text:
    Laura Davis SONES, Appellant v. SONES CHAPEL BAPTIST CHURCH by and Through its Clerk and Treasurer, Adrian LUMPKIN, Jr., Appellee.
    No. 2005-CA-02079-COA.
    Court of Appeals of Mississippi.
    Jan. 16, 2007.
    Jeffrey Loewer Hall, Hattiesburg, attorney for appellant.
    Candance L. Rickman, William E. Andrews, Purvis, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. In 1922, Sones Chapel Baptist Church was deeded the land upon which its sanctuary had stood for more than twenty years. As-it turned out, the legal description in the deed was inaccurate, and in 1978 the original grantor’s successors in interest agreed to a deed exchange to correct the inaccuracy. Included in the deed back to the Church was a reverter clause stipulating that if the Church “cease[d] to be used as a place for Landmark Missionary-Baptist Ministry, or of like faith and order,” the property would revert back to the grantors.

¶ 2. In 2004, a minority of the Church’s members became dissatisfied with the current state of the Church and requested a trustee of the Church to enforce the re-verter clause and deed the property back to the grantors. In agreement with the minority, the trustee obliged the group, and the Church received a notice to vacate the property. The Church responded by filing its complaint with the Chancery Court of Pearl River County arguing that the trustee had no authority to transfer Church property and the reverter clause was void, and eventually filed a motion for summary judgment arguing the same. After considering arguments on summary judgment, the chancellor granted the Church’s motion for summary judgment. After the trial court denied the appellant’s motion for reconsideration, this appeal followed, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT CHARLES LUMPKIN ACTED WITHOUT AUTHORITY AS TRUSTEE ON BEHALF OF SONES CHAPEL BAPTIST CHURCH.
II. WHETHER THE TRIAL COURT ERRED IN “CANCELING AS A CLOUD ON THE TITLE OF THE CHURCH” THE REVERT-ER CLAUSE CONTAINED IN THE QUITCLAIM DEED WHICH IS RECORDED IN LAND DEED BOOK 296 AT PAGE 342 OF THE LAND RECORDS OF PEARL RIVER COUNTY, MISSISSIPPI.
III. WHETHER THE TRIAL COURT ERRED IN SETTING ASIDE, CANCELING AND HOLDING FOR NAUGHT THE QUITCLAIM DEED EXECUTED BY CHARLES LUMPKIN ON SEPTEMBER 20, 2004, AND RECORDED IN LAND DEED BOOK 860 AT PAGE 254 OF THE LAND RECORDS OF PEARL RIVER COUNTY, MISSISSIPPI.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On November 23, 1922, Mrs. Lou V. McClure executed a warranty deed to the Sones Chapel Baptist Church, an organized religious society which has existed and occupied the real property located on the land in question since 1882. The 1922 deed was a fee simple conveyance of the land to the Church and did not contain a reverter clause or other restrictions. Subsequently, in 1978 it was discovered that the legal description contained in the 1922 deed was incorrect.

¶ 4. To remedy the situation, the Church and Mrs. McClure’s successors in interest, Leo V. Sones and his wife, Laura Davis Sones, agreed to exchange deeds. To that end, a resolution was approved by the Church authorizing certain Church trustees, one of which being Charles Lumpkin, to exchange' deeds with the Soneses in order to correct the erroneous description contained within the 1922 deed. In accordance with this resolution, the Church trustees did execute a deed to the Soneses on September 13, 1978, conveying to them the land described in the 1922 deed, with the understanding that the Soneses would, in turn, execute a deed with a more accurate description of the land-upon which the Church buildings stood. That same day the Soneses did execute a deed conveying to the trustees of the Church the correctly described land, but included the following clause:

In trust, that said premises shall be used, kept and maintained as a place of divine worship of the Landmark Missionary Baptist Ministry, or of life faith and order, and it- being understood and agreed that should the property described herein cease to be used as a place for Landmark Missionary Baptist Ministry, or of like faith and order, the land with all rights conveyed hereto, shall revert to Grantors or their heirs. Grantees shall have a period of six (6) months after said property ceases to be used for the said ministry to remove any and all buildings located on said property-

The 1978 deed conveying-the correctly described land back to the Church concluded with,

This deed is given to correct the description contained in that certain deed from Mrs. Lou V. McClure to Sones Chapel Baptist Church, dated November 23, 1922, recorded in Book 29, Page 324 of the Land Deed Records of Pearl River County, Mississippi; said land having been incorrectly described in said deed.

¶ 5. Several years passed, and in 2004, a minority of the Church membership became disgruntled with the pastor of the Church and attempted to vote him out. This effort failed by a large margin and the minority quit attending services at the Church. In September 2004 members of the minority convinced Lumpkin, the only living trustee named in the 1978 deed, that the Church had violated the terms of the reverter clause and that he should quitclaim deed the property back to Laura Sones. Stating that he knew, based upon personal knowledge and member affidavits, that the Church was no longer affiliated with the Landmark Missionary Baptist Association, Lumpkin signed the 2004 deed conveying the property back to Laura Sones.

¶ 6. Following receipt of a notice to vacate property from Sones’ attorney, the Church, by and through its clerk and trear-surer, Adrain Lumpkin Jr., filed its complaint on December 8, 2004, with the Chancery Court of Pearl River County alleging that it was the rightful owner of the property and requesting the court to cancel and set aside the reverter clause as it was a cloud on the Church’s title. After initial discovery was completed, the Church filed a motion for summary judgment on July 20, 2005, to which Sones filed her response on September 19, 2005. The final judgment of the trial court was filed on September 28, 2005. Within its judgment, the court held that Lumpkin executed the deed without proper authority, set aside the 2004 deed, and canceled the re-verter clause as a cloud on the Church’s title for lack on compliance with Mississippi Code Annotated Section 79-11-31 (Rev. 2001). Sones then filed a motion for reconsideration on September 30, 2005, which was denied on October 4, 2005. Sones filed her appeal on November 1, 2005.

STANDARD OF REVIEW

¶ 7. This Court applies a de novo standard of review to the trial court’s grant of summary judgment. Stuckey v. Provident Bank, 912 So.2d 859(¶8) (Miss.2005). Rule 56(c) of the Mississippi Rules of Civil Procedure states that summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990).

¶ 8. “If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.” Williamson ex rel. Williamson v. Keith, 786 So.2d 390(¶ 10) (Miss.2001). Furthermore, the evidence must be viewed in the light most favorable to the non-moving party. Tucker, 558 So.2d at 872. To avoid summary judgment, the non-moving party must establish a genuine issue of material fact within the means allowable under the Rule. Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991).

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN “CANCELING AS A CLOUD ON THE TITLE OF THE CHURCH” THE REVERTER CLAUSE CONTAINED IN THE QUITCLAIM DEED WHICH IS RECORDED IN LAND DEED BOOK 296 AT PAGE 342 OF THE LAND RECORDS OF PEARL RIVER COUNTY, MISSISSIPPI.

¶ 9. Despite the lack of any argument that the deed was not valid, Sones argues that she and her husband “were exercising their right as owners of the property to include deed restrictions” and such deed restrictions should be upheld as the Sones-es did not prohibit the trustees from familiarizing themselves with the restrictions. While it is clear that the Church has been the owner of the subject property since execution of the 1922 deed, the trustees’s familiarization, or lack thereof, is not decisive on the issue of the validity of the reverter clause.

¶ 10. Mississippi Code Annotated Section 79-11-31(1) (Rev.2001) states, in pertinent part,

Upon the completion of the organization of any such society, the title to the real property theretofore owned by it shall thereupon vest in the society as hereunder organized, and shall not be divested out of the same, or encumbered, except by a deed, deed of trust, or mortgage duly executed under the authority of a resolution adopted by a majority vote of the members present at a meeting duly called for that purpose, at which meeting at least twenty per cent (20%) of the members in good standing of such organized society must be present. The minutes of such meeting shall be entered in the official record book of such society, and the aforesaid resolution shall designate which officers, trustees or managers of such society are to execute such deed, deed of trust, or mortgage.
The provisions of this subsection shall also apply to all real property acquired by any such society after its organization hereunder.

Miss.Code Ann. § 79-ll-31(l)(Rev.2001). A condition subsequent has- been said to render a vested estate liable to be defeated. Burnham v. Jackson, 379 So.2d 931, 933 (Miss.1980). All that remains in the grantor, or his heirs, is a “mere possibility of reverter or right of entry on condition broken.” Id. A reversionary interest to the grantor or ‘his heirs is a vested interest. Columbus & Greenville Ry. Co. v. City of Greenwood, 390 So.2d 588, 590 (Miss.1980).

¶ 11. As mere as these future interests may be, they create the possibility that the Church’s real property may be divested without the resolution required by Section 79-11-31. As such, for the clause in question to have been rightfully included in the 1978 deed, a resolution must have specifically authorized the clause. This would be so whether the Soneses would have been the rightful owners of the land upon which the Church stood before the exchange of deeds or not. As stated above, the resolution did not authorize the clause or any such restrictions, but only an exchange of deeds to correct an inaccurate description of the land upon which the Church had stood for more than a century. Therefore, as the chancellor did not err in holding the clause cancelled as a cloud on the title of the Church, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT CHARLES LUMPKIN ACTED WITHOUT AUTHORITY AS TRUSTEE ON BEHALF OF SONES CHAPEL BAPTIST CHURCH.
III. WHETHER THE TRIAL COURT ERRED IN SETTING ASIDE, CANCELING AND HOLDING FOR NAUGHT THE QUITCLAIM DEED EXECUTED BY CHARLES LUMPKIN ON SEPTEMBER 20, 2004, AND RECORDED IN LAND DEED BOOK 860 AT PAGE 254 OF THE LAND RECORDS OF PEARL RIVER COUNTY, MISSISSIPPI.

¶ 12. Having held that the reverter clause was rightfully cancelled, Sones’s remaining issues are without merit as Lump-kin’s authority, if any, to quitclaim deed the property to Sones would have been based on a duly authorized reverter clause.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. CARLTON, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ruby BOYKIN v. Louise LAW and Manufacturers Life Insurance Company.
    1041058.
    Supreme Court of Alabama.
    June 9, 2006.

