source: Caselaw Access Project

author: NABERS, Chief Justice.

license: Public Domain

text:
    Ex parte INTERNATIONAL REFINING & MANUFACTURING COMPANY d/b/a IRMCO, et al. (In re Clifton Johnson v. International Refining & Manufacturing Company d/b/a IRMCO, et al.).
    1051017.
    Supreme Court of Alabama.
    Nov. 3, 2006.
    Rehearing Denied Jan. 5, 2007.

      James M. Smith of Stockham, Carroll & Smith, Birmingham, for petitioner IRM-CO.
    David B. Hall and Jason Asbell of Baker, Donelson, Bearman, Caldwell & Ber-kowitz, P.C., Birmingham, for petitioner Minster Machine Company.
    Kent M. McCain of Lucas, Petway, Tucker & Wash, P.C., Birmingham, for respondents Clifton Johnson, Reveland Weir, Paul Cordell, Barbara Locke, and Gary Tucker.

      . Clifton Johnson v. International Refining & Manufacturing Company d/b/a IRMCO, et al. (CV-04-6), is one of five cases pending in the Fayette Circuit Court involving the same defendants. The other four are: (1) Reveland Weir v. International Refining & Manufacturing Company d/b/a IRMCO, et al. (CV-04-30); (2) Paul Cordell v. International Refining & Manufacturing Company d/b/a IRMCO, et al. (CV-04-31); (3) Barbara Locke v. International Refining & Manufacturing Company d/b/a IRMCO, et al. (CV-04-32); and (4) Gary Tucker v. International Refining & Manufacturing Company d/b/a IRMCO, et al. (CV-04-33).

   NABERS, Chief Justice.

International Refining & Manufacturing Company d/b/a IRMCO (“IRMCO”) and Minster Machine Company (“Minster”) are 2 of more than 20 defendants (collectively “the defendants”) in 5 separate actions filed in the Fayette Circuit Court by Clifton Johnson, Reveland Weir, Paul Cordell, Barbara Locke, and Gary Tucker (collectively “the plaintiffs”). IRMCO and Minster represent all the defendants in this petition for a writ of mandamus asking this Court to direct the trial court to vacate its discovery order of March 27, 2006. For the reasons stated below, we deny the petition.

Facts and Procedural History

The plaintiffs were employees at a now closed plant that was formerly operated by Arvin-Meritor, Inc. (“Arvin”). The plaintiffs have asserted claims in the Fayette Circuit Court against the defendants seeking damages related to the defendants’ supply of goods or services at the Arvin plant.

During 2005 the plaintiffs and the defendants subpoenaed records from Arvin, a nonparty to the litigation, pursuant to Rule 45, Ala. R. Civ. P. Arvin possessed approximately 350 bankers boxes of documents that contained materials potentially responsive to the subpoenas.

As permitted under Rule 45(d), Ala. R. Civ. P., Arvin elected to produce the subpoenaed records in the form in which they were kept in the ordinary course of business. Counsel for IRMCO (acting on behalf of all the defendants) sent Arvin a letter on September 7, 2005, confirming that the following procedures would apply to Arvin’s production of the records:

“1. ... Plaintiffs and Defendants are both invited to review documents [during the weeks of September 12 and 19, 2005, at Arvin’s headquarters in Troy, Michigan]; the parties will be separated in different rooms for purposes of reviewing the documents....
“2. Defendants will be allowed to arrange for [a contractor] to scan the documents that Defendants flag for copying/scanning, and these documents will be copied/scanned and all flags removed prior to the particular box of documents being made available to Plaintiffs’ counsel. ...
“4. You have agreed that Plaintiffs’ counsel will not be allowed to review the documents copied/scanned by Defendants (either prior to flags being removed or after the documents are scanned/copied) without Defendants’ pri- or approval and opportunity to present this issue to [Fayette Circuit] Judge Moore for resolution as to the attorney work product issue. ...
“6. In an effort to coordinate the document review, you will arrange for the bulk of the [350] boxes to be available to Defendants in the room to which they are assigned. The remainder of the documents will be in the room to which Plaintiffs’ counsel is assigned. At the designated change-over time, Plaintiffs’ counsel will then switch rooms with Defendants’ counsel to review the documents in the respective other room.... ”

IRMCO’s lawyer sent a copy of the September 7, 2005, letter to fellow defense counsel, but not to counsel for the plaintiffs.

The simultaneous production to the plaintiffs and the defendants transpired as planned at Arvin’s headquarters in Michigan. By the conclusion of that process, the plaintiffs and the defendants had received access to Arvin’s documents and had selected the subset of records they desired copied, but the plaintiffs were unaware which documents the defendants had selected. The defendants designated approximately three to five percent of the documents made available (ie., more than 10 boxes) for copying and scanning. The plaintiffs designated thousands of pages for copying.

After the production, Arvin required the defendants and the plaintiffs to furnish Arvin a list of the subset of documents that they had selected. The defendants provided that list to Arvin in the form of a compact disk or disks. On October 28, 2005, the plaintiffs filed notice of intent to subpoena Arvin, seeking production of a “copy of the [compact disk or disks] provided to [Arvin] by all defendants [arising from the September 2005 document production].” On November 7, 2005, the defendants objected to issuance of the subpoena on the grounds that the “information and documents sought by [p]laintiff[s] constitutes the mental impressions, conclusions, opinions, and/or legal theories of the attorneys defending [the defendants ..., and therefore the disclosure of such information and documents would violate the attorney work-product doctrine.”

Citing Rule 45(a)(3)(D), Ala. R. Civ. P., the plaintiffs on November 23, 2005, responded to the defendants’ objection to the subpoena by filing a motion to compel the defendants to produce the subset of documents the defendants had received from Arvin. On November 30, 2005, the trial court granted the plaintiffs’ motion to compel in an order stating that “the defendants [should] produce copies of all documents collected from non-party Arvin Meritor to plaintiffs’ counsel within fourteen days.” The defendants moved on December 5, 2005, for reconsideration of the November 30 order.

A hearing on the defendants’ motion was held on January 5, 2006. At that hearing, the trial court stated that it had “[g]ranted [the plaintiffs’ motion to compel] by mistake” and heard arguments concerning the defendants’ assertion of the work-product privilege. The trial court entered an order on March 27, 2006, stating:

“Subpoenas pursuant to Alabama Rules of Civil Procedure 45 were served on non-party, Arvin-Meritor, Inc. by the defendants. The defendants object to the production of the subpoenaed documents arguing that plaintiffs had been provided with the same materials that were provided to the defendants in the same format and that the documents are privileged according to the attorney work product doctrine. It is the defendants’ position that the drafters of Rule 45 ‘could not have contemplated this use of the Rule in this situation.’
“None of the parties provided any authority on point with this fact situation. However a plain reading of [Rule 45(a)(3)(D)] provides that ‘if the party serving the subpoena obtains copies of documents or things, that party shall make available [a] duplicate of such copies at the request of any other party upon the payment of the reasonable cost of making such copies.’
“Accordingly, it is ordered, adjudged and decreed that [plaintiffs’ Motion to Compel Production of Subpoenaed Documents is and it is hereby granted and it is ordered that the [defendants produce copies of all documents obtained from non-party Arvin Meritor to [plaintiffs’ counsel within twenty-one (21) days from the entry of this Order. ...”

The defendants petitioned this Court on April 26, 2006, for a writ of mandamus directing the trial court to vacate its March 27, 2006, order.

Standard of Review

In Ex parte Norfolk Southern Ry., 897 So.2d 290 (Ala.2004), this Court delineated the limited circumstances under which review of a discovery order is available by a petition for a writ of mandamus, and the standard of that review in light of Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003):

“ ‘Mandamus is an extraordinary remedy and will be granted only when there is “(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case— that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992).’ ”

897 So.2d at 291-92 (quoting Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136-37 (Ala.2003)). Here the defendants argue that the trial court’s March 27, 2006, order granting the plaintiffs’ motion to compel violates their attorney-work-product privilege. Because a privilege was allegedly disregarded, a petition for a writ of mandamus is the means by which to seek review of the trial court’s discovery order.

Analysis

The parties raise two issues in this proceeding: (a) whether the petition for the writ mandamus was timely filed, and (b) whether the attorney-work-product privilege applies with respect to the defendants’ selection of documents produced by Arvin in light of Rule 45(a)(3)(D), Ala. R. Civ. P.?

1. Timeliness

Rule 21(a)(3), Ala. R.App. P., provides:

“The petition [for the writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of the trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

Rule 4(a)(1), Ala. R.App. P., provides that a notice of appeal for an appeal as of right shall be filed within 42 days of the judgment or order from which relief is sought.

Here, the defendants filed their petition on April 26, 2006, well within 42 days of the trial court’s March 27, 2006, order granting the plaintiffs’ motion to compel. The plaintiffs argue, however, that the “presumptively reasonable time” for filing the petition began to run on November 30, 2005 — the date the trial court initially granted their motion to compel. If November 30, 2005, is the operative date for calculating the “presumptively reasonable time,” the petition was clearly filed more than 42 days after that date. Further, the plaintiffs argue that the defendants’ filing of the motion for “reconsideration” did not affect the defendants obligation to petition this Court within 42 days of November 30, 2005. The plaintiffs cite Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003), in support of their position. This Court held in Troutman that, unlike a motion filed pursuant to Rule 59(e), Ala. R. Civ. P., to “alter, amend, or vacate” a judgment, a motion for reconsideration of an interlocutory order does not toll the time for filing a petition for a writ of mandamus seeking review of such an order. 866 So.2d at 550.

