author: BRYAN, Judge. THOMAS, Judge,

text:
    Melvin E. KNOBLETT v. ALABAMA BOARD OF MASSAGE THERAPY.
    2050575.
    Court of Civil Appeals of Alabama.
    March 9, 2007.

      Lana K Hawkins of The Hawkins Law Firm, LLC, Arab, for appellant.
    Troy King, atty. gen., and Mary Becker Windom, deputy atty. gen., for appellee.
   BRYAN, Judge.

Melvin E. Knoblett appeals from a judgment of the Montgomery Circuit Court affirming an order by the Alabama Board of Massage Therapy (“the Board”) revoking Knoblett’s license to practice massage therapy and levying an administrative fine against him in the amount of $10,000. We affirm.

Knoblett is the co-owner of a massage-therapy establishment, where he worked as a licensed massage therapist. On May 23, 2002, the Board filed an administrative complaint against Knoblett, charging him with engaging in unprofessional conduct in violation of § 34^43-15(a)(3), Ala.Code 1975, and various rules of the Board. The charges against Knoblett were based upon a written report filed with the Board by T.D., an adult female who had received massages from Knoblett. An administrative law judge (“the ALJ”) appointed by the Board held evidentiary hearings on the charges in June 2002, October 2002, and November 2002.

T.D. testified at the June 2002 hearing. The Board had hired T.D. to receive massages from Knoblett after Knoblett had entered into a consent order with the Board in April 2001 stating that he had illegally massaged the inguinal areas of female clients and had failed to follow proper draping procedures during massages. T.D. testified that Knoblett touched her breast, nipples, buttocks, and genitalia during a massage on May 3, 2002. T.D. also testified that Knoblett, by virtue of his draping procedures, had exposed her breast during the May 3, 2002, massage.

Several witnesses testified at the hearings of October 2002 and November 2002, including Knoblett and expert witnesses called by both Knoblett and the Board. Knoblett gave testimony directly controverting T.D.’s testimony given at the June 2002 hearing regarding the May 3, 2002, massage. The expert testimony tended to show that, if T.D.’s allegations were accepted as true, Knoblett had engaged in unprofessional conduct as defined by statute and the rules of the Board.

On August 13, 2003, the ALJ issued a written recommendation finding that “[Knoblett] touched the breast, nipples of the breast, buttocks and genitalia[ ] of [T.D.], each on more than one (1) occasion and engaged in improper massage draping techniques during the massage on May 3, 2002.” The ALJ concluded that Knoblett had violated § 34-43-15(a)(3), Ala.Code 1975; Rule 532-X-3-.04(5)(i), Ala. Admin. Code (Alabama Board of Massage Therapy); Rule 532-X-5-.03(1)(d), Ala. Admin. Code (Alabama Board of Massage Therapy); and Rule 532-X-7-01(1)(i), Ala. Admin. Code (Alabama Board of Massage Therapy).

Section 34-43-15(a)(3), Ala. Code 1975, provides:

“(a) The board may suspend, revoke, or refuse to issue or renew a license or impose a civil penalty after notice and opportunity for a hearing pursuant to the Administrative Procedures Aet[, § 41-22-1 et seq., Ala.Code 1975], upon proof of any of the following:
“(3) The licensee has engaged in unprofessional conduct that has endangered or is likely to endanger the health, safety, and welfare of the public, as defined by the rules of the board.”

Rule 532-X-3-.04(5)(i), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

“(5) The applicant [for licensure] may be requested to submit to the Board evidence of or written policy covering the following:
“(i) clean drape material for draping clients during the massage, use of which shall be explained to the client prior to the massage, and which shall cover the buttocks and genitals of a male client at all times during the massage, and which shall cover the buttocks, breasts, and genitals of a female client at all times during the massage.”

Rule 532-X-5-.03(l)(d), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

“(1) The following acts shall constitute misconduct in the practice of massage therapy for which disciplinary penalties may be imposed after opportunity to be heard pursuant to the procedure in the Alabama Administrative Procedures Act:
“(d) engaging in or attempting to or offering to engage a client in sexual activity, including but not limited to genital contact, within a client-massage therapist relationship.”

Rule 532-X-7-.01(l)(i), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

“(1) Massage therapists shall:
“(i) Refrain from engaging in any sexual conduct, behavior, or activities involving a client, even if the client attempts to sexualize the relationship.”

In the written recommendation, the ALJ recommended that the Board revoke Knoblett’s license to practice massage therapy. On August 22, 2003, the Board adopted the ALJ’s written recommendation as part of the final order of the Board. In addition to revoking Knoblett’s licence to practice massage therapy, the Board’s order levied a $10,000 administrative fíne against Knoblett, pursuant to § 34-43-15(a)(3), Ala.Code 1975. Knoblett appealed the Board’s order to the circuit court, which entered a judgment affirming the Board’s order on March 8, 2006. Knoblett timely appealed the circuit court’s judgment to this court.

Section 41-22-20(k), Ala.Code 1975, controls judicial review of agency decisions. In pertinent part, it provides:

“(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.... The court may reverse qr modify the decision or grant other appropriate relief from the agency action ... if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Our supreme court has stated:

“This Court has further defined the standard of review of an agency ruling in Alabama as follows:
“ ‘ “Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.” ’ ”

Ex parte Medical Licensure Comm’n of Alabama, 897 So.2d 1093, 1096-97 (Ala.2004) (quoting Ex parte Alabama Bd. of Nursing, 835 So.2d 1010, 1012 (Ala.2001), quoting in turn Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989)). “A presumption of correctness attaches to the decision of an administrative agency due to its recognized expertise in a specific, specialized area.” Hall v. Alabama Alcoholic Beverage Control Bd., 631 So.2d 1047, 1048 (Ala.Civ.App.1993).

On appeal, Knoblett first argues that the April 2001 consent order that he entered into with the Board was obtained upon unlawful procedure and, therefore, should have been invalidated by the circuit court. In February 2001, the Board filed an administrative complaint against Knoblett, based upon a female client’s allegations that he had engaged in unprofessional conduct during a massage. That complaint was resolved by the April 2001 consent order, which stated that Knoblett had violated § 34-43-15(a)(3), Ala.Code 1975, and Rule 532 — X—7—.01(1)(i), Ala. Admin. Code (Alabama Board of Massage Therapy). The consent order placed Knoblett on probation for a year and levied an administrative fine against him in the amount of $2,000. The consent order also stated that Knoblett’s “professional activities” would be “monitored” by the Board.

Knoblett argues that the “monitoring” provision in the consent order illegally enabled the Board to monitor Knoblett by hiring T.D. to receive massages from him. Knoblett notes that Rule 532-X-7-.01(l)(i), the violation of which gave rise to the consent order, was not made effective until March 5, 2001, after the Board had filed its first administrative complaint against him. Knoblett argues that, because Rule 532-X-7-.01(l)(i) was not effective when the complaint was filed against him in February 2001, the consent order was made upon unlawful procedure, the consent order should have been invalidated by the circuit court, and all evidence obtained in the present proceeding as a result of the “monitoring” provision in the consent order should have been excluded.

However, Rule 532-X-3-.04(7), Ala. Admin. Code (Alabama Board of Massage Therapy), grants the Board broad authority to initiate “inspections.” Rule 532-X-3 — .04(7), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

“Inspections may be initiated by the Board at any time during reasonable business hours after licensure of the establishment, which may include but are not limited to determining whether the establishment is in compliance with the rules governing the establishment’s operation, facilities, personnel, safety, sanitary requirements, and review of existing insurance coverage. Failure to cooperate with such inspection may lead to disciplinary action.”

Rule 532-X-3-.04(7) is broad enough to include the Board’s “monitoring” of Knob-lett by hiring T.D. to receive massages from him. Rule 532-X-3-.04(7) became effective before T.D. was hired by the Board to receive massages from Knoblett. Therefore, regardless of the consent order, the Board possessed the regulatory authority to “monitor” Knoblett by hiring T.D. to receive massages from him.

Knoblett next argues that the Board violated his right to be free from unreasonable searches under the Fourth Amendment to the United States Constitution because, Knoblett says, the Board conducted a warrantless administrative search of his massage-therapy establishment. Knoblett seems to argue that T.D.’s May 3, 2002, massage, which she was hired by the Board to receive, constituted a warrantless administrative search. The United States Supreme Court has held that “a Fourth Amendment search does not occur ... unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.’ ” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)). In Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), the United States Supreme Court addressed whether a defendant’s Fourth Amendment rights were violated when the defendant had conversations with an undercover government informer in a hotel room. In that case, the Supreme Court stated:

“[T]he Fourth Amendment protects ... the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure....
“In the present case, however, it is evident that no interest legitimately protected by the Fourth Amendment is involved .... [The informer] was in the [hotel room] by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. The [defendant], in a word, was not relying on the security of the hotel room; he was relying upon his misplaced confidence that [the informer] would not reveal his wrongdoing....
“Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”

385 U.S. at 301-02, 87 S.Ct. 408 (footnotes omitted).

T.D.’s alleged search consisted of her simply receiving a massage from Knoblett. Knoblett has not established that he had a reasonable expectation of privacy in conducting typical business with the public at his massage-therapy establishment. Like the defendant in Hojfa who invited the informant into his hotel room, Knoblett invited T.D. to receive a massage at his massage-therapy establishment. See Ex parte Kraatz, 775 So.2d 801, 803 (Ala.2000) (quoting Raspilair v. Bruno’s Food Stores, Inc., 514 So.2d 1022, 1023 (Ala.1987)) (“ ‘Generally, a patron of a business ... is an invitee.’ ”). Similarly, Knoblett had no legitimate expectation that whatever wrongdoing he perpetrated during the May 3, 2002, massage of T.D. would not be reported to the authorities by T.D. Although she was hired by the Board, T.D. received massages from Knob-lett in the same manner as any other member of the general public might. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Accordingly, we conclude that T.D.’s receiving a massage from Knoblett does not constitute a Fourth Amendment search.

