author: THOMPSON, Judge.

text:
    G. Randall SMITH, Jr., and Julia Smith v. James LEDBETTER and Cherie Ledbetter.
    2050836.
    Court of Civil Appeals of Alabama.
    Dec. 29, 2006.

      Bradley J. Smith, Eric D. Bonner, and Cynthia N. Williams of Clark, Oncale, Hair & Smith, P.C., Birmingham, for appellants.
    James C. Inzer III of Inzer, Haney & McWhorter, P.A., Gadsden, for appellees.
   THOMPSON, Judge.

G. Randall Smith, Jr., and Julia Smith appeal from a judgment entered by the trial court denying declaratory and injunc-tive relief in an action by the Smiths to enforce a restrictive covenant against James Ledbetter and Cherie Ledbetter. We affirm.

The Smiths and the Ledbetters own lots in a subdivision in Gadsden called “the Highlands.” The Highlands subdivision was created pursuant to a plan of development in which certain restrictive covenants limit the use of the various plots of land in the subdivision. On January 13, 2006, the Smiths filed a complaint against the Led-betters in the trial court seeking a judgment declaring that the Ledbetters were in violation of one of the restrictive covenants and an injunction barring further construction of the Ledbetters’ house. The trial court heard oral argument regarding the Smiths’ claims on February 10, 2006.

On February 22, 2006, the Smiths filed an amended complaint seeking monetary damages for violation of the restrictive covenant. The Smiths also filed on the same day a motion for a summary judgment against the Ledbetters. The Led-betters filed a document with the trial court on April 25, 2006, entitled “Argument in Support of ... Defendants’ Position,” in which they denied any violation of the restrictive covenant.

Also on April 25, 2006, the trial court entered a judgment finding that the Led-betters were not in violation of the restrictive covenant and denying all of the Smiths’ requested relief. The Smiths timely appealed to our supreme court. That court then transferred the case to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

The relevant facts are as follows. The Highlands subdivision was developed by Nancy Becker, who divided an area of land into 32 lots for individual sale. In 1994, the Smiths purchased lot 25, as it is numbered in the subdivision plat created by Becker. The Smiths constructed a house on lot 25 in 1995.

In 2005, the Ledbetters purchased lot 24; lot 24 is adjacent to and to the west of the Smiths’ lot. The deed to lot 24 contains a provision stating that the property was subject to certain restrictive covenants and referencing those covenants.

Of the various restrictive covenants applicable to the lots in the Highlands subdivision, only one is relevant to this matter. That restrictive covenant states: “Every residence shall face the street on which the lot fronts.” Nowhere in the applicable deeds or in the document containing the restrictive covenants is the term “fronts” defined.

Lot 24 and lot 25 abut the northern boundary of the Highlands subdivision. The southern boundary lines of the parties’ lots border Audrey Lane, a street that runs west to east, separating plots on the northern and the southern sections of the subdivision. The Smiths’ lot, like most of the lots in the Highlands subdivision, has only one side of the lot that borders a street. However, lot 24 has a southern boundary that stretches approximately 75 feet along Audrey lane; the northern boundary of lot 24 extends for approximately 210 feet, of which approximately 155 feet borders Viola Drive.

In late 2005, the Ledbetters began construction on a house on lot 24. It was apparent to the Smiths and to other residents of the neighborhood that the Led-betters were building their house to face Viola Drive to the north and not Audrey Lane to the south. All but one of the houses built on property that bordered Audrey Lane were built to face Audrey Lane. Only lot 8, which is a corner lot, has a house that faces another street, although apparently the side and not the back of that house faces Audrey Lane. The Smiths brought this action because they claim that construction of the Ledbetters’ house to face away from Audrey Lane violates the restrictive covenant.

In support of their motion for a summary judgment, the Smiths submitted several affidavits and other exhibits. First, the Smiths submitted the affidavit of Nancy Becker, the developer of the subdivision, in which Becker states:

“It was my intent to develop the property with restrictions in accordance with a common plan designed to preserve the value and qualities of the land for the benefit of its future owners. In order to accomplish this goal, The Covenants, Conditions and Restrictions for the Highlands Subdivision were drafted personally by me.
“I am familiar with Section I.B.3. of the Covenants, Conditions and Restrictions which specifically states: ‘Every residence shall face the street on which the lot fronts.’ It was my intent and understanding that the street on which Lot 24 fronts is Audrey Lane. All other residences in the subdivision bordering Audrey Lane are built so that those residences front Audrey Lane.”

The Smiths also submitted the affidavit of Bennett Tucker, who was the engineer hired to assist Becker in the design of the subdivision. Tucker states in his affidavit:

“I am familiar with lot twenty-four of the Highlands Subdivision, which is currently owned by the Ledbetters. When the Highlands Subdivision was designed in the 1990s it was the design and intent for any residential home built on lot twenty-four to face Audrey Lane. Further, a residence constructed on lot twenty-four with the rear of the home facing Audrey Lane would not be consistent with the general design and scheme of the neighborhood where no other home found in the subdivision has the rear of the home facing Audrey Lane.”

G. Randall Smith, Jr., submitted his own affidavit in which he set forth some of the facts as mentioned above and also stated that, in his opinion, the construction of the Ledbetters’ house to face away from Audrey Lane would cause a reduction in the value of the Smiths’ house from $300,000 to $175,000. Additionally, the Smiths submitted the affidavit of Taylor Wiggins, who is the president of the Highlands Homeowners’ Association (“the Association”). In his affidavit, Wiggins states that, beginning in December 2005 and on several occasions thereafter, he expressed concern to the Ledbetters that the orientation of their house was in violation of the restrictive covenants on the property. Additionally, Wiggins states that he invited the Ledbetters to a December 20, 2005, meeting of the Association to discuss the problem but that the Ledbetters did not attend. Wiggins states that, after the meeting, on December 22, 2005, he engaged the secretary of the Association to send a letter to the Ledbetters stating the Association’s concerns regarding the Ledbetters’ house construction. Wiggins further stated in the affidavit that, in his opinion, the Led-betters would be in violation of the restrictive covenant if they constructed their house to face Viola Drive and not Audrey Lane and that such construction would disrupt the pattern of the neighborhood.