We conclude that the petition for the writ of mandamus was filed within a “reasonable time” within the meaning of Rule 21(a)(3), Ala. R.App. P. The trial judge stated at the January 5, 2006, hearing on the defendants’ motion for reconsideration, that, when he granted the plaintiffs’ motion to compel on November 30, 2005, he acted “by mistake.” At that hearing, the trial court then considered arguments of counsel considering the merits of the defendants’ claim that disclosure of the requested documents was protected by the attorney-work-product privilege. Under these circumstances, the trial court effectively withdrew its November order at the January 5, 2006, hearing. In light of the trial court’s reconsideration of the motion to compel, the subsequent March 27, 2006, order granting the motion to compel, and the filing of this petition 30 days following the entry of that order, we conclude that the defendants’ petition for the writ of mandamus was filed within a reasonable time under the provisions of Rule 21(a)(3), Ala. R.App. P.

2. Attomey-Workr-Product Privilege

The defendants contend that the trial court’s order compelling them to produce the subset of documents the defendants selected for copying from Arvin’s records violates their attorney-work-product privilege. That argument is based on Rule 26(b)(3), Ala. R. Civ. P., which, in pertinent part, provides as follows with respect to materials developed in the course of preparing for trial:

“(3) Trial Preparation: Materials. ... [A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indem-nitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

(Emphasis added.) Counsel for the defendants argue that, when they selected a subset of the Arvin documents for copying, that selection process was completed using their “mental impressions, conclusions, opinions and legal theories” concerning the litigation (hereinafter “opinion work product”). Accordingly, the defendants argue, disclosure to the plaintiffs of the copies of the records the defendants’ obtained from Arvin would violate the opinion-work-product privilege encompassed in Rule 26(b)(3).

The parties do not cite, nor have we found, any prior Alabama decision that has considered whether documents selected by counsel are protected from discovery as opinion work product. Counsel for the parties, however, have cited several cases in which federal courts have considered the “selection-and-eompilation doctrine.” The defendants rely particularly on two decisions — Sporck v. Peil, 759 F.2d 312 (3d Cir.1985), and Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1986)— in support of their position that Alabama should recognize the selection-and-compilation doctrine. Relying extensively on In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007 (1st Cir.1988), the plaintiffs argue that identification by counsel of nonprivileged records produced by a third party cannot justifiably have been expected by the defendants’ counsel to remain private and to constitute opinion work product.

Here, we do not determine whether the selection of a subset of records subpoenaed from a nonparty constitutes protected work product because we find that production of the records so selected is mandated by the clear, unambiguous language of Rule 45(a)(3)(D), Ala. R. Civ. P. Arvin produced records in response to a subpoena issued by the defendants pursuant to Rule 45, Ala. R. Civ. P. Rule 45(a)(3)(D) states that “[i]f the party serving the subpoena obtains copies of documents or things, that party shall make available a duplicate of such copies at the request of any other party upon payment of the reasonable cost of making such copies.” Rule 45(a)(3)(D) was adopted in 1995. The “Committee Comments to the October 1, 1995, Amendment to Rule 45” state that the subject of Rule 45(a)(3)(D) was formerly covered by Rule 34 and that the 1995 amendment was intended to maintain “the obligation of the party obtaining the discovery [from a nonparty] to make copies available to other parties at a reasonable cost.”

The defendants make three arguments in their efforts to avoid the clear language of Rule 45(a)(3)(D). First, according' to the defendants, the goal of Rule 45 is to ensure that all parties have access to those documents furnished by a nonparty in response to a subpoena. The defendants argue that Rule 45(a)(3)(D) was not intended to cover a situation such as this one, where the plaintiffs had access to the same records Arvin provided to the defendants. Second, the defendants argue that Rule 45(a)(3)(D) should be read in concert with Rule 26(b)(3) and should not defeat their alleged opinion-work-product privilege. They argue that nowhere does Rule 45 grant the plaintiffs the right to attend a document production like that in Michigan and then to later obtain the defendants’ alleged opinion work product. Finally, the defendants contend that the plaintiffs waived the benefit of Rule 45(a)(3)(D) by participating in the document-review process at which all parties designated a subset of records for copying.

The defendants’ arguments are without merit. We agree with the trial court and the plaintiffs that, as written, the plain language of Rule 45(a)(3)(D) applies and requires the defendants to provide the plaintiffs a “duplicate of such copies” that the defendants obtained from Arvin. The exception to 45(a)(3)(D) urged by defendants — that the rule is inapplicable because the subset of disputed records was “made available” to the plaintiffs in the documents produced by Arvin — is simply not contained or suggested in the language of the rule. Such an exception could perhaps be incorporated in an amendment to Rule 45. The role of this Court, however, is to interpret the rule according to its plain meaning.

Further, Rule 45(a)(3)(D) does not provide that the procedure in that rule is limited by the protection of opinion work product. Instead, Rule 45(a)(3)(D) states that the party obtaining copies of documents and things from a nonparty pursuant to Rule 45 “shall make available a duplicate of such copies at the request of any other party .... ” (emphasis added). Because opinion work product potentially is involved whenever a party selects a portion of subpoenaed records for copying, the position argued by the defendants could severely limit the application of Rule 45(a)(3)(D).

Finally, the defendants’ argument that the plaintiffs waived the benefit of Rule 45(a)(3)(D) is also without merit. The plaintiffs did participate in the document production in Michigan where all parties separately reviewed the Arvin records and selected a portion of those records for copying. The mechanics of that process were confirmed in the September 7, 2005, letter from IRMCO’s counsel to an Arvin representative. However, plaintiffs’ counsel was not a signatory or recipient of that letter. Under these circumstances, there is no credible evidence in the record indicating that the plaintiffs waived the benefit of Rule 45(a)(3)(D).

Conclusion

The defendants have not demonstrated a “clear legal right” to the issuance of the writ of mandamus. The trial court properly interpreted and applied Rule 45(a)(3)(D) when it ordered the defendants to furnish the plaintiffs a duplicate of the subset of records the defendants copied from the records Arvin supplied. For the reasons stated above, the petition is denied.

PETITION DENIED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

      . Rule 45(d)(1) provides that a nonparty recipient of a subpoena for records may respond either by producing the records in the form in which they are ordinarily maintained or by selecting, organizing, and labeling them by the categories specified in the subpoena.

      . The defendants entered into a joint-defense agreement that apparently provided for cooperation between defense counsel on matters of common interest.

      . In Sporck, the defendants produced hundreds of thousands of documents to the plaintiff during discovery. In preparation for a deposition of one of the defendants, counsel for the defendants selected a subset of those documents to show the deponent. Subsequently, during the deposition, counsel for the plaintiff asked the deponent what documents he had reviewed in preparation for the deposition. The defendants objected to that question on the basis that disclosure of the documents selected by defendants’ counsel concerned the mental impressions of counsel on legal issues in the case, and, therefore, was protected from discovery by Rule 26(b)(3), Fed.R.Civ.P. 759 F.2d at 314. Two of the three judges sitting in Sporck agreed with the defendants that the selection and compilation of documents in preparation for a deposition constituted opinion work product that was shielded from discovery. 759 F.2d at 316.

      . In Shelton, an in-house attorney for AMC was deposed by plaintiff's counsel in a products-liability action. Before the deposition, the in-house attorney had reviewed AMC’s business files to select and compile documents related to the litigation. At her deposition, the in-house attorney was asked whether she had knowledge about the existence or nonexistence of certain types of records concerning the allegedly defective automobile model. Asserting an opinion-work-product privilege, the deponent refused to answer. Noting that the in-house attorney's knowledge about AMC's records was acquired by her work on the litigation, the Court of Appeals for the Eighth Circuit agreed that the in-house attorney was not required to. answer the questions concerning her knowledge of the defendant’s records because such disclosure would “reveal counsel's mental impressions, which are protected as work product." 805 F.2d at 1326.

      .The complex, multidistrict litigation in San Juan concerned thousands of actions that were consolidated for discovery. In order to expedite discovery, the trial court required all parties who intended to question a deponent to disclose in advance of the deposition any exhibit that would be used in questioning a deponent. Counsel for both plaintiffs and defendants complained that such disclosure violated the opinion-work-product privilege. The Court of Appeals for the First Circuit acknowledged that the selection of documents involved the mental impressions of an attorney, but distinguished Sporck and held that the predeposition identification of exhibits “d[id] not implicate opinion work product and thus d[id] not constitute an impermissible per se intrusion into the lawyer's protected zone of privacy.” 859 F.2d at 1018.

      . Although the federal and state versions of Rule 45 are similar, there is no federal counterpart to Rule 45(a)(3)(D), Ala. R. Civ. P. Accordingly, the federal authorities cited by the defendants are not apposite.

      . Rule 45(a)(3)(D) is, of course, not the only provision in the Alabama Rules of Civil Procedure requiring counsel potentially to reveal a portion of his or her opinion work product. There are many stages in litigation at which the ‘'mental impressions, conclusions, opinions and legal theories” of counsel are to be disclosed. An attorney's opinion work product is revealed in pleadings, when an attorney files, briefs, and argues dispositive motions, and when an attorney complies with pretrial orders. Also, legal strategies are divulged when an attorney identifies the exhibits he or she intends to introduce into evidence and the witnesses to be called at trial.


author: SEE, Justice.

text:
    Deborah Ann PRIOR, as personal representative of the estate of Stephen Albert Prior, deceased v. CANCER SURGERY OF MOBILE, P.C.
    1050679.
    Supreme Court of Alabama.
    Nov. 17, 2006.
    Rehearing Denied Jan. 12, 2007.

