author: MOORE, Judge.

text:
    Jeremy Dewayne ALLEN v. Tasha Simpson ALLEN.
    2050494.
    Court of Civil Appeals of Alabama.
    April 6, 2007.

      Raymond C. Bryan, Anniston, for appellant.
    Arthur F. Fite III of The Fite Law Firm, L.L.C., Anniston, for appellee.
   MOORE, Judge.

Jeremy Dewayne Allen (“the father”) appeals from a judgment entered by the Calhoun Circuit Court modifying his child-support obligation. We affirm.

In 2001, the father and Tasha Simpson Allen (“the mother”) petitioned the trial court for a divorce. In connection with that divorce petition, the parties submitted to the trial court a separation agreement entered into by the parties, and CS-41 income affidavits, a CS-42 form, and a CS-43 form, as required by Rule 32, Ala. R. Jud. Admin.

On September 13, 2001, the trial court entered a judgment divorcing the father and the mother. The divorce judgment adopted the parties’ separation agreement, which included, among other things, provisions for the custody and support of the parties’ two minor children. The separation agreement indicated that the mother would have primary physical custody of the children but that the father would have significant “secondary” physical custody as well. Specifically, the agreement provided that the father would have physical custody of the children every other week from Thursday after school through Monday morning at 8:00 a.m. On other weeks, the father would have physical custody of the children on Wednesday after school until the next morning. The father also would have physical custody of the children during the week of fall break, and the parents would split physical custody of the children equally during all other holidays.

The parties calculated the father’s child-support obligation pursuant to the “split custody” provisions of Rule 32 of the Alabama Rules of Judicial Administration, although the rule allows the use of this method only “[i]n those situations where each parent has primary physical custody of one or more children.” Rule 32(B)(9). This calculation yielded a child-support obligation of $193 per month, but the father agreed to pay $250 per month. The parties explained that they had deviated from the child-support guidelines only in increasing the obligation of the father from $193 to $250 per month, which the parties characterized as an agreement by the father to pay more than the guidelines required.

With regard to child support, the divorce judgment provided as follows:

“That the parties have entered into a fair written agreement establishing the award of Child Support herein and have filed a Notice of Compliance in accordance with Rule 32(A)(1), [Ala. R. Jud. Admin.] The reasons stated in the Notice of Compliance in rebuttal of the presumption in favor of the Guideline determination are adopted herein as findings of the Court.”

On September 8, 2005, the mother filed a petition to modify the father’s child-support obligation. The trial court held a hearing on the petition in which it received ore tenus evidence. The parties both testified that they had followed the physical-custody arrangement set out in the separation agreement as closely as possible and that, as a result, the father had physical custody of the children approximately 42% of the time and the mother had custody approximately 58% of the time. Although there had been no change in the physical-custody arrangement since the divorce, the mother testified that the children’s financial needs and the parties’ incomes had increased. The parties again submitted CS-41 income affidavits; those affidavits revealed that, since the divorce, the mother’s monthly income had increased from an imputed amount of $1,794 to $2,629.92 and the father’s monthly income had increased from $3,132 to $4,047.

On February 28, 2006, the trial court entered a judgment stating:

“1. That a material change in circumstances has occurred and that the previous Orders of this Court are due to be modified.
“2. That based on the testimony, the calculation of Child Support in the Form CS-42 presented with the divorce Agreement was based on joint placement and was inaccurate. That the Form CS^3 indicating that the [father] was paying in excess of the Guidelines was in error, since there was no true joint placement. The [father] was therefore paying less than the Guidelines would require.
“3. That the calculation of Child Support pursuant to Rule 32, [Ala. R. Jud. Admin.,] results in a change in the amount of Child Support greater than 10%. Therefore, Child Support should be modified to comply with the Child Support Guidelines.”

Accordingly, the trial court ordered the father to pay $697 per month in child support, the amount calculated pursuant to the basic child-support guidelines.