On appeal, the Smiths claim that the trial court erred in holding that the Ledbetters are not in violation of the restrictive covenant.

“‘[W]here a trial court does not receive evidence ore terms, but instead makes its judgment based on the pleadings, exhibits, and briefs, the ore terms standard’s presumption of correctness does not apply to the trial court’s factual findings and it is the duty of the appellate court to judge the evidence de novo. ’
“Ex parte Horn, 718 So.2d 694, 705 (Ala.1998). This court reviews questions of law de novo.”

Hale v. Hale, 878 So.2d 313, 319 (Ala.Civ.App.2003).

As our supreme court has stated:

“[I]n construing restrictive covenants, all doubts must be resolved against the restriction and in favor of free and unrestricted use of property. However, effect will be given to the manifest intent of the parties when that intent is clear and the restrictions are confined to a lawful purpose within reasonable bounds.... ”

Hines v. Heisler, 439 So.2d 4, 5 (Ala.1983).

Both sets of parties claim that the language of the restrictive covenant at issue is clear and unambiguous. However, each side offers a different interpretation of the language of the restrictive covenant. The Smiths claim that the unambiguous language of the restrictive covenant requires the Ledbetters’ house to be built facing Audrey Lane. The Ledbetters claim that because their lot “fronts” two streets, the restriction gives them the choice as to which street their house should face.

In written instruments, two types of ambiguities can arise: a patent ambiguity and a latent ambiguity. McCollum v. Atkins, 912 So.2d 1146, 1148 (Ala.Civ.App.2005). A patent ambiguity results when a document, on its face, contains unclear or unintelligible language or language that suggests multiple meanings. Thomas v. Principal Fin. Group, 566 So.2d 735, 739 (Ala.1990). On the other hand, “[a]n ambiguity is latent when the language employed is clear and intelligible and suggests but a single meaning but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.” Id.

It is apparent that the restrictive covenant in this case does not contain a patent ambiguity. On its face, the statement “[e]very residence shall face the street on which the lot fronts” contains no unintelligible language and is not susceptible to multiple interpretations. However, a latent ambiguity is revealed by application of the restrictive covenant given the fact that the Ledbetters’ lot borders two streets.

As previously mentioned, the term “fronts” is not defined in the applicable deeds or the document containing the restrictive covenants, and there is no indication that a special or technical use of the word is intended. “Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000). Merriam-Webster’s Collegiate Dictionary 503 (11th ed.2003) defines the verb “front” as “to have the front or principal side adjacent to something; also: to have frontage on something.” Looking at the language of the restrictive covenant, it is evident that the second half of this definition was intended. The restrictive covenant requires a residence to face the street on which the lot fronts. Neither the language of the applicable deeds or of the restrictive covenant indicates that the lot in question has a “front or principal side.” Therefore, the word “fronts” must be read as having the definition “to have frontage on something.”

Black’s Law Dictionary 692 (8th ed.2004) defines “frontage” as “[t]he part of land abutting a street or highway or lying between a building’s front and a street or highway.” Here again, because the property had no building on it when it was conveyed to the Ledbetters, the only applicable definition of “frontage” would be “[t]he part of land abutting a street or highway.” Therefore, applying this definition to the restrictive covenant, it must be read as requiring every residence to face the part of the land abutting a street. However, read in this light, the Ledbet-ters’ property “fronts” two streets, namely Viola Drive and Audrey Lane. This fact is problematic since the restrictive covenant states that the residence must face “the” street on which the lot fronts. “The” as used here is a word of limitation, indicating that, for the lot, there is a single and particular street on which the lot is considered to “front.” The restrictive covenant, however, does not provide any indication as to which is the street upon which a house must front if it is bounded by streets on two or more sides.

The restrictive covenant is, therefore, susceptible to multiple interpretations as to which direction a residence should face on a lot such as the Ledbetters’ lot. Accordingly, we conclude that the restrictive covenant is ambiguous as applied to any lot, such as the Ledbetters’ lot, that fronts more than one street.

This court has stated, “ ‘[o]nly if the intent of the covenant is clear and unambiguous will it be given effect.’ ” Grey stone Ridge Homeowners’ Ass’n, Inc. v. Shelton, 723 So.2d 88, 89 (Ala.Civ.App.1998)(quoting Johnson v. Bryant, 350 So.2d 433, 437 (Ala.1977)). Further, “[w]here the language is ambiguous, ‘its construction will not be extended by implication or include anything not plainly prohibited and all doubts and ambiguities must be resolved against [the party seeking enforcement].’ ” Id. at 90 (quoting Bear v. Bernstein, 251 Ala. 230, 231, 36 So.2d 483, 484 (1948)). See also Smith v. Hines, 429 So.2d 1016 (Ala.1983); and Schmidt v. Ladner Constr. Co., 370 So.2d 970 (Ala.1979)(plurality opinion).