      John L. McClung of Lindsey & McClung, Elba, for appellant.
    Gypsy Morrow Smith, Elba, for appellee Louise Law.
   On Application for Rehearing

SEE, Justice.

The opinion of February 10, 2006, is withdrawn, and the following is substituted therefor.

Ruby Boykin, the designated primary beneficiary of an annuity owned by the now deceased annuitant, Eric Woodrow Boykin, appeals from the trial court’s order commuting the annuity after Eric’s death to satisfy a restitution order in favor of his judgment creditor, Louise Law. We reverse and remand.

I.

On October 4,1996, Eric Boykin pleaded guilty to the third-degree burglary and arson of a store owned by Louise Law. As part of his sentence, the trial court ordered Eric to pay Law $184,635.18 in restitution in the form of monthly payments of $750. Eric defaulted on the payments.

In 1999, Law learned that Eric was the owner and annuitant of a $400,000 annuity controlled by Manufacturers Life Insur-anee Company. Erie’s mother, Ruby Boy-kin, had purchased the annuity in 1992 using the proceeds Eric had received from the settlement of a personal-injury lawsuit. The annuity contract named Ruby Boykin as the primary beneficiary of the annuity in the event of Eric’s' death and named Eric’s sisters, Shanetha Boykin and Seresa Boykin, as secondary beneficiaries. On October 22, 1999, Law filed a writ of garnishment against Manufacturers Life seeking to seize the payments due Eric under the annuity to recover her restitution judgment. Although Eric received notice of the writ of garnishment, Ruby, Shanetha, and Seresa were not made parties to the garnishment proceeding.

Manufacturers Life answered Law’s writ of garnishment by admitting that it had in its control “[a]n annuity owned by Mr. Boykin with an income stream.... ” Manufacturers Life’s admission prompted Law to move the trial court, to enter an order condemning the funds from the annuity. In her motion, Law asked the trial court to order Manufacturers Life to commute the annuity by converting the future monthly payments due under the annuity contract into a lump-sum payment due immediately and to pay her the commuted value of the annuity as restitution. Law also asked the trial court, in the alternative, to order Eric to assign to her all of his rights, title, and interest in the annuity and to designate Law and her heirs as the primary and secondary beneficiaries of the annuity contract.

Eric opposed Law’s motion to condemn the funds, arguing that his annuity payments were wages, salary, or other compensation under § 6-10-7, Ala.Code 1975, and that, therefore, 75% of each payment was exempt from garnishment. Eric also argued that the trial court could not commute the annuity as Law had requested because the annuity contained a provision prohibiting commutation before Eric’s death and also designated his mother and sisters as the primary and secondary beneficiaries. Citing § 27-14-32, Ala.Code 1975, Eric argued that the trial court could not order him to exercise any of the rights, privileges, or options conferred to him under the annuity or allow Law to interfere with or to modify the terms of his annuity contract with Manufacturers Life.

Law responded to Eric’s brief in opposition to her motion to condemn funds by arguing that, notwithstanding “any provision of any law of this state to the contrary,” the Alabama Restitution Withholding Act, § 15-18-140 et seq., Ala.Code 1975, mandates that

“any decree, judgment or order requiring the payment of restitution may include ... an order requiring that any asset or other income or any portion thereof to which a defendant is or may be entitled be withheld or attached, and such order may also require any person in real or constructive possession, custody, or control thereof to pay over, deliver, convey, transfer or assign the same to the clerk of the court for disbursement, transfer or assignment to the victim in accordance with the defendant’s restitution obligation.”

§ 15-18-144, Ala.Code 1975. Law argued that the definition of “other income” in § 15-18-142, Ala.Code 1975, includes an annuity and, therefore, that § 15-18-144, Ala.Code 1975, empowered the trial court to condemn the annuity as Law had requested. Law also argued that, if the trial court found that the annuity could not be commuted, § 27-14-32(a), Ala.Code 1975, contained an exception to the exemption of an annuity from attachment by a judgment creditor. It' states that an annuitant’s “periodic payments in excess of $250.00 per month shall be subject to garnishment.” § 27 — 14—32(a)(2), Ala.Code 1975. Quoting § 27-14-32(a)(3), Ala.Code 1975, Law argued that the trial court had authority to order Eric, as an annuitant, “to pay to a judgment creditor or apply on the judgment, in installments, such portion of such excess benefits as to the court may appear just and proper.” Law asked the trial court also to consider awarding her, in addition to her previously requested forms of relief, the full amount of Eric’s monthly annuity payments from Manufacturers Life less the $250 exempted from garnishment by § 27-14-32, Ala.Code 1975.

On February 7, 2001, the trial court issued an order awarding Law 65% of any monthly annuity payment due Eric under the Manufacturers Life annuity contract. The trial court’s order also stated:

“This Income Withholding Order attaches to the monthly annuity payments as per the annuity contract/policy and is binding upon the annuitant and/or his beneficiaries.”

The trial court denied Law’s request to commute the annuity but stated in its order that “if said annuity is ever commuted then the balance of said restitution plus interest shall attae[h] to the commuted balance of the annuity and shall be paid to the Circuit Court for payment to the said Louise Law and her heirs or beneficiaries.” None of the parties to the garnishment proceeding appealed the trial court’s order.

Eric died on April 24, 2004. On May 3, 2004, Law moved the trial court to commute the balance of the annuity and requested that the trial court allow her to receive the commuted value as payment of her judgment. In support of her motion, Law quoted the language from the trial court’s February 7, 2001, order awarding her the commuted value of the annuity and argued that, under the terms of the contract, the annuity could now be commuted because Eric was no longer alive. Ruby Boykin, Shanetha Boykin, and Seresa Boy-kin moved the trial court to allow them to intervene to contest Law’s motion to commute the annuity. The trial court granted the Boykins’ motion.

Ruby moved the trial court to dismiss Law’s action and to order that the annuity be turned over to her. Ruby’s motion was based on the argument that, as the primary beneficiary under the annuity contract, she became the rightful owner of the annuity upon Eric’s death. Ruby argued that she owed Law no restitution and, therefore, that the value remaining in the annuity at the time of Eric’s death could not be subjected to Law’s restitution claim.

Law responded to Ruby’s motion to dismiss by pointing to the language in the trial court’s 2001 income-withholding order making her attachment of the monthly annuity payments “binding upon the annuitant and/or his beneficiaries” and argued that the language entitled her to payments from the annuity after Eric’s death. Law argued that, under the terms of the annuity contract, any person entitled to payments from the annuity after the annuitant’s death could commute the annuity. Law also argued that, even though Ruby was not a party to the garnishment proceeding, she knew of the proceeding and had attended a hearing in the proceeding. Law asserted that the time for challenging the February 7, 2001, order had expired without Ruby’s intervening and, therefore, that Ruby could not now contest the February 7, 2001, order.

On February 14, 2005, the trial court denied Ruby’s motion to dismiss Law’s action to commute the annuity. In explaining its decision, the trial court stated that the February 7, 2001, order

“not only established a garnishment of the monthly payments due to the defendant Mr. Boykin in accordance with the restitution [statutes] and Title 27-14r-32, Code of Alabama, 1975, it also pursuant to the restitution statutes provided for the attachment of the commutation value of the annuity if that occurred.”

The trial court granted Law’s motion to commute the annuity and ordered Manufacturers Life to pay the commuted value of the annuity to the circuit court clerk so that the funds could be disbursed to Law. Ruby appeals.

II.

Ruby argues that the trial court exceeded its authority in the February 7, 2001, order by making the income-withholding aspect of that order binding upon Ruby, as a beneficiary of the annuity, and by awarding Law the commuted value of the annuity. Ruby also argues that to allow the trial court to use the February 7, 2001, order to commute the annuity after Eric’s death and to award Law the commuted funds violates her right to due process because it deprives Ruby of her property even though she owed no restitution to Law and was not a party to the February 7, 2001, garnishment proceeding. Conversely, Law argues that this Court lacks jurisdiction to hear Ruby’s appeal because, she says, the appeal contests the February 7, 2001, order and is therefore untimely.

The facts relevant to this appeal are undisputed; both Law and Ruby raise questions of law. Accordingly, our review is de novo. See George v. Sims, 888 So.2d 1224, 1226 (Ala.2004) (“Because the facts are undisputed and we are presented with pure questions of law, our standard of review is de novo.”).

III.

Law asserts that Ruby’s appeal is untimely because, she argues, the appeal challenges the correctness of the trial court’s February 7, 2001, order. Specifically, Law argues that this Court’s jurisdiction to hear an appeal of a garnishment order is governed by § 6-6-464, Ala.Code 1975, which states:

“An appeal lies to the supreme court or the court of civil appeals, as the case may be, at the instance of the plaintiff, the defendant, the garnishee, or the contestant, or claimant.”

On February 7, 2001, the trial court entered its order garnishing the monthly annuity payments and attaching the future commuted balance of the annuity for Law’s benefit. Because § 6-6-464, Ala.Code 1975, creates a statutory right to appeal the trial court’s order, Law argues, Rule 4(a), Ala. R.App. P., required that the notice of appeal be filed within 42 days of February 7, 2001. Ruby filed her notice of appeal on March 25, 2005.

In Spina v. Causey, 403 So.2d 199 (Ala. 1981), we noted that the “[tjimely filing of an appeal is jurisdictional and ‘(a)n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.’ ” 403 So.2d at 201 (quoting Rule 2(a)(1), Ala. R.App. P.). Rule 4(a), Ala. RApp. P., provides that

“in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal ... shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.”