The father appeals, arguing that the trial court exceeded its discretion “by changing the method of calculating child support from a joint/split basis to a sole custody with visitation basis without any request for modification of child custody or a substantial change in circumstances except the parties’ increased income and alleged increase in [the] children’s needs.” He asserts that the petition for modification amounts to “an impermissible collateral attack upon the original divorce judgment” because it “requested the trial court to reconsider whether the parties, in the original divorce proceedings, had adequately rebutted the Rule 32 presumption in favor of the guideline amount.” Alternatively, he argues that the trial court exceeded its discretion in finding “that the parties do not have a true joint custody arrangement due to the time in which the children spend with each parent not being equal.”

Standard of Review
“ ‘Modification of child support is a matter within the trial court’s discretion and the trial court’s ruling on that matter will not be disturbed on appeal unless there is an abuse of discretion. Bass v. Bass, 475 So.2d 1196, 1198 (Ala.Civ.App.1985). Where evidence is presented ore tenus, the trial court’s judgment based on that evidence is presumed correct, particularly in matters concerning child support, and it will be reversed only upon a showing that the trial court abused its discretion or that its determination is plainly and palpably wrong. Wilson v. Hall, 628 So.2d 728 (Ala.Civ.App.1993).’ ”

Schiesz v. Schiesz, 941 So.2d 279, 288 (Ala.Civ.App.2006) (quoting Puckett v. Summerford, 706 So.2d 1257, 1257 (Ala.Civ.App.1997)).

Discussion

“[T]he award of child support is not res judicata and may be modified in the future due to changed circumstances.” Conradi v. Conradi 567 So.2d 364, 365 (Ala.Civ.App.1990).

“A prior child support award may be modified only on proof of changed circumstances, and the burden of proof rests on the party seeking the modification. Kellum v. Jones, 591 So.2d 891 (Ala.Civ.App.1991). The standard for determining changed circumstances is the increased needs of the child and the ability of the parent to respond to those needs. Moore v. Moore, 575 So.2d 95 (Ala.Civ.App.1990). The modification of child support for changed circumstances is a matter strictly within the trial court’s discretion. The trial court’s decision will not be disturbed upon appeal unless there is a clear abuse of discretion. Kellum.”

Coleman v. Coleman, 648 So.2d 605, 606 (Ala.Civ.App.1994).

In this case, the mother did not request that the trial court set aside its earlier child-support order and award retroactive child support based on any alleged error in the original computation of child support. The mother did not allege or attempt to prove a change in the physical-custody arrangement as a basis for increasing the father’s child-support obligation. She simply asked the trial court to modify the child-support order to account for a change in circumstances due to the increased financial needs of the children and an increased ability of the father to meet those financial needs.

Moreover, the trial court did not express in any way that it was basing its decision to increase the father’s child-support obligation on a change in the physical-custody arrangement. In its order, the trial court did mention that the parties had incorrectly calculated child support in 2001; however, the trial court did not purport to correct that error. Instead, the trial court modified the child-support award only prospectively, clearly indicating that it was not reconsidering the original judgment.

“Once a change in circumstances is proven, Rule 32(A), [Ala.] R. Jud. Admin., establishes a rebuttable presumption that the correct amount of child support results from the application of the guidelines.” Coleman, 648 So.2d at 606. In its judgment, the trial court calculated the father’s child-support obligation according to the basic child-support guidelines and not according to the split-custody provision found in Rule 32(B)(9), Ala. R. Jud. Admin. We find no error in this regard.

The trial court may use the split-custody method only when “ ‘each parent has primary physical custody of one or more children.’ ” Boatfield v. Clough, 895 So.2d 354, 357 (Ala.Civ.App.2004) (quoting Rule 32(B)(9), Ala. R. Jud. Admin.).