In Smith v. Hines, supra, various property owners sued a homeowner, Hines, alleging that Hines had violated a restrictive covenant that stated that “ ‘[n]o building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling of not less than 1,100 square feet and a private garage for not more than two cars.’ ” Smith v. Hines, 429 So.2d at 1016. Hines built a house without a garage, which the other homeowners claimed violated the restrictive covenant. The trial court held that Hines had not violated the restrictive covenant, and the supreme court affirmed. The supreme court found that the restrictive covenant was ambiguous as to whether a garage must be built with a house or whether a garage if built simply must be built for no more than two cars. Id. at 1017. The supreme court held that, because the restrictive covenant did “not, in clear, unambiguous terms, mandate that each house constructed ... include a garage ...., garages are optional.” Smith v. Hines, 429 So.2d at 1017.

Similarly, this court has held that when a restrictive covenant was “subject to interpretation,” such a restrictive covenant could not be enforced against a property owner. Roegner v. Vinson, 723 So.2d 694, 696 (Ala.Civ.App.1998). In Roegner v. Vinson, supra, the property owner, Roeg-ner, moved a recreational vehicle (“RV”) and a bathhouse onto a lot he had purchased in order to oversee renovation of a cabin on the lot. Neighboring landowners sued Roegner, claiming that he had violated various restrictive covenants contained in his deed. Among other things, those restrictive covenants stated: “ ‘No outside toilets or privies shall be constructed or maintairied on any lot in the property’ ” and “ ‘No tents, trailers, mobile homes or temporary type structures of any kind may be erected or placed on any lot, whether temporarily or permanently.’ ” Id. at 695. The trial court held that Roegner had violated both restrictive covenants and that his RV and bathhouse should both be permanently removed from the lot.

This court reversed, however. Although this court noted that Roegner’s use of the RV as a temporary dwelling violated the restriction against temporary structures, the court found error with the trial court’s order to remove the RV from the property completely. This court noted that both restrictive covenants were “subject to‘interpretation” and that, regarding the RV, there is “a difference between erecting and/or placing an RV on a lot for dwelling purposes and in merely parking an RV on a lot.” Id. at 696. In holding that parking an RV on the lot was not prohibited by the restrictive covenants, this court noted that, “if the grantor had intended to prohibit the parking of RVs ... on the lot, it would have been easy for the grantor to word the restriction in clear and unambiguous language.” Id. See also Greystone Ridge Homeowners’ Ass’n, Inc. v. Shelton, 723 So.2d at 89-90 (holding that a restrictive covenant prohibiting modification of “ ‘the exterior of any Buildings or the landscaping, grounds or other Improvements ... unless such ... alteration is first approved, in writing, by Developer’” was “too ambiguous, as well as too broad, for this court to hold” that a landowner could not install a weather vane without prior approval from the developer); and Schmidt v. Ladner Constr. Co., 370 So.2d at 973 (plurality opinion)(stating that provisions in restrictive covenants allowing for modification of such covenants were ambiguous and, therefore, could not be enforced).

Therefore, because the restrictive covenant referenced in the Ledbetters’ deed is ambiguous, it must be interpreted against those seeking enforcement of it and in favor of the Ledbetters. The Smiths claim that, if the language of the restrictive covenant is ambiguous, the intent of the developer, Becker, and the engineer, Tucker, that any house built on lot 24 should face Audrey Lane is controlling. In support of this proposition, the Smiths cite, among other cases, Frander & Frander, Inc. v. Griffen, 457 So.2d 375, 378 (Ala.1984).

In Frander & Frander, Inc. v. Griffen, supra, the supreme court reversed a trial court’s judgment finding that property owners, the Days, had violated, by putting a premanufactured house on their lot, a restrictive covenant in their deed that stated: “ ‘No structure of a temporary character, trailer, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently.’ ” Frander & Frander, Inc. v. Griffen, 457 So.2d at 376. Although the supreme court did not actually find the restrictive covenant to be ambiguous, the court stated that “[w]here the language of the covenants is found to be ambiguous, the intent of the developer is to be given great weight by the court in discerning whether the home should be allowed to remain.... ” Frander & Frander, Inc. v. Griffen, 457 So.2d at 378. The supreme court then examined the testimony of Kenneth Funderburk, the developer of the Days’ subdivision and the drafter of the restrictive covenant. Funderburk had testified at trial that he drafted the covenant with premanufactured houses like the Days’ “in mind” and that he had actually seen the Days’ house and did not think it violated the restrictive covenant. Id. at 378. Based on this and other evidence, the supreme court held that the Days had not violated the restrictive covenant. Frander & Frander, Inc. v. Griffen, 457 So.2d at 378.

Additionally, in Cooper v. Powell, 659 So.2d 93 (Ala.1995), the supreme court reversed a trial court’s judgment that found that a landowner, by placing two mobile homes on his lot, had violated a restrictive covenant that stated “ ‘[T]he lots or parcels initially subdivided and sold may not be further subdivided into smaller lots or parcels.’ ” Cooper v. Powell, 659 So.2d at 94. Another provision of the covenant stated: “ ‘Mobile homes shall be allowed on lots or parcels only in the half of the property of greatest distance from the property’s primary road frontage.’ ” Id. The supreme court found that the second provision, which uses the plural “mobile homes,” indicated that multiple mobile homes were permissible on the lots. The court also cited language from Frander & Frander, Inc. v. Griffen, supra, providing that “ ‘[w]here the language of the covenant is found to be ambiguous, the intent of the developer is to be given great weight by the court....’” Id. at 95 (quoting Frander & Frander, Inc. v. Griffen, 457 So.2d at 378). The court then noted:

“Brian Nelson, the developer and author of the restrictions, testified that his intent in drafting the subdivision restriction was to restrict further subdivision and resale of the lots and not to restrict the use of a lot to one single-family dwelling. Further testimony by Nelson revealed, as to another lot he had sold in the general area, subject to substantially the same restrictions, two families were living on the lot in separate dwellings.”