      W. Lee Pittman, J. Chris Cochran, and Elisabeth French of Pittman, Hooks, Dut-ton, Kirby & Heliums, P.C., Birmingham, for appellant.
    Norman E. Waldrop, Jr., Tamela E. Es-ham, and Mary Carol Ladd of Armbrecht Jackson, LLP, Mobile, for appellee.
   SEE, Justice.

Deborah Ann Prior appeals from an order dismissing her second amended complaint in a medical-malpractice case. Because we hold that her second amended complaint does not relate back to her original complaint, as amended, and was thus barred by the applicable statute of limitations, we affirm.

Facts and Procedural History

In August 1999, Stephen Albert Prior sought medical treatment from Cancer Surgery of Mobile, P.C. (“Cancer Surgery”), for gastric cancer. On August 16, 1999, he underwent a gastrectomy, an eso-phagojejunostomy, and a lymph-node dissection. Eight days later, he underwent a second surgery, allegedly in part because those responsible for his postoperative care following his first surgery had been negligent in monitoring him.

At the time Prior sought medical care from Cancer Surgery, Bradley Scott Davidson, M.D., and Gaylord T. Walker, M.D., were employed there. Prior was Dr. Davidson’s patient, and Dr. Davidson monitored Prior and performed postoperative treatment during Prior’s hospital stay in August 1999. Over the weekend of August 20 to August 22, 1999, Dr. Davidson was unavailable, and Dr. Walker was caring for Dr. Davidson’s patients, including Prior. Prior died in the hospital on August 31, 1999, allegedly as a result of substandard medical care.

On August 8, 2001, Prior’s wife, Deborah Ann Prior, sued Dr. Davidson and Cancer Surgery, among others, alleging medical malpractice and wrongful death. Mrs. Pri- or also asserted claims of vicarious liability for Prior’s death. Dr. Davidson and Cancer Surgery moved to dismiss Mrs. Prior’s complaint or, in the alternative, for a more definite statement. To “more fully comply with the pleading requirements of § 6-5-551 of the Code of Alabama,” Mrs. Prior filed her first amended complaint on October 25, 2001, to plead with specificity that she sought to hold Cancer Surgery vicariously liable for Dr. Davidson’s actions in treating Prior, noting, in particular:

“Defendant Davidson failed to perform a proper espohagojejunostomy [sic]. He failed to properly test the adequacy of the espohageal [sic] anastomosis. He failed to promptly and properly diagnose leakage at the espohagojejunostomy [sic] and failed to promptly perform the necessary and indicated diagnostic testing to assess for perforation and/or leakage. He failed to promptly perform the necessary and indicated exploratory lap-arotomy. He failed to promptly and properly institute IV antibiotics. He abandoned the patient and failed to appreciate the patient’s signs, symptoms, and complaints. Defendant Davidson further ignored clinical symptoms of gastrointestinal leak. He caused significant delay in the treatment of the gastrointestinal leak.”

On August 13, 2002, Mrs. Prior filed a second amended complaint. In this second amended complaint, Mrs. Prior sought to hold Cancer Surgery vicariously liable for the conduct of Dr. Walker as well as for that of Dr. Davidson. She alleged that Dr. Walker

“failed to appropriately supervise the resident/medical student on duty on August 22, 1999; failed to diagnose the anastamotic leak and/or failed to appreciate the danger posed by the leak on August 22, 1999; failed to order the appropriate diagnostic studies to determine the severity of the leak and failed to intervene such that surgery could be done on August 22,1999.”

Cancer Surgery moved to dismiss the second amended complaint, arguing that the claims against Cancer Surgery based on Dr. Walker’s conduct failed to “relate back” to the date of the original pleading under Rule 15(c)(2), Ala. R. Civ. P. Thus, it argued, the second amended complaint was time-barred because the two-year statute of limitations for claims against Dr. Walker had expired. The trial court granted the motion and certified it as a final appealable order pursuant to Rule 54(b), Ala. R. Civ. P. Mrs. Prior now appeals the trial court’s dismissal of her second amended complaint. We agree with the trial court that Mrs. Prior’s second amended complaint does not relate back to her original complaint; we therefore affirm.

Issue

The issue presented is whether Mrs. Prior’s second amended complaint, alleging that Cancer Surgery is vicariously liable for Dr. Walker’s conduct on August 22, 1999, relates back under Rule 15(c), Ala. R. Civ. P., to her original complaint, as amended, which alleged that Cancer Surgery is vicariously liable for Dr. Davidson’s conduct during Prior’s August 1999 hospital stay.

Standard of Review

This Court reviews de novo the trial court’s application of Rule 15(c)(2). Whitfield v. Murphy, 475 So.2d 480, 483 (Ala.1985) (stating that “[t]he relation-back doctrine of Rule 15(c) ... is an objective standard and its application under the prescribed circumstances is nondiscretion-ary”); Cummins Engine Co. v. Invictus Motor Freight, Inc., 641 So.2d 761, 764 (Ala.1994); and Gulf States Steel, Inc. v. William Clarence White, 742 So.2d 1264, 1267 (Ala.Civ.App.1999).

Analysis

The Alabama Rules of Civil Procedure allow parties to amend their complaints. Rule 15(a), Aa. R. Civ. P. Even if otherwise barred by the applicable statute of limitations, an amendment to a complaint may be allowed if it “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....” Rule 15(c)(2), Aa. R. Civ. P. However, if allowing the plaintiff to amend his or her complaint would prejudice the opposing party, the amendment should be denied. Ex parte Johnston-Tombigbee Furniture Mfg. Co., 937 So.2d 1035 (Aa.2005). Thus, we consider the issue whether Mrs. Prior’s second amended complaint relates back to the original complaint under Rule 15(c)(2), Aa. R. Civ. P., and, if so, whether allowing Mrs. Prior to amend her complaint would prejudice Cancer Surgery.

An amended complaint relates back to the original complaint under Rule 15(c)(2), Aa. R. Civ. P., when “ ‘the same substantial facts are pleaded merely in a different form.’ ” Ex parte Johnston-Tombigbee Furniture, 937 So.2d at 1038 (quoting Court of Civil Appeals’ opinion in Johnston-Tombigbee Furniture Mfg. Co. v. Berry, 937 So.2d 1029, 1032 (Aa.Civ.App.2004), quoting other cases). Here, however, Mrs. Prior’s second amended complaint alleges facts not alleged in the original complaint or in the first amended complaint. In her original complaint, as amended, Mrs. Prior sought to hold Cancer Surgery vicariously liable for the medical care rendered to Prior by Dr. Davidson. In her second amended complaint, she seeks to hold Cancer Surgery vicariously liable for the medical care rendered to Prior by. Dr. Walker. Because Dr. Walker provided medical care to Prior the weekend in August that Dr. Davidson was unavailable, .the two doctors provided medical care to Prior at different times. Moreover, although Mrs. Prior asserts that Dr. Davidson and Dr. Walker engaged in allegedly negligent behavior that caused Prior’s death, the allegedly negligent behavior of the two doctors was different. Mrs. Prior alleges that Dr. Davidson failed to perform a proper eso-phagojejunostomy. She also alleges that he

“failed to properly test the adequacy of the espohageal [sic] anastomosis. He failed to promptly and properly diagnose leakage at the espohagojejunostomy [sic] and failed to promptly perform the necessary and indicated diagnostic testing to assess for perforation and/or leakage. He failed to promptly perform the necessary and indicated exploratory lap-arotomy. He failed to promptly and properly institute IV antibiotics. He abandoned the patient and failed to ap-predate the patient’s signs, symptoms and complaints. Defendant further ignored clinical symptoms of gastrointestinal leak[; and] caused a significant delay in treatment of the gastrointestinal leak.”

However, the misconduct Mrs. Prior alleges Dr. Walker engaged in is different. She alleges that Dr. Walker

“failed to appropriately supervise the resident/medical student on duty on August 22, 1999; failed to diagnose the anastamotic leak and/or failed to appreciate the danger posed by the leak on August 22, 1999; failed to order the appropriate diagnostic studies to determine the severity of the leak and failed to intervene such that surgery could be done on August 22,1999.”

The “resident/medical student” Dr. Walker allegedly failed to appropriately supervise had never previously been mentioned in the original complaint or in the first amended complaint. Nor had Mrs. Prior alleged a failure by Dr. Walker or Dr. Davidson to “order the appropriate diagnostic studies” or to “intervene such that surgery could be done on August 22, 1999.”

This Court addressed an analogous situation in Georgia Casualty & Surety Co. v. White, 582 So.2d 487 (Ala.1991). In Georgia Casualty, White sued an insurance company alleging that it had fraudulently represented on August 29, 1984, that he was not entitled to stack claims. White later amended the complaint to further allege that the insurance company, in bad faith, had offered to settle the claim on June 22, 1984. Because the amended complaint addressed an incident “distinct in time” and “distinct in conduct alleged to be wrongful,” 582 So.2d at 492, this Court held that the amended complaint did not relate back under Rule 15(c)(2). Similarly, Mrs. Prior’s second amended complaint fails to relate back because it addresses different behavior that took place at a different time from the behavior alleged to be wrongful in the original complaint, as amended.

Mrs. Prior relies, in part, on Callens v. Jefferson County Nursing Home, 769 So.2d 273 (Ala.2000), to establish that her second amended complaint relates back under Rule 15(c)(2), Ala. R. Civ. P. In Callens, the plaintiffs mother suffered severe injuries allegedly causing her subsequent death when a group of nursing-home employees was attempting to insert a Foley catheter. Callens originally sued the nursing home and others, alleging “wrongful death, civil conspiracy, breach of contract, and the tort of outrage.” Callens, 769 So.2d at 278. In her amended complaint, Callens alleged “negligent hiring, training and supervision that ... resulted in personal injury to [her mother].” Id. This Court held that Callens’s amended complaint related back to her original complaint under Rule 15(c)(2), Ala. R. Civ. P. This Court noted that both the original and the amended complaints “arose out of events of December 11, 1995.” 769 So.2d at 278. The amended complaint related back to the original complaint because it “arose out of the same ‘conduct, transaction, or occurrence’ as that alleged in the original complaint, that is, the December 11, 1995, injury to [Callens’s mother].” 769 So.2d at 278. Both the claims in the original complaint and those in the amended complaint were based on a specific incident that occurred on a specific date. The claims and allegations in Mrs. Prior’s second amended complaint, on the other hand, involve different conduct that took place at a different time, and by a different doctor, than that alleged in her earlier complaints.