“[0]ur Supreme Court has not seen fit to direct the use of [the split-custody] method in joint-custody situations; instead, the Guidelines ‘do not specifically address the problem of establishing a support order in joint legal custody situations,’ although such custodial arrangements, as we have noted, ‘may be considered by the court as a reason for deviating from the guidelines,’ especially ‘if physical custody is jointly shared by the parents.’ ”

Boatfield, 895 So.2d at 357 (quoting Comment, Rule 32, Ala. R. Jud. Admin.). In this case, the divorce judgment incorporating the parties’ agreement awarded the mother primary physical custody and the father secondary physical custody. In practice, the parties adhered to this arrangement. The father has never had primary physical custody of either child; thus, Rule 32(B)(9) has no application to the 2006 child-support-modification judgment.

The father nevertheless asserts that because the parties originally calculated child support on a split-custody basis in 2001, the trial court could not use any other method in 2006. We disagree. In a child-support-modification proceeding, the method of calculating child support and the amount derived therefrom in the original judgment is subject to revision pursuant to the application of the child-support guidelines in existence at the time of the modification of the judgment. See,, e.g., DeMo v. DeMo, 679 So.2d 265 (Ala.Civ.App.1996) (although parties agreed father would pay $800 per month without using child-support guidelines, in a modification proceeding the trial court could modify the father’s child-support obligation to $600 a month to reflect accurate amount using child-support guidelines). The 2001 divorce judgment did not preclude the trial court from correctly applying the guidelines in effect in 2006.

The father does not assert that the trial court incorrectly calculated his child-support obligation or that the trial court should have deviated from the child-support guidelines because of the substantial amount of time the children are in his physical custody. See Rule 32(A)(1)(a), Ala. R. Jud. Admin. Accordingly, we affirm the-trial court’s judgment.

AFFIRMED.

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


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    CITY OF HARTSELLE v. Martha Diane WILBANKS.
    2050473.
    Court of Civil Appeals of Alabama.
    April 6, 2007.

      Larry W. Madison, Hartselle, for appellant.
    Ralph W. Hornsby, Jeffrey G. Blackwell, and Jennifer L. McKown of Hornsby, Watson, Hornsby, Blackwell & McKown, Huntsville, for appellee.
   THOMAS, Judge.

The City of Hartselle (“the employer”) appeals a judgment awarding Martha Diane Wilbanks (“the employee”) workers’ compensation benefits. Because it is untimely, we dismiss the appeal.

The trial court entered a judgment awarding the employee benefits on November 4, 2005. On January 10, 2006, the employee filed a motion seeking to correct the judgment insofar as it had used an incorrect date for the termination of the temporary benefits paid by the employer and thus had incorrectly computed the benefits due the employee. The trial court granted the motion and, on January 17, 2006, issued an amended judgment reflecting the appropriate date and adjusting the computations figuring the amount of compensation due the employee. The employer filed a notice of appeal on February 28, 2006. The employer’s argument on appeal concerns only the propriety of the trial court’s conclusion that the employee was permanently and totally disabled.

The motion filed by the employee was filed more than 30 days after the entry of the November 4, 2005, judgment, and, thus, was not a timely motion pursuant to Rule 59, Ala.R.Civ. P.; therefore, it did not toll the time for taking an appeal. See Rule 4(a)(3), Ala.R.App. P.; Levine v. Malaga Rest., Inc., 501 So.2d 1231, 1233 (Ala.Civ.App.1987) (noting that motions filed more than 30 days after the entry of a judgment cannot be considered proper Rule 59 motions). An appeal must be filed within 42 days of the entry of the judgment. Rule 4(a)(1); see also Levine, 501 So.2d at 1233. Thus, the employer’s notice of appeal, which was filed more than 42 days after the entry of the November 4, 2005, workers’ compensation judgment, is untimely. See Rule 4(a)(1), Ala. R.App. P.

APPEAL DISMISSED.