Law is correct when she argues that under '§ 6-6-464, Ala.Code 1975, the time for taking an appeal from the trial court’s February 7, 2001, order expired 42 days after the entry of the order. The problem with Law’s argument, however, is that Ruby’s right to appeal is not predicated upon § 6-6-464, Ala.Code 1975. ■

Ruby’s motion to dismiss Law’s action was based on the argument that she, as the primary beneficiary under the annuity contract, was the lawful owner of any value remaining in the annuity after Eric’s death. By asserting that she personally owed no restitution to Law, Ruby challenged the validity of those provisions in the trial court’s February 7, 2001, order that purported to make Law’s garnishment binding upon Ruby as a beneficiary of the annuity. By definition, “[a] garnishment on a judgment is a proceeding in the nature of attachment to subject the property of the judgment debtor to the plaintiffs claim.” Pepperell Mfg. Co. v. Alabama Nat’l Bank of Montgomery, 261 Ala. 665, 668, 75 So.2d 665, 668 (1954). “[A] creditor may not garnish property which does not belong to the defendant.” Druid City Hosp. Bd. v. Epperson, 378 So.2d 696, 698 (Ala.1979).

“Garnishment is a remedy or process of purely statutory creation and existence. There is no authority for a resort to it— courts are without jurisdiction to grant and effectuate it — except in cases and against parties which and who are within the terms of the statute.”

Porter & Blair Hardware Co. v. Perdue, 105 Ala. 293, 297, 16 So. 713, 713 (1894). Thus, Ruby’s motion challenged the trial court’s jurisdiction to enter the February 7, 2001, order garnishing property she claims belonged to her as the primary beneficiary of the annuity. “A lack of jurisdiction, either over the person' or over the subject matter[,] renders a judgment void.” Nigg v. Smith, 415 So.2d 1082, 1084 (Ala.1982). Therefore, Ruby’s motion to dismiss is properly treated as a motion to set aside a void judgment under Rule 60(b), Ala. R. Civ. P. See Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997) (“The substance of a motion and not its style determines what kind of motion it is.”).

On July 22, 2004, Ruby moved to dismiss Law’s action to commute the annuity. “[I]t has always been the law in Alabama that a void judgment could be vacated at any time....” Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003). On February 14, 2005, the trial court entered its order denying Ruby’s motion. An “[a]ppeal is the proper remedy where the trial court fails to vacate [a] void judgment or decree.” McDonald v. Lyle, 270 Ala. 715, 718, 121 So.2d 885, 887 (1960). The trial court’s order denying Ruby’s motion supplied Ruby with a right to appeal independent of § 6-6-464, Ala. Code 1975. Because Ruby’s notice of appeal was filed within 42 days of the trial court’s order denying her motion to set aside the judgment, her appeal is timely. See Rule 4(a), Ala. RApp. P. Accordingly, this Court has jurisdiction to decide the merits of Ruby’s jurisdictional challenge to the trial court’s February 7, 2001, order.

rv.

Ruby argues that the trial court exceeded its authority by attaching Law’s restitution to the commuted balance of the annuity when, under the terms of the annuity contract, Eric had no right to commute the annuity while he was alive. Because the commuted balance of the annuity could not exist until after Erie’s death, Ruby argues, the commuted value rightfully belonged to her as Eric’s designated primary beneficiary. Ruby asserts that no restitution order or judgment exists that would authorize Law to subject Ruby’s property to garnishment.

“‘Garnishment is a proceeding of purely statutory creation, unknown to the common law...'" Tennessee Coal, Iron & R.R. v. Warner, 228 Ala. 381, 388, 153 So. 640, 642 (1934)(quoting Jones’s Adm’r v. Crews, 64 Ala. 368, 371 (1879)). “It is regarded as a mode of attachment, and unless the case is influenced and controlled by some provision of the statute ... relief must be denied.” Hollis v. Bender, 34 Ala.App. 4, 7, 40 So.2d 876, 877 (1948).

Section 6-6-370, Aa.Code 1975, provides, in relevant part:

“A ‘garnishment,’ as employed in this article, is a process to reach and subject money or effects of a defendant in attachment, in a judgment or in a pending action commenced in the ordinary form in the possession or under the control of a third person.... ”

Under § 6-6-390, Aa.Code 1975, “the plaintiff or assignee in any judgment on which execution can issue may obtain process of garnishment as defined in Section 6-6-370.”

Law has a restitution order against Eric, which has the force and effect of a final judgment. See § 15-18-78(a), Aa.Code 1975 (“A restitution order in a criminal case shall be a final judgment and have all the force and effect of a final judgment in a civil action under the laws of the State of Aabama.”). However, Law does not dispute' the fact that there is no restitution order or judgment in her favor against Ruby. Therefore, a trial court lacks statutory authority under § 6-6-390, Aa.Code 1975, to order the garnishment of Ruby’s property for Law’s benefit. The relevant language in the trial court’s February 7, 2001, order states: “[I]f said annuity is ever commuted then the balance of said restitution plus interest shall attac[h] to the commuted balance of the annuity and shall be paid to the Circuit Court for payment to the said Louise Law and her heirs or beneficiaries.” Because no judgment existed between Ruby and Law, the validity of the trial court’s February 7, 2001, order depends upon whether the terms of the annuity contract gave Eric a right to the commuted balance of the annuity.

Y.

“An annuity is a yearly sum stipulated to be paid to another in fee, or for life, or years.... ” Turrentine v. Perkins, 46 Aa. 631 (1871). “ ‘Its determining characteristic is that the annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be derived.’ ” In re Dwight’s Estate, 389 Pa. 520, 525, 134 A.2d 45, 48 (1957) (quoting Commonwealth v. Beisel, 338 Pa. 519, 521, 13 A.2d 419, 420 (1940)). Eric’s annuity with Manufacturers Life states that “[u]nder this plan, cash values are not available.” Thus, the only monetary interest in the annuity contract is the right to receive the monthly payments.

Under the definition section of the Manufacturers Life annuity contract, ■ “[t]o ‘commute’ a series of future payments mean's to replace them by a single payment, called their ‘commuted value.’ ” The annuity contract also provides that “[n]o annuity payments can be commuted before the Annuitant’s death.” The annuity contract also states that “[a] ‘beneficiary’ is a person who is to receive any payments due after the death of the Annuitant.” Law does not dispute that Eric’s annuity contract with Manufacturers Life designates Ruby as the primary beneficiary of the annuity. Because the Manufacturers Life annuity contract states that a “ ‘beneficiary’ is a person who is to receive any payments due after the death of the annuitant” and because Ruby is the designated primary beneficiary under the annuity contract, the commuted balance of the annuity is rightfully Ruby’s property.

“[A]n attaching creditor necessarily claims through his debtor, and in the absence of fraud, can claim no greater right than was vested in the latter at the time the writ was served on the garnishee.” LaBarre v. Doney, 53 Pa.Super. 435, 438 (1913). In Sloss v. Glaze, 231 Ala. 234, 164 So. 51 (1935), this Court noted:

‘“It is a general rule in garnishment that the plaintiff can obtain no greater beneficial relief against the garnishee than the judgment debtor would be entitled to, and that if the debtor’s recovery would be limited to a mere legal title, without beneficial interest or right of enjoyment in himself, the proceeding must fail. A judgment creditor cannot have his debt satisfied out of property held in trust for another, no matter how completely his debtor may have exercised apparent ownership over it, unless it was upon the faith of such ownership that the credit was given.’ ”

231 Ala. at 236, 164 So. at 53 (quoting Marx v. Parker, 9 Wash. 473, 37 P. 675 (1894)). Although Eric owned the Manufacturers Life annuity, he had no beneficial interest or right of enjoyment in the commuted balance of the annuity, which became payable only after his death. “In garnishment proceedings, the creditor stands in the debtor’s shoes to enforce the debtor’s rights against third parties.” Druid City Hosp. Bd. v. Epperson, 378 So.2d at 698. Therefore, Law, standing in Eric’s shoes as a judgment creditor, like Eric, had no right to commute and recover the commuted balance of the annuity during Eric’s life.

In Louisville & N.R. v. Webb Furniture Co., 214 Ala. 654, 108 So. 765 (1926), this Court noted:

“ ‘Garnishment is a species of proceeding in rem, in the nature of a sequestration of the debtor’s efforts. Unless the property is within the jurisdiction of the court issuing the garnishment, so that it may be seized, jurisdiction neither of the res, nor the person can be acquired.’ ”

214 Ala. at 656, 108 So. at 766 (quoting Alabama G.S.R. Co. v. Chumbey, 92 Ala. 317, 9 So. 286 (1891)). There was no judgment involving Law and Ruby that could confer statutory authority to allow Law to garnish Ruby’s property. Accordingly, the trial court’s order attaching the commuted value of the annuity for the payment of Law’s restitution is void unless some other statutory provision gives the trial court authority to change the terms of the annuity contract and the trial court exercised that authority.

VI.

In the trial court’s order denying Ruby’§ motion to set aside the judgment, the trial court stated that the February 7, 2001, order, “pursuant to the restitution statutes[,] provided for the attachment of the commutation value of the annuity if that occurred.” The Alabama Restitution Withholding Act does not, however, allow a trial court to attach property unless a defendant is or may be entitled to the property. Section 15-18-144, Ala.Code 1975, a part of the Alabama Restitution Withholding Act, provides:

“Any provision of any law of this state to the contrary notwithstanding and in addition to any other remedy which is or may be hereafter provided by law for the enforcement or collection of a restitution order, any decree, judgment or order requiring the payment of restitution may include, upon motion of the victim, ... an order requiring that any asset or other income or any portion thereof to which a defendant is or may be entitled be withheld or attached, and such order may also require any person in real or constructive possession, custody or control thereof to pay over, deliver, convey, transfer or assign the same to the clerk of the court for disbursement, transfer or assignment to the victim in accordance with the defendant’s restitution obligation.”

Section 15 — 18—142(6)(b), Ala.Code 1975, defines “other income” as “[a]ny money or any negotiable instrument or any portion thereof to which the defendant is or may be entitled, directly or indirectly, as a result of ... annuities.... ” Because § 15-18-144, Ala.Code 1975, incorporates the definition of “other income” found in § 15-18-142(6)(b), Ala.Code 1975, the statute authorizes the attachment of property “to which the defendant is or may be entitled, directly or indirectly, as a result of ... annuities.” Under the terms of the annuity contract, however, Eric was not entitled to have the annuity commuted or to otherwise receive the after-death value of the annuity; moreover, the commuted value did not flow to his estate, but .to his primary beneficiary. Therefore, § 15-18-144, Ala.Code 1975, does not provide the trial court with the statutory authority to commute the annuity after Eric’s death and to attach the commuted value of the annuity for the purpose of paying Law’s restitution.