Sonnier v. Talley, 806 So.2d 381 (Ala.2001), cited by Mrs. Prior, likewise does not support her position. In Sonnier, Tammy Talley sued Flowers Hospital and Dr. Sonnier and Dr. van der Meer for performing an unnecessary hysterectomy. She alleged general negligence and malpractice “during the period June 1990 through October 1991” and failure to obtain informed consent and sought damages for an alleged loss of consortium. Sonnier, 806 So.2d at 383. Talley then filed an amended complaint alleging that the same defendants “had made misrepresentations of fact related to the surgery, the cancer, and her health during the period from June 1991 through October 1991.” Id. This Court held that Talley’s amended complaint related back to her original complaint under Rule 15(c)(2), Ala. R. Civ. P. Even though the amended complaint alleged a new cause of action, it was limited to the same time period and the same parties. This Court held that the reason the amended complaint related back was that the amendment had “‘ma[de] more specific what ha[d] already been alleged.’ ” Sonnier, 806 So.2d at 386-87 (quoting National Distillers & Chem. Corp. v. American Laubscher Corp., 338 So.2d 1269, 1273 (AIa.1976)). Talley initially alleged that the doctors had been negligent over a specified time period. Her amended complaint alleged a closely related cause of action against the same defendants stemming from the same operative facts.

In the present case, Mrs. Prior seeks to amend her complaint to add new facts and to add the claim that Cancer Surgery is vicariously liable for the actions of a different doctor on a different day from those actions that formed the basis of the claims asserted in the original complaint and the first amended complaint. She is not entitled to add a separate claim of vicarious liability against Cancer Surgery for the acts of a new party by the expedient of an amendment to the complaint under Rule 15(c)(2). We hold that the allegations in the second amended complaint do not relate back to the original complaint, as amended. See Rule 15(c)(2). Because we hold that the second amended complaint does not relate back, we need not inquire whether Cancer Surgery would be prejudiced by allowing the amendment. Therefore, we affirm the trial court’s dismissal of Mrs. Prior’s second amended complaint.

AFFIRMED.

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

      . Rule 15(c)(2), Ala. R. Civ. P., reads as follows:
      "(c) Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when

      “(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, except as may be otherwise provided in Rule 13(c) for counterclaims maturing or acquired after pleading. ...”

        . In the case before us, the witnesses who would likely have the most information about Dr. Walker's behavior are Dr. Walker himself and the medical student he allegedly failed to supervise. However, neither of these individuals was mentioned in Mrs. Prior’s original complaint or her first amended complaint. This Court has previously denied a right to file an amended complaint in part because it would have changed the defendant's strategy at trial and required the defendant to "rede-pose plaintiff's witnesses and develop the testimony of his own witnesses” on a new issue. Horton v. Shelby Med. Ctr., 562 So.2d 127, 129 (Ala.1989).

      We also note that Mrs. Prior unduly delayed filing the second amended complaint. Although she was aware at least as early as September 2001 that Dr. Walker helped treat Prior, she did not file the second amended complaint alleging Dr. Walker's negligence until August 2002. " '[U]ndue delay in filing an amendment [to a complaint], when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.’ ” Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala.2001) (quoting Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala. 1989)). See also Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001) ("We will affirm a trial court if it is right for any reason supported by the record.”).

      . The failure to relate back is a sufficient basis for the denial of Mrs. Prior’s second amendment. " '[A] finding of prejudice to the opposing party’ " is “ ‘dispositive when present’ ” and, in the absence of " ‘flagrant abuse, bad faith, or truly inordinate and unexplained delay,' ” " ‘should be the touchstone of the determination whether to permit the amendment.’ ” Johnston-Tombigbee, 937 So.2d at 1042 (quoting McCollough v. Warfield, 523 So.2d 374, 375-76 (Ala.1988)). "[T]he concept of prejudice to the defendant” is not the "possibility of exposure to additional liability as a result of new claims or legal theories for recovery added in the amendment,” 937 So.2d at 1046; instead, it is "whether the original complaint provided the defendant with a sufficient factual basis from which he or she could reasonably anticipate the claims presented in the amendment.” Johnston-Tombigbee, 937 So.2d at 1043. We do note, however, that the factual basis to which Mrs. Prior’s original complaint, as amended, relates is the medical care rendered by Dr. Davidson to Prior, and no mention was made in that complaint of Dr. Walker or of his alleged negligent acts on August 22, 1999. In her second amended complaint, Mrs. Prior, for the first time, named Dr. Walker and made new factual allegations of wrongful conduct that allegedly occurred on August 22, 1999. These allegations prejudiced Cancer Surgery if it could not reasonably have anticipated the claims presented in the amendment.


text:
    Allen E. SHEALY v. Jimmy GOLDEN and Wolf Creek Timber Company, Inc. Allen E. Shealy v. Jimmy Golden and Wolf Creek Timber Company, Inc. Jimmy Golden and Wolf Creek Timber Company, Inc. v. Allen E. Shealy.
    1040990, 1041072, and 1041098.
    Supreme Court of Alabama.
    Nov. 17, 2006.
    Rehearing Denied Jan. 12, 2007.

      Bradley B. Rounsaville and Clayton M. Ryan of Maynard, Cooper & Gale, P.C., Birmingham, for appellant/eross-appellee Allen E. Shealy.
    Erskine R. Funderburg of Trussell & Funderburg, P.C., Pell City, for appel-lees/cross-appellants Jimmy Golden and Wolf Creek Timber Company, Inc.
   SEE, Justice.

These appeals are the result of a dispute over the redemption of certain properties in St. Clair County; the parties were previously before this Court in 2004. At that time, we held that Allen E. Shealy had the right to redeem one of three parcels of land then being held by Jimmy Golden and Wolf Creek Timber Company, Inc. Shealy v. Golden, 897 So.2d 268 (Ala.2004). On remand from this Court, the trial court entered a judgment setting the price of the redemption of the parcel Shealy was entitled to redeem. Shealy now appeals that judgment, arguing that the price set by the trial court did not take into account a payment that the prior owner had previously made and that the trial court should have sanctioned Golden and Wolf Creek for misrepresentations made in relation to that payment (case no. 1041072). Golden and Wolf Creek cross-appeal, arguing that the trial court erred by prohibiting Golden and Wolf Creek from removing improvements they say they had made to the parcel (case no. 1041098). In the cross-appeal, we affirm; in the appeal, we reverse and remand. Shealy also filed a notice of appeal (case no. 1040990) challenging the trial court’s judgment in case no. CV-03-26. That judgment, however, was affirmed on appeal in Shealy v. Golden, 897 So.2d 268 (Ala.2004), and is thus not a proper judgment from which to bring this second appeal. We therefore dismiss the appeal in case no. 1040990.

I.

For over 25 years, William Carleton, Jr., and Mary Gail Carleton lived in a house on approximately five acres of land in St. Clair County (“the home tract”). National Bank of Commerce held a mortgage on the home tract. In 1997, the Carletons purchased 107 acres of unimproved pastureland (“the pasture tract”) located approximately one-half mile northeast of the home tract. To secure the financing for this purchase, the Carletons gave a mortgage to Union State Bank. The mortgage included both the pasture tract and a second mortgage on the home tract.

Later in 1997, the Carletons purchased another 125-acre tract of land nearby (“the subdivision tract”). The financing for that purchase was also secured by giving Union State Bank a mortgage, although this mortgage covered only the subdivision tract. Union State Bank subsequently combined the two loans and had the Carletons execute a single promissory note, secured by both the mortgage on the home tract and the pasture tract and the mortgage on the subdivision tract.

In 2002, the Carletons separated, and they defaulted on the promissory note. Union State Bank foreclosed on the mortgages and, at the foreclosure sale, it purchased the home tract and the pasture tract in one transaction for $286,467.28 and the subdivision tract in another transaction for $191,370.96. The combined total of $477,838.24 was $89,741.02 less than the balance then remaining on the promissory note; thus, the Carletons remained indebted to Union State Bank for that amount.

On February 27,2002, Union State Bank sold all three tracts to Jimmy Golden and Wolf Creek Timber Company, Inc. (collectively “Golden”), conveying title to the home tract and the pasture tract by one deed and title to the subdivision tract by a second deed. Union State Bank also assigned the unpaid balance of the promissory note to Golden.

In August 2002, Golden sued the Carle-tons, alleging that Union State Bank had assigned him the promissory note, that the Carletons were in default on that note, and that they accordingly owed him $89,741.02, plus interest, on a breach-of-contract claim. The trial court granted Golden’s request to consolidate his action (DV-02-73) with the Carletons’ divorce action (DR-00-132).

Also in August 2002, a fire destroyed the Carletons’ house located on the home tract. The house and its contents were insured by Alfa Insurance Company in the amounts of $140,000 and $20,000, respectively. Alfa subsequently filed a motion in Golden’s action to interplead funds, asking the trial court to accept the insurance proceeds and to determine who was entitled to them.