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

      . Instead of seeking to amend the judgment pursuant to Rule 59, the employee made the motion pursuant to Rule 60(a), Ala. R. Civ. P. However, because the motion sought more than a mere correction of a clerical error, the motion was not a proper Rule 60(a) motion. See Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 828-29 (Ala.Civ.App.1997) (explaining the proper use of a Rule 60(a) motion in a workers’ compensation case); Levine v. Malaga Rest., Inc., 501 So.2d 1231, 1233-34 (Ala.Civ.App.1987); see also Continental Oil Co. v. Williams, 370, So.2d 953, 955-56 (Ala.1979) (Torbert, C.J., concurring specially) (discussing Rule 60(a)). The employee's motion also referenced Rule 60(b); however, the motion stated no grounds under 60(b) that would entitle the employee to any relief from the judgment.


author: THOMPSON, Presiding Judge.

text:
    Clifford BENNETT v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
    2060121.
    Court of Civil Appeals of Alabama.
    April 13, 2007.
    Donald H. Brockway, Jr., Birmingham, for appellant.
    Wynn M. Shuford of Lightfoot, Franklin & White, LLC, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

The defendant below, Clifford Bennett, appeals from the circuit court’s denial of his motion to set aside a default judgment entered against him. Because Bennett has not shown a valid meritorious defense, because he has not shown that the plaintiff will not be prejudiced if his motion were granted, and because he has not shown that the default was not a result of his own culpable conduct, we conclude that he failed to show that the trial court exceeded its discretion in denying the motion to set aside the default judgment.

The facts of this case are undisputed. On April 26, 2006, Mortgage Electronic Registration Systems, Inc. (“MERS”), filed a complaint seeking to recover possession of certain real property from Bennett pursuant to § 6-6-280, Ala.Code 1975. Bennett owned a tract of land in Adamsville (“the property”). The complaint alleged that MERS had purchased the property at a foreclosure sale and that Bennett had refused to give MERS possession of the property after MERS demanded possession in writing.

The record shows that Bennett was served pursuant to Rule 4, Ala. R. Civ. P., on May 21, 2006. Bennett did not file an answer, a motion pursuant to Rule 12, Ala. R. Civ. P., or any other responsive pleading. On June 22, 2006, 32 days after Bennett had been served, MERS filed an application for entry of default and submitted a supporting affidavit. The record shows that a “no answer notice” was issued to Bennett on June 23, 2006. On July 5, 2006, the trial court ordered that a default judgment be entered and rendered against Bennett for MERS’s immediate possession of the property and that the clerk “immediately issue a Writ of Possession in favor of [MERS] and against [Bennett].”

On July 27, 2006, Bennett filed a motion to set aside the default judgment and to dismiss the action. The motion and its supporting exhibits did not show any reason why Bennett had failed to answer or otherwise file a response to the complaint. As his only ground for the motion, Bennett asserted that the trial court lacked jurisdiction “because of two prior dismissed cases.” Bennett asserted that MERS had filed actions against him for possession of the property on two prior occasions: case no. CV-02-7355 and case no. CV-03-7621. Bennett submitted documents showing that case no. CV-02-7355 had been dismissed without prejudice on June 23, 2004, and that case no. CV-03-7621 had been dismissed without prejudice by order of the circuit court on May 10, 2004. Bennett argued that the default judgment should be set aside and the case dismissed based on the following language in Rule 41(a)(1), Ala. R. Civ. P., which governs voluntary dismissals by the plaintiff or by stipulation of the parties:

“Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of Alabama, or of the United States, or of any state, an action based on or including the same claim.”

To support his argument, Bennett cited Rule 41(a)(1) and the dissenting opinion of Justice Maddox in Ex parte Lynn, 681 So.2d 140 (Ala.1996).

MERS responded, and after a hearing at which no transcript was taken, the trial court denied Bennett’s motion. Regarding Bennett’s argument that he had a meritorious defense under Rule 41(a)(1), Ala. R. Civ. P., the trial court found that- “the prior dismissals [were] by participation of the court or by agreement of the parties,” and that there had “been no dismissal with prejudice as provided in Rule 41(a).” Bennett filed a timely notice of appeal to the Alabama Supreme Court, and the appeal was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

This court reviews the denial of a motion to set aside a default judgment to determine whether the trial court exceeded its discretion. See Rudolph v. Philyaw, 909 So.2d 200, 202 (Ala.Civ.App.2005); and Martin v. Crumpton, 883 So.2d 700, 703 (Ala.Civ.App.2003).