Id. On the basis of this testimony and other evidence presented in the case, the supreme court held that Cooper, the landowner, had not violated the restrictive covenant and reversed the trial court’s judgment. Id.

In both Frander & Frander, Inc. v. Griffen, supra, and Cooper v. Powell, supra, the supreme court used the developer’s testimony to support its decision to limit application of the restrictive covenants in favor of the landowner. See Frander & Frander, Inc. v. Griffen, 457 So.2d at 378; Cooper v. Powell, 659 So.2d at 95. Use of such evidence to limit application of a restrictive covenant comports with the traditional rule applied in such cases that ambiguous restrictive covenants should be construed in favor of the landowner. Indeed, both Frander & Frander and Cooper cite some form of this traditional rule. In Frander & Frander, supra, the supreme court states that “ ‘in construing restrictive covenants, all doubts must be resolved against the restriction....’” Frander & Frander, Inc. v. Griffen, 457 So.2d at 377 (quoting Hines v. Heisler, 439 So.2d at 5). Also, in Cooper v. Powell, the court states that “[w]here the language in a restrictive covenant is clear and unambiguous, it will be given its manifest meaning, but its construction will not be extended by implication to include anything not plainly prohibited.” Cooper v. Powell, 659 So.2d at 95. The Smiths, however, are asking this court to use Becker’s and Tucker’s affidavits to expand the application of the restrictive covenant to cover an action not plainly prohibited by the covenant, something no Alabama court has done in any reported case this court could find. We do not agree with the Smiths that Frander & Frander, supra, mandates such a result.

Accordingly, because we conclude that the restrictive covenant referenced in the Ledbetters’ deed regarding the orientation of any residence placed on their lot is ambiguous, and in light of the prevalent rule that restrictive covenants may be enforced only if they are clear and unambiguous, we must hold that the Ledbetters have not violated the restrictive covenant. We affirm the judgment of the trial court.

AFFIRMED.

CRAWLEY, P.J., concurs.

PITTMAN and BRYAN, JJ., concur in the result, without writing.

MURDOCK, J., dissents, without writing.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    John Wesley BOYD v. Kristin L. OTTMAN.
    2050250.
    Court of Civil Appeals of Alabama.
    Dec. 29, 2006.

      Chad A. Morgan, Huntsville, for appellant.
    W. Allen Davis, Huntsville, for appellee.
   MURDOCK, Judge.

John Wesley Boyd appeals from a protection-from-abuse order entered against him by the Madison Circuit Court after a proceeding under the “Protection from Abuse Act.” See Ala.Code 1975, § 30-5-1 et seq. We affirm.

In general, the Protection from Abuse Act was enacted:

“(1) To assure victims of domestic violence the maximum protection from abuse that the law can provide.
“(2) To create a flexible and speedy remedy to discourage violence and harassment against family members or others with whom the perpetrator has continuing contact.
“(3) To expand the ability of law enforcement officers to assist victims, to enforce the law effectively in cases of domestic violence, and to prevent further incidents of abuse.
“(4) To facilitate equal enforcement of criminal law by deterring and punishing violence against family members and others who are personally involved with the offender.
“(5) To recognize that battering is a crime that will not be excused or tolerated.
“(6) To provide for protection orders to prevent domestic abuse and provide for court jurisdiction and venue; to provide for court hearing for petitions for relief; to provide for the contents and the issuance of protection orders; and to provide penalties for violations of protection orders.”

Ala.Code 1975, § 30-5-l(b). The legislature has directed this court to “liberally construed and appl[y] [the Act] to promote” its purposes. Id.

In November 2005, Kristin L. Ottman filed a form “Petition for Protection from Abuse” in the Madison Circuit Court. See Ala.Code 1975, § 30-5-5(b) (“Forms for petitions, motions, and pleadings shall be available through the clerk’s office.”). Ott-man checked certain boxes on the form so as to allege that she and Boyd “ha[d] lived together” and that Boyd had injured her. Where the form requested a description of the alleged abuse, Ottman stated that Boyd had “hit, kicked, threw, and choked” her. She also stated that “[t]he physical abuse has occurred on several occasions.” Ottman requested that the trial court enter a restraining order against Boyd.

After Ottman filed her petition, the trial court entered an ex parte order restraining Boyd from committing further acts of abuse against Ottman and restraining Boyd from contact with Ottman until further order of the court. A few weeks later, it conducted an ore tenus proceeding concerning Ottman’s petition.

Only Boyd and Ottman testified at trial. At the conclusion of Ottman’s testimony, Boyd made an oral motion for the trial court to dismiss Ottman’s petition because, he said, Ottman had failed to establish that he was a “family or household member” as described in Ala.Code 1975, § 30 — 5—2(a)(4). The trial court denied the motion. Thereafter, the trial court entered an order finding that Boyd had committed domestic violence against Ottman. The trial court adopted the terms of its ex parte order as its final order, and it stated that the restraining order was to remain in effect for 10 years.

Boyd appeals, contending that the trial court erred when it entered the proteetion-from-abuse order against him because, according to Boyd, he was never a member of the same “household” as Ottman.