VII.

In filing her writ of garnishment, Law also requested that the trial court order Eric to assign to her his rights and interests in the annuity or, in the alternative, to order Eric to make Law the primary beneficiary of the annuity. Ruby does not dispute the fact that Eric was the lawful owner of the annuity and that he was the annuitant at the time the trial court entered the February 7, 2001, garnishment order. Under the terms of the annuity contract, Eric had both the right to assign the Manufacturers Life policy and the fight to change the beneficiary of the annuity in the event of his death:

‘While the annuitant is living, you as owner, without any beneficiary’s consent, can:
“(a) exercise all rights and privileges granted by the policy; and
“(b) assign the policy.”

Thus, if the trial court possessed the statutory authority to order Eric to exercise any of his rights under the annuity contract and exercised that authority over Eric in 2001, the trial court’s 2005 order awarding Law the commuted value of the annuity would not be invalid to the extent that the later order could be read as carrying out the terms of the 2001 order.

It appears that the trial court may have had the authority to have ordered Eric to change the beneficiary or to exercise one of his other rights or privileges under the annuity agreement. In general, § 27-14-32(a), Ala.Code 1975, governs the trial court’s authority to require an annuitant to exercise the options granted by an annuity contract. The statute provides:

“The benefits, rights, privileges and options which under any annuity contract, heretofore or hereafter issued, are due or prospectively due the annuitant shall not be subject to execution, nor shall the annuitant be compelled to exercise any such rights, powers or options, nor shall creditors be allowed to interfere with or terminate the contract, except: [there follows a list of exceptions, none of which is applicable here].”

Generally, § 27-14-32(a), Ala.Code 1975, would prohibit the trial court from compelling Eric to exercise his “benefits, rights, privileges and options” under the annuity contract to change the primary beneficiary in order to make Law the beneficiary of the annuity. However, § 15-18-144, Ala. Code 1975,-specifies:

“Any. provision of any law of this state to the contrary notwithstanding ..., any ... order requiring the payment of restitution may include ... an order requiring that any asset or other income ... to which a defendant is or may be entitled be withheld or attached .... ”

(Emphasis added.) This statute appears to provide an exception to the general prohibition set forth in § 27-14-32(a), Ala. Code 1975, and, thus, might, as Law argues, have allowed the trial court to withhold or attach any income or asset from the annuity to which Eric “may [have been] entitled” by ordering Eric to change the beneficiary named in his annuity contract.

However, even if we were to agree with Law that the trial court had the authority to order Eric to change the beneficiary of his annuity when he was before the trial court in 2001, the trial court did not do so, even though Law requested it to.

The trial court’s February 7, 2001, order states in part that “if said annuity is ever commuted[,] then the balance of said restitution plus interest shall attac[h] to the commuted balance of the annuity and shall be paid to the Circuit Court for payment to the said Louise Law.” The trial court’s order does not state that Eric must designate Law as the primary beneficiary of the annuity contract or that he must designate a beneficiary who would commute it for Law’s benefit.

We construe the trial court’s judgment like other written instruments: the rules of construction for contracts are applicable for construing judgments. Hanson v. Hearn, 521 So.2d 953, 954 (Ala. 1988); Moore v. Graham, 590 So.2d 293, 295 (Ala.Civ.App.1991). We are free to review “all the relevant circumstances surrounding the judgment,” and “the entire judgment ... should be read as a whole in the light of all the circumstances as well as of the conduct of the parties.” Hanson, 521 So.2d at 955. Reviewing the circumstances surrounding the issuance of the trial court’s February 7, 2001, order, we note that Law argued to the trial court that she should be designated the primary beneficiary of the annuity contract.' Thus, the trial court was invited to order Eric to change the primary beneficiary of the annuity contract to Law. However, the trial court’s order included no such provision doing so. Moreover, the trial court’s order explicitly states that “[a]ny issues not herein ruled upon are denied.” We cannot, therefore, sustain the trial court’s 2005 judgment on the basis that the trial court had the authority to order Eric to change his beneficiary when he was before the trial court in 2001. Even assuming that the trial court had the authority to do so under the restitution statute, the trial court declined to do so. At the time the trial court entered its 2005 order, Eric was dead and the annuity belonged to his beneficiary, over whom the trial court had no authority under the restitution statute.

VIII.

“This court has often declared and held completely null and void the proceedings in lower courts and the orders or judgments resulting therefrom where it has appeared that the powers vested in courts by statutes have been exceeded.” Wanninger v. Lange, 268 Ala. 402, 406, 108 So.2d 331, 335 (1959). The trial court was without authority in its 2001 order to attach the commuted value of the annuity to pay Law’s restitution, because under the provisions of the annuity contract, Eric himself was not entitled to the commuted value of the annuity. Therefore, those provisions of the February 7, 2001, order that purport to do so are void. See Goodman v. Winter, 64 Ala. 410 (1879)(“every judgment or decree must stand or fall upon the power and authority of the tribunal pronouncing it”). Thus, Law’s 2004 motion cannot be viewed as a valid request that the trial court further enforce its 2001 order; the provisions of the 2001 order upon which Law’s 2004 motion depends are void.

It may be argued that the trial court in 2001 could have facilitated the relief that it sought to grant in 2005 by having ordered Eric in 2001 to change the beneficiary of his annuity contract; however, whatever that merits of that argument might be, the trial court declined to take that action.

“[W]here it appears on the face of the record that the judgment or decree is void, it is the duty of the court upon application thereto by the party having rights or interests immediately involved, to vacate such judgment or decree at any time subsequent to its rendition-” Robinson Co. v. Beck, 261 Ala. 531, 533, 74 So.2d 915, 917 (1954). In Ex parte CTF Hotel Management Corp., 719 So.2d 205, 207 (Ala.1998), this Court noted: “A motion challenging a judgment as void is not addressed to the discretion of the trial court. If the judgment is void, it must be set aside.” Because the language in the trial court’s February 7, 2001, order that purportedly attaches the commuted value of the annuity is void, the trial court erred by denying Ruby’s motion to set aside the judgment.

“A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind .the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree.” Loyd v. Director, Dep’t of Pub. Safety, 480 So.2d 577, 579 (Ala.Civ.App.1985). We therefore reverse the trial court’s order denying Ruby’s motion and remand the case for the trial court to grant Ruby’s motion to dismiss Law’s action to condemn the annuity and to order that the commuted value of the annuity be turned over to Ruby.

APPLICATION OVERRULED; OPINION OF FEBRUARY 10, 2006, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

      . Eric was a minor at the time of the accident and subsequent settlement.

      . Section 6-10-7, Ala.Code 1975, provides, in relevant part:
      "The wages, salaries, or other compensation of ... residents of this state ... shall be exempt from levy under writs of garnishment or other process for the collection of debts contracted or judgments entered in tort in an amount equal to 75 percent of such wages, salaries, or other compensation due or to become due.... ”

      .Section 27-14-32(a), Ala.Code 1975, provides, in relevant part: .
      "The benefits, rights, privileges and options which under any annuity contract, heretofore or hereafter issued, are due or prospectively due the annuitant shall not be subject to execution, nor shall the annuitant be compelled to exercise any such rights, powers or options, nor shall creditors be allowed to interfere with or terminate the contract....”

      . When Law moved to commute the annuity on May 3, 2004, the interest and principal balance of her restitution judgment exceeded the remaining value of the future payments due under the annuity.


author: NABERS, Chief Justice.

text:
    Willie JOHNSON, individually and as personal representative of the ESTATE OF Lydia DARNELL v. BROOKWOOD MEDICAL CENTER and David H. Jackson, M.D.
    1040395.
    Supreme Court of Alabama.
    June 16, 2006.

      Charles C. Tatum, Jr., Jasper, for appellant.
    R. Austin Huffaker, Jr., and William S. Haynes of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee Brookwood Medical Center.
    Michael K. Wright and George E. Newton II of Starnes & Atchison, LLP, Birmingham, for appellee David H. Jackson, M.D.
   NABERS, Chief Justice.

Willie Johnson, individually and as personal representative of the estate of Lydia Darnell, appeals from a summary judgment entered in favor of David H. Jackson, M.D., and Brookwood Medical Center (“Brookwood”), in Johnson’s medical-mal-practiee/wrongful-death action. We affirm.

I.

This is not the first time this dispute has been before this Court. In Ex parte Jackson, 780 So.2d 681 (Ala.2000), following the Jefferson Circuit Court’s denial of their summary-judgment motion, Dr. Jackson and Brookwood petitioned this Court for a writ of mandamus directing the circuit court to enter a final judgment in their favor based on their contention that Johnson’s wrongful-death action premised on their alleged medical malpractice was barred by the statute of limitations for medical-liability actions, § 6-5-482, Ala. Code 1975. In denying their petition, this Court concluded that Dr. Jackson and Brookwood were not entitled to the extraordinary relief of mandamus because they .had another adequate remedy; they could have sought permission to appeal the circuit court’s order denying their summary-judgment motion under Rule 5, Ala. R.App. P. In reaching our conclusion, we expressed no opinion on the merits of Dr. Jackson’s and Brookwood’s arguments. 780 So.2d at 685.

In Jackson, we reviewed the evidence and the pleadings in this case in the light most favorable to Johnson, the plaintiff, and set out the following facts. On this appeal, because we are reviewing a summary judgment in favor of Dr. Jackson and Brookwood, we review the facts in the light most favorable to Johnson, as the nonmovant, and our previous rendition of the facts thus remains applicable.