“A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988). ... That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits. 524 So.2d at 604.”

Zeller v. Bailey, 950 So.2d 1149, 1152 (Ala.2006). This court has explained the following principles that guide our review of the trial court’s decision:

“Our supreme court has held that the trial court’s use of discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala.1987). Our supreme court has also established guidelines to assist a trial judge in exercising his discretion.
‘““[A] trial court’s broad discretionary authority under Rule 55(c) should not be exercised without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.”
‘“Kirtland, 524 So.2d [600] at 605 [ (Ala.1988) ].’
“Martin v. Crumpton, 883 So.2d 700, 703 (Ala.Civ.App.2003).”

Rudolph, 909 So.2d at 202-03. “The law in Alabama is clear that the defaulting party has the initial burden of demonstrating the existence of the Kirtland factors.” Id. at 203 (citing Ex parte Family Dollar Stores, 906 So.2d 892, 899-900 (Ala.2005); Phillips v. Randolph, 828 So.2d 269, 278 (Ala.2002); and Kirtland, 524 So.2d at 605-608).

Regarding the first Kirtland factor, after reviewing Rule 41(a), Ala. R. Civ. P., we find that the trial court did not exceed its discretion in finding that Bennett did not have a meritorious defense under that rule. Initially, we note that Bennett quotes as authority Justice Maddox’s dissenting opinion in Ex parte Lynn, 681 So.2d 140 (Ala.1996), in which the appellant had petitioned the supreme court for a writ of certiorari. Before this court, the appellant in Ex parte Lynn had argued that, under Rule 41(a), Ala. R. Civ. P., the trial court lacked jurisdiction due to the dismissals of two prior actions. This court noted that the prior dismissals had been entered by order of the court pursuant to Rule 41(a)(2), and not Rule 41(a)(1), and, for procedural reasons, declined to address the argument further. Lynn v. Nelson, 681 So.2d 138 (Ala.Civ.App.1995). The supreme court quashed the writ of certiorari without an opinion; all the Justices except Justice Maddox concurred. 681 So.2d 140. It is axiomatic that dissenting opinions are not precedential authority. We therefore do not find Justice Maddox’s dissenting opinion, on which Bennett relies, to be persuasive.

Regarding the so-called “two-dismissal rule” stated in Rule 41(a)(1), on which Bennett bases his argument, a close reading reveals that the rule applies when the second dismissal is by “a notice of dismissal” pursuant to that subsection, not a dismissal by the court pursuant to Rule 41(a)(2). Because we can find no Alabama case specifically interpreting the two-dismissal rule, we look to cases interpreting the analogous federal rule for guidance. As the United States Court of Appeals for the Eleventh Circuit has explained:

