRUDENTIAL COOPER & COMPANY, INC.
    2041036.
    Court of Civil Appeals of Alabama.
    April 28, 2006.

      Marcus E. McCrory, Mobile, for appellants.
    John V. Lee, Mobile, for appellee.
   CRAWLEY, Presiding Judge.

Richard Owens and Sara Owens entered into a residential lease with Prudential Cooper & Company, Inc. When the Ow-enses defaulted on the lease in July 2003, Prudential filed an unlawful-detainer action in the Mobile District Court. After the district court entered a judgment awarding possession of the premises to Prudential, the Owenses appealed to the Mobile Circuit Court. While the case was pending in the circuit court, the parties executed a settlement agreement whereby the Owenses agreed to cure their default, to continue to make rental payments, and to exercise an option to purchase the property by December 31, 2004. The case was placed on the circuit court’s administrative docket pending the exercise of the option to purchase by the Owenses. By joint stipulation, the date by which the Owenses were required to exercise the option to purchase was extended to May 31, 2005. The agreement provided that, upon the failure of the Owenses to exercise the option to purchase, Prudential would have the right to seek a consent judgment awarding immediate possession of the property to Prudential.

The Owenses failed to exercise the option by May 31, 2005, and Prudential filed a motion for a consent judgment on June 9, 2005. On June 23, 2005, the circuit court entered a judgment awarding possession of the premises to Prudential. After the Owenses’ postjudgment motion was heard and denied, the Owenses appealed to the Alabama Supreme Court, which transferred the case to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

The Owenses paid and Prudential accepted rent for the months of June and July 2005. The Owenses argue that Prudential is estopped from maintaining its unlawful-detainer action by its acceptance of the June and July rent payments. According to the Owenses, they continued to be entitled to possession because their tenancy was converted to a month-to-month tenancy when Prudential accepted the June and July rent payments. Thus, they argue, Prudential could not maintain its unlawful-detainer action. Housing Auth. of the Birmingham Dist. v. Durr, 735 So.2d 469, 471-72 (Ala.Civ.App.1998) (quoting Barnewell v. Stephens, 142 Ala. 609, 613, 38 So. 662, 663 (1905)). Prudential, however, disagrees.

The Owenses are correct in arguing that, generally, acceptance of rent payments from a holdover tenant creates at least a month-to-month landlord-tenant relationship. Durr, 735 So.2d at 471-72 (citing Lott v. Douglas Oil Purchasing Co., 501 So.2d 1195 (Ala.1986)). However, the terms in a lease can reserve for the landlord the right to terminate the lease even if it accepts rent payments after a default. USA Petroleum Corp. v. Jopat Bldg. Corp., 343 So.2d 501, 504-05 (Ala.1977). The opinion in Durr did not indicate that the lease at issue had a reservation-of-rights clause, and, in fact, the Housing Authority of the Birmingham District (“HABD”) argued that its deduction of a set amount of money from Durr’s utility allowance did not constitute the acceptance of rent and that therefore it had not waived its right to terminate the lease. Durr, 735 So.2d at 470. Unlike the lease in Durr, the terms of the Owenses’ lease did expressly reserve Prudential’s right to terminate the lease for default even in the event Prudential accepted rent after the Owenses defaulted; the lease stated: “nor shall ... the receipt of rent after conditions broken be deemed a waiver of forfeiture.” Thus, the Owenses argument that Prudential’s acceptance of rent somehow waived Prudential's right to terminate the lease is unavailing.

However, the relationship of the parties at the time of the Owenses’ failure to exercise the option to purchase was not governed solely by the lease between the parties. The parties’ relationship was also governed by the settlement agreement the parties executed during the pendency of the appeal of the unlawful-detainer action in the circuit court. That agreement explicitly stated that, upon the Owenses’ failure to exercise the option to purchase, Prudential would have the right to seek a consent judgment awarding Prudential possession of the property. This court has held that “[u]ntil the option is exercised in accordance with its terms, the optionee does not have any right to or interest in the property.” Stagner v. Hardy, 528 So.2d 871, 873 (Ala.Civ.App.1988). Thus, the Owenses did not have a right to possession of the property under the option to purchase because of their failure to exercise the option.

Accordingly, the circuit court’s judgment awarding possession of the property to Prudential is affirmed.

AFFIRMED.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.


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

text:
    Carol WILD v. John Irving WILD.
    2040713.
    Court of Civil Appeals of Alabama.
    April 28, 2006.
    John M. Wood, Birmingham, for appellant.
    Harlan D. Mitchell of Mitchell & Graham, P.C., Athens, for appellee.
   BRYAN, Judge.