We note that the Protection from Abuse Act (the “Act”) authorizes the trial court to enter “any order of protection ... for the purpose of preventing acts of abuse,” as that term is defined in the Act. Ala.Code 1975, § 30-5-2(a)(6). The Act defines “abuse” as

“[t]he occurrence of one or more of the following acts, attempts, or threats between family or household members, as defined by this chapter:
“a. Assault. Assault as defined under Sections 13A-6-20 to 13A-6-22, inclusive.
“b. Attempt. With the intent to commit any crime under this section or any other criminal act under the laws of this state, performing any overt act towards the commission of the offense.
“e. Harassment. Harassment as defined under Section 13A-11-8.
“g. Menacing. Menacing as defined under Section 13A-6-23.
“h. Other conduct. Amy other conduct directed toward a member of the protected class covered by this chapter that could be punished as a criminal act under the laws of this state.
“i. Reckless endangerment. Reckless endangerment as defined under Section 13A-6-24.”

Ala.Code 1975, § 30-5-2(a)(l).

Section 30 — 5—2(a)(4) defines “family or household members” as “[a] spouse, former spouse, parent, child, or any other person related within the 6th degree consanguinity or affinity or common-law marriage, a person with whom the plaintiff has a child in common, or a present or former household member.” (Emphasis added.)

“[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.” Philpot v. State, 843 So.2d 122, 125 (Ala.2002). Also, when a trial court makes no specific findings of fact, “this Court will assume that the trial judge made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). On review of issues as to which the ore tenus standard is applicable, “ ‘appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.’ ” Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002)(quoting Ex parte Pielach, 681 So.2d 154, 155 (Ala.1996)). Further, this court must “review the evidence in a light most favorable to the prevailing party.” Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993).

It is undisputed that Boyd and Ott-man had a romantic relationship for approximately one year before the trial. It is also undisputed that Boyd and Ottman each had their own house. However, there was conflicting testimony concerning what time periods Boyd spent in Ottman’s house. Ottman, who appeared pro se, testified as follows:

“THE COURT: You allege in your petition ... that you and Mr. Boyd lived together.
“MS. OTTMAN: He stayed at my house for months at a time.
“THE COURT: Tell me about that. When did he first move in and how long did he stay.
“MS. OTTMAN: The longest he stayed was two and a half, three months. After my brother passed away he stayed.
“THE COURT: And what was your relationship? Boyfriend, girlfriend?
“MS. OTTMAN: Boyfriend.
“THE COURT: Had you had a dating relationship before he moved in?
“MS. OTTMAN: Yes.
“THE COURT: And he lived there two and a half months?
“MS. OTTMAN: It was stretches at a time. When the fights would happen he would leave and go back to his house.
“THE COURT: When he lived with you, did he stay overnight every night for that period of time?
“MS. OTTMAN: Yes.
“THE COURT: What would you do in the morning?
“MS. OTTMAN: Get up and go to work. I worked third shift. He would get up and go to work.
“THE COURT: Would he come homé at night after work.
“MS. OTTMAN: Yes.
“THE COURT: How many times did this happen that he stayed with you for an extended period of time also?
“MS. OTTMAN: I couldn’t count the times we broke up in between. The longest stretch was two and half, three months. When the fight would happen, he would leave.
“THE COURT: When was the last time you and he resided in your residence.
“MS. OTTMAN: He stayed with me for two weeks before the last physical altercation.”

The last physical altercation allegedly occurred a few days before Ottman filed her petition.

On cross-examination, Ottman testified:

“Q. Ms. Ottman, during this two and a half, three months period, he would actually go home and get his own clothing, come back to his house?
“A. Not his clothes. They were at my house.
“Q. This has been several months ago since that happened, correct?
“A. Yes.
“Q. Okay. Because you haven’t had an ongoing relationship, living overnight since, you said, last two weeks. But previous to that it’s been several months before you actually — he actually stayed overnight; correct?
“A. No, he’d stayed there several nights.
“Q. What address do you live at?
“A. 3816 Cooper Street.
“Q. What address does he live at?
“A. On Dellbrook.
“Q. That’s been his residence since you’ve dated or known him; correct?
“A. Yes.
“Q. So he hasn’t — he has had that physical address since you’ve known him?
“A. Yes. He lived at my house.
“Q. He’s been living there for as long as you know?
“A. Unless he was at my house, yes.
“Q. You’ve had a girlfriend, boyfriend relationship. He has stayed with you overnight on occasion; correct?
“A. For months at a time.
“Q. You’ve never held yourself out to paying bills, joint checking accounts, anything like that?
“A. No. He’s offered to pay bills.”

In contrast to Ottman’s testimony, Boyd testified that he “may stay a week at a time or something” at Ottman’s house, but that he would go back to his house to get his clothing. Boyd denied that he actually lived with Ottman; however, he later testified:

“THE COURT: The longest period of time you say you lived there was a week?
“[BOYD]: Yes, sir.
“THE COURT: Seven straight nights or six straight nights?
“[BOYD]: Yes.
“THE COURT: How many times did you do that?
“[BOYD]: I don’t know over a period of a year.
“THE COURT: Did y’all share a bedroom?
“[BOYD]: Yes, sir.”

There is no question that Boyd is not a “family member” under § 30-5-2(a)(4). Thus, Boyd is only subject to the Act if he is a “household member” as that term is used in the Act. In light of the foregoing testimony and the requirement that we view the evidence in the light most favorable to Ottman, the question in the present case becomes whether Boyd is a “household member” in relation to Ottman, even though Boyd has his own separate house, because he lived in Ottman’s house for weeks at a time during the year preceding the filing of the petition, including one stay that extended for at least two and one-half months and a final stay that extended for the two weeks immediately preceding the filing of the petition.

The parties have cited no decisions from this court or our Supreme Court of significant precedential value for purposes of deciding this case. Accordingly, the case appears to require us to interpret and apply the Act as a matter of first impression to the facts presented. In Norfolk Southern Railway Co. v. Johnson, 740 So.2d 392, 396 (Ala.1999), our Supreme Court stated:

“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).... 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)).”