Knoblett next argues that § 34-43 — 15(a)(3), Ala.Code 1975; Rule 532-X-5-.03(l)(d), Ala. Admin. Code (Alabama Board of Massage Therapy); and Rule 532-X-7-.01(l)(i), Ala. Admin. Code (Alabama Board of Massage Therapy), are unconstitutionally overbroad, vague, and ambiguous.

“ ‘[I]f regulatory [or statutory] language “provides a sufficiently definite warning so that the conduct sought to be prohibited may be ascertained or comprehended within the common meaning of words or practices, such language will not be held to be unconstitutionally vague.” Delavan v. Board of Dental Examiners, 620 So.2d [13] at 18 [ (Ala.Civ.App.1992) ] (quoting Board of Dental Examiners v. King, 364 So.2d 311, 316 (Ala.Civ.App.1977), reversed on other grounds, 364 So.2d 318 (Ala.), on remand, 364 So.2d 319 (Ala.Civ.App.1978)).’
“Kid’s Stuff Learning Ctr., Inc. v. State Dep’t of Human Res., 660 So.2d 613, 619 (Ala.Civ.App.1995).”

Ex parte Williamson, 907 So.2d 407, 417 (Ala.2004).

“ ‘Another guiding principle of particular importance is that courts seek to sustain, not strike down, the enactments of a coordinate department of government. Every legislative act is presumed to be constitutional and every intendment is in favor of its validity.’
“Wilkins v. Woolf, 281 Ala. 693, 697, 208 So.2d 74, 78 (1968) (overruled on other grounds, Tanner v. Tuscaloosa County Comm’n, 594 So.2d 1207 (Ala.1992)).”

Ex parte Boyd, 796 So.2d 1092, 1094 (Ala.2001).

Knoblett notes that the administrative complaint filed by the Board on May 23, 2002, alleged that he had “touched the inguinal area of a female client” but that the statute and rules applicable in this case do not explicitly prohibit a touching of the “inguinal area” during a massage. Knob-lett therefore contends that he was not given sufficient notice that a touching of the “inguinal area” was prohibited. Section 34 — 43—15(a)(3), Ala.Code 1975, authorizes the Board to discipline a licensee who “has engaged in unprofessional conduct that has endangered or is likely to endanger the health, safety, and welfare of the public, as defined by the rules of the board.” Rule 532-X-5-.03(1)(d), Ala. Admin. Code (Alabama Board of Massage Therapy), prohibits “engaging in or attempting to or offering to engage a client in sexual activity, including but not limited to genital contact .... ” (Emphasis added.) Rule 532-X-7-.01(i), Ala. Admin. Code (Alabama Board of Massage Therapy), prohibits “engaging in any sexual conduct, behavior, or activities involving a client .... ” (Emphasis added.) The ALJ concluded that Knoblett had violated the applicable statute and rules by touching “the breast, nipples of the breast, buttocks and genitalia” of T.D. The statute and rules gave Knoblett sufficient warning that some of his actions while massaging T.D. were prohibited. Accordingly, we conclude that the applicable statute and rules are not unconstitutionally overbroad, vague, and ambiguous.

Knoblett next argues that his due-process rights were violated by a protective order entered by the ALJ preventing T.D. from testifying after the first administrative hearing in June 2002. At the June 2002 hearing, T.D. testified and was cross-examined by Knoblett’s counsel; T.D. did not testify at the hearings of October 2002 or November 2002. Knob-lett essentially argues that additional testimony by T.D. at the later hearings, after Knoblett and the experts had testified, would have aided his defense. However, Knoblett’s counsel had a full opportunity to cross-examine T.D. when she testified at the June 2002 hearing. Knoblett presents no authority for the contention that his due-process rights were violated by T.D.’s failure to testify at a subsequent hearing. In the context of administrative proceedings, due process requires that a party be given adequate notice of the charges against him and a reasonable opportunity to oppose those charges. Medical Servs. Admin. v. Duke, 378 So.2d 685, 686 (Ala.1979); and Goolsby v. Green, 431 So.2d 955, 959 (Ala.1983). Knoblett’s counsel cross-examined T.D. at the initial hearing; his due-process rights were not violated by the ALJ’s disallowance of additional testimony from T.D. at a subsequent hearing.

Knoblett next argues that his due-process rights were violated because, he says, the Board failed to follow certain rules of the Board regarding investigative procedures. First, Knoblett argues that the Board violated Rule 532-X-5-.04(1), Ala. Admin. Code (Alabama Board of Massage Therapy), which provides: “The Board may receive written complaints regarding licensees, registrants, applicants, entities, or other persons regarding massage therapy or violations of the massage therapy statutes.” Knoblett contends that Rule 532-X-5-.04(l) mandates that a written complaint is required before the Board may investigate a licensee or file an administrative complaint. We do not read Rule 532-X-5-.04(l) as establishing this requirement. Moreover, T.D. did file a written report alleging that Knoblett had behaved unprofessionally during the May 3, 2002, massage. T.D.’s written report formed the basis of the Board’s administrative complaint against Knoblett. Accordingly, Knoblett’s argument regarding Rule 532-X-5-.04(l) is without merit.

Knoblett also argues that the Board violated his due-process rights because, he says, the Board violated Rule 532-X-5-.04(2), Ala. Admin. Code (Alabama Board of Massage Therapy). That rule provides: “The Board will designate an investigator who is not a Board member to gather information regarding the complaint and present the information to the Board for its consideration.” The Board characterizes T.D. as an “investigator” and notes that she presented her written report to the Board. We find no violation of Rule 532-X-5-.04(2) resulting in a violation of Knob-lett’s due-process rights.

Knoblett next argues that the Board’s order, which adopted the written recommendation of the ALJ, was not supported by substantial evidence and was clearly erroneous, unreasonable, arbitrary, and capricious. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Knoblett contends that the ALJ relied upon hearsay evidence that was admitted over the objections of Knoblett’s counsel at the hearing of October 2002. In her written recommendation, the ALJ. refers to testimony by a former female coworker of Knoblett’s indicating (1) that she had received telephone calls from the public inquiring into the appropriateness of Knob-lett’s massage techniques used on female clients and (2) that she was aware that another female coworker was uncomfortable with a massage that she had received from Knoblett. However, the ALJ concluded that Knoblett had violated the applicable statute and rules based on findings of fact regarding Knoblett’s massage of T.D. on May 3, 2002. Discounting the female coworker’s testimony, the ALJ’s conclusions are supported by substantial evidence. Therefore, the admission of the female coworker’s testimony was harmless error. See Rule 45, Ala. R.App. P.; Muncher v. Muncher, 509 So.2d 250, 252 (Ala.Civ.App.1987) (stating that the admission of hearsay evidence was error without injury because the record contained sufficient evidence to affirm the judgment of the trial court, without regard to that evidence); and Ex parte T.D.T., 745 So.2d 899, 906 (Ala.1999).

Knoblett argues that the ALJ failed to properly weigh certain evidence and improperly disregarded certain testimony. Our review on this issue, like that of the circuit court, is limited to determining whether the Board’s order, which adopted the ALJ’s written recommendation, is supported by substantial evidence. “In no event is a reviewing court ‘authorized to reweigh the evidence or to substitute its decisions as to the weight and credibility of the evidence for those of the agency.’ ” Alabama Bd. of Nursing v. Williams, 941 So.2d 990, 999 (Ala.Civ.App.2005) (quoting Ex parte Williamson, 907 So.2d 407, 416-17 (Ala.2004)). Although Knoblett submitted evidence that weighed in his favor, other, substantial evidence was submitted supporting the ALJ’s conclusion that Knoblett had violated the applicable statute and rules.

Knoblett next argues that the Board lacked statutory authority to both revoke his license and levy an administrative fine against him. Section 34-43-15(a), Ala.Code 1975, provides, in pertinent part: “The board may suspend, revoke, or refuse to issue or renew a license or impose a civil penalty after notice and opportunity for a hearing....” (Emphasis added.) Knoblett argues that the use of the disjunctive conjunction “or” in § 34-43-15(a) indicates that the Board may either “suspend, revoke, or refuse to issue or renew a licence” or “may impose a civil penalty,” but may not do both. The Board contends that § 34-43-15(a) grants the Board the authority to both revoke Knoblett’s license and levy an administrative fine against him.

“This Court has held that the fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature in enacting a statute. IMED Corp. v. Systems Engineering Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). If possible, a court should gather the legislative intent from the language of the statute itself. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985). If the statute is ambiguous or uncertain, the court may consider conditions that might arise under the provisions of the statute and examine results that would flow from giving the language in question one particular meaning rather than another. Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala.1987). The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991) (citing Ex parte Holladay, 466 So.2d 956 (Ala.1985)).”

Norfolk Southern Ry. Co. v. Johnson, 740 So.2d 392, 396 (Ala.1999).