On January 31, 2003, the trial court entered its final judgment in the Carle-tons’ divorce action. Regarding Golden’s claims, the court granted Alfa’s motion to interplead the insurance proceeds, ordering that Alfa should first pay the holder of the first mortgage on the marital residence. Alfa was to pay any remainder to Golden as the holder of the note secured by the mortgages foreclosed on by Union State Bank. Finally, the court ordered that, upon payment of the insurance proceeds, the case styled “Jimmy Golden v. Gail Carleton and William R. Carleton, Jr.,” DV-02-73, consolidated with the divorce action, would be dismissed.

In accordance with this judgment, Alfa promptly delivered $72,225.65 to National Bank of Commerce to satisfy the first mortgage on the destroyed house. It then deposited $67,774.35, the remainder of the proceeds from the policy covering the house, and $20,000.00, the proceeds covering the contents of the house, with the circuit clerk of St. Clair County. On April 3, 2003, the trial court entered its final order in the divorce proceeding, which stated, in pertinent part:

“[I]n an effort to resolve this matter, William R. Carleton, Jr., along with all parties have agreed to pay [$7,600.00] to the Circuit Clerk of St. Clair County,
Pell City Division. Upon payment of [$7,600.00] plus payment of two previous drafts totaling [$87,774.35], [Jimmy Golden and Wolf Creek have] agreed to dismiss all claims related to cases numbered DR-00-132 and DV-02-73.
“Therefore, it is ORDERED, ADJUDGED and DECREED that:
“1. The Circuit Clerk of St. Clair County pay the [$7,600.00] on deposit to Plaintiffs, Jimmy Golden, Wolf Creek Timber, Inc., and their attorney, Ers-kine Funderburg.
“2. All claims made by Plaintiffs, Jimmy Golden and Wolf Creek Timber, Inc., against William R. Carleton, Jr., and Mary Gail Carleton are hereby dismissed with prejudice from these proceedings and Defendants William R. Carleton and Mary Gail Carleton are released from all liability with regard to any and all claims made by Plaintiffs, Jimmy Golden and Wolf Creek Timber, Inc., in the above cases.”

On February 3, 2003, William Carleton filed a separate action in the St. Clair Circuit Court seeking to redeem all three tracts (case no. CV-03-26 and case no. CV-03-30). On February 20, 2003, Allen E. Shealy moved to intervene, stating that he had purchased Carleton’s right to redeem the property and that he was the proper party in interest to the action. In August 2003, following a bench trial, the trial court found that Carleton had forfeited the right to redeem the three tracts because he had failed to vacate the home tract within 10 days of Golden’s demand.

On appeal, this Court affirmed in part, reversed in part, and remanded, holding that Carleton had not forfeited his right to redeem the subdivision tract because, unlike the home tract, he had never occupied it in disregard of Golden’s lawful demand that he vacate it. Shealy, 897 So.2d at 273. We further held that Golden had forfeited his right to be reimbursed for improvements to the subdivision tract because he had not provided a timely statement of lawful charges to Carleton or Shealy. 897 So.2d at 274.

On remand, the trial court set the redemption price of the subdivision tract at $252,891.00. Shealy paid into court the ordered amount but also moved the trial court to provide an itemized list of the charges included in the redemption price. Golden argued that the redemption price did not include all lawful charges due and moved to alter, amend, or vacate the judgment. On March 1, 2005, after hearing argument from both parties, the trial court amended its earlier order and entered a final judgment setting the redemption price of the subdivision tract at $317,716.81. Shealy paid the additional $64,825.81 in order to complete his redemption of the property but reserved his right to appeal the trial court’s judgment.

Shealy has now appealed, and he argues that the trial court erred in including in the redemption price the balance of the promissory note that the Carletons had defaulted on as a lawful charge due Golden. Shealy argues that this debt was previously paid or, in the alternative, that any claim to it is barred by the doctrine of res judicata. Shealy also asks this Court to consider whether the trial court erred by failing to impose sanctions against Golden and his attorney for denying that the debt in question had previously been paid. Golden cross-appeals, arguing that the trial court erred in prohibiting him from removing certain improvements he made to the subdivision tract before Sheal/s redemption.

II.

The first issue we consider is whether the trial court properly included the deficiency on the original promissory note in its calculation of the redemption price. On remand, the trial court did not hold a trial or evidentiary hearing to determine the redemption price. Instead, the trial court calculated the price based on evidence previously submitted to the court by the parties. In Bentley Systems, Inc. v. Intergraph Corp., 922 So.2d 61, 70-71 (Ala.2005), we explained the standard of review applicable under these circumstances:

“Our standard of review of this case is governed by statute. Section 12-2-7(1), Ala.Code 1975, states:
“‘[I]n deciding appeals, no weight shall be given the decision of the trial judge upon the facts where the evidence is not taken orally before the judge, but in such cases the Supreme Court shall weigh the evidence and give judgment as it deems just.’
“In a case in which a trial court has not heard live testimony, this Court has held that ‘a reviewing court will not apply the presumption of correctness to a trial court’s findings of fact and that the reviewing court will review the evidence de novo.’ Eubanks v. Hale, 752 So.2d 1113, 1122 (Ala.1999). Our statutory obligation in a case such as this is to ‘weigh the evidence and give judgment as [we] deem[ ] just.’ ”

We therefore review de novo the trial court’s calculation of the redemption price.

In its final judgment, the trial court itemized the charges included in the redemption price as follows:

“A. Foreclosure price — $191,370.96
“B. Interest of 5% from February 4, 2002 through February 4, 2005— $28,705.64
“C. Property taxes for 2002, 2003, and 2004 — $8,438.04
“D. Deficiency on the original promissory note — $8.9,741.02 “E. Interest at 5% from February 4, 2002 through February 4, 2005— $13,461.15
“F. Credit for property sold— $14,000.00
“Total required to redeem — $317,716.81”

On appeal, the only amounts at issue are items D and E in the trial court’s order— the deficiency on the original promissory note ($89,741.02), and the corresponding interest on that debt ($13,461.15). Golden argues that those amounts were lawful charges under § 6-5-253(a)(4), Ala.Code 1975, which states, in pertinent part:

“If the redemption is made from a person who at the time of redemption owned the debt for which the property was sold, the redemptioner must also pay any balance due on the debt, with interest as aforesaid thereon to date.”

Golden claims that the $95,374.35 he received in the Carletons’ divorce action was for the decreased value of the home tract as a result of the destruction of the house, not as payment on the promissory note. He further alleges that Shealy’s former attorney implicitly recognized this during the bench trial by asking for a credit equal to that amount toward the redemption price of the home tract.

Shealy argues that items D and E are not lawful charges under § 6-5-253(a)(4) because, he argues, at the time of redemption there was no “balance due on the debt.” The debt, Shealy alleges, had already been retired as part of the settlement in the Carletons’ divorce action. Moreover, regardless of what the $95,374.35 payment represented, Shealy argues that Golden is barred by the doctrine of res judicata from making any claim for the balance due on the promissory note at the time the Carletons defaulted.

The evidence supports Shealy’s claim that William Carleton previously paid the balance of the promissory note. Regardless of the arguments Shealy’s former attorney made, the trial court’s orders in the divorce action make clear that the debt on the promissory note was retired at the time the divorce judgment was entered. That court’s January 31, 2003, order explicitly required Alfa to first pay the insurance proceeds to the National Bank of Commerce to pay off the first mortgage on the home tract and then to pay Golden in full the balance of the note that he held on the home tract upon which Union State Bank had foreclosed. The court’s April 3, 2003, order stated that Golden was receiving $95,374.35 in the settlement. As Shealy notes, this amount equals almost to the dollar the deficiency balance of $89,741.02 plus the claimed interest at six percent.

The April 3 order also states that “[a]ll claims made by Plaintiffs, Jimmy Golden and Wolf Creek Timber, Inc., against William R. Carleton, Jr., and Mary Gail Carle-ton are hereby dismissed with prejudice .... ” Primary among the claims being made by Golden at that time, and accordingly included in the dismissal with prejudice, was the breach-of-contract claim on the promissory note. Because that claim was dismissed with prejudice, Golden cannot now attempt to recover on that claim, albeit as the defendant in a redemption action filed against him, regardless of his success in his initial prosecution of the claim. The doctrine of res judicata prevents it. See Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507, 517 (Ala.2002) (“Res judicata, therefore, bars a party from asserting in a subsequent action a claim that it has already had the opportunity to litigate in a previous action.”). Accordingly, the trial court erred by including in its calculation of the redemption price the deficiency on the original promissory note, as well as the interest on that deficiency.

III.

Shealy also appeals the trial court’s refusal to sanction Golden or his attorney for their alleged repeated misrepresentations to the court regarding the promissory-note debt. Section 12-19-272(a), Ala.Code 1975, a part of the Alabama Litigation Accountability Act (“ALAA”), § 12-19-270 et seq., Ala.Code 1975, provides:

“Except as otherwise provided in this article, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys’ fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part....”

The ALAA defines the phrase “without substantial justification” to include an “action, claim, defense or appeal (including any motion) [that] is frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation, as determined by the court.” § 12-19-271(1), Ala.Code 1975.

The appropriate standard of review of a court’s determination of what constitutes “without substantial justification,” however,

“depends upon the basis for the trial court’s determination. ‘[I]f a trial court determines that a party’s action, claim, or defense is “without substantial justification,” based on the applicability of any one of [the aforementioned terms or phrases in § 12-19-271(1) ], that determination will not be disturbed on appeal “unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” ’ ... However, the phrase ‘groundless in law’ clearly calls for a legal determination. Therefore, if the trial court determines that a party’s action, claim, or defense is ‘without substantial justification’ because it is ‘groundless in law,’ that determination will not be entitled to a presumption of correctness.”