As noted above, the Act defines “family or household member” to include two classes of persons: (1) certain persons related to the alleged victim by “consanguinity or affinity,” i.e., by blood or marriage, and (2) “a present or former household member.” Ala.Code 1975, § 30-5-2(a)(4). The Act provides no further definition of the term “household member.” One of the stated purposes of the Act, however, is “[t]o create a flexible and speedy remedy to discourage violence and harassment against family members or others unth whom the perpetrator has continuing contact.” Ala.Code 1975, § 30-5-l(b)(2). Furthermore, the legislature has directed this court to “liberally construe[] and applfy] [the Act] to promote” its purposes. Ala.Code 1975, § 30-5-l(b).

In light of the above-stated purpose of the Act and the above-stated directive of our legislature, this court cannot ignore the juxtaposition of the term “family members” and “others with whom the perpetrator has continuing contact” in § 30-5-1(b)(2), when understanding the meaning of “family or household members” in § 30-5-2(a)(4). All of the persons described in § 30-5-2(a)(4) before the phrase “or a present or former household member” are persons who are related to the alleged victim either by consanguinity or affinity. In other words, they are persons who are, or were, part of the victim’s immediate or extended family, either based upon a blood or marital relationship. We therefore construe the phrase “present or former household member” as not being limited to “family members” as contemplated by § 30-5-2(a)(4), but as including persons who satisfy the “continuing contact” provision of § 30 — 5—1 (b) (2).

To decide the present case, it is not necessary that we determine the exact universe of relationships covered by the Act. Given the stated purpose of the Act and the legislature’s admonition that the Act be liberally construed, we are clear to the conclusion that the facts of the present case qualify Boyd as a “household member” under the Act. Accordingly, the trial court’s judgment is due to be affirmed.

AFFIRMED.

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

      . Although Boyd repeatedly asserts that the trial court lacked jurisdiction in this case, his argument, and the pertinent legal authority he cites in support of his argument, is actually to the effect that no cause of action existed against him under § 30-5-2.

      . In Haraway v. Phillips, 841 So.2d 275 (Ala.Civ.App.2002), this court concluded that the Act did not apply to a person who previously dated one of the alleged victims for a brief time. The evidence reflected that the alleged perpetrator in Haraway was never married to his former girlfriend (one of the alleged victims); that he was not related to his former girlfriend’s husband (the other alleged victim); and, that, according to the opinion, he “was never a 'household member’ in either [the husband’s] or the [former girlfriend’s] household.” Id. at 276. Haraway does not reflect whether the alleged perpetrator ever resided with his former girlfriend.

      . The Act states that ”[t]erms not otherwise defined by this chapter shall have the meaning given to them in Title 13A (commencing with Section 13A-1-1), known as the Alabama Criminal Code or other provisions of law, as the case may be.” Ala.Code 1975, § 30-5-2(b). The Alabama Criminal Code does not provide a definition for the term “household member," although a few sections of the Criminal Code discuss the crime of domestic violence as involving a victim who is "a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant.” Ala.Code 1975, §§ 13A-6-130(a), 13A-6-131(a), and 13A-6-132(a). We have been directed to no other pertinent "provision of law” defining the term "household member.”


author: BRYAN, Judge.

text:
    OUR SOUTHERN HOME MANAGEMENT, INC. v. PONQUINETTE, INC., d/b/a Lincoln Pharmacy.
    2050540.
    Court of Civil Appeals of Alabama.
    Jan. 5, 2007.

      Jon A. Green, Mobile, for appellant.
    Thomas R. Boiler, Mobile, for appellee.
   BRYAN, Judge.

The defendant, Our Southern Home Management, Inc. (“Our Southern Home”), appeals a summary judgment in favor of the plaintiff, Ponquinette, Inc., d/b/a Lincoln Pharmacy (“Lincoln”). We reverse and remand.

On November 7, 2002, Our Southern Home, an assisted-living facility, and Lincoln, a pharmacy, executed a written contract in which Lincoln agreed to provide medicine to Our Southern Home for it to dispense to its residents. In pertinent part, the contract stated:

“TERM
“This agreement shall be ongoing from the date on which this Agreement is entered and continuing for a period of three (3) years. The Agreement automatically renews for a like term on the anniversary date unless terminated by either party for just cause with a 30 day written notice. Such cause must be communicated to the party in writing and a 30-day opportunity given for the issue to be resolved. Upon the effective date of such termination each party shall be relieved and discharged.
“In that specific equipment has been designated for use by [Our Southern Home,] should [Our Southern Home] for any reason terminate, or cause this agreement to terminate, or be in default for any reason, prior to the expiration of the initial term, [Our Southern Home] agrees to reimburse [Lincoln] for expenses incurred in the purchase of equipment in an amount that is equal to one-thirty-six (1/36) of the total cost of equipment for each month from the termination to the expiration of the term.”

(Emphasis added.)

Thus, the initial three-year term of the contract would have expired on November 6, 2005. However, Our Southern Home terminated the contract on May 23, 2003, approximately 29 months before November 6, 2005. On August 21, 2003, Lincoln sued Our Southern Home and its president, Lynn Weiss, alleging a breach-of-contract claim against Our Southern Home only and a conversion claim against both Our Southern Home and Weiss.

In its breach-of-contract claim, which is the only claim material to this appeal, Lincoln alleged that Our Southern Home had breached the contract by refusing to reimburse Lincoln for expenses Lincoln had incurred in purchasing equipment that was designated for use by Our Southern Home. As damages, Lincoln sought to recover an amount equal to 1/36 of the total cost of the equipment for each of the approximately 29 months between May 23, 2003, and November 6, 2005.