“[T]he legislature’s use of the disjunctive conjunction ‘or,’ as opposed to the conjunctive conjunction ‘and,’ is not conclusive with respect to the legislature’s intent. It is familiar law in the interpretation of statutes that the intent of the legislature is the polestar by which this Court must be guided and that this Court is at liberty in ascertaining the intent of the legislature to construe the disjunctive conjunction ‘or’ and the conjunctive conjunction ‘and’ interchangeably. In re Opinion of the Justices No. 98, 252 Ala. 194, 41 So.2d 559 (1949).”

Ex parte Jordan, 592 So.2d 579, 581 (Ala.1992) (construing a provision of § 6-5-390, Ala.Code 1975, that provides that “[a] father or a mother ... shall have an equal right to commence an action for an injury to their minor child” as giving both the father and the mother the right to commence an action). See also Barron v. CNA Ins. Co., 678 So.2d 735, 739-40 (Ala.1996) (stating that, in determining when a cause of action “aris[es] or aceru[es]” pursuant to § 14, Act No. 85-41, Ala. Acts 1984-85, the conjunction “or” is not to be interpreted as stating alternatives). But see Ex parte Uniroyal Tire Co., 779 So.2d 227 (Ala.2000) (declining to construe the conjunction “and” to mean “or” in strictly construing a tax statute against the department of revenue and in favor of the taxpayer).

We do not believe that the legislature intended to force the Board to choose between levying an administrative fine, on the one hand, and suspending, revoking, or refusing to renew a license to practice massage therapy, on the other hand. Our review of Alabama statutes governing professions and businesses reveals that the substantial majority of those statutes clearly grant licensing agencies the authority to suspend, revoke, or refuse to renew a license and, as an additional punishment, to levy an administrative fine. Many of those statutes were better drafted than the one before us and contain a separate provision clearly allowing for the additional punishment of an administrative fíne. See, e.g., § 34-1-12(b), Ala.Code 1975 (Alabama Board of Public Accountancy); § 34-7A-15(c), Ala.Code 1975 (Alabama Board of Cosmetology); § 34-21-25(a), Ala.Code 1975 (Alabama Board of Nursing); § 34-8A-16(c), Ala.Code 1975 (Alabama Board of Examiners in Counseling); and § 34-24-380, Ala.Code 1975 (Alabama Board of Medical Examiners). We find no Alabama statute that clearly limits the punishment an administrative agency may impose to either a fine, on the one hand, or a suspension, revocation, or refusal to renew a license, on the other hand.

The purpose of the Board, like that of many administrative agencies, is “to protect the health, safety, and welfare of the public.” § 34-43-6(a), Ala.Code 1975. We conclude that the legislature did not intend to limit the Board’s ability “to protect the health, safety, and welfare of the public” by making the Board choose between levying a fíne, on the one hand, and suspending, revoking, or refusing to renew a ficense, on the other hand. “The terms ‘and’ and ‘or’ are often misused in drafting statutes.” 1A Norman J. Singer, Sutherland Statutory Construction § 21.14 at 183 (6th ed. 2002). We read § 34-43-15(a) as allowing for both the revocation of Knoblett’s license and the concurrent levying of an administrative fine. See Ex parte Jordan, supra; and Barron, supra.

Knoblett finally argues that the $10,000 administrative fine levied against him by the Board is excessive and violates the prohibition against “cruel and unusual punishment” found in the Eighth Amendment to the United States Constitution. Section 34-^43 — 15(a)(3), Ala.Code 1975, authorizes the Board to levy an administrative fine upon proof that “[t] he licensee has engaged in unprofessional conduct that has endangered or is likely to endanger the health, safety, and welfare of the public, as defined by the rules of the board.” Substantial evidence was submitted at the hearings indicating that Knoblett engaged in grievous unprofessional conduct, which the Board chose to punish severely. The Board’s punishment of Knoblett was supported by substantial evidence, was reasonable, and was within its statutory and constitutional powers. Ex parte Medical Licensure Comm’n of Alabama, supra. Accordingly, the Board acted within its discretion by fining Knoblett $10,000.

For the foregoing reasons, the circuit court’s judgment affirming the order of the Board is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and MOORE, J., concur.

THOMAS, J., concurs specially.

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

THOMAS, Judge,

concurring specially.

Although I concur fully with the main opinion, I write specially to explain why I believe that the fine imposed by the Board is not unconstitutionally excessive.

A review of excessive-fine cases in Alabama reveals that our courts have most often considered such arguments in civil-forfeiture cases. See, generally, Harris v. State, 821 So.2d 177 (Ala.2001); Ex parte Dorough, 773 So.2d 1001 (Ala.2000); and Ex parte Kelley, 766 So.2d 837 (Ala.1999). In developing the excessive-fine analysis used in those cases, our supreme court relied on United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), and Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). In Bajakajian, the United States Supreme Court stated that, to determine whether a civil forfeiture was excessive, a court should “compare the amount of the forfeiture to the gravity of the defendant’s offense.” Bajakajian, 524 U.S. at 336-37, 118 S.Ct. 2028. The Court specifically noted that it was guided by the consideration that “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” Bajakajian, 524 U.S. at 336, 118 S.Ct. 2028. The Court specifically concluded that strict proportionality would not be required, instead choosing to adopt the “gross dispro-portionality” test, stating that “[i]f the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.” Bajakajian, 524 U.S. at 337, 118 S.Ct. 2028.

Those same principles apply in the administrative realm as well. See Pharaon v. Board of Governors of the Fed. Reserve Sys., 135 F.3d 148, 156-57 (D.C.Cir.1998) (applying the excessive-fine analysis suggested by Justice Scalia in his special concurrence to Austin, i.e., a comparison of the fíne to the offense, to a $37 million penalty imposed by the Federal Reserve System for a violation of the Bank Holding Company Act); United States v. Emerson, 107 F.3d 77, 80 (1st Cir.1997) (applying the excessive-fine analysis suggested by Justice Scalia to a $185,000 fine imposed against a pilot for his violations of FAA regulations).

Although the statute governing massage therapists does not specify a range of fines for violations that would permit the imposition of a civil penalty, the statute does specify $10,000 as the uppermost limit of a fine to be imposed on a person for practicing massage therapy without a license. Certainly, any behavior by a massage therapist that would be considered “unprofessional conduct” that might “endanger the health, safety, and welfare of the public” would be as dangerous as allowing an unlicensed person to practice massage therapy. See Ala.Code 1975, § 34-15^3(a)(c). In light of the conduct that resulted in the imposition of the $10,000 fine against Knoblett, I cannot conclude that the fine is unconstitutionally excessive.

      . Merriam-Webster's Collegiate Dictionary 643 (11th ed. 2003) defines "inguinal” as "of, relating to, or situated in the region of the groin or in either of the lowest lateral regions of the abdomen.”

      . The Fourth Amendment provides, in pertinent part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

      . Although Knoblett also states in his brief that Rule 532-X-3-.04(5)(i), Ala. Admin. Code (Alabama Board of Massage Therapy), is unconstitutionally overbroad, vague, and ambiguous, he does not present an argument regarding that rule. " 'An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.' ” Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988)).

      . Knoblett also summarily states in his brief that the ALJ erred by admitting into evidence T.D.’s written report to the Board. However, Knoblett does not present an argument supporting this contention. See footnote 3, supra.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Frankie NOVAK, by and through his guardian and conservator, Sharon VEST v. Inez NOVAK.
    2050517.
    Court of Civil Appeals of Alabama.
    March 9, 2007.

      Wesley H. Blacksher of Blacksher & Herrington, L.L.C., Mobile, for appellant.
    Richard G Alexander, Mobile, for appel-lee.
   BRYAN, Judge.

Frankie Novak, an incapacitated person, by and through Sharon Vest, his guardian and conservator, appeals an order denying his claim for a divorce from his wife, Inez Novak. Because the order Frankie Novak appeals from is not a final judgment, we dismiss his appeal.

On September 5, 2003, Mr. Novak sued Mrs. Novak in the Mobile Circuit Court, seeking an annulment of their marriage. Mr. Novak alleged that he and Mrs. Novak were married in a ceremony in Jackson County, Mississippi, on January 4, 2001, and that he was entitled to an annulment of the marriage because he was of unsound mind at the time of their marriage ceremony. Answering Mr. Novak’s complaint, Mrs. Novak denied that Mr. Novak was of unsound mind at the time of their marriage ceremony. Subsequently, Mrs. No-vak moved the trial court to dismiss Mr. Novak’s claim because, she alleged, his claim was governed by Mississippi law, which required that a claim seeking an annulment based upon insanity or idiocy be brought within six months after the marriage ceremony. Mr. Novak then filed an amendment to his complaint incorporating by reference his claim seeking an annulment and adding an alternative claim seeking a divorce on the ground of incompatibility. The trial court never ruled on Mrs. Novak’s motion to dismiss Mr. No-vak’s claim seeking an annulment.

The case proceeded to trial. Following the trial, the trial court entered an order on February 23, 2006. That order interpreted the amendment of Mr. No-vak’s complaint as having replaced his claim seeking an annulment with his claim seeking a divorce and denied Mr. Novak’s claim seeking a divorce. However, the amendment of Mr. Novak’s complaint added his claim seeking a divorce without eliminating his claim seeking an annulment. Thus, the trial court’s February 23, 2006, order denying Mr. Novak’s claim seeking a divorce failed to rule on his claim seeking an annulment. Furthermore, the trial court did not certify its February 23, 2006, order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Mr. Novak has now appealed the trial court’s February 23, 2006, order to this court.

“Although neither party has raised the issue of this court’s jurisdiction over this appeal, we note that ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. ’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).”

Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006).