“In early 1993, Mrs. Lydia Darnell had a heart attack. She was treated at Walker Regional Medical Center (‘Walker Regional’) and was released. About a month later, she again sought treatment at Walker Regional. Her doctor admitted her to that hospital and then transferred her to Brookwood, where Dr. Jackson treated her. Dr. Jackson performed two angioplasty procedures on Mrs. Darnell; however, Mrs. Darnell died two days later [on April 17, 1993].
“Mrs. Darnell’s brother, Willie Johnson, asked Dr. Jackson why Mrs. Darnell had died. Dr. Jackson told him that her heart was too weak to pull her through and that the two angioplasty procedures he performed did not cause or contribute to her death. Johnson believed Dr. Jackson and suspected that Mrs. Darnell’s treatment at Walker Regional had led to her death. On April 11, 1995, within the time allowed by Ala.Code 1975, § 6-5-482, for filing a medical-liability action, Johnson filed this action in the Walker Circuit Court against Walker Regional and various fictitiously named defendants described as the ‘person, persons, entity, or entities working at Walker Regional Medical Center ... who were responsible for providing care for Mrs. Lydia Darnell.’
“In August 1994, Johnson sought and received Mrs. Darnell’s medical records from Brookwood. Johnson’s attorney had several physicians review the records. Until April 1996, all of those physicians concluded that Mrs. Darnell’s treatment [by Dr. Jackson and others at Brookwood] did not cause her death. However, in April 1996, another physician reviewed Mrs. Darnell’s records and concluded that Mrs. Darnell died as a result of one of the angioplasty procedures Dr. Jackson had performed at Brookwood.
“On May 15, 1996, Johnson amended his complaint to name Dr. Jackson and Brookwood as defendants. The amendment stated that Johnson was substituting Dr. Jackson and Brookwood for certain of the fictitious defendants named in his original complaint.
“In August 1996, in the Walker Circuit Court, Dr. Jackson and Brookwood moved for a summary judgment. In October, the Walker Circuit Court severed Johnson’s claims against Dr. Jackson and Brookwood from his claims against Walker Regional and transferred his claims against Dr. Jackson and Brookwood to the Jefferson Circuit Court. In March 1997, Dr. Jackson and Brookwood renewed their motion for a summary judgment. They argued, among other things, that Johnson’s amended complaint had improperly attempted to substitute Dr. Jackson and Brookwood for the fictitious defendants identified in the original complaint, and that Johnson’s claims against them did not relate back to the filing of the original complaint and were barred by the statute of limitations set forth in the Alabama Medical Liability Act. See Ala. Code 1975, § 6-5-482.
“Johnson opposed their motion. He conceded that the amendment did not relate back to the filing of the original complaint. He argued, however, that his claims against Dr. Jackson and Brookwood were not barred by the statute of limitations because, he said, they were brought within six months after the date he discovered or could reasonably have discovered that he had a cause of action against those defendants. See id. Specifically, he argued that Dr. Jackson had misrepresented and suppressed facts that would indicate that Dr. Jackson was liable for Mrs. Darnell’s death. The circuit court delayed ruling on the motion for a summary judgment, in order to allow Johnson to conduct discovery relevant to the statute-of-limitations issue. After that discovery was completed, Dr. Jackson and Brookwood again renewed their motion for a summary judgment, and Johnson again opposed their motion. The circuit court denied the motion.”

780 So.2d at 682-83.

Following our denial of their mandamus petition in Jackson, Dr. Jackson and Brookwood filed a motion to dismiss in the circuit court on the ground that Johnson’s complaint failed to state with particularity the acts and omissions for which they were allegedly liable as required by § 6-5-551, Ala.Code 1975. In response, Johnson filed a second amended complaint, and eventually a third amended complaint, in which he contended that Dr. Jackson and Brook-wood were negligent in treating Mrs. Darnell and that her death was caused by, among other things, their failure to diagnose and treat bleeding from Mrs. Darnell’s right femoral artery — the access point for the angioplasty procedures.

Following these amendments to Johnson’s complaint, Dr. Jackson and Brook-wood once again moved for a summary judgment. Among the multiple grounds asserted, they argued for the first time that Johnson’s wrongful-death action was barred because it was not brought within two years of Mrs. Darnell’s death as required by § 6-5-410, Ala.Code 1975, and that § 6-5-482, Ala.Code 1975, the statute of limitations for medical-liability actions on which they had previously relied, did not control.

The circuit court agreed. Because Johnson amended his complaint to add claims against Dr. Jackson and Brookwood more than three years after Mrs. Darnell’s death and because he conceded that the amendment did not relate back to his initial timely filed complaint, the court held that his action against Dr. Jackson and Brookwood was time-barred.

On December 6, 2004, Johnson appealed.

II.

On appeal, Johnson does not contend the circuit court erred in applying the two-year limitations period in § 6-5-410, Ala. Code 1975, to his claim against Dr. Jackson and Brookwood for wrongful death as a result of their alleged medical malpractice. Instead, Johnson asserts that his action against Dr. Jackson and Brookwood consists of two separate claims: 1) a wrongful-death claim and 2) a claim for “fraudulent concealment or suppression of a cause of action,” Johnson’s brief at 15, and he argues that the circuit court erred in concluding that his entire action was time-barred by erroneously applying § 6-5-410, Ala.Code 1975, to his fraudulent-concealment claim.

Assuming for the sake of argument that Alabama recognizes a separate cause of action for fraudulent concealment of a wrongful-death claim, Johnson’s argument' nevertheless fails. His contention that he presented such a claim to the circuit court is unsupported by the record. In its final form, Johnson’s complaint consisted of only one “count,” which contained claims against Dr. Jackson and Brookwood alleging wrongful death. Within that “count,” Johnson also asserted that Dr. Jackson and Brookwood had suppressed the “the true cause of Lydia Darnell’s death.” At no point, however, in any of the versions of his complaint, in any, brief to the circuit court, or in any oral statement or argument made to the court on the record, did Johnson contend that this alleged suppression created a cause of action separate from his wrongful-death claim arising from alleged medical malpractice.

Based on our review of the record, it appears Johnson’s allegation of fraudulent concealment was nothing more than an attempt to impermissibly bootstrap his wrongful-death claim into the six-month discovery period for asserting actions under the Alabama Medical Liability Act. § 6-5-482, Ala.Code 1975. It is well established that the two-year limitations period found in § 6-5-410, Ala.Code 1975, for asserting wrongful-death actions (and not § 6-5-482, Ala.Code 1975, the medical-malpractice limitations period) applies to wrongful-death cases alleging medical malpractice. Hall v. Chi, 782 So.2d 218 (Ala. 2000); and McMickens v. Waldrop, 406 So.2d 867 (Ala.1981). Because any argument Johnson asserts relating to the allegation that Dr. Jackson and Brookwood fraudulently concealed the fact that he had a wrongful-death cause of action was raised for the first time on appeal, we will not consider it. Byrd v. Lamar, 846 So.2d 334, 345 (AIa.2002).

III.

Johnson’s wrongful-death claim is time-barred under § 6-5-410, Ala.Code 1975, and the circuit court did not err in dismissing Johnson’s “fraudulent concealment or suppression of a cause of action claim, because that claim was not presented to that court. Therefore, the circuit court’s judgment is affirmed.

AFFIRMED.

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

      . This case was originally assigned to another Justice on this Court; it was reassigned to Chief Justice Nabers on May 10, 2006.

      . Section 6-5-482, Ala.Code 1975, provides, in pertinent part:
      "(a) All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act....
      "(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions, namely, Sections 6-2-1,' 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30, and 6-2-39; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission, or failure complained of....”

      . Section 6-5-410, Ala.Code 1975, provides, in pertinent part:
      "(a) A personal representative may commence an action ánd recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.

        "(d) Such action must be commenced within two years from and after the death of the testator or intestáte.”


author: SMITH, Justice.

text:
    Christy SORRELL v. Dr. Daniel A. KING et al.
    1040517.
    Supreme Court of Alabama.
    June 16, 2006.

      Carey W. Spencer, Jr., Birmingham, for appellant.
    Lyman H. Harris and W. Perry Webb of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellees Daniel A. King, M.D., and Eastside Women’s Specialists, P.C.
    Robert L. Williams of Spain & Gillon, LLC, Birmingham, for appellees Eastern Health System, Inc., and Medical Center East, Inc.
   SMITH, Justice.

The plaintiff, Christy Sorrell, appeals from a summary judgment entered in favor of Dr. Daniel A. King, Eastside Women’s Specialists, P.C., Eastern Health System, Inc., and Medical Center East, Inc., the defendants in her action seeking damages for medical malpractice, breach of implied contract, products liability, and breach of warranty. We affirm.

Facts and Procedural History

Dr. King is board-certified in obstetrics and gynecology. In July 2000, Sorrell consulted Dr. King because she was experiencing pelvic pain. After examining Sor-rell, Dr. King recommended that Sorrell undergo a diagnostic surgical procedure to determine whether she had a cyst or a tumor in her abdominal or pelvic region. Dr. King testified that he made this recommendation based upon his examination of Sorrell, a review of Sorrell’s medical records, her complaints of severe abdominal and pelvic pain, and the results of an ultrasound examination that had been performed earlier in July 2000. Dr. King testified that the ultrasound revealed that “there was suggestion of some type of process, be it a cyst or tumor or something else.”

On July 7, 2000, Dr. King performed a “diagnostic/operative laparoscopy, lysis of adhesions, ablation of endometriosis!,] and cystoscopy” on Sorrell at a hospital operated by Medical Center East. During the procedure, Sorrell was placed under general anesthesia. Before making an incision in Sorrell’s abdomen, Dr. King inserted a uterine manipulator into Sorrell’s cervix. Dr. King testified that the manipulator is “a device, whether permanent or reusable, that is attached either to the cervix or placed through the cervical opening to assist in moving the uterus and ovaries and tubes during a laparoscopy.” Dr. King described the manipulator as device with “a large handle that looks sort of like a dome, which is connected to a shaft, at the end of which is a narrow piece that passes through the cervix up into the uterus, and has a retention balloon that can be insufflated to help keep it within the uterus.” Dr. King also used an “adapter” in conjunction with the manipulator. The adapter is a component part of the manipulator that is used at- the physician’s option to modify the length of the manipulator. Dr. King testified that the adapter is “placed over the tip [of the manipulator] to modify the length of the tip.” After the manipulator was inserted into Sorrell’s cervix, Dr. King created an incision in Sorrell’s abdomen so that he could view her abdomen and pelvis. Dr. King discovered “pelvic adhesions,” which he cut away. Dr. King also discovered “endometriosis implants,” which he “ablated” or destroyed. After the procedure was completed, Dr. King closed the incision sites and removed the manipulator. However, Dr. King did not notice that the adapter had separated from the manipulator and that the adapter remained inside Sorrell’s cervix when he removed the manipulator.