Morrow v. Gibson, 827 So.2d 756, 762 (Ala.2002) (quoting Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 418 (Ala.1993)). Finally, the ALAA states that the award of costs and attorney fees is within the sound discretion of the trial court. § 12-19-273, Ala.Code 1975.

In this case, Shealy characterizes as misrepresentation and misconduct Golden’s assertion that the promissory-note debt is a lawful charge that should be included in the redemption price. Thus, the trial court’s determination of the issue whether the claim was “without substantial justification” “will not be disturbed on appeal ‘unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” Morrow, 827 So.2d at 762.

Shealy was not a party to the divorce action, and it appears that his previous attorney did not have a full knowledge of the terms of the settlement in that case. Shealy claims that it was not until he retained new counsel and that counsel obtained the official record from the divorce action that he learned that the insurance proceeds were paid specifically to satisfy the balance due on the promissory note. Shealy, Shealy’s attorney, and the trial judge did not participate in the divorce action; however, Golden and his attorney did. They accordingly can be presumed to have had full knowledge of the terms of the settlement and its relevance to this action and had a duty to accurately represent that settlement to the trial court. See Byrd v. Southeast Enters., Inc., 812 So.2d 266, 270 (Ala.2001) (holding that a party to a redemption action has an obligation to divulge pertinent or material information to the other party and to the court).

This Court affords the trial court’s factual determination a presumption of correctness, and we will not reverse its judgment based on that determination unless the trial court’s decision was “clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” See Morrow, 827 So.2d at 762. Shealy’s motion for sanctions was before the trial court, and he apprised the trial court of the alleged misrepresentations and misconduct by Golden or his attorney. The trial court nonetheless found that Golden’s claim was not “without substantial justification.” We express no view on this finding; however, we remand the case to the trial court for further consideration of the issue of sanctions in light of this Court’s determination that the evidence supports Shealy’s claim that William Carleton previously satisfied the promissory note as well as Golden’s duty to disclose to the court the terms of the settlement with Carleton.

IV.

The last issue for this Court’s consideration is Golden’s cross-appeal, in which he argues that the trial court erred by prohibiting him from removing certain improvements he had made to the subdivision tract before Shealy’s redemption. These improvements consist of waterlines and fire hydrants that Golden alleges are valued in excess of $200,000. In Shealy, 897 So.2d at 275, we held that Golden forfeited his right to be paid for these improvements because he failed to furnish William Carleton or Shealy with a timely statement of the charges. The trial court issued a written order consistent with this Court’s opinion. Upon limited remand from this Court, the trial court issued a written injunction prohibiting Golden from damaging the property and from removing any improvements. Golden now requests this Court to exercise its equitable powers and to allow him to remove the improvements. However, there is no evidence in the record indicating that Golden ever argued to the trial court that principles of equity should allow him to remove the improvements. “This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala.1991)). See also Totten v. Lighting & Supply, Inc., 507 So.2d 502, 503 (Ala.1987) (“[0]n appeal, this Court is limited to a review of the record alone, and an issue not reflected in the record as having been raised in the trial court cannot be raised for the first time on appeal.”) (citing Mobile Wrecker Owners v. City of Mobile, 461 So.2d 1303 (Ala.1984)). Accordingly, the trial court’s judgment on this issue is affirmed.

V.

We affirm the judgment of the trial court insofar as it denied Golden’s request to remove improvements from the subdivision tract. However, because the debt on the original promissory note was paid as part of the settlement in the Carletons’ divorce action, we reverse the trial court’s judgment that included that amount and the interest thereon in the redemption price of the subdivision tract. We remand the case to the trial court for reconsideration of the issue of sanctions in light of this Court’s holding that the deficiency on the note has been satisfied. On remand, the trial court should remove from the redemption price the amount representing the debt on the original promissory note and the corresponding interest and hold such further proceedings as it deems necessary consistent with this opinion.

1040990 — APPEAL DISMISSED.

1041072 — REVERSED AND REMANDED.

1041098 — AFFIRMED.

HARWOOD, WOODALL, STUART, and BOLIN, JJ., concur.

      . These cases were originally assigned to another Justice; they were reassigned to Justice See on August 15, 2006.

      . Golden's action also included claims alleging fraud, based on William Carleton’s alleged sale of secured collateral (livestock), and unlawful detainer, based on the Carle-tons’ alleged failure to vacate the foreclosed property.

      . We affirmed the trial court's judgment insofar as it held that Carleton had forfeited his right to redeem the home tract and held that Carleton had effectively forfeited his right to redeem the pasture tract as well because it had been sold in a combined transaction with the home tract at the foreclosure sale. Shealy, 897 So.2d at 272.

      . In a letter dated January 27, 2003, approximately two months before the settlement in the divorce action, Golden claimed the bal-anee of the deficiency ($89,741.02) plus interest to that date ($5,384.46) was equal to $95,125.48.

      . In fact, the only evidence in the record on this point is a letter from Golden’s attorney stating that Golden was unilaterally removing the improvements based on Shealy’s refusal to pay for them. Of course, Shealy’s refusal to make payment was based on this Court’s holding that Golden had forfeited his right to such a payment.


author: PER CURIAM.

text:
    Rebecca HYATT v. Noel CHAMBLESS and Elaine Chambless Noel Chambless and Elaine Chambless v. Rebecca Hyatt et al.
    2040640.
    Court of Civil Appeals of Alabama.
    May 26, 2006.
    Rehearing Denied Aug. 11, 2006.
    Certiorari Denied Dec. 15, 2006 Alabama Supreme Court 1051716.
    Thomas B. Prickett II, Oneonta, for appellant/cross-appellee Rebecca Hyatt.
    Richard E. Sandefer and Talitha Powers Bailey, Pinson, for appellees/cross-appel-lants Noel Chambless and Elaine Cham-bless.
   PER CURIAM.

Rebecca Hyatt is the owner of a parcel of property (“the Hyatt property”) located in the southeast quarter of the northeast quarter of Section 3, Township 11 South, Range 1 West, in Blount County. Noel Chambless and Elaine Chambless also own a parcel of property (“the Chambless property”) located in the southeast quarter of the northeast quarter of Section 3, Township 11 South, Range l.West. The Cham-bless property is contiguous to, and generally north of, the Hyatt property.

After a dispute arose between Hyatt and the Chamblesses regarding the location of the boundary line between their properties, the Chamblesses sued Hyatt; her immediate predecessors in title, Russell Pi-nyan and Diane Pinyan; and Regions Bank (“Regions”), the holder of a mortgage on the Hyatt property. Against Hyatt only, the Chamblesses alleged a claim seeking a determination of the location of the boundary line. As the basis of that claim, the Chamblesses asserted that a line (“the Chambless line”) allegedly established by the legal descriptions in two deeds, one of which was in the Chambless-es’ chain of title and the other in Hyatt’s chain of title, established the true boundary line. In addition to their boundary-line claim, the Chamblesses also alleged against Hyatt, the Pinyans, and Regions a claim seeking to quiet title to the Cham-bless property.

Hyatt, the Pinyans, and Regions answered, and Hyatt counterclaimed. In her counterclaim, Hyatt also alleged a claim seeking a determination of the location of the boundary line. Hyatt based her boundary-line claim on allegations that the deeds relied upon by the Chamblesses did not unambiguously establish the boundary line and, therefore, that the actions of the parties’ predecessors in title had established the boundary line along a line (“the Hyatt line”) that was north of the Cham-bless line. Hyatt also alleged a claim seeking damages for trespass on the disputed strip of property (“the strip”) bounded on the north by the Hyatt line and bounded on the south by the Cham-bless line. Finally, Hyatt alleged a claim seeking a determination that she and her predecessors in title had acquired ownership of the strip by adverse possession. Hyatt demanded a trial by jury of all issues triable by a jury.

The trial court impaneled a jury to decide the boundary-line claims and Hyatt’s trespass claim, while the trial court simultaneously heard the evidence to decide the Chamblesses’ quiet-title claim and Hyatt’s adverse-possession claim. The evidence introduced at trial established the following material facts. In 1917, Reuben Wash-burn acquired title to a single parcel of property that contained both the Hyatt property and the Chambless property. Washburn’s deed described that parcel as follows:

“All that part of the SE 1/4 of the [NE] 1/4 of Sec[tion] 8[,] T[ownship] 11 [South,] R[ange] 1 W[est,] lying NE of public road and contains about 17 acres. Blount County, Alabama.”

A mortgage on that entire parcel executed by Reuben Washburn on January 3, 1927, indicates that Washburn still owned that entire parcel on that date. However, on December 15, 1927, Washburn deeded to Rufus B. Simms and Mamie Simms the following described parcel:

“[A]ll that part of the SE 1/4 of NE 1/4 lying northeast of public road except 2 acres deeded to J.S. Pinion [sic] [a]ll in Section 3[,] Township 11 [South,] Range 1 West ....”

(Emphasis added.) The property described in the deed from Washburn to the Simmses is the Chambless property. The property referred to as an exception from the property conveyed by that deed, i.e., the “2 acres deeded to J.S. Pinion [sic],” is the Hyatt property. The deed conveying the Hyatt property from Washburn to J.S. Pinyan is not in the record. However, it appears that that deed did not describe the Hyatt property any more specifically than as two acres in the southeast quarter of the northeast quarter of Section 3, Township 11 South, Range 1 West because when J.S. Pinyan subsequently deeded the Hyatt property to H.L. Pinyan in 1929, that deed described the Hyatt property as:

“Two acres (2) in the SE 1/4 of the [NE] 1/4 of Section 3 — T[ownship] 11 [South,] R[ange] 1 West

In the fall of 1945, Mamie Buffington, who apparently had formerly been Mamie Simms, together with her then husband, W.E. Buffington, and Etta Batson, deeded to Deward Chambless, the father and predecessor in title of Noel Chambless, the Chambless property. The deed to Deward Chambless described the Chambless property as follows:

“[A]ll that part of SE 1/4 of NE 1/4 lying NE of public road (Except about 2 acres deeded to J.S. Pinyan [),] all in Sec[tion] 3[,] T[ownshi]p 11 [South,] R[ange] 1 W[est].... ”

(Emphasis added.)