“ ‘A final judgment is one that completely adjudicates all matters in controversy between all the parties.
“ ‘... An order that does not dispose of all claims or determine the rights and liabilities of all parties to an action is not a final judgment. In such an instance, an appeal may be had “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” See Rule 54(b), Ala. R. Civ. P.’
“Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002) (citations omitted).”

Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003).

Because the order from which Mr. No-vak appeals is not a final judgment, we dismiss his appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.


author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    Ex parte PUBLIX SUPER MARKETS, INC. (In re Frances Lukich v. Publix Super Markets, Inc.)
    2060092.
    Court of Civil Appeals of Alabama.
    March 9, 2007.

      Kyle L. Kinney, Wendy F. Pope, and John B. Welch of Gaines, Wolter & Kinney, P.C., Birmingham, for petitioner.
    Christopher J. Zulanas and' Michael J. Douglas of Friedman, Leak, Dazzio, Zula-nas & Bowling, P.C., Birmingham, for respondent.
   MOORE, Judge.

Publix Super Markets, Inc. (“the employer”), the defendant in a pending action brought by Frances Lukich (“the employee”) pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”), petitions for a writ of mandamus directing the Jefferson Circuit Court to rescind an order compelling the employer to provide the employee with medical treatment. For the reasons stated herein, we grant the petition and issue the writ.

I.

On August 24, 2005, the employee visited the Brookwood Medical Center due to back pain. She told the attending physician, Dr. Leah Daggett, that she had picked up a box of bottled water while at work three and one-half weeks earlier and had noticed pain immediately radiating around her lower rib cage. The pain had persisted and the employee had developed a productive cough. She had been admitted to another hospital where a CT angio-gram of her chest reportedly showed scarring of her lungs with no pulmonary embolism. She had also visited a Dr. Morgan on August 22, 2005, and he had ordered a bone scan, which showed an abnormality in the thoracic spine, prompting him to order an MRI scan of her spine. On August 23, 2005, after falling to her knees without any obvious injury, the employee had reported to the Brookwood Medical Center emergency room. Various medications had not affected her severe back pain.

Dr. Daggett examined the employee, finding palpable tenderness over the thoracic spine at the T9-T10 level. The doctor diagnosed thoracic pain with abnormal bone scan, which may represent degenerative joint disease or multilevel compression fractures. The doctor also opined that the employee may have osteoporosis or a pathological process of the spine as well. The doctor admitted the employee to the hospital, prescribed medications for her condition, and ordered an MRI of the thoracic spine.

On August 31, 2005, Specialty Risk Services, LLC (“SRS”), the third-party workers’ compensation administrator for the employer, wrote the employee a letter stating, in pertinent part:

“Dear Ms. Lukich:
“I hope this letter finds you doing well. Our office has received notice of ... your ... claim. The claim that was submitted by your employer, Publix is under investigation.
“Please give me a call at your earliest convenience.
“Please sign and return the medical authorization that has been mailed to you, please include a list of all medical providers including addresses with whom you have had medical treatment within the past ten years. Once we have this, we will order your medical records & evaluate your claim.
“Once a decision is reached on your claim, you will be notified.”

On September 1, 2005, Dr. Daggett wrote a letter addressed to “To Whom It May Concern” in which she stated:

“Frances Lukich was admitted to my care on August 24, 2005 with a three and half-week history of severe mid back pain,- which she related to picking up a box of bottled water while at work. Upon picking up the water she immediately noticed pain, which was treated by her physician with medication without improvement. After an increase in the severity of her pain she was seen in the Brookwood Medical Center Emergency Room and released with a prescription, which was ineffective in treating her pain. She was then admitted to Brook-wood Medical Center.”

On February 15, 2006, SRS wrote Lu-kich another letter in which the claims consultant wrote:

“We have received and reviewed the information regarding the claim that was submitted by your employer, Publix. In addition, we have reviewed the medical records obtained from several medical providers. In reviewing this information, we are not able to confirm that an injury occurred within your employment at Publix nor that your condition is related to your employment. Based on the information available, we are not able to accept this claim as compensable under the Alabama Workers’ Compensation [Act], Therefore, I must respectfully deny this claim.”

Apparently unable to resolve the dispute, the employee filed a verified complaint in the Jefferson Circuit Court on April 27, 2006. In that complaint, the employee alleged that in early August 2005, “while working in the line and scope of her employment, [the employee] injured her back while lifting a case of bottled water.” The employee further alleged that she had properly notified the employer of the accident and that she had become permanently and totally disabled because of the injuries she had sustained. The employee specifically averred that she had obtained medical treatment, including surgery, and that she continued to require medical treatment because of her injuries. The employee asserted that she had notified SRS “to determine if her injury was covered under worker’s compensation” but that SRS had denied her claim on February 15, 2006, despite having Dr. Daggett’s report and letter. The employee demanded a judgment against the employer, seeking, among other things, “medical expenses and benefits to which [the employee] is entitled to under the workers’ compensation law under the State of Alabama.” The employee attached to her complaint the medical records and letters referenced above.

On June 2, 2006, the employer filed an answer to the complaint, denying all its material allegations and demanding strict proof thereof.

On August 16, 2006, the employee filed a “Motion to Compel Medical Treatment.” In that motion, the employee basically restated the allegations contained in her complaint and requested that the court enter an order compelling the employer to provide her with medical and surgical treatment pursuant to the Act. The employer filed a response to the motion on August 18, 2006, in which it asserted that the motion should be denied because (1) the parties were in the midst of discovery and, therefore, the issue whether medical benefits were owed was not ripe for hearing and (2) the employee had not offered the court any evidence indicating that she had sustained a covered injury.

The trial court conducted a hearing on the motion to compel medical treatment on August 21, 2006. At that hearing, neither party introduced any evidence or called any witnesses; instead the parties relied on the pleadings submitted to the court and the arguments of counsel. On September 15, 2006, the trial court entered an order granting the motion to compel without further comment. The employer timely filed its petition for a writ of mandamus to this court on October 27, 2006, requesting that this court vacate the order granting the motion to compel.

II.

A writ of mandamus is an extraordinary remedy, and it will be issued only when there is:

“ ‘ “ ‘1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Service Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).” ’ ”

Ex parte Fort James Operating Co., 905 So.2d 836, 842 (Ala.Civ.App.2004) (quoting Ex parte Wilson, 854 So.2d 1106, 1108-09 (Ala.2002), quoting in turn Ex parte Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)).

Section 12-3-10, Ala.Code 1975, vests this court with appellate jurisdiction to issue extraordinary writs in workers’ compensation actions. See Ex parte Alabama Power Co., 863 So.2d 1099 (Ala.Civ.App.2003). The employer has properly invoked that jurisdiction by timely filing its petition for a writ of mandamus within a reasonable time following the entry of the order of which it complains. See Rule 21(a)(3), Ala. RApp. P. (requiring the filing of a petition for the writ of mandamus within a reasonable time and establishing “the time for taking an appeal” as a presumptively reasonable time).

This court has exercised its jurisdiction to issue writs of mandamus in workers’ compensation actions mainly in cases in which the trial court has entered an order wholly without statutory authority or in direct contravention of the language of the Act. See, e.g., Ex parte Brookwood Med. Ctr., Inc., 895 So.2d 1000 (Ala.Civ.App.2004). We recognize that an action brought under the workers’ compensation laws is purely statutory in nature. Fort James Operating Co. v. Irby, 911 So.2d 727, 734 (Ala.Civ.App.2005) (citing Slagle v. Reynolds Metals Co., 344 So.2d 1216, 1217 (Ala.1977)). The Act is a specific and comprehensive system of law for dealing with workplace injuries and “ ‘creates rights ... remedies ... and procedures all [its] own.’ ” Davis v. Fayette County Comm’n, 831 So.2d 50, 53 (Ala.Civ.App.2002) (quoting Riley v. Perkins, 282 Ala. 629, 632, 213 So.2d 796, 798 (1968)). Generally speaking, therefore, the rights and remedies available to the affected parties must be found within the provisions of the Act. See Hedgemon v. United Parcel Serv., Inc., 832 So.2d 656 (Ala.Civ.App.2002). Thus, in a workers’ compensation action, when a trial court exercises power not explicitly granted by the Act or necessarily implied by its terms, this court will issue a writ of mandamus to correct that error. See Ex parte Brookwood Med. Ctr., Inc., supra; Ex parte Alabama Power Co., supra; Ex parte Wal-Mart Stores, Inc., 794 So.2d 1085 (Ala.2001); and Ex parte Smitherman Bros. Trucking, Inc., 751 So.2d 1232 (Ala.1999).

III.

Section 25-5-77(a), Ala.Code 1975, provides that

“the employer, where applicable, ... shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary medical and surgical treatment and attention ... as the result of an accident arising out of and in the course of the employment, as may be obtained by the injured employee.... ”

Standing alone, this subsection mandates that employers shall be financially responsible, subject to certain cost limitations, for the medical and surgical treatment obtained by an employee due to injuries received in an accident arising out of and in the course of the employee’s employment. See, e.g., Gold Kist, Inc. v. Crouch, 671 So.2d 695 (Ala.Civ.App.1995). By implication, an employer would not be financially responsible for medical and surgical treatment obtained by an employee for conditions unrelated to an accident arising out of and in the course of the employee’s employment. See, e.g., Boyd v. M. Kimerling & Sons, Inc., 628 So.2d 711 (Ala.Civ.App.1993).