On July 20, 2000, Sorrell saw Dr. King for a scheduled postoperative visit. Dr. King testified that the scheduled visit was so that he could examine the surgical sites and inquire about any problems. Sorrell alleges that she complained to Dr. King of pelvic pain, cramping, and depression. Dr. King did not perform a pelvic examination on Sorrell during the visit. Dr. King testified that he examined the incision sites and found that, they were “healing well” and that he did not “recall [Sorrell’s] making any significant complaints.” He also testified that his notes from the visit indicate that Sorrell’s pelvic pain had improved.

On August 3, 2000, Sorrell saw Dr. King to receive the first of two injections of Depo-Lupron, a medication that Dr. King prescribed to treat Sorrell’s endometriosis. Dr. King testified that he prescribed the Depo-Lupron injections because Depo-Lu-pron “stops the production of estrogen for a limited period of time, so that [the] en-dometrial lesions can regress.” Sorrell alleges that, during this scheduled visit, she again complained of pelvic pain, cramping, and depression. Dr. King testified that during the visit Sorrell complained that she had experienced some bleeding and cramping. In his treatment notes from the August 3, 2000, visit, Dr. King wrote that Sorrell complained that “she has been bleeding dark blood with some clots over the past six days” and that “[s]he is cramping.” Dr. King also testified that the “bleeding was highly likely to be related to the fact that she had such a history of taking ... Depo-Provera,[] which can invoke irregular bleeding ... or that it could have been related to the placement and removal of the uterine manipulator up into the endometrial cavity.” Dr. King testified that during the visit he informed Sorrell that the injection of the Depo-Lu-pron would “likely cause the bleeding to stop.” Dr. King did not perform a pelvic examination on Sorrell during this visit; he testified that he did not feel that a pelvic examination was necessary.

Sorrell saw Dr. King on November 10, 2000, to receive her second injection of Depo-Lupron. Dr. King testified that during this scheduled .visit Sorrell complained that she was unhappy with the side-effects of the Depo-Lupron, that she had been very emotional, and that she was experiencing pelvic pain. Dr. King did not perform a pelvic examination on Sorrell during the visit. Because of Sorrell’s complaints of persistent pelvic pain, Dr. King referred' Sorrell to Dr. C. Paul Perry, a gynecological pain specialist, but Sorrell indicated to Dr. King that she did not want to see another doctor.

On April 2, 2001, Sorrell visited Dr. Dan Hudson. During a pelvic examination, Dr. Hudson removed the adapter that had been left in her cervix during the July 7, 2000, procedure. Dr. Hudson never testified in this case, but the record indicates that Dr. Hudson performed a surgical procedure on Sorrell in April 2001, after he had removed the adapter, to remove a hemorrhagic cyst from her ovary. Dr. King testified that the adapter could not have caused the formation of the cyst, and Sorrell does' not allege that the retained adapter caused the formation of the cyst. Sorrell sued Dr. King, Eastern Health System, Medical Center East, Eastside Women’s Specialists, Dr. William A. Lemons, and various fictitiously named defendants. The complaint alleged (1) that Dr. King and various fictitiously named defendants negligently performed the July 7, 2000, surgical procedure; (2) that Dr. King and various fictitiously named defendants negligently examined Sorrell on July 20, 2000, August 3, 2000, and November 10, 2000; (3) that Eastside Women’s Specialists and Dr. Lemons were vicariously liable for the negligent acts of Dr. King; (4) that Eastern Health System and Medical Center East are vicariously liable for the acts of various fictitiously named defendants — those agents or employees of Eastern Health System and Medical Center East who treated Sorrell on July 7, 2000; (5) that Eastern Health System and Medical Center East had breached an implied contract to provide Sorrell with adequate medical services; and (6) that various fictitiously named defendants had negligently or wantonly designed, manufactured, assembled, sold and/or distributed the uterine-manipulator device, had failed to adequately warn Sorrell of the dangers associated with the use of the uterine-manipulator device, had breached an implied warranty, and had breached an express warranty.

On February 28, 2003, Dr. King filed a motion to compel, requesting that Sorrell be ordered to identify all the experts she planned to use in the case; to provide Rule 26(b)(4), Ala. R. Civ. P., information on those experts; and to provide a list of dates when the experts could be deposed. The trial court granted the motion on March 7, 2003, and ordered Sorrell to provide the requested information by March 15, 2003. After the trial court granted Dr. King’s motion to compel, Sorrell identified Dr. Harland Giles as her expert. Sorrell also informed Dr. King that Dr. Giles would charge $750 per hour for the time he spent in deposition. On April 7, 2003, Dr. King filed a motion to compel Sorrell to provide additional information on Dr. Giles and any other experts she planned to use at trial and a motion to establish the hourly rate for Dr. Giles’s deposition testimony. The motion stated that Sorrell “identified an expert, but provided no Rule 26(b) information.” Dr. King also stated in the motion that Dr. Giles’s fee of $750 per hour was unreasonable, and he requested that the trial court establish a reasonable hourly rate for Dr. Giles’s deposition. On April 22, 2003, Sorrell provided Dr. King -with additional information about Dr. Giles. Sorrell also notified Dr. King that “other doctors that have treated Ms. Sorrell since Dr. King’s treatment will testify regarding their observations during examination and treatment of [Sorrell].” Sorrell identified the “other doctors” as Dr. Hudson and Dr. Francois Blaudeau. Sorrell also stated that she also “may call Dr. Kenneth Hall ..., Dr. Gregory James and Dr. Bryant Poole.” On April 24, 2003, in response to Dr. King’s April 7, 2003, motion to compel, the trial court ordered Sorrell to provide within seven days the names and addresses of all expert witnesses she intended to use at trial and to provide a summary of the testimony expected to be given by the witnesses. The trial court also found that the hourly fee Sorrell claimed was required for the deposition of her expert, Dr. Giles, was unreasonable. The trial court ordered that Dr. King would be required to pay $350 per hour to depose Dr. Giles and that Sorrell would be responsible for payment of any fees charged by Dr. Giles in excess of that amount.

On May 2, 2003, Sorrell identified “Dr. Shrout” as an expert witness that she would call to testify in the case. Sorrell stated that Dr. Shrout would testify as to Dr. King’s breach of the standard of care and as to causation. On May 6, 2003, Sorrell filed a motion requesting additional time to name an expert who would testify as to the claims against Medical Center East and Eastern Health System.

On May 16, 2003, the trial court granted a summary-judgment motion filed on April 30, 2003, by Dr. Lemons and Eastside Women’s Specialists. Sorrell never responded to their motion. The order of the trial court stated that a summary judgment was proper given that Sorrell failed to oppose the summary-judgment motion or otherwise to-respond to the motion. On June 18, 2003, Sorrell filed a motion to vacate the summary judgment in favor of Eastside Women’s Specialists. Sorrell argued that the judgment should be vacated because her counsel did not receive a copy of Eastside Women’s Specialists’ summary-judgment motion until he received the trial court’s May 16, 2003, order granting it.

On August 13, 2003, the trial court Stayed the proceedings because the insurance carrier for Dr. King, Eastern Health System, and Medical Center East had entered into liquidation proceedings. Therefore, the trial court ordered that the case be placed on the administrative docket until January 13, 2004.

On March 3, 2004, at'a pretrial conference, the trial court granted Sorrell’s June 18, 2003, motion to vacate the, summary judgment in favor of Eastside Women’s Specialists. The trial court also scheduled the trial for September 2, 2004.

On July 23, 2004, Dr. King filed a motion to compel Sorrell to provide for deposition the experts she planned to use at trial. The motion also stated that Sorrell’s attorney had not responded to Dr. King’s requests to set deposition dates for the experts she had identified. On August 4, 2004, the trial court granted Dr. King’s motion and ordered Sorrell to make her experts available for deposition before August 31, 2004, or be barred from using the expert at trial. On August 27, 2004, Sor-rell filed a motion requesting additional time to make one of her experts, Dr. Shrout, available for deposition. The motion stated that Dr. Shrout had moved since Sorrell had last contacted her and that Sorrell’s attorney had only recently been able to get in touch with Dr. Shrout. The trial court did not rule on this motion. Sorrell failed to make Dr. Shrout or any other expert witness available for deposition before August 31, 2004. Therefore, pursuant to the trial court’s August 4, 2004, order, Sorrell was precluded from using an expert witness a trial.

On September 7, 2004, Eastern Health System and Medical Center East filed a “motion for judgment as a matter of law.” Eastern Health System and Medical Center East argued the following in support of their motion:

“1. On March 7, 2003, this Court ordered the plaintiff to identify experts and provide Rule 26[, Ala. R. Civ. P.,] information by March 15, 2003.
“2. On August 4, 2004, the Court ordered the plaintiff to make experts available for deposition by August 31, 2004 or be precluded from using experts at trial.
“3. The plaintiff has not identified any expert witnesses.
“4. The plaintiff cannot prove [her] claims without expert testimony as required by [Ala.Code 1975] § 6-5-548.”

On September 15, 2004, Dr. King and Eastside Women’s Specialists filed a “motion to join in co-defendants’ motion for summary judgment as a matter of law.” However, Dr. King and Eastside Women’s Specialists “modified” the motion to state that Sorrell had identified Dr. Shrout as her expert but had failed to present her expert for deposition within the deadline set by the trial court. On September 22, 2004, Sorrell filed a response in opposition to the summary-judgment motion with supporting exhibits, and the trial court held a hearing on the motion.

On September 23, 2004, the trial court entered an order stating:

“This cause was heard on September 22, 2004 on the Defendant[s’] Motion for Judgment As A Matter Of Law And Summary Judgment. The Court has considered the motions and the pleadings before the Court at this time as well as the arguments of counsel for all parties. The Court finds that based upon the pleadings and evidence before the Court there exists no genuine issue of material fact and the Defendants are entitled to a Judgment as a matter of law. Accordingly, the Defendants’] motion[s] for Judgment As A Matter of Law and Summary Judgment are GRANTED and JUDGMENT is entered in favor of the Defendants Dr. Daniel A. King, Eastside Women’s Specialists, [P.C.,] Eastern Health System, Inc. and Medical Center East, Inc. and against the Plaintiff Christy Sorrell as to all claims asserted in this action.”