After Our Southern Home and Weiss answered Lincoln’s complaint, Lincoln moved the trial court for a partial summary judgment with respect to its breach-of-contract claim against Our Southern Home. As evidence in support of its partial-summary-judgment motion, Lincoln submitted the contract executed by the parties on November 7, 2002, and an affidavit in which its president, Donald Pon-quinette, testified, in pertinent part:

“[Our Southern Home] terminated the agreement as of 23 May 2003, which was 29 months from the expiration of the initial term. The total cost of the equipment designated for use by [Our Southern Home] was $32,885.85. l/36th of $32,885.85 is $913.49. The product of $913.49 times 29 is $26,491.21. I ask for judgment on behalf of [Lincoln] in the amount of $26,491.21.”

Our Southern Home filed a response to Lincoln’s partial-summary-judgment motion in which it objected to Ponquinette’s testimony regarding Lincoln’s damages on the ground that Ponquinette neither identified the individual items of equipment for which Lincoln was seeking recovery nor specified the itemized cost of that equipment. Subsequently, after taking Ponqui-nette’s deposition, Our Southern Home amended its response to Lincoln’s partial-summary-judgment motion and submitted excerpts from Ponquinette’s deposition in opposition to Lincoln’s partial-summary-judgment motion. Our Southern Home’s amended response directed the trial court to testimony in Ponquinette’s deposition in which he testified (1) that $6,441.09 of the $32,885.85 that Lincoln claimed it had expended for equipment designated for use by Our Southern Home pursuant to the November 7, 2002, contract had been expended by Lincoln to purchase equipment to be used in performing a September 2001 oral contract with an entity other than Our Southern Home; and (2) that $22,141.50 of that $32,885.85 was an amount Lincoln owed for leasing equipment rather than 'purchasing it. Our Southern Home further directed the trial court to the language of the November 7, 2002, contract executed by Lincoln and Our Southern Home stating that Our Southern Home’s agreement to reimburse Lincoln related only to equipment purchased by Lincoln and did not relate to equipment leased by Lincoln.

Lincoln then submitted an authenticated copy of the lease agreement pursuant to which it owed $22,141.50 for equipment it had leased. The trial court, on October 5, 2005, entered an order (“the October 5 order”) granting Lincoln’s partial-summary-judgment motion and entering a judgment against Our Southern Home with respect to Lincoln’s breach-of-contract claim in the amount of $26,491.21. The October 5 order did not certify the judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

On November 3, 2005, Our Southern Home moved the trial court “to reconsider” the October 5 order. As the grounds of that motion, Our Southern Home reiterated its arguments challenging the damages claimed by Lincoln and, in addition, asserted for the first time that Lincoln had failed to mitigate its damages. On November 4, 2005, Lincoln moved the trial court to dismiss, without prejudice, its conversion claim against Our Southern Home and Weiss in order to make the partial summary judgment with respect to its breach-of-contract claim a final judgment. On November 22, 2005, the trial court granted Lincoln’s motion to dismiss, without prejudice, its conversion claim and denied Our Southern Home’s motion “to reconsider” the October 5 order.

On December 19, 2005, Our Southern Home filed a Rule 59, Ala. ■ R. Civ. P., postjudgment motion in which it (1) reiterated its arguments challenging the damages claimed by Lincoln; (2) again asserted that Lincoln had failed to mitigate its damages; and (3) asserted for the first time that the language in the contract stating that, upon termination of the contract, “each party shall be relieved and discharged” conflicted with the language obligating Our Southern Home to reimburse Lincoln for equipment it had purchased for use by Our Southern Home if the contract were terminated before the expiration of its initial three-year term and, therefore, created an ambiguity regarding whether Our Southern Home was obligated to reimburse Lincoln for such equipment. On February 17, 2006, the trial court denied Our Southern Home’s postjudgment motion. On March 29, 2006, Our Southern Home appealed to this court.

As a threshold matter, Lincoln asserts that this court does not have jurisdiction over Our Southern Home’s appeal because, Lincoln says, Our Southern Home did not timely file its notice of appeal. Specifically, Lincoln asserts that Our Southern Home’s Rule 59 postjudgment motion was nothing more than an attempt to obtain reconsideration of the trial court’s denial of Our Southern Home’s earlier motion “to reconsider” the October'5 order and that, “[i]n the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal; a judge has no jurisdiction to ‘reconsider’ the denial.” Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985) (emphasis added)'. On the basis of that premise, Lincoln then argues (1) that the 42-day period for Our Southern Home to file a notice of appeal began running on November 22, 2005, when the dismissal of the conversion claim made the partial summary judgment with respect to the breach-of-contract claim a final' judgment; (2) that Our Southern Home’s Rule 59 postjudgment motion did not suspend the running of the 42-day period because its Rule 59 motion was a nullity; and (3) that, therefore, the 42-day period expired on January 3, 2006, 85 days before Our Southern Home filed its notice of appeal.

Lincoln’s argument fails, however, because it erroneously presupposes that Our Southern Home’s motion to reconsider the October 5 order was a postjudgment motion — it was not a postjudgment motion because it was filed before the October 5 order became a final, appealable judgment on November 22, 2005, when the trial court dismissed the conversion claim. Cf. Rule 54(a), Ala. R. Civ. P. (“ ‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies.” (emphasis added)). Because Our Southern Home’s motion “to reconsider” the October 5 order was not a “postjudgment” motion, its adjudication did not deprive the trial court of jurisdiction to adjudicate Our Southern Home’s Rule 59 postjudgment motion. Cf. Ex parte Doivling, 477 So.2d at 404 (“In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal; a judge has no jurisdiction to ‘reconsider’ the denial.” (emphasis added)). Therefore, the filing of Our Southern Home’s Rule 59 post-judgment motion suspended the running of the 42-day period for Our Southern Home to file a notice of appeal until the trial court denied that motion on February 17, 2006. See Rule 4(a)(3), Ala. R.App. P. Our Southern Home had 42 days after February 17 to file its notice of appeal; it timely filed its appeal on March 29, 2006, the 40th day after February 17. Thus, this court has jurisdiction over Our Southern Home’s appeal.