In case of a dispute as to the necessity of medical or surgical treatment, § 25-5-77(a), Ala.Code 1975, provides that the circuit court having jurisdiction over the compensation claim of the employee shall determine the controversy. The power of the trial court to determine the “necessity” of medical or surgical treatment naturally includes the power to determine whether the treatment is necessary due to injuries arising out of and in the course of the employee’s employment or whether the treatment is necessitated by conditions unrelated to the employee’s employment.

Section 25-5-77 does not address the procedure to decide a dispute over the necessity of medical benefits. Section 25-5-88, Ala.Code 1975, however, states that either party to a controversy brought under the article of the Act providing for medical benefits may file a verified complaint in the circuit court that would have jurisdiction of an action between the same parties arising in tort; once the opposing party has been properly served, “said action shall proceed in accordance with and shall be governed by the same rules and statutes as govern civil actions, except as otherwise provided in this article and Article 2 of this chapter and except that all civil actions filed hereunder shall be preferred actions and shall be set down and tried as expeditiously as possible.” That section further provides: “At the hearing ... the court shall hear such witnesses as may be presented by each party, and in a summary manner without a jury ... shall decide the controversy.” Id.

Pursuant to § 25-5-88, a controversy regarding the employer’s obligation to pay for medical or surgical treatment obtained by an employee, just like any other controversy arising under the Act, is governed by the Alabama Rules of Civil Procedure, unless the Act provides some other procedure. See, e.g., Ex parte Vance, 900 So.2d 394, 398 n. 7 (Ala.2004); and Shop-A-Snak Food Mart, Inc. v. Penhale, 693 So.2d 479 (Ala.Civ.App.1997). We have not found, and the employee has not directed our attention to, any part of the Act that authorizes a circuit court with jurisdiction over a controversy regarding the necessity of medical benefits to decide, on a motion of the employee filed before a trial and a determination on the merits, that the employer is compelled to provide medical or surgical treatment to the employee. Likewise, our research has not revealed, and the employee has not cited, any cases interpreting the Act as authorizing such a procedure. Hence, we turn to the Alabama Rules of Civil Procedure.

The only reference to a “motion to compel” in the Alabama Rules of Civil Procedure can be found in Rule 37, Ala. R. Civ. P. That rule authorizes a court in a civil action to enter an order compelling discovery under certain conditions. That rule, of course, has no application to this case. Nevertheless, it is the substance, not the title, of a motion that determines its character. Moore v. Graham, 590 So.2d 293 (Ala.Civ.App.1991). In this case, the employee filed a motion with the court seeking an order requiring the employer to pay medical benefits pursuant to the Act. That motion may only be construed as a motion for a judgment on the merits that the employee was entitled to such benefits.

The Alabama Rules of Civil Procedure recognize two forms of pretrial motions for a judgment. Rule 12(c), Ala. R. Civ. P., authorizes a party to file a motion for a judgment on the pleadings. A trial court may enter a judgment on such a motion when the allegations in the complaint and the averments in the answer show that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81 (Ala.2000). Rule 56, Ala. R. Civ. P., authorizes a party to file a motion for a summary judgment. A trial court may enter a judgment on such a motion when the pleadings and other evidentiary material show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.

Our review of the record leads us to conclude that the trial court did not rely on either of those rules. The trial court could not have construed the motion to compel as being a motion for a judgment on the pleadings because the pleadings disclosed a genuine justiciable controversy between the parties concerning whether the medical and surgical treatment obtained by the employee was necessitated by injuries arising out of and in the course of her employment. In the complaint, the employee alleged that she had injured her back at work while picking up a box of bottled water and that she had obtained medical and surgical treatment for that injury. In its answer, the employer denied that the employee had sustained any work-related injury. The employer also denied that the employee required medical and surgical treatment because of her alleged work-related injuries.

Even if the trial court considered the materials attached to the complaint, see Thompson, 776 So.2d at 83 (noting that in some instances a trial court may consider material attached to a complaint when ruling on a motion for a judgment on the pleadings without converting the motion into one for a summary judgment), it could not have entered a judgment for the employee because those materials disclosed a genuine controversy between the parties. The medical records and the letter from Dr. Daggett show that the employee told Dr. Daggett that she had noticed pain in her mid-back region after picking up a box of bottled water at some workplace and that the doctor believed the pain could be from any number of causes. The letters from SRS indicate that the employer disputed the employee’s claim that she had hurt herself while working for the employer and that the employer further disputed that the employee’s back condition resulted from her alleged workplace accident.

Likewise, the trial court obviously did not treat the motion as a motion for a summary judgment. Rule 56 states that a motion for a summary judgment “shall be supported by a narrative summary of what the movant contends to be the undisputed material facts.” Rule 56(c)(1), Ala. R. Civ. P. The employee did not comply with that requirement. See Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274 (Ala.2000) (a motion for a summary judgment that did not include a narrative summary of undisputed material facts could not be considered). The rule further provides that any hearing on a summary-judgment motion generally must take place 10 days after service of the motion and supporting material on the opposing party. Rule 56(c)(2), Ala. R. Civ. P. In this case, the trial court conducted a hearing on the “motion to compel” only five days after it was filed.

Even if these procedural oversights could be excused, the trial court would have had to deny any motion for a summary judgment because the employee utterly failed to present substantial evidence establishing a prima facie case that no genuine issue of material fact existed. See Infinity Ins. Co. v. Gibson, 765 So.2d 3 (Ala.Civ.App.1999) (movant has burden of proving prima facie case showing that no genuine issue of material fact exists). At best, the employee presented evidence indicating that she told her doctor that she hurt her back at some work site; that her doctor attributed her pain to several possible sources; and that the employer’s workers’ compensation adjuster- disputed that any injury had occurred at the employer’s work site or that such injury had contributed to the employee’s back problem. Despite the employee’s contention to the contrary, the employer did not admit in the August 31, 2005, letter that the employee had sustained a covered back injury; it merely acknowledged that the employee had filed a claim for workers’ compensation benefits. This evidence does not establish indisputably that the medical and surgical treatment the employee obtained and sought in the future was necessitated by her alleged workplace accident, and it did not shift the burden onto the employer to present evidence creating a genuine issue of material fact.

As stated by the employer in its briefs, it appears that the trial court deviated from the procedure established in the Act and the Alabama Rules of Civil Procedure by deciding a disputed issue of coverage based on a motion filed by the employee containing only a mere allegation that she had sustained a work-related accident that caused injuries requiring medical and surgical treatment. While the law encourages employers to provide medical benefits voluntarily, see Rule 409, Ala. R. Evid., nothing in the law requires employers to furnish medical benefits to-an employee based on the mere allegation that the employee requires medical treatment because of a work-related injury. The employee bears the burden of proving each and every fact prerequisite to a recovery of medical expenses, including the essential threshold fact that he or she sustained a work-related injury that necessitated the medical or surgical treatment obtained. Boyd, supra. Section 25-5-88, Ala.Code 1975, requires circuit courts to expedite the trial and determination of workers’ compensation cases, but the legislature has not endorsed any procedure that would abrogate the employee’s burden of proof for the sake of expediency.

Because neither the language of the Act nor the Alabama Rules of Civil Procedure authorize the procedure used by the trial court to decide the employer’s obligation to provide medical benefits to the employee, we grant the petition for a writ of mandamus. We hereby order the trial court to vacate its September 15, 2006, order granting the employee’s “Motion to Compel Medical Treatment.”

PETITION GRANTED; WRIT ISSUED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, with writing.

THOMPSON, Presiding Judge,

concurring in the result.

Initially, I note that a petition for a writ of mandamus is the appropriate method of review in this action. In Homes of Legend, Inc. v. O’Neal, 855 So.2d 586 (Ala.Civ. App.2003), this court determined that an order that held an employer to be liable for an injured employee’s medical treatment was not sufficiently final to support an appeal. See also Sign Plex v. Tholl, 863 So.2d 1113 (Ala.Civ.App.2003) (order determining whether injury was compensable was not sufficiently final to support an appeal). The trial court’s September 15, 2006, order, because it required Publix to provide medical treatment for the employee, was, in essence, a determination of the compensability of the employee’s injury. No other rights of the parties were addressed in the September 15, 2006, order, and, therefore, that order was not a final judgment capable of supporting an appeal. Accordingly, the appropriate method for reviewing the trial court’s September 15, 2006, order is pursuant to a petition for a writ of mandamus. See Ex parte Brookwood Med. Ctr., Inc., 895 So.2d 1000 (Ala.Civ.App.2004) (reviewing a nonfi-nal order in a workers’ compensation action pursuant to a petition for a writ of mandamus); see also Ex parte Amerigas, 855 So.2d 544, 546 (Ala.Civ.App.2003) (“Review by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal.”).

In its petition for a writ of mandamus, Publix argues, among other things, that the trial court erred in requiring it to provide medical treatment in the absence of any evidence to support a finding that the employee’s injury was compensable. The Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), provides for disputes over medical expenses to be resolved in the trial court. § 25-5-77(a), Ala.Code 1975 (“All cases of dispute as to the necessity and value of the services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation.”).

A dispute over liability for medical payments necessarily implicates the issue of compensability of the injury. An eviden-tiary hearing to resolve a dispute over compensability and the payment of medical benefits is anticipated in § 25-5-77(a). Further, in order to establish that he is entitled to medical treatment for an injury under the Act, an employee must establish that his or her injury is compensable under the Act.

“[F]or an injury to be compensable under the Workers’ Compensation Act, the employee must establish both legal and medical causation. Once legal causation has been established, i.e., once it has been established that an accident arose out of and in the course of employment, medical causation must be established, i.e., that the accident caused the injury for which recovery is sought.”