Other than stating that there was no genuine issue of material fact, the trial court did not provide specific reasons for entering the summary judgment in favor of the defendants. On October 22, 2004, Sorrell filed a motion to vacate the summary-judgment order. On November 18, 2004, the trial court denied Sorrell’s motion to vacate. Sorrell appealed.

Standard of Review

“ ‘ “In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact” and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 581 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala.1999).
“ ‘When the basis of a summary-judgment motion is a failure of the non-movant’s evidence, the movant’s burden, however, is limited to informing the court of the basis of its motion— that is, the moving party must indicate where the nonmoving party’s case suffers an evidentiary failure. See General Motors, 769 So.2d at 909 (adopting Justice Houston’s special concurrence in Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989), in which he discussed thé burden shift attendant to summary-judgment motions); and Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating that “a party seeking summary judgment always bears the initial responsibility of informing the [trial] court of the basis of its motion”).’
“Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001).
“ “When the trial court does not give specific reasons for entering a summary judgment, we will affirm the judgment if there is any ground upon which the judgment could have been based. Yarbrough v. C & S Family Credit, Inc., 595 So.2d 880, 881 (Ala. 1992).’
“McCloud v. City of Irondale, 622 So.2d 1272, 1273 (Ala.1993).”

Brown v. St. Vincent’s Hosp., 899 So.2d 227, 233-34 (Ala.2004).

Discussion

I.

In a medical-malpractice action, “the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.”

Ala.Code 1975, § 6-5-548(a). To meet this burden, “the plaintiff ordinarily is required to present, expert testimony as to the relevant standard of care.” Martin v. Dyas, 896 So.2d 436, 441 (Ala.2004). This Court has recognized an exception, to this rule

“ ‘ “in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.” ’ [Tuscaloosa Orthopedic Appliance Co. v.] Wyatt, 460 So.2d [156,] 161 [ (Ala.1984) ] (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala. 1988)). This Court has recognized the following situations as falling within this exception:
“ ‘ “1) where a foreign instrumentality is found in the plaintiffs body following surgery;
“Allred [v. Shirley], 598 So.2d [1347,] 1350 [ (Ala.1992) ] (quoting Holt v. Godsil, 447 So.2d 191, 192-93 (Ala.1984) (citations omitted in Allred)).”

Anderson v. Alabama Reference Labs., 778 So.2d 806, 811 (Ala.2000) (emphasis added). In Houserman v. Garrett, 902 So.2d 670, 673 (Ala.2004), a doctor left a surgical-gauze pad inside a patient. This Court held that it is the surgeon’s responsibility “ ‘to remove before closing the incision all foreign objects due to be removed’ ” and that “ ‘[t]he presence of [a] retained object is prima facie evidence of negligence by the surgeon in carrying out that responsibility.’ ” 902 So.2d at 673 (quoting Breaux v. Thurston, 888 So.2d 1208, 1217 (Ala. 2003)).

A plaintiff in a medical-malpractice action must also present expert testimony establishing a causal connection between the defendant’s act or omission constituting the alleged breach and the injury suffered by the plaintiff. Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala.1991). See also Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003); University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala.1994); and Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988). To prove causation in a medical-malpractice case, the plaintiff must demonstrate “‘that, the alleged negligence probably caused, rather than only possibly caused, the plaintiffs injury.’ ” Bradley, 878 So.2d at 266 (quoting University of Alabama Health Servs., 638 So.2d at 802). See also DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217 (Ala.2003) (“‘There must be more than the mere possibility that the negligence complained of caused the injury; rather, there must be evidence that the negligence complained of probably caused the injury.’ ” (quoting Parker v. Collins, 605 So.2d 824, 826 (Ala.1992))); and Pendarvis v. Pennington, 521 So.2d 969, 970 (Ala.1988) (“ ‘The rule in medical malpractice cases is that to find liability, there must be more than a mere possibility or one possibility among others that the negligence complained of caused the injury; there must be evidence that the negligence probably caused the injury.’ ” (quoting Williams v. Bhoopathi, 474 So.2d 690, 691 (Ala.1985), and citing Baker v. Chastain, 389 So.2d 932 (Ala.1980))). In Cain v. Howorth, 877 So.2d 566 (Ala.2003), this Court stated:

“ ‘ “To present a jury question, the plaintiff [in a medical-malpractice action] must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have ‘selective application’ to one theory of causation.” ’ ”

877 So.2d at 576 (quoting Rivard v. University of Alabama Health Servs. Found., P.C., 835 So.2d 987, 988 (Ala.2002)). However, the plaintiff in a medical-malpractice case is not required to present expert testimony to establish the element of proximate causation in cases where “the issue of proximate cause is not ... ‘beyond the ken of the average layman.’ ” Golden v. Stein, 670 So.2d 904, 908 (Ala.1995). Therefore, “[u]nless ‘the cause and effect relationship between the breach of the standard of care and the subsequent complication or injury is so readily understood that a layperson can reliably determine the issue of causation,’ causation in a medical-malpractice case must be established through expert testimony.” DCH Healthcare Auth., 883 So.2d at 1217-18 (quoting Cain, 877 So.2d at 576).

A

Sorrell alleged in her complaint that Dr. King breached the standard of care during the July 7, 2000, surgery when he left a foreign object — the adapter- — -in Sorrell’s cervix. In support of his motion for a summary judgment, Dr. King argued that because Sorrell could not prove that he breached the applicable standard of care through expert testimony as required under Ala.Code 1975, § 6-5-548(a), he was entitled to a judgment as a matter of law. Sorrell argues, however, that because Dr. King concedes that he failed to remove the adapter immediately following the surgical procedure, expert testimony was not required to prove the relevant standard of care. However, we see no need to address the issue of expert testimony as it relates to the standard of care because Sorrell cannot present sufficient evidence establishing proximate causation, given that she has been barred from using an expert at trial.

Sorrell argues that, although a plaintiff in a medical-malpractice case is generally required to present expert testimony to prove the element of proximate causation, under the facts of this case proximate causation need not be established by expert testimony. Specifically, Sorrell argues that the facts of this case are similar to the facts of Golden v. Stein, supra, and that expert testimony is not required under the facts here because, she contends, the proximate cause of her injuries are not beyond the comprehension of the average layman.

In Golden, a woman sued her doctor alleging that he had performed an unnecessary procedure. Golden, 670 So.2d at 906. In response to the doctor’s motion for a summary judgment, the plaintiff presented expert, testimony indicating that the surgery was unnecessary and that in performing the surgery the doctor had breached the standard of care. Golden, 670 So.2d at 907. Because the expert did not testify as to causation, the trial court found that the plaintiff had failed to present sufficient evidence establishing that the' alleged unnecessary surgery proximately caused her injuries. Therefore, the trial court granted the doctor’s summary-judgment motion. Golden, 670 So.2d at 906. This Court held that the plaintiff “presented sufficient evidence to establish that there was a,genuine issue as to proximate cause.” Golden, 670 So.2d at 907. The Court stated:

“In most medical malpractice cases, proximate cause must be established by expert testimony. See, e.g., Bradford v. McGee, 534 So.2d 1076, 1080 (Ala.1988). The reason for this rule is that issues of proximate cause in medical malpractice cases are ordinarily ‘beyond “the ken of the average layman.” ’ C. Gamble, McElroy’s Alabama Evidence, § 127.01(5)(c), p. 333 (4th ed.1991).
“But in cases like this one, involving allegations that a defendant performed unnecessary medical procedures, the issue of proximate cause is not always ‘beyond the ken of the average layman.’ Clearly, the average layman, without the assistance of an expert, can recognize a causal connection between the performance of an unnecessary operation and most items of harm or injury claimed by the plaintiffs in this case. The cost of the unnecessary procedure, any provable pain and suffering or lost consortium associated with the unnecessary procedure, and any wages that can be proven to have been lost during the normal recovery period for such an operation would constitute harm or damage the proximate cause of which would be ‘within the comprehension of average laymen.’ See Williams v. Spring Hill Memorial Hospital, 646 So.2d 1373, 1375 (Ala.1994). However, any claims for damages based on complications from the unnecessary procedure would be subject to the general rule that expert testimony is normally required to establish proximate cause in the medical malpractice context.”

Golden, 670 So.2d at 907-08 (footnote omitted).

Sorrell argues that, like the plaintiff in Golden, she is not required to present expert testimony establishing proximate cause. Sorrell contends that the cause- and-effect relationship between the alleged breach of the standard of care — Dr. King’s leaving the adapter in Sorrell’s cervix — and the subsequent complications or injuries — pain, bleeding, depression, etc.— would be readily understood by a layman. We disagree.

The facts of this case are distinguishable from the facts of Golden. The Court in Golden limited its holding to cases “involving allegations that a defendant performed unnecessary medical procedures.” Golden, 670 So.2d at 908. In addition, the Court held that the proximate cause of the cost of the procedure, pain and suffering, or lost consortium associated with the unnecessary procedure, and wages lost during recovery would be within the comprehension of the average layman, but that the proximate cause of any complications related to the unnecessary procedure would be subject to the general rule requiring expert testimony. Golden, 670 So.2d at 908.

Sorrell’s claims are based upon her assertions that her injuries were the result of medical complications related to Dr. King’s leaving the adapter in Sorrell’s cervix. Therefore, Golden actually supports the proposition that Sorrell was required to present expert testimony to prove proximate causation. Whether Sorrell’s injuries were caused by Dr. King’s leaving the adapter in her cervix would not be within the comprehension of the average layman. Thus, this case is not within the class of medical-malpractice cases in which proximate cause does not have to be established by expert medical testimony.