On September 29,1942, H.L. Pinyan and his wife deeded the Hyatt property to V.E. Whitehead. That deed described the Hyatt property as follows:

“[A] part of the SE 1/4 of the NE 1/4 of Section 3, Township 11 [South], Range 1 West, described as follows: Beginning at the southeast corner; thence North 28 rods;[] thence in a southwest direction 20 rods to Cullman Road; thence along said road in a southeasterly direction 24 rods to point of beginning. Containing 2 acres more or less.”

The deed from H.L. Pinyan to V.E. Whitehead is the earliest evidence in the record of a legal description of the Hyatt property describing it by metes and bounds (“the metes and bounds description”). The metes and bounds description encompasses an area of 1.47 acres rather than two acres. The record does not contain any evidence regarding how the scrivener of that deed came up with the metes and bounds description.

In 1942, V.E. Whitehead and his wife deeded the Hyatt property to Allen Pinyan and his wife. That deed described the Hyatt property using the metes and bounds description. On January 7, 1943, Allen Pinyan and his wife deeded the Hyatt property to Lee Pinyan and his wife. That deed also described the Hyatt property using the metes and bounds description.

Lee Pinyan owned the Hyatt property until he died in 1985. In that year, one of Lee Pinyan’s heirs commissioned a survey of the Hyatt property (“the 1985 survey”). The 1985 survey described the Hyatt property as follows:

“A part of the SE 1/4 of the NE 1/4 of Section 3, Township 11 South, Range 1 West, Blount County, Alabama, more particularly described as follows: From the SE corner of said SE 1/4 of the NE 1/4; thence N 0 degrees 50' 16" W, along the section line 79.00 feet to the point of beginning; thence continue N 0 degrees 50' 16" W, along the section line, 383.00 feet to a pipe set; thence S 68 degrees 15' 38" W, 279.22 feet to a pipe set; thence S 43 degrees 28' E, 385.16 feet to the point of beginning. Containing 1.15 acres, more or less.”

(Emphasis added.)

The legal description of the Hyatt property contained in the 1985 survey became the legal description that was used in all subsequent conveyances of the Hyatt property.

After the completion of the 1985 survey, the heirs of Lee Pinyan deeded the Hyatt property to the Gossetts. In 1986, the Gossetts deeded the Hyatt property to the Sparkses, who mortgaged the property. The mortgage was eventually assigned to Regions. In 1989 or 1990, the Sparkses deeded the Hyatt property to Regions. In August 1990, Regions deeded the Hyatt property to Russell Pinyan and Diane Pin-yan, and the Pinyans mortgaged the Hyatt property to Regions. In December 1990, the Pinyans deeded the Hyatt property to Hyatt subject to the mortgage held by Regions, and Hyatt gave the Pinyans a second mortgage on the property.

Deward Chambless, who had acquired the Chambless property in 1945, continued to own it until he died in 1994. Upon Deward’s death, Noel Chambless inherited one-half of Deward’s interest in the Cham-bless property and Noel’s brother, Benny Chambless, inherited the other one-half interest. Soon thereafter, Noel and his wife Elaine purchased Benny’s one-half interest.

At the close of all the evidence, the Chamblesses moved for a judgment as a matter of law (“a JML”) on the boundary-line claims and Hyatt’s trespass claim. The Chamblesses argued that the 1945 deed by which Deward Chambless acquired title to the Chambless property and the 1943 deed by which Lee Pinyan and his wife acquired title to the Hyatt property established the same line as the boundary line between the two properties. They further argued that those deeds were unambiguous in establishing that boundary line. Finally, they argued that, when two unambiguous deeds to coterminous parcels of property establish the same unambiguous boundary line, the deeds establish the boundary line as a matter of law, and the court must set the boundary line according to the deeds. The trial judge agreed. Having thus concluded that the Cham-blesses were entitled to a JML on the boundary-line claims, the trial judge further reasoned that, because the deeds established as a matter of law that Hyatt did not own the strip, the property upon which she claimed the Chamblesses had trespassed, the Chamblesses were also entitled to a JML on Hyatt’s trespass claim. Therefore, the trial court granted the Chamblesses a JML on Hyatt’s trespass claim as well as on the boundary-line claims. The trial judge reserved judgment on the Chamblesses’ quiet-title claim and Hyatt’s adverse-possession claim.

Several weeks later, on January 14, 2005, the trial judge entered a separate written judgment in which he found in favor of the Chamblesses on the boundary-line claims, found in favor of the Cham-blesses on Hyatt’s trespass claim, and found in favor of the Chamblesses on their quiet-title claim with respect to Hyatt and Regions. However, that judgment did not rule on the Chamblesses’ quiet-title claim with respect to the Pinyans. With respect to Hyatt’s adverse-possession claim, the written judgment found in favor of Hyatt in part and found in favor of the Cham-blesses in part.

On February 1, 2005, Hyatt and the Pinyans moved for a new trial. Among other grounds, they alleged that the trial court had erred in granting the Cham-blesses a JML on the boundary-line claims and on Hyatt’s trespass claim because, they alleged, Hyatt had introduced substantial evidence establishing a jury question regarding whether the Chambless line constitutes the boundary line. The Cham-blesses objected to the new-trial motion and moved the trial court to amend its judgment to find in favor of the Cham-blesses with respect to all issues involved in Hyatt’s adverse-possession claim. On February 18, 2005, the trial court entered a written order: (1) amending its January 14, 2005, judgment by finding in favor of the Pinyans on the Chamblesses’ quiet-title claim; (2) denying the Pinyans and Hyatt’s motion for a new trial; and (3) denying the Chamblesses’ motion to amend the judgment.

On February 14, 2005, Hyatt filed a notice of appeal seeking appellate review by the supreme court. However, on February 28, 2005, the Chamblesses filed a motion to alter, amend, or vacate that portion of the order entered on February 18, 2005, in which the trial court had amended its judgment to find in favor of the Pinyans on the Chamblesses’ quiet-title claim. On March 4, 2005, the trial court entered an order denying the Chamblesses’ motion to alter, amend, or vacate. Thereafter, the Chamblesses cross-appealed to the supreme court. The supreme court transferred Hyatt’s appeal and the Chambless-es’ cross-appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Although Hyatt in her appeal and the Chamblesses in their cross-appeal raise a number of issues, the dispositive issue is whether the trial court erred in determining the location of the boundary line between the Hyatt property and the Cham-bless property instead of allowing the jury to decide that issue. Citing Ex parte Taylor, 828 So.2d 888 (Ala.2001), Hyatt argues that she was entitled to have the jury determine the location of the boundary line.

In Ex parte Taylor, the supreme court held that, if (1) a case involves both equity claims and legal claims; (2) the equity claims and the legal claims share a common issue; and (3) one of the parties has demanded a jury trial, that party must be afforded a jury trial of the equity claims as well as the legal claims. In the case now before us, the boundary-line claims, the trespass claim, the adverse-possession claim, and the quiet-title claim all shared a common issue, i.e., the location of the true boundary line. Consequently, Hyatt was entitled to a jury trial of all of those claims. See Ex parte Taylor, supra. Thus, if Hyatt introduced sufficient evidence regarding the location of the true boundary line to create a jury question regarding that issue, the trial court erred in determining that issue instead of allowing the jury to decide it. In determining whether the trial court erred in determining the location of the boundary line as a matter of law in response to the Cham-blesses’ motion for a JML on the boundary-line claims, we apply the following standard of review:

“ ‘We apply the same standard of review to a ruling on a motion for a JML as the trial court used in initially deciding the motion. This standard is “indistinguishable from the standard by which we review a summary judgment.” ’ Alabama Power Co. v. Aldridge, 854 So.2d 554, 560 (Ala.2002) (quoting Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001)). ‘We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination.’ Id. (citing City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002)). ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833, 837 (Ala.2003).

An examination of the deed by which Deward Chambless acquired title to the Chambless property reveals that it does not specify any boundary line between the Chambless property and the Hyatt property. It merely described the Chambless property as follows:

“[A]ll that part of SE 1/4 of NE 1/4 lying NE of public road (Except about 2 acres deeded to J.S. Pinyan [),] all in Sec[tion] 3[J T[ownshi]p 11 [South,] R[ange] 1 W[est]....”

(Emphasis added.) From that description, the Hyatt property could be any 2 of the 17 acres in the southeast quarter of the northeast quarter lying northeast of the public road. Therefore, the trial court’s conclusion that that deed specified an unambiguous boundary line was erroneous. Moreover, because that deed does not specify any boundary line, the trial court erred in concluding that it contained a description of a boundary line that agreed with the boundary line described in the deed by which Lee Pinyan and his wife acquired title to the Hyatt property.