“In construing the two dismissal rule, we look to the plain language of the rule and read it as a whole, being mindful of the linguistic choices made by the drafters. See FDIC v. Lacentra Trucking, Inc., 157 F.3d 1292, 1302 (11th Cir.1998), cert. dismissed, [526] U.S. [1083], 119 S.Ct. 1493, 143 L.Ed.2d 575 (1999). We take care not to construe the rule too broadly, as it ‘is an exception to the general principle, contained in Rule 41(a)(1) and honored in equity prior to the adoption of the Federal Rules, that a voluntary dismissal of an action does not bar a new suit based upon the same claim.’ Poloron Products, Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012, 1017 (2d Cir.1976).
“The two dismissal rule does not state the specific means by which the first dismissal must have been obtained to implicate the rule. It does, however, state the rule is implicated when ‘a plaintiff ... has once dismissed’ a claim. Rule 41(a)(1), in which the two dismissal rule appears, provides for dismissal by a plaintiff without order of court by the filing of a timely notice of dismissal or a stipulation of dismissal signed by all parties. Dismissal on plaintiffs motion and by order of court, on the other hand, is provided for in Rule 41(a)(2). Rule 41(a)(1) and Rule 41(a)(2) each ends with a sentence explaining the effect of dismissal obtained under their respective provisions. For Rule 41(a)(1), that last sentence includes the two dismissal rule. There is no two dismissal rule set out in Rule 41(a)(2) and we see no basis for reading the two dismissal rule to apply where the first dismissal is achieved by motion and order of the court. Although dismissal under Rule 41(a)(2) is, as the rule says, ‘at the plaintiffs instance,’ the actual dismissal is by the court and therefore does not implicate the Rule 41(a)(1) two dismissal rule.
“Although not pivotal to our analysis, our conclusion is further supported by consideration of the purpose of the Rule 41(a)(1) two dismissal rule. ‘[T]he primary purpose of the “two dismissal” rule is to prevent an unreasonable use of the plaintiffs unilateral right to dismiss an action prior to the filing of the defendant’s responsive pleading.’ Poloron Products, Inc., 534 F.2d at 1017 (citations omitted); see also American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.1963) (‘The reason for this arbitrary limitation [set out in the two-dismissal rule] ... is to prevent unreasonable abuse and harassment.’). A dismissal obtained by motion and order of the court under Rule 41(a)(2) or similar state rule is not unilateral and does not pose the same danger of abuse or harassment as does a Rule 41(a)(1) dismissal by plaintiffs notice. In ruling on such motions, a court has discretion to determine whether the dismissal will be with or without prejudice and with or without conditions based on its view of the case and the plaintiffs actions.”

ASX Inv. Corp. v. Newton, 183 F.3d 1265, 1267-68 (11th Cir.1999) (footnotes omitted).

The reasoning of ASX Investment Corp. v. Newton is persuasive regarding the application of the two-dismissal rule when, as here, the second or subsequent dismissal is by order of the court. As that opinion points out, the two-dismissal rule of Rule 41(a)(1) applies when the second dismissal is by the plaintiff or by stipulation of the parties pursuant to that subsection, not by order of the court pursuant to Rule 41(a)(2). In other words, there is no reason to read the two-dismissal rule of Rule 41(a)(1) as applying to dismissals under Rule 41(a)(2). Here, because the second dismissal was by order of the court, and thus pursuant to Rule 41(a)(2), the two-dismissal rule stated in Rule 41(a)(1) does not apply. Bennett, therefore, has not stated a meritorious defense sufficient to support the first Kirtland factor. Accordingly, the trial court did not exceed its discretion in denying Bennett’s motion.

Additionally, it is apparent from the record that Bennett did not present any argument to the trial court regarding the second and third Kirtland factors:

whether MERS would be unfairly prejudiced and whether the default was a result of his own culpable conduct. On appeal, Bennett cites cases containing general propositions of law regarding the second and third Kirtland factors and makes only bare factual assertions as to those factors. Because Bennett bears the “initial burden of demonstrating the existence of the Kirt-land factors,” Rudolph, 909 So.2d at 203, and because he failed to make at least a prima facie showing as to these factors, the trial court did not exceed its discretion in denying Bennett’s motion to set aside the default judgment. See Phillips, 828 So.2d at 278-79.

Based on the foregoing, it is apparent that, before the trial court and on appeal, Bennett has failed to make a showing as to each of the Kirtland factors. We therefore find that the trial court did not exceed its discretion in denying Bennett’s motion to set aside the default judgment. The trial court’s decision, therefore, is due to be affirmed.

AFFIRMED.

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

      . In footnotes 1 and 7 of his brief on appeal, Bennett states that MERS filed a third action against him that was dismissed “by its voluntary conduct.” Bennett states that evidence of this third case was not made a part of the record on appeal and that that evidence was the subject of his motion to supplement the record on appeal. However, this court has no record of a motion to supplement, and the record contains no evidence of this third action.