Carol Wild (“the wife”) appeals a divorce judgment. Her main contention is that the trial court committed reversible error by failing to afford her a hearing before finding her incompetent and appointing a guardian ad litem to represent her. We agree and, therefore, reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

On December 20, 2001, the wife sued John Irving Wild (“the husband”) for a divorce. The husband answered and counterclaimed for a divorce. Thereafter, the case proceeded to trial before the trial judge in May 2003. On July 1, 2003, the trial court entered a judgment. Among other things, the judgment awarded primary physical custody of the parties’ minor child to the wife, granted visitation to the husband, ordered the husband to pay the wife $800.00 per month in child support, and awarded the marital home to the wife. On July 22, 2003, the husband moved the trial court to alter, amend, or vacate the judgment or, in the alternative, to grant a new trial. On August 6, 2003, the wife also moved the trial court to alter, amend, or vacate the judgment or, in the alternative, to grant a new trial. In response to those motions, the trial court entered an order on October 1, 2003. That order vacated the judgment entered on July 1, 2003, insofar as it divorced the parties and granted a new trial regarding all other issues. However, it provided that the award of custody and child support to the wife would remain in effect as a pen-dente lite ruling.

On February 5, 2004, the husband moved the trial court to terminate the award of pendente lite custody and child support to the wife and to award pendente lite custody and child support to the husband. The trial court held a hearing on April 14, 2004, at which the trial court heard the arguments of the parties’ attorneys but did not receive any evidence. Thereafter, the trial court entered an order on May 17, 2004. That order, which was titled “Final Judgment,” divorced the parties and incorporated by reference all of the provisions of the judgment entered on July 1, 2003, except those pertaining to child custody, visitation, and child support and stated that a further hearing would be held regarding those issues. The order also stated that a hearing would be held regarding whether the parties had performed the pendente lite obligations imposed on them by the judgment entered on July 1, 2003. Finally, the order noted that it had been informed that the parties’ minor child was living with the husband and, therefore, the trial court ruled that the husband’s motion seeking pendente lite custody was moot.

On August 9, 2004, the wife moved the trial court to enter a final judgment regarding child custody, visitation, and child support and to find the husband in contempt for allegedly failing to make certain pendente lite payments to the wife. The husband filed an emergency motion seeking to have the marital home sold. The trial court conferred with the parties’ attorneys regarding those motions and other matters at a conference on August 12, 2004. The parties were not present at this hearing. On September 21, 2004, the trial court entered an order that, among other things, stated that the order entered on May 17, 2004, was not a final judgment; found that the husband had failed to pay the wife certain payments he owed the wife; ordered that the marital home be sold and the proceeds of the sale be paid into court; ordered that the father would have pendente lite custody of the parties’ minor child; granted the wife’s attorney leave to withdraw; appointed a guardian ad litem to represent the wife; ordered the guardian ad litem to secure the services of a psychologist to examine the wife and evaluate her mental capacity; and ordered the wife to submit to the examination and evaluation by the psychologist. Subsequently, the trial court ordered that the psychologist’s fee would be paid from the proceeds of the sale of the marital home.

On January 4, 2005, the wife wrote the trial court and requested that the trial court allow her to represent herself and grant her access to all documents in the record. In response to that letter, the trial court entered an order on January 6, 2005. In pertinent part, that order stated:

“Based upon the evaluation prepared by [the psychologist], the Court finds that [the wife] is not competent to represent herself in this matter. Her request to proceed pro se is DENIED. Accordingly, [the wife’s guardian ad litem] is hereby appointed as [the wife’s] guardian ad litem for the expanded purpose of providing the wife with legal representation until the conclusion of this matter.
“The Court further ORDERS that [the psychologist’s] report be made a part of the record in this case. The Clerk of Court shall maintain said report in strict confidence and under seal. Said report shall be made available only to [the wife’s] guardian ad litem ... and to [the husband’s attorney]. Neither of the attorneys shall permit the report to be reviewed by any other individual unless so ordered by this Court.”

(Emphasis added.)

After the marital home was sold and the proceeds paid into court, the trial court entered an order on March 7, 2005, partially disbursing the proceeds. On March 9, 2005, the trial court entered a judgment. The judgment, among other things, awarded primary physical custody of the parties’ minor child to the husband and granted the wife visitation. The judgment stated that child support was not being awarded due to the wife’s financial condition.

On April 7, 2005, the wife moved the trial court to vacate the judgment entered on March 9, 2005, and requested a hearing on her motion. That same day, the trial court entered an order denying the wife’s request for a hearing and denying the wife’s postjudgment motion. Thereafter, the wife timely appealed to this court.

On appeal, the wife argues that the trial court committed reversible error by failing to afford her a hearing before finding her incompetent and appointing a guardian ad litem to represent her. In support of her argument, she cites Thomas v. Humfield, 916 F.2d 1032 (5th Cir.1990). In that case, Thomas, a student at the University of Houston, acting pro se, sued 37 employees and officials of the university. Four of the defendants moved the trial court to order that Thomas be given a psychiatric examination and that a guardian ad litem be appointed to represent Thomas. The defendants based their motions on the transcript of a hearing before the Texas Board of Law Examiners regarding Thomas’s mental and emotional fitness to practice law. Finding good cause, the trial court ordered Thomas to undergo a psychiatric examination. Based on evaluations by a psychiatrist and a psychologist, the trial court found Thomas incompetent to control his lawsuit and appointed a guardian ad litem to represent him. Subsequently, the trial court granted motions to dismiss filed by the defendants, and Thomas appealed to the United States Court of Appeals for the Fifth Circuit.