The deed by which Lee Pinyan and his wife acquired title to the Hyatt property does specify a boundary line, but that deed is also problematic. When the Hyatt property was partitioned from the single 17-acre parcel by conveyance from Reuben Washburn to J.S. Pinyan in 1927, it apparently was described as 2 acres in the southeast quarter of the northeast quarter of Section 3, Township 11 South, Range 1 West without any metes and bounds description. Certainly, it was so described when J.S. Pinyan conveyed the Hyatt property to H.L. Pinyan in 1929. Moreover, all conveyances of the Chambless property subsequent to the partition of the Hyatt property excepted two acres conveyed to J.S. Pinyan. However, the metes and bounds description contained in the deed by which Lee Pinyan and his wife acquired title to the Hyatt property encompasses only 1.47 acres. No evidence was introduced indicating that any portion of the Hyatt property was conveyed to an owner of the Chambless property after the Hyatt property was partitioned from the single 17-acre parcel that encompassed both the Chambless property and the Hyatt property. Thus, the metes and bounds description does not account for .53 of an acre of the Hyatt property as it was described before the use of the metes and bounds description began. Because of (1) the discrepancy between the original description of the Hyatt property and the metes and bounds description; (2) the discrepancy between the 1.47-acre area described in the metes and bounds description and the exception of two acres of Hyatt property from the deed by which Deward Chambless acquired title to the Chambless property; and (3) the absence of a description of any boundary line in the deed to Deward Chambless, the trial court erred in concluding that the deed by which Lee Pinyan and his wife acquired title to the Hyatt property and the deed by which Deward Chambless acquired title to the Chambless property both unambiguously described the same boundary line. The evidence established a jury question regarding the location of the true boundary line. See Ex parte Taylor, supra, and Smitherman, supra. Consequently, the trial court erred (1) in entering a JML in favor of the Chamblesses on the boundary-line claims; (2) in entering a JML in favor of the Chamblesses on Hyatt’s trespass claim; (3) in determining Hyatt’s adverse-possession claim instead of allowing the jury to determine it; and (4) in determining the Chamblesses’ quiet-title claim instead of allowing the jury to determine it. Therefore, we reverse the trial court’s judgment and remand the case with instructions for the trial court to afford Hyatt a jury trial of all the claims.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Judges concur.

      . A rod is equal to 16.5 feet. Thus, 28 rods equals 462 feet, 20 rods equals 330 feet, and 24 rods equals 396 feet.


author: MURDOCK, Judge.

text:
    Sue BARRETT v. FIVE STAR FOOD SERVICE, INC., and State Department of Industrial Relations.
    2050045.
    Court of Civil Appeals of Alabama.
    Aug. 11, 2006.
    Rehearing Denied Jan. 12, 2007.
    Robert D. Lee of Higgs & Emerson, Huntsville, for appellant.
    Frank D. Marsh, gen. counsel and asst, atty. gen., for appellee the State Department of Industrial Relations.
   MURDOCK, Judge.

Sue Barrett appeals from a summary judgment entered by the Jackson Circuit Court denying her unemployment-compensation benefits on the ground that she quit her employment voluntarily, without good cause connected with her employment.

Barrett was employed as a vending attendant by Five Star Food Service, Inc. (“Five Star”), from August 1992 until October 11, 2004. In 2004, Barrett requested and received three leaves of absence under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“the FMLA”) — a five-week leave of absence from May 2, 2004, until June 7, 2004, for a personal health condition; a three-week leave of absence from August 2, 2004, until August 23, 2004, to care for her father; and a leave of absence beginning on September 13, 2004, to care for her father. Barrett and Five Star apparently did not initially set an ending date for this third leave of absence.

On October 5, 2004, Five Star sent Barrett a letter advising her that her leave of absence would be exhausted on October 11, 2004. The letter was sent by certified mail, return receipt requested. Barrett claimed the letter on October 12, 2004, the day after her leave of absence was exhausted. Upon receipt of the letter, Barrett telephoned Five Star to discuss the letter. During that telephone call, Barrett was advised that her leave of absence was exhausted, that her job protection under the FMLA was over, and that her employment had been terminated.

Barrett filed a timely claim for unemployment-compensation benefits with the State Department of Industrial Relations (“DIR”). DIR determined that Barrett was disqualified from receiving unemployment-compensation benefits under Ala.Code 1975, § 25-4-78(2). That Code section provides that an individual shall be disqualified from receiving unemployment-compensation benefits “[i]f he has left his most recent bona fide work voluntarily without good cause connected with such work.” Barrett’s administrative appeals were denied.

On March 24, 2005, Barrett timely filed this action to appeal the denial of unem-ploymenfrcompensation benefits. Five Star and DIR filed answers. On June 22, 2005, Five Star and DIR filed a motion for a summary judgment to which was attached an affidavit of Five Star’s director of human resources, various notices issued by DIR, and a copy of the October 5, 2004, letter from Five Star to Barrett. Barrett filed an opposition to the summary-judgment motion, to which was attached Barrett’s affidavit.

On September 2, 2005, the trial court entered a summary judgment in favor of Five Star and DIR. The trial court considered the issue to be whether Barrett was disqualified from receiving unemployment-compensation benefits because she had voluntarily left her job. The trial court stated:

“The evidence reflects [that Barrett] took considerable leave from her job with the Five Star Food Service to care for her ailing father which, as noted in the brief for [DIR], was an excellent personal reason. [DIR], however, argues that because she failed to return to work within the time period allowed and failed to notify [Five Star] of her intention to return to work within the necessary time to do so that she voluntarily quit her job.
“To say that Ms. Barrett ‘voluntarily’ quit her job is stretching the point a bit under the circumstances, in that she did not want to quit-her job but was, in fact, terminated for failing to return to work within a designated and required time period. Regardless, however, of whether this was truly voluntary or not, it appears to the Court to fall within the limitations of § 25^1-78 of the Code of Alabama [1975,] which burden [Barrett] bore in this matter.”

Barrett appeals, contending that the summary judgment was not appropriate because, she says, there was a genuine issue of material fact concerning whether she voluntarily quit her employment. In response, Five Star contends that Barrett voluntarily quit her job when she failed to return to work at the end of her third leave of absence and that caring for her father was not good cause connected with her employment.

“We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P- The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002).

It is well established that “[t]he Unemployment Compensation Act is ... intended to be a remedial measure for [the claimant’s] benefit. Therefore, it should be liberally construed in favor of the claimant and the [grounds for] disqualification[ ] from benefits should be narrowly construed.” Department of Indus. Relations v. Jaco, 337 So.2d 374, 376 (Ala.Civ.App.1976). The claimant, however, bears the burden of proving that he or she is qualified under Ala.Code 1975, § 25-4-77, to receive benefits and that he or she is not disqualified from receiving benefits under § 25-4-78(2). Jaco, 337 So.2d at 376; and Davenport v. State Dep’t of Indus. Relations, 692 So.2d 851, 853 (Ala.Civ.App.1997).

If Barrett voluntarily quit her employment without good cause connected with her employment, she is disqualified by § 25-4-78(2) from receiving unemployment-compensation benefits. The disposi-tive question in this appeal is whether Barrett voluntarily quit her employment by failing to return to work at the end of her third leave of absence.

This court has held that § 25^4-78(2) disqualifies an employee from receiving unemployment-compensation benefits if “the claimant’s loss of employment was attributable to an act of his own volition and thus tantamount to a voluntary leaving.” Johnson v. State Dep’t of Indus. Relations, 447 So.2d 747, 749 (Ala.Civ.App.1983). The necessary element of volition can be shown by, among other things, the employee’s failure to return to work after the end of a leave of absence. Department of Indus. Relations v. McLeod, 55 Ala. App. 152, 314 So.2d 72 (Civ.1975). See also Johnson, 447 So.2d at 749 (incarceration that causes an employee to miss work is a “voluntary” act that disqualifies the employee from receiving unemployment-compensation benefits); Davis v. Stewart, 410 So.2d 62 (Ala.Civ.App.1981) (failure to return to work after recovery from an injury disqualified an employee under § 25-4-78(2)a.(l)); and Watkins v. Mont gomery Days Inn, 455 So.2d 23 (Ala.Civ.App.1984) (the employee’s failure to show up for two consecutive assigned shifts after a conflict over scheduling was found to be a voluntary quitting). We note, however, that an excessive number of absences from work does not necessarily constitute a voluntary quitting of employment. Jaco, 337 So.2d at 376 (it “would require a very strained interpretation of these facts to hold that the discharge for absenteeism or tardiness was tantamount to voluntarily leaving employment without good cause”).

In this case, viewing the evidence in a light most favorable to Barrett, it cannot be said that there is no genuine issue of fact as to whether Barrett voluntarily quit her employment. Barrett and Five Star did not initially specify an ending date for the third leave of absence, and Barrett’s employment was terminated before she received actual notice that her leave of absence had ended. Further, Barrett attempted to return to work only one day after the end of her leave of absence. Compare Rodriguez v. Arby’s, Inc., 709 So.2d 632 (Fla.Dist.Ct.App.1998) (when the employer fails to inform the employee of the expected ending date of a leave of absence, the employee’s absence will not support a finding that the employee voluntarily left employment); McLeod, 55 Ala. App. at 156, 314 So.2d at 76 (the employee would have been disqualified had he failed to report to work at the end of a leave of absence; the judgment upholding disqualification from receiving benefits was reversed because the evidence was silent as to the reason for the termination); and Department of Indus. Relations v. Price, 42 Ala.App. 57, 151 So.2d 797 (1963) (employee was not disqualified on the basis that she voluntarily quit her employment when she took an approved leave of absence of indefinite duration and there was no work for her when she returned to work).

Based on the foregoing, we reverse the summary judgment entered by the trial court and remand the cause for further proceedings.

REVERSED AND REMANDED.

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

      . Barrett does not argue on appeal that caring for her father constituted good cause connected with her employment. See McNealey v. State Dep’t of Indus. Relations, 664 So.2d 913 (Ala.Civ.App. 1995)(child-care problems are of a personal nature and do not constitute “good cause” for quitting one’s employment).