Sorrell also argues that she should not be required to present expert medical testimony as to the proximate cause of her injuries because, she contends, Dr. King’s own deposition testimony provides substantial evidence of proximate cause. In his deposition, Dr. King testified as follows:

“Q. [Sorrell’s counsel:] What symptoms would you say would be symptomatic of a foreign body left in the vagina or in the cervix?
“A. Discharge, bleeding, pain, fever.
“Q. And when would you expect these problems to occur — ■
“A. Well—
“Q. —time-wise, after a foreign object was left in there?
“A. It can be quite variable. If could be on the order of days to many months, if not years.
“Q. Well, let’s specifically talk about [the adapter], then. What type of problems would you expect a person to have, having that piece of medical device in them for any period of time?
“A. They might develop—
“Q. Let me — go ahead, I’m sorry.
“A. They might develop 'those same symptoms I indicated, you know, in response to your question regarding any foreign object left in the vagina.
“Q. Discharge, bleeding, pain, fever?
“A. (Witness nods head up and down.)”

Although Dr. King’s testimony establishes that Sorrell’s pain arid bleeding were possibly caused by the presence of the adapter in her cervix, Dr. King’s testimony does not establish that the presence of the adapter probably caused her injuries. See Bradley, 878 So.2d at 266; DCH Healthcare Auth., 883 So.2d at 1217; and Pendarvis, 521 So.2d at 970. Dr. King testified that the adapter might cause discharge, bleeding, pain, and fever, but he did not testify that injuries Sorrell alleged she suffered were probably caused or even likely caused by the presence of the adapter in her cervix. Dr. King’s testimony demonstrates only a mere possibility that the adapter caused Sorrell’s alleged injuries. We reject Sorrell’s contention that Dr. King’s testimony amounts to substantial evidence indicating that the presence of the adapter was the proximate cause of her injuries.

The record also contains evidence suggesting that Sorrell’s complaints of pain, bleeding, and depression did not relate to the adapter. Dr. King testified that the bleeding could have been associated with her menstrual cycle because of her history of taking Depo-Provera and that the Depo-Provera could “invoke irregular bleeding, break-through bleeding from time to time.... ” Dr. King also testified that bleeding is a frequent complaint of patients who undergo laparoscopic procedures. In addition, Dr. King testified that her continued complaints of pelvic pain could have been related to the endome-triosis. Although Sorrell alleged that she suffered from depression after the procedure, there is no evidence in the record showing that the presence of the adapter could have caused her depression. Sor-rell’s medical records demonstrate that she had a history of depression and that she had taken multiple antidepressant medications before the surgical procedure. Dr. King’s treatment notes from the scheduled November 10, 2000, postoperative visit state:

“[S]he has been tapering herself -down off Serzone [an antidepressant]. She has been on multiple different anti-depressant medications in the past. She declines my offer to switch her to another medication.”

Dr. King offered to provide Sorrell with hormone-replacement therapy in an attempt to alleviate her depression, but Sor-rell also refused that treatment.

Because Sorrell has been precluded from presenting expert testimony in this case, she will be unable to present sufficient evidence to create a genuine issue of material fact on the issue whether the adapter was the proximate cause of her injuries. Therefore, the trial court did not err in entering a summary judgment for Dr. King as to Sorrell’s claim that he breached the standard of care when the adapter was left in her cervix during the July 7, 2000, surgical procedure.

B.

In her complaint, Sorrell also alleges that Dr. King breached the standard of care by failing to properly examine her during her three postoperative visits. Sor-rell alleges that, given her symptoms and complaints, Dr. King should have performed a pelvic examination during those postoperative visits. Sorrell also contends that she is not required to present expert testimony establishing that Dr. King’s failure to perform a pelvic examination was a breach of the standard of care. In Anderson, supra, this Court held that a plaintiff in a medical-malpractice action is not required-to present expert testimony establishing the standard of care

“ ‘ “1) where a foreign instrumentality is found in the plaintiffs body following surgery; 2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment; 3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice; and 4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor’s allegedly negligent conduct.” ’ ”

778 So.2d at 811. The allegation that Dr. King breached the standard of care in failing to perform a pelvic examination during one of Sorrell’s postoperative visits does not fall within any of the exceptions set out by this Court in Anderson. Sorrell did not present any expert testimony indicating that the applicable standard of care required Dr. King to perform a pelvic examination during her scheduled postoperative visits. Dr. King testified that he did not think that the standard of care required him to perform a pelvic examination during those scheduled postoperative visits and that it was his “clinical impression” that such pelvic examinations were not necessary. Therefore, because Sorrell did not present any expert testimony establishing that Dr. King’s failure to perform a pelvic examination was a breach of the standard of care, she failed to present sufficient evidence to overcome Dr. King’s motion for a summary judgment as to this claim.

II.

Sorrell alleged in her complaint that under the doctrine of respondeat superior Eastside Women’s Specialists is vicariously liable for the negligent acts of Dr. King. Because we hold that the trial court did not err in entering summary judgment in favor of Dr. King, summary judgment was also proper as to Eastside Women’s Specialists. University of Alabama Health Servs. Found., P.C., 638 So.2d at 799 (“Under the doctrine of respondeat superior, the master cannot be liable unless one of the master’s servants has been found to be negligent.”).

III.

Sorrell argues on appeal that even if the trial court did not err in entering a summary judgment for Dr. King, the trial court erred in. entering a summary judgment in favor of Eastern Health System, Medical Center East, and Eastside Women’s Specialists because, she argues, “a Hospital may be held hable for breach of warranty without expert witnesses.” However, Sorrell’s breach-of-warranty claims were alleged against fictitiously named defendants that she never identified. Sorrell never alleged that Medical Center East, Eastern Health System, or Eastside Women’s Specialists breached a warranty. Sorrell essentially attempts to assert a breach-of-warranty claim against Medical Center East, Eastern Health System, and Eastside Women’s Specialists for the first time on appeal. However, Sorrell never amended her complaint to allege breach of warranty against those defendants, and Sorrell never amended her complaint to substitute named parties for the fictitiously named defendants described in her claim alleging breach of warranty. The record indicates that Medical Center East, Eastern Health System, and Eastside Women’s Specialists were not put on notice that Sorrell was alleging breach-of-warranty claims against them. See Adkison v. Thompson, 650 So.2d 859, 862 (Ala.1994) (“the primary purpose of pleading is to give fair notice to adverse parties of a claim against them”). The trial court’s summary judgment for Medical Center East, Eastern Health System, and Eastside Women’s Specialists was not improper on the basis of Sorrell’s breach-of-warranty claims, because Sorrell alleged the breach-of-warranty claims only against fictitiously named defendants that were never identified.

IV.

In her reply brief, Sorrell argues that summary judgment was improper because the trial court exceeded its discretion in reducing the amount of her expert’s fee and because the defendants’ summary-judgment motions did not conform to Rule 56, Ala. R. Civ. P. However, because Sor-rell raised these two arguments for the first time in her reply brief, this Court will not address them. See Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002) (holding that it is a “settled rule that this Court does not address issues raised for the first time in a reply brief’).

Conclusion

The summary judgment in favor of Dr. King, Eastside Women’s Specialists, Eastern Health System, and Medical Center East is affirmed.

AFFIRMED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . Dr. King had staff privileges at the hospital operated by Medical Center East, which is a subsidiary of Eastern Health System.

      . Depo-Provera is a birth-control medication that is administered through injections. Dr. King's notes from Sorrell's first visit stated that Sorrell had “used Depo-Provera for the past three years.”

      . Dr. King was an employee of Eastside Women’s Specialists and Eastside Ventures, Inc., when he treated Sorrell. Eastside Ventures, a subsidiary of Eastern Health System, is not a party to this action.

      . Dr. Lemons was also an employee of East-side Ventures; Dr. King testified that he was "the head of the department."

      . Sorrell never identified any of the fictitiously named defendants described in this claim.

      . Sorrell never identified any of the ¡fictitiously named defendants described in this claim.

      . Sorrell never identified any of the fictitiously named defendants described in this claim.

      . Sorrell never identified any of the fictitiously named defendants described in this claim, i.e., those involved in the design, manufacture, assembly, sale and/or distribution of the manipulator.

      . Under Rule 26(b)(4), Ala. R. Civ. P., a party is entitled to obtain information regarding the identity of any expert an opposing party expects to use at trial, along with the facts and opinions upon which the expert is expected to testify.

      . Under Rule 26(b)(4)(C), Ala. R. Civ. P., a party seeking discovery of the facts and opinions held by an opposing party's expert witness shall be required to pay the expert a reasonable fee for time spent responding to discovery.

      . Dr, Giles was never deposed in this case. Sorrell states in her brief on appeal that because the trial court "reduced [her] expert's .fees,” she “had to seek another expert.”

      . The record does not provide Dr. Shrout's full name, and there is no evidence in the record showing Dr. Shrout's qualifications.

      . Sorrell did not request that the trial court vacate the judgment as to Dr. Lemons, and Sorrell does not challenge on appeal the summary judgment in favor of Dr. Lemons.

      .The trial court stayed the proceedings pursuant to Ala.Code 1975, § 27-42-18, which states:
      "All proceedings in which the insolvent insurer is a party or is obligated to defend a party in any court in this state shall be stayed for up to six months and such additional time thereafter as may be determined by the court....”

      . It appears that the trial court treated this motion as a summary-judgment motion.

      . The record does not contain a transcript of this hearing.

      . In her complaint, Sorrell alleged:
      "On or before July 7, 2000, one or more of the fictitious- party defendants, were in the business of formulating, designing, manufacturing, assembling, distributing and/or selling the [manipulator] and/or its component parts in the State of Alabama, and said defendants were formulators, designers, manufacturers, assemblers, distributors and/or merchants with respect to such goods. The aforesaid defendants impliedly warranted that the [manipulator] or its component parts were fit for the ordinary purpose for which such goods are used, i.e., that said goods were merchantable. The [manipulator] was used for the ordinary purpose for which such goods are used. Said defendants breached the aforesaid implied warranty [of] merchantability in that said [manipulator] or its component parts were [not] merchantable, i.e., [were] not fit for the ordinary purpose for which such goods are used. As a proximate result of the aforesaid breach of warranty by each of the aforesaid defendants, Plaintiff was caused to suffer'the injuries and damages."