On appeal, Thomas argued that the trial court had committed reversible error by failing to afford him a hearing before finding that he was not competent to control his lawsuit and appointing a guardian ad litem to represent him. The Fifth Circuit Court of Appeals agreed and stated:

“Our question is whether the district court erred in failing to provide Thomas a hearing before declaring him incompetent and appointing a guardian ad li-tem. At a minimum, the due process clause of the Fifth Amendment requires some hearing. Thomas doubtless had a protected liberty interest in pursuing the suit as a principal. The declaration of incompetence endangered his ‘good name, reputation, honor, or integrity,’ Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971), and deprived him of the power to control the lawsuit:
“ ‘A guardian ad litem is authorized to act on behalf of his ward and may make all appropriate decisions in the course of the specific litigation .... [T]he guardian may make binding contracts for the retention of counsel and expert witnesses and may settle the claim on behalf of his ward.’
“United States v. 30.64, Acres of Land, 795 F.2d 796, 805 (9th Cir.1986) (citation omitted).
“Given a cognizable liberty interest, the considerations set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), govern the type and the scope of the process due Thomas:
“ ‘First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requisites would entail.’
We are persuaded that the appointment of a guardian ad litem here deprived Thomas of due process.
“In May of 1986, the defendants moved for appointment of a guardian ad litem under Rule 17(c)[, Fed.R.Civ.P.,] or, in the alternative, for a psychiatric examination of Thomas under Rule 35(a)[, Fed.R.Civ.P.] Thomas responded; the defendants filed a supplementary brief. On June 13, without hearing argument, the district court ordered Thomas to undergo psychiatric and psychological examinations. A psychiatrist and psychologist chosen by the defendants conducted the examinations. On October 23, 1986, after reviewing the reports, the district court declared Thomas incompetent. Thomas received no notice other than that provided by the motion filed on May 16; he had no opportunity to review the psychiatric and psychological reports on which the court relied; and he had no opportunity to argue or present evidence.
“The hearing required to determine whether a litigant is competent is not universal. See Mor[r]issey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’), quoted in Mathews, 424 U.S. at 334, 96 S.Ct. at 902. A full adversary hearing probably is not necessary, however. The appointment of a guardian ad litem deprives the litigant of the right to control the litigation and subjects him to possible stigmatization, but it does not altogether deprive him of his day in court. Nonetheless, due process mandates some type of hearing. Moreover, providing a litigant the opportunity to review and rebut his opponent’s allegations and to introduce written or testimonial evidence of his sanity would not unduly burden the district court and would improve the accuracy of its determination. Thus, at a minimum, Thomas should have been given notice and an opportunity to be heard.”

916 F.2d at 1033-34 (emphasis added; footnote omitted).

The Fourteenth Amendment to the United States Constitution extends the application of the Due Process Clause of the Fifth Amendment to the actions of the states. Accordingly, in the case now before us, the wife was entitled to a hearing before the trial court found her incompetent to control her lawsuit and appointed a guardian ad litem to represent her. See Thomas v. Humfield, supra. Therefore, we reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, J., concurs.

CRAWLEY, P.J., concurs specially, with writing.

MURDOCK, J., concurs in the result, without writing.

PITTMAN, J., dissents, with writing.

CRAWLEY, Presiding Judge,

concurring specially.

I concur specially with the main opinion to note that § 26-2A-102, Ala.Code 1975, provides, among other things, that notice shall be given for a hearing on the issue of incapacity. § 26-2A-102(b), Ala.Code 1975. Additionally, as the wife observed in her brief to this court, the statute mandates:

“A person alleged to be incapacitated is entitled to be present at the hearing in person. The person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, in-eluding the court-appointed physician or other qualified person and any court representative, and upon demand to trial by jury as provided in Section 26-2A-35...."

§ 26-2A-102(c), Ala.Code 1975.

Because the trial court did not follow the mandatory Alabama statutory requirements, I concur specially.

PITTMAN, Judge,

dissenting.

“It is well established that an appellate court will not consider an argument raised for the first time on appeal; its review is limited to evidence and arguments considered by the trial court.” Stephens v. Stephens, 699 So.2d 194, 196 (Ala.Civ.App.1997). The record does not reveal that the wife asserted in the trial court, either before the entry of its final judgment or in a postjudgment motion, that the Fourteenth Amendment to the United States Constitution mandated a hearing before a guardian ad litem could be appointed for her. Accordingly, I must dissent from reversing the trial court’s judgment based upon that issue.