Ex parte Moncrief, 627 So.2d 385, 388 (Ala.1993) (citation omitted).

I conclude that the trial court erred by requiring Publix to pay for the employee’s medical treatment in the absence of any evidence pertaining to the issue of the compensability of the employee’s injury. Accordingly, I concur in the result.

      . Review may also be had, under certain circumstances, pursuant to the Ombudsman Program set forth in Article 11 of the Act, §§ 25-5-290 through -294, Ala.Code 1975. See § 25-5-77(i), Ala.Code 1975.


author: MOORE, Judge.

text:
    Malcolm S. KIMBROUGH, Sr. v. Maria G. KIMBROUGH.
    2050745.
    Court of Civil Appeals of Alabama.
    March 9, 2007.

      Malcolm S. Kimbrough, Sr., pro se.
    Amy L. Herring, Huntsville, for appel-lee.
   MOORE, Judge.

Malcolm S. Kimbrough, Sr. (“the father”), appeals from an order in which the trial court (1) found him in criminal contempt; (2) denied his petition to relocate the residence of the children in his custody who were born of his former marriage to Maria G. Kimbrough (“the mother”); and (3) modified his periodic-alimony obligation. We affirm the portion of the judgment finding the father in contempt and dismiss the remainder of the appeal.

On May 13, 2005, the father filed a petition requesting to change the residence of the parties’ minor children. Specifically, he sought to move the children from Madison County to Germany to pursue a job opportunity. He also requested that the court suspend his obligation to pay alimony.

On June 23, 2005, the mother filed her answer and a counterclaim for a rule nisi. In her counterclaim, the mother requested the following relief: (1) an order requiring the father to show cause why he should not be held in civil and criminal contempt for his willful refusal to comply with the divorce judgment and (2) an order directing the father to show cause why he should not serve the sentence of incarceration previously imposed on him in the divorce judgment, which had been suspended subject to his continued compliance with the court’s orders.

In support of her counterclaim, the mother stated that the father had violated the divorce judgment by denying her visitation, by failing to participate in family counseling, by failing to pay alimony on time, by failing to provide proof that he had purchased life insurance for the mother’s benefit, by failing to assist in preparing lists of personal property to be divided between the parties, by failing to pay the mother’s attorney fee, by failing to pay the full amount of monthly retirement benefits awarded to the mother, by failing to insulate the children from conflict, and by telephoning the mother multiple times.

On March 13, 2006, the trial court held a hearing on the father’s petition and the mother’s counterclaim. The mother was present along with her counsel of record. The father was also present, representing himself pro se. We are unable to review the transcript of this hearing, however, because the father failed to request that the transcript be made available to this court.

On March 22, 2006, the trial court entered an order in which it denied the father’s petition to relocate the children but modified his alimony obligation to $300 per month. The court also found the father in contempt for “willfully and contemptuously” violating the court’s divorce judgment by interfering with the mother’s visitation rights. Specifically, the court found, based on the father’s own testimony, that the father had transported the children to visit his family in Texas when the mother was scheduled to exercise her December 2005 visitation. The court ordered the father to serve five days in jail as punishment for the contempt.

Finally, the court noted that, in the original divorce judgment entered on March 14, 2005, it had found the father in contempt and had sentenced him to incarceration but that, on April 11, 2005, it had suspended the father’s sentence on the condition that the father comply with the court’s orders in the future. Based on the evidence presented at the March 16, 2006, hearing, the court found that the father had not met the condition that he comply with the court’s orders. Specifically, in addition to interfering with the court-ordered visitation, the court found that the father had also violated provisions of the divorce judgment regarding alimony, counseling, and the division of personal property. Accordingly, the court also revoked the suspension of the sentence that had been imposed as a result of the March 14, 2005, finding of contempt.

On April 17, 2006, the father filed a postjudgment motion, which the trial court denied on May 22, 2006. In the order denying the father’s postjudgment motion, the trial court specifically set this case for a hearing on the “Presentation of Personal Property List” filed by the father. The order also stated that, following the hearing, the remaining issue of the division of the parties’ personal property would be resolved and that an order supplementing the divorce judgment would be entered at that time.

Even though the issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal.

“ ‘ “[Jjurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The question whether a judgment is final is a jurisdictional question. The reviewing court, on a determination that the judgment is not final, has a duty to dismiss the appeal; if the appellee has not moved for a dismissal, then the court should dismiss the appeal on its own motion.”

Cates v. Cates, 943 So.2d 798, 801 (Ala.Civ.App.2006).

“[A]n order adjudging a party guilty of contempt is a final, separately appealable judgment.” Gladden v. Gladden, 942 So.2d 362, 369 (Ala.Civ.App.2005). Accordingly, we conclude that we have jurisdiction to review the trial court’s March 22, 2006, finding of contempt.

The father argues that the trial court denied him due process and the right to an attorney with regard to the contempt proceedings.

“In considering whether a lower court complied with the requirements of due process in a case of constructive or indirect contempt, we look to determine if the following elements were present: (1) notice of the charges; (2) reasonable opportunity to meet them; (3) right to call witnesses; (4) right to confront the accuser; (5) right to give testimony relevant either to the issue of complete exculpation or extenuation of the offense; and (6) right to offer evidence in mitigation of the penalty imposed.”

Fludd v. Gibbs, 817 So.2d 711, 713 (Ala.Civ.App.2001).

The record reveals that the mother’s June 23, 2005, counterclaim presented sufficient allegations to place the father on notice of the charges. Further, the father was present at the hearing on the mother’s counterclaim. Because the father did not order the transcript of the hearing, we are limited in our review of this case and cannot determine whether the father was allowed a reasonable opportunity to meet the charges, the right to call witnesses, the right to confront his accuser, the right to give “testimony relevant either to the issue of complete exculpation or extenuation of the offense,” and “the right to offer evidence in mitigation of the penalty imposed.” Fludd, 817 So.2d at 713.

“ ‘ “This court cannot assume error, nor can it presume the existence of facts [as] to which the record is silent.” The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal.’ ” White v. Riley Constr., Inc., 745 So.2d 877, 879 (Ala.Civ.App.1999) (quoting Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938, 942 (Ala.1997)); see also Martin v. Martin, 656 So.2d 846, 848 (Ala.Civ.App.1995) (“An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal.”). The record does not reveal any error, and, thus, we cannot conclude that the trial court committed error.

As to the father’s assertion that he was denied the right to an attorney, we also cannot determine that the trial court erred. Rule 70A(c)(3), Ala. R. Civ. P., provides: “In actions involving criminal contempt, upon the request of the alleged contemnor and proof of indigence, counsel shall be appointed to represent the alleged contemnor.” We are unable to determine from the limited record before us whether the father requested appointed counsel or whether the father proved that he was indigent. We cannot assume that the trial court erred when error is not apparent from the record.

As to the remaining issues raised on appeal, we conclude that there was no final judgment from which an appeal would lie.

“[I]f an order has failed to dispose of all of the parties or all of the claims, Rule 54(b), Ala. R. Civ. P., requires a two-step process on the part of the trial court to create an appealable order. There must be ‘an express determination that there is no just reason for delay’ and ‘an express direction for the entry of judgment.’ ”

McBride v. Gentry, 686 So.2d 313, 314 (Ala.Civ.App.1996) (quoting Rule 54(b), Ala. R. Civ. P.) (dismissing appeal from a trial court’s order regarding child support when visitation issue had yet to be determined and trial court had not entered Rule 54(b), Ala. R. Civ. P., order).

In this case, the trial court’s order from which the father appeals did not dispose of all of the claims, leaving open the resolution of the division of the parties’ personal property. The trial court also failed to make “an express determination that there is no just reason for delay” and “an express direction for the entry of judgment.” Rule 54(b).

Because the father appealed from an order that was not made final pursuant to Rule 54(b), we must dismiss this portion of his appeal.

The parties’ joint motion to dismiss regarding the mother’s “Motion for Damages” is hereby granted.

AFFIRMED IN PART AND DISMISSED IN PART.

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


author: THOMAS, Judge.

text:
    ALABAMA PAIN CONSULTANTS, LLC v. ASPEN MEDICAL PRODUCTS, INC.
    2050669.
    Court of Civil Appeals of Alabama.
    March 16, 2007.

      Bruce L. Gordon, Brock G. Murphy, John G. Dana, and Sam David Knight of Gordon & Associates, L.L.C., Birmingham, for appellant.
    G. Steven Ball and Amy M. Hazelton of Benton & Centeno, LLP, Birmingham, for appellee.
   THOMAS, Judge.

Alabama Pain Consultants, LLC (“APC”), appeals from the trial court’s judgment on its Rule 60(b), Ala. R. Civ. P., motion simultaneously setting aside a default judgment in favor of Aspen Medical Products, Inc. (“Aspen”), for $65,360.15 and entering a judgment in Aspen’s favor for $46,642.60. We reverse and remand.