      . This court has recognized that "[c]aselaw construing the federal analogue of Rule 41(a) ... is 'highly persuasive when we are called upon to construe the Alabama rules.' ” Havis v. Marshall County, 802 So.2d 1101, 1104 (Ala.Civ.App.2001) (quoting Wilson v. First Union Nat'l Bank of Ga., 716 So.2d 722, 726 (Ala.Civ.App.1998)).


author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CIVIL CASES (NO. 06-02).
    No. SC06-1362.
    Supreme Court of Florida.
    Sept. 20, 2007.
    Scott D. Makar, Chair, Supreme Court Committee on Standard Jury Instructions (Civil), Office of General Counsel, Jacksonville, FL, Tracy Raffles Gunn, Vice-Chair, of Fowler, White, Boggs, Banker, P.A., Tampa, FL, Wendell M. Graham, Chair, County Court Instructions Subcommittee, Eleventh Judicial Circuit, Miami, FL, and Joseph H. Lang, Jr., Filing Subcommittee, of Carlton Fields, P.A., Tampa, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the Standard Jury Instructions in Civil Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On July 11, 2006, the Committee filed a report proposing new Standard Jury Instruction MI. MISCELLANEOUS, 13 CLAIM FOR PERSONAL INJURY PROTECTION INSURANCE BENEFITS (PIP) (MEDICAL BENEFITS ONLY). Prior to submitting this report to the Court, the Committee published the proposed new instruction in the October 15, 2005, edition of The Florida Bar News. After receiving numerous comments following this publication and undertaking further review, the Committee modified the instruction in response to some comments and rejected other comments. The changes made subsequent to the comments were not significant and did not warrant republication.

This proposed instruction is the first resulting from the Committee’s newly established County Court Instructions Subcommittee, which aims to develop standard instructions for issues that arise primarily in Florida’s county courts. The Committee asserts that because the majority of personal injury protection (PIP) claims occur in county court, the proposed jury instruction and verdict form are intended to assist county court judges in handling PIP claims.

Upon consideration, we hereby authorize for publication and use the new instruction as set forth in the appendix attached to this opinion. In authorizing publication, we caution all interested persons that the notes and comments reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. We express no opinion on the correctness of this instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of this instruction. The amendments shall be effective when this opinion becomes final. We wish to express our appreciation to the Committee for its dedication in presenting to the Court its recommendations.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX A: PROPOSED MI 13 AND VERDICT FORM

MI 13

CLAIM FOR PERSONAL INJURY PROTECTION INSURANCE BENEFITS (PIP)

(MEDICAL BENEFITS ONLY)

a. Issues:

(Claimant) seeks personal injury benefits from (defendant) for [a medical service] [medical services]. (Claimant) is entitled to recover benefits if the service[s] [is] [are] related to the accident, the service[s] [is] [are] medically necessary, and the charge[s] for the service[s] [is] [are] reasonable.

[Give this preemptive instruction only where rulings or stipulations have' altered the number of issues to be proven.]

In this case, there is no dispute that [the service[s] [is] [are] related to the accident] [and] [that the service[s] [is] [are] medically necessary] [and] [that the charge[s] [is] [are] reasonable], but there is dispute over [whether the service[s] [is] [are] related to the accident] [and] [whether the service[s] [is] [are] medically necessary] [and] [whether the charge[s] for the service[s] [is] [are] reasonable].

[To be given in all cases. Alter numbering where required, due to rulings or stipulations.]

Therefore, on this claim for personal injury benefits, you must decide the following:

[The first issue is whether the service is related to the automobile accident of (date). If you decide that a service is not related to the accident, you should not award damages for that service. If you decide that one or more services are related to the accident, you must then decide a second issue.]

[The second issue is whether the service is medically necessary. If you decide that a service was not medically necessary, you should not award damages for that service. If you decide that one or more services are medically necessary, you must then decide a third issue.]