In October 2005, Aspen sued APC alleging that APC owed Aspen $65,360.15. APC failed to answer the complaint, and, in January 2006, Aspen sought a default judgment in its favor. The trial court entered a default judgment on January 11, 2006. On February 21, 2006, APC filed a motion pursuant to Rule 60(b)(1), seeking relief from the default judgment. Aspen responded to APC’s motion. After both parties supplemented their motion and response, respectively, with affidavits and certain documents, the trial court held two hearings on APC’s motion. After the hearings, which were either not recorded or not transcribed for this appeal, the trial court entered a judgment in which it determined that the default judgment should be set aside because APC had demonstrated excusable neglect under Rule 60(b)(1), because APC had demonstrated a meritorious defense, and because Aspen would not be unduly prejudiced by the setting aside of the default judgment. However, the court went further, stating, “[biased on its evaluation of the evidence submitted to it, the court hereby enters a judgment for [Aspen] and against [APC] in the amount of $46,642.60, plus costs of court, which are hereby taxed to [APC].” It is from this judgment that APC appeals.

APC argues that the trial court erred in entering a judgment based on the submissions presented to the trial court in support of its Rule 60(b) motion to set aside the default judgment. Aspen, however, argues that the trial court properly entered a summary judgment pursuant to Rule 56, Ala. R. Civ. P., based on APC’s Rule 60(b) motion together with Aspen’s response and the various evidentiary submissions. We disagree with Aspen’s attempt to characterize APC’s motion as a motion for a summary judgment, and we conclude that the trial court erred in entering a judgment after summary proceedings at which the issue was whether APC was entitled to have the default judgment in favor of Aspen set aside.

To have been entitled to have the default judgment set aside under Rule 60(b), APC was required to allege and prove a Rule 60(b) ground and the factors that trial courts are required to consider when ruling on a Rule 55(c), Ala. R. Civ. P., motion to set aside a default judgment, as set out by our supreme court in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988): a meritorious defense, a lack of prejudice to the nondefaulting party, and a lack of culpable conduct. See Ex parte King, 776 So.2d 31, 35 (Ala.2000); and DaLee v. Crosby Lumber Co., 561 So.2d 1086, 1091 (Ala.1990). As explained by our supreme court in Kirtland, “a defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury.” Kirtland, 524 So.2d at 606.

To establish the existence of a meritorious defense, APC presented affidavit testimony and documentary evidence establishing that Aspen had failed to credit APC’s account for certain returned products and for certain periodic payments. In addition, in its supplemental brief in support of its motion, APC argued that Aspen had overstated APC’s account by approximately $24,467.69 and that “[t]here is a strong possibility that the total number is higher since, at the end of 2004, [an' APC salesperson] began to sell Aspen product for a competing vendor ... in addition to APC. Since she was selling for two vendors from that period through early 2005, there is a decent chance that invoices which were charged to APC during that period of time were for sales which [the salesperson] accomplished through [the other vendor] but which were incorrectly debited to APC’s account.” APC stated that discovery and formal litigation would be necessary to resolve the disputes over the noncredited items and possible incorrect charges to the account.

The evidence APC submitted to establish a meritorious defense was not intended to establish that there existed no genuine issue of material fact and that the amount that APC owed to Aspen had been determined. In fact, the entire tenor of the Rule 60(b) motion was that APC had more than one meritorious defense to the claim that it owed Aspen over $65,000. In addition to the specifically demonstrated credits totaling approximately $24,467.69, APC alluded to other possible defenses that could be resolved only through discovery and, ultimately, litigation. APC established that it had evidence that, if believed, would constitute a meritorious defense to Aspen’s claim and would reduce the amount of money claimed to be owed by a considerable, but not yet precisely determined, amount. Thus, APC established that it had a meritorious defense to Aspen’s claim.

In order for Aspen to be entitled to a summary judgment in its favor for $46,642.60, the trial court would have had to have determined that there existed no genuine issue of material fact regarding the amount of money owed by APC to Aspen. Rule 56(c)(3). As APC argues, if the trial court construed its 60(b) motion as a Rule 56 motion, the trial court did so without notice to APC and without any authority that a Rule 60(b) motion, like a Rule 12(b)(6), Ala. R. Civ. P., motion, can be converted to a motion for a summary judgment filed pursuant to Rule 56. See Rule 12(b) (stating specifically that if matters outside the pleadings are presented to and not excluded by the court on a Rule 12(b)(6) motion, that motion shall be treated as a motion for a summary judgment filed pursuant to Rule 56), and Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 926 (Ala.2002) (stating that a trial court must give notice of its intent to treat a motion to dismiss as a motion for a summary judgment and reversing a summary judgment when neither party had moved for a summary judgment). At no point did APC admit to owing a certain amount of money to Aspen, and at no point did Aspen demonstrate that no genuine issue of material fact existed with regard to the $46,642.60 that the trial court awarded to Aspen in its judgment. Based on the pleadings and evidentiary submissions before the trial court, which, as noted above, were intended to establish that APC had a meritorious defense to Aspen’s claim, this case was about nothing but disputed facts regarding the amount of money owed by APC to Aspen.

We fail to see how the trial court concluded that a judgment for $46,642.60 in favor of Aspen was appropriate when the ease was in the posture it was at the time the judgment was entered. The trial court simply had no basis upon which to determine that the entry of what appears to be a summary judgment was warranted. The entry of what amounts to a summary judgment without either party having actually moved for such a judgment and when the evidence does not support a conclusion that one party was entitled to a judgment as a matter of law is reversible error. Moore, 849 So.2d at 927. Accordingly, we reverse the judgment of the trial court insofar as it entered a judgment for $46,642.60 in favor of Aspen and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: PITTMAN, Judge. BRYAN, Judge,

text:
    TOWN OF KILLEN v. William Doyle CLEMMONS et al.
    2050670.
    Court of Civil Appeals of Alabama.
    March 16, 2007.
    Daniel E. Boone, Florence, for appellant.
    Patrick J. Thomas of Jester <& Jenkins, Florence, for appellees.
    Lorelei A. Lein, Montgomery, for ami-cus curiae Alabama League of Municipalities, in support of the appellant.
   PITTMAN, Judge.

The Town of Killen (“Killen”) appeals from a summary judgment entered in favor of William Doyle Clemmons in Killen’s action to enforce its business-license authority inside Killen’s municipal police jurisdiction.

A portion of the western police jurisdiction of Killen overlaps a portion of the eastern police jurisdiction of the City of Florence (“Florence”). In 1981, Killen adopted an ordinance imposing a business-license tax on business entities storing, selling, or distributing gasoline or other motor fuels in Killen or in Kilíen’s police jurisdiction. Clemmons, doing business as “Clemmons Spur,” is a distributor and retailer of gasoline for sale to the general public; after opening a Spur gas station in the overlapping portion of Florence’s and Killen’s police jurisdictions, he failed to pay Killen the appropriate business-license tax.

On November 18, 2005, Killen filed a complaint in Lauderdale Circuit Court requesting that Clemmons be directed (1) to make an accounting of all gasoline sold or distributed since October 2004 and (2) to make payment of the proper business-license tax for every month in which Clem-mons had failed to pay that tax. Clemmons, relying on the Court of Appeal’s decision in Town of Graysville v. Johnson, 33 Ala.App. 479, 34 So.2d 708 (1948), responded to Killen’s action by filing a motion to dismiss alleging that Killen had failed to state a claim for which relief could be granted. Following a hearing on that motion, the circuit court denied Clem-mons’s motion.

Subsequently, Clemmons filed a motion seeking a summary judgment in his favor, again relying on the Town of Graysville decision. After conducting a summary-judgment hearing, the circuit court determined that there was no genuine issue of material fact and that Clemmons was entitled to a judgment as a matter of law. After the summary judgment in favor of Clemmons was entered, Killen filed a timely appeal, and the Alabama Supreme Court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Our well-established summary-judgment standard of review is as follows:

“A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines 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. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R. Civ. P.,] the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Proof by substantial evidence is required.”

Sizemore v. Owner-Operator Indep. Drivers Ass’n, Inc., 671 So.2d 674, 675 (Ala.Civ.App.1995) (citations omitted).

In this case, the dispositive issue is whether, as a matter of law, Killen is prohibited from collecting business-license taxes from Clemmons and any other businesses that are closer to the municipal boundary of Florence than to Killen in the overlapping police jurisdictions of Killen and Florence based the decision of the Court of Appeals in Town of Graysville. At the time this action was commenced, § 11-51-91, Ala.Code 1975, stated, in pertinent part, that “[a]ny city or town within the State of Alabama may fix and collect licenses for any business, trade or profession done within the police jurisdiction of such city or town but outside the corporate limits thereof.” That Code section also contained the following proviso:

“[Pjrovided further, that when the place at which any such business, trade or profession is done or carried on is within the police jurisdiction of two or more municipalities which levy the licenses thereon authorized by this section, such licenses shall be paid to and collected by that municipality only whose boundary measured to the nearest point thereof is closest to such business, trade or profession.”

(Emphasis added.)

In Town of Graysville, which construed the predecessor to § 11-51-91, the Court of Appeals was asked to interpret the proper application of a proviso identical to the one in § 11-51-91. The court first made a determination that the proviso created “some confusion and uncertainty.” 33 Ala.App. at 482, 34 So.2d at 711. The court based its statutory interpretation upon the following presumption.

“It is a self evident truism that when a business, trade or profession is conducted at a place within the police jurisdiction of two or more municipalities, but without the corporate limits, said operation may reasonably expect and, in practical application, will receive these enumerated protections and privileges from the city or town within the area whose corporate limits are nearest.”

Town of Graysville, 33 Ala.App. at 482, 34 So.2d at 711. Based upon that presumption, the Court of Appeals concluded that only the municipality having its corporate limits closest to a business located within overlapping police jurisdictions would be authorized to levy fees and taxes upon that business under the statute. That legal conclusion is challenged by Killen in this appeal.

Killen relies on certain pertinent facts that are present in this case that were not present in Town of Graysville, especially the fact that Florence and Killen have an agreement that only Killen will levy taxes in the overlapping police jurisdictions of the two municipalities. Contained in the record are several affidavits from municipal officers and employees of Florence and Killen that were offered by Killen in opposition to Clemmons’s summary-judgment motion. The affidavit from Florence’s city clerk, Robert M. Leyde, states that “Florence does not assess or collect business license fees, or other business taxes, from [Clemmons’s] business or any other businesses located in the overlapping jurisdiction.” In addition, Leyde noted that Florence had no future plans to charge businesses for licenses in the overlapping area of the two municipalities’ police jurisdictions. In his affidavit, the mayor of Killen, Jerry Mitchell, noted that Killen and Florence “have enjoyed an unwritten agreement that Killen may require those business licenses and collect the fees, since it also provides the police and fire services” in the overlapping police jurisdictions.

The brief filed by the Alabama League of Municipalities as amicus curiae posits that the Town of Graysville decision rests primarily upon an inaccurate determination that the statute authorizing municipalities to levy business-license fees in their police jurisdictions is ambiguous and confusing, a determination that was combined with an inapplicable assumption concerning the statute. The Court of Appeals in Town of Graysville opined that because the proviso contained the clause “which levy the licenses thereon authorized by this section,” the proviso necessarily engendered “some confusion and uncertainty.” Town of Graysville, 33 Ala.App. at 482, 34 So.2d at 711. The amicus brief posits, and we agree, that the proviso at issue exists simply to resolve potential disputes between two or more municipalities, each of which has chosen to levy license taxes in their overlapping police jurisdictions.

“The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So.2d 719 (Ala.1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says. IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala.1992).”

Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996). Using those generally accepted rules of statutory construction, we conclude that the statutory proviso limiting municipal license-taxing authority to the municipality whose corporate limits are nearest to the subject business logically applies, by its plain language, only when two or more municipalities actually attempt to levy a license tax on the same business within the overlapping police jurisdictions. We must therefore also conclude that the holding of Town of Grays-ville is incorrect.

In the instant case, Clemmons cannot reasonably expect any protections or benefits from Florence, even though his business is physically located closer to the corporate limits of Florence than to those of Killen. Among Killen’s summary-judgment submissions were affidavits from several officials and employees of Florence that established the fact that Florence has never offered any municipal services in the area of the municipalities’ overlapping police jurisdictions and does not levy or collect any fees or taxes in that portion of its police jurisdiction. The affidavit from the Florence city clerk indicates that Florence has decided to waive its right to impose or collect any fees or taxes in the portion of its police jurisdiction that overlaps Killen’s police jurisdiction in contemplation of never having to provide municipal services in the overlapping area. In fact, the affidavit from the mayor of Killen states that the two municipalities had an “unwritten” understanding that only Killen would levy taxes in the overlapping police jurisdictions and that only Killen would provide municipal services such as fire and police protection in that specific area.

In this case, the fact that Killen is the only municipality exercising its taxing authority and providing police and fire services within the overlapping police jurisdictions compels us to conclude that the circuit court erred when it entered a summary judgment in favor of Clemmons. We, therefore, overrule Town of Graysville insofar as it can be read to prevent a municipality, such as Killen, from collecting a business-license tax with respect to a business located within two municipalities’ overlapping police jurisdictions. We reverse the circuit court’s judgment and remand the cause to allow the circuit court to properly apply the plain language of § 11-51-91, Ala.Code 1975, in fashioning a judgment in accordance with this decision.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and THOMAS and MOORE, JJ., concur.

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

I must respectfully dissent. In my opinion, the Court of Appeals correctly decided Town of Graysville v. Johnson, 33 Ala. App. 479, 34 So.2d 708 (1948). If the legislature disagreed with the holding in Town of Graysville, it would have indicated its disagreement by amending the relevant language of the statute. It has not done so.

      . Killen’s ordinance was enacted pursuant to the legislative authority conferred at § 11-51-91, Ala.Code 1975.

      . Section 11-51-91 was amended by Act No. 2006-586, Ala. Acts 2006; the amendment "shall become effective for license years beginning after December 31, 2007....” See, Act No. 2006-586. The provisions of § 11-51-91 that are relevant to this appeal have not been substantially altered by the amendment.

      . Although we agree with the proposition that, by readopting older statutory language without change after the release of an Alabama Supreme Court decision interpreting that language, the legislature may be indicating an intent to adopt that court’s interpretation of the pertinent language, we also recognize that that principle is inapplicable "to decisions of an inferior or intermediate court.” See Sparks v. Louisville & Nashville R.R., 277 Ala. 25, 29, 166 So.2d 865, 869 (1964); see also Rea v. Keller, 215 Ala. 672, 112 So. 211 (1927).

      . We note that Town of Graysville has only been cited in three Alabama opinions since it was decided in 1948; none of those cases were related to municipal taxing authority. Two of those decisions dealt with annexation disputes (State ex rel. City of Birmingham v. City of Tarrant City, 294 Ala. 304, 315 So.2d 583 (1975), and City of Leeds v. Town of Moody, 294 Ala. 496, 319 So.2d 242 (1975)); the third case resolved a conflict-of-interest dispute in which a municipal official was also an officer of a public-utility board (State ex rel. Richardson v. Morrow, 276 Ala. 385, 162 So.2d 480 (1964)).


author: THOMPSON,

text:
    Milton B. SCOTT v. STATE of Alabama ex rel. Camille F. DIX.
    2050949.
    Court of Civil Appeals of Alabama.
    March 16, 2007.

      Milton B. Scott, pro se.
    Troy King, atty. gen., and Sharon E. Ficquette and Jennifer M. Bush, asst, at-tys. gen., Department of Human Resources.
   THOMPSON,

Presiding Judge.

On June 7, 2006, the State of Alabama, on behalf of Camille F. Dix, petitioned the trial court for a modification of Milton B. Scott’s child-support obligation. In its petition, the State sought a modification of a February 5, 1993, judgment of the trial court that had ordered Scott to pay $150 a month in child support for the benefit of Scott’s minor child. On July 5, 2006, Scott, acting pro se, answered by filing a “financial statement” in the trial court. Following a short, ore tenus hearing, the trial court entered a judgment on August 7, 2006, increasing Scott’s child-support obligation from $150 a month to $397.18 a month. Scott timely appealed.

On appeal, Scott, acting pro se, contends that the trial court erred by modifying his monthly child-support obligation absent evidence demonstrating a material change in circumstances. A trial court’s decision based on the evidence presented in an ore tenus proceeding regarding the modification of child support pursuant to Rule 32, Ala. R. Jud. Admin., is entitled to a presumption of correctness and will not be reversed absent evidence that the decision was plainly and palpably wrong. Beavers v. Beavers, 717 So.2d 373, 376 (Ala.Civ.App.1997).

Rule 32 creates a rebuttable presumption that an existing child-support obligation should be modified when the difference between the present obligation and that indicated by the guidelines in Rule 32 is greater than 10%. Rule 32(A)(3)(b), Ala. R. Jud. Admin., states, in pertinent part, that “[t]here shall be a rebuttable presumption that child support should be modified when the difference between the existing- child support award and the amount determined by application of these guidelines varies more than ten percent.” The burden falls on the party contesting the application of the child-support guidelines to rebut the presumption that child support should be modified by proving that applying the child-support guidelines would be manifestly unjust or inequitable. Ex parte Moore, 805 So.2d 715, 720 (Ala.2001). A trial court may modify a support obligation, even when the 10% variation is not present, when there has been a material change in the parties’ circumstances. Williams v. Braddy, 689 So.2d 154, 156-57 (Ala.Civ.App.1996).

The evidence contained in the record on appeal reveals that, at the time of the hearing in this matter, the child was 17 years old. Scott has been employed by the Alabama Department of Corrections for 28 years. Scott testified at the hearing in this matter that he had not received a pay raise in 10 years; however, he also testified that he had reached the maximum of his salary range 15 years before the hearing. On cross-examination, Scott acknowledged that he had in fact received cost-of-living raises in the last 10 years. Scott testified that he earned a semimonthly salary of $1,605.40. Scott submitted a CS-41 Child Support Obligation Income Statement/Affidavit form at trial stating that he earned $3,210.80 a month in gross income.

In this case, the trial court’s child-support award in the amount of $397.18 varies more than 10% from the previous child-support award of $150. Scott does not challenge the trial court’s calculation of child support using the child-support-guideline forms. Contrary to Scott’s contention on appeal, Rule 32, Ala. R. Jud. Admin., does not require the State to demonstrate a material change in circumstances given the variation of more than 10% between the trial court’s initial child-support award and its latest award of $397.18.

Because the trial court’s child-support award made in accordance with the child-support guidelines varies by more than 10% from the original child-support award made by the trial court in this case, the burden was on Scott to demonstrate that the modification of his child-support obligation would be manifestly unjust and inequitable. See Ex parte Moore, supra. At the final hearing, Scott testified that he was unable to afford an increase in child support because he had not received a pay raise in the past 10 years. However, Scott acknowledged on cross-examination that his employment income had increased after he received cost-of-living pay increases.

Given the presumption that an existing child-support obligation should be modified when the difference between the present obligation and that indicated by the guidelines in Rule 32 is greater than 10%, and the evidence presented by Scott in an effort to rebut that presumption, we cannot say that the trial court erred by modifying Scott’s child-support obligation.

AFFIRMED.

BRYAN, THOMAS, and MOORE, JJ., concur.

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