[The third issue is whether the charge is reasonable. If you find the charge for a service or services reasonable, you should award that amount as damages. If you find the charge for a service or services is not reasonable, you should award an amount that the greater weight of the evidence shows is reasonable.]

In determining these issues, you should apply the following definitions:

[Give applicable definitions below]

a. Services:

The term “services” includes, but is not limited to, treatment, diagnostic studies, and supplies provided by the medical provider to the insured.

b. Medically Necessary:

“Medically necessary” refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is:

(a) In accordance with generally accepted standards of medical practice;

(b) Clinically appropriate in terms of type, frequency, extent, site, and duration; and,

(c) Not primarily for the convenience of the patient, physician, or other health care provider.

c. Reasonable Charge:

In deciding whether the amount of a charge is reasonable, you may consider evidence of:

• usual and customary charges and payments accepted by the provider involved in the dispute;
• reimbursement levels in the community;
• reimbursement levels in various federal and state medical fee schedules applicable to automobile coverages; and
• any other evidence relevant to the reasonableness of the charges.

You may not, however, award an amount that exceeds the amount the provider customarily charges for like services or supplies.

[Burden — To be given in all cases.]

If the greater weight of the evidence does not support the claim of (claimant), then your verdict should be for (defendant).

However if the greater weight of the evidence does support the claim of (claimant), then your verdict should be for (claimant) and against (defendant).

[Give when defenses to the claim have been raised.]

If, however, the greater weight of the evidence does support the claim of (claimant), then you shall consider the defense[s] raised by (defendant).

[Give in all cases.]

“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

NOTES ON USE

This instruction assumes that the jury will be asked to decide the total amount of medical charges. It is anticipated that the .judge will adjust this award in entering .judgment to account for any payments previously made by the insurer, as well as for the effect of the 80% limitation in section 627.736(l)(a) and any deductible.

COMMENT

1. The definition of “medically necessary” is based on section 627.732(2), Florida Statutes (2003). The committee has added the option of a “prudent health care provider” to this definition in anticipation that the phrase, “prudent physician,” as described in the statute could sometimes be inadequate. This statutory definition is somewhat complex. It is possible that the parties could agree upon a plainer and simpler definition,

2. No definition of “related” is provided in this instruction. Causation can be a complex issue in a PIP case. Generally, to invoke this insurance coverage a bodily injury must “arise out of the ownership, maintenance, or use of a motor vehicle.” See § 627.736(1), Fla. Stat. (2003); Lumbermens Mutual Casualty Co. v. Castagna, 368 So.2d 348 (Fla.1979). The medical treatment covered by the insurance policy is the treatment that is related to the bodily injury arising out of the ownership, maintenance, or use of the motor vehicle. The committee has been advised that most practitioners prefer to use the term, “related,” as a simple method to explain causation to the jury. The committee does not intend for S.J.I. 5.1 to be given in a PIP case as an explanation of causation.

Note: The following form is a proposed new form, but for clarity the form is not underlined.

VERDICT FORM FOR USE WITH MI 13

VERDICT FORM

1. Are any of the services related to the accident of (date)?

_Yes _No-

li your answer is no, your verdict is for the Defendant and you should go no further but to sign and date the verdict form. If your answer is yes, you should answer question 2.

2. Are any of the services medically necessary?

__Yes _No

If your answer is no, your verdict is for the Defendant and you should go no further but to sign and date the verdict form. If your answer is yes, you should answer question 3.

3. [Is the charge for the service reasonable?] [Are the charges for the services reasonable?] If you find the charge or charges reasonable, you should proceed to number 4. However, if you find the charge or charges unreasonable, you must determine a reasonable amount for the charge or charges, then proceed to question 4.

4. What is the total amount you find reasonable?

$-

SO SAY WE ALL, this _ day of FOREPERSON

      . This statutory description of reasonable amount may require a supplemental instruction for fee-capped diagnostic testing services as described in section 627.736(5)(b), Florida Statutes (2003).