On appeal, Our Southern Home argues, among other things, that the trial court erred in granting Lincoln’s partial-summary-judgment motion because, Our Southern Home says, the deposition testimony of Ponquinette established a genuine issue of material fact regarding the amount of damages Lincoln was entitled to recover.

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant.’ ”

Gore v. Alabama Dep’t of Pub. Safety, 883 So.2d 1225, 1227 (Ala.2003) (quoting Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992)).

Ponquinette’s testimony tended to prove (1) that $6,441.09 of the $32,885.85 that Lincoln claimed it had expended for equipment designated for use by Our Southern Home pursuant to the November 7, 2002, contract had been expended by Lincoln to purchase equipment to be used in performing a September 2001 oral contract with an entity other than Our Southern Home; and (2) that $22,141.50 of that $32,885.85 was an amount Lincoln owed for leasing equipment rather than purchasing it. Thus, Ponquinette’s testimony established the existence of a genuine issue of material fact regarding the amount of damages Lincoln was entitled to recover. Accordingly, we reverse the trial court’s judgment and remand the case to the trial court.

REVERSED AND REMANDED.

CRAWLEY, P.J., concurs.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur in the result, without writing.

      . Initially, Lincoln mistakenly submitted a contract between it and an entity other than Our Southern Home, but, after Our Southern Home pointed out this error, Lincoln submitted its November 7, 2002, contract with Our Southern Home.

      . We do not consider the other arguments Our Southern Home has raised on appeal because the record does not establish that Our Southern Home presented those arguments to the trial court before or at the time of submission of Lincoln’s partial-summary-judgment motion. See Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) C‘[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.”).


author: CRAWLEY, Presiding Judge. MURDOCK, Judge, THOMPSON, Judge,

text:
    Andrea LAWSON v. SHELBY COUNTY SHERIFF’S OFFICE.
    2050605.
    Court of Civil Appeals of Alabama.
    Jan. 5, 2007.

      Roderick Graham, Birmingham, for appellant.
    Albert L. Vreeland II and Brett Adair of Lehr Middlebrooks & Vreeland, P.C., Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

Andrea Lawson was employed by the Shelby County Sheriffs Office as a correctional officer. During her shift on February 25, 2005, Lawson was assigned to work in central control, which required her to monitor the cell blocks and other areas in the Shelby County jail via closed-circuit television and an intercom system. Lawson knew that two of her superior officers, Sergeant Keith English and Lieutenant Anderson were in the “Pod B” control room. When she saw the two officers on the television monitor, she depressed the necessary buttons on the control panel of the intercom system to allow her to hear their conversation, part of which involved Sgt. English’s commenting on her performance. Lawson reported her activities to Sheriff Chris Curry and Chief Deputy John Samaniego; she also lodged a complaint against Sgt. English at that time based on her allegation that he had discriminated against female correctional officers.

Sheriff Curry appointed Captain Mikul Smitherman to conduct an investigation of the allegations made by Lawson; Investigator Marty Bailey of the Internal Affairs Division assisted in the investigation. After the investigation was conducted, the complaint against Sgt. English was determined to be unfounded. Based on Lawson’s admission that she had used the jail intercom system to eavesdrop on her superior officers, which violated not only internal regulations of the sheriffs office but also state law prohibiting eavesdropping, see Ala.Code 1975, § 13A-11-31, Chief Deputy Samaniego recommended to Sheriff Curry that Lawson be dismissed. Sheriff Curry then dismissed Lawson.

Lawson appealed the termination of her employment to the Shelby County Law Enforcement Personnel Board (“LEPB”), which, after a hearing, rescinded the termination, reinstated Lawson subject to a 60-day suspension, and imposed an additional 5-day suspension based upon what it found to be statements made by Lawson at the hearing that contradicted the statements she had made during the internal investigation. In its order, the LEPB specifically found that Lawson had committed criminal eavesdropping. Sheriff Curry sought a rehearing with the LEPB, which upheld its order. He then appealed the LEPB’s decision to the circuit court, which reversed the decision of the LEPB and reinstated the termination. Lawson appeals that decision to this court.

The LEPB was created by Act 79-524, Ala. Acts 1979 (“the Act”), and it is governed by that Act, as amended. A dismissed, demoted, or suspended employee may appeal the disciplinary action to the LEPB. LEPB Rules and Regulations § 10.06. The LEPB is required to hold a hearing within 30 days of the employee’s notice of appeal and is to determine “whether or not the employee, by reason of his act or acts as charged and his record of service, merits retention in the service or should be dismissed or otherwise disciplined. ...” LEPB Rules and Regulations § 10.07(a) The Act itself permits the LEPB to “order [a dismissed employee] reinstated with back pay ..., or take or approve such disciplinary action as, in [its] judgment, is warranted by the evidence and under the law.” Act No. 79-524, § 16(b). Likewise, the LEPB’s regulations permit the LEPB to “rescind, modify, or increase the penalty imposed by the appointing authority as warranted by the facts at the hearing.” LEPB Rules and Regulations § 10.07(d). Any party aggrieved by the decision of the LEPB may seek review of the decision in the circuit court. LEPB Rules and Regulations § 10.07(f). The LEPB’s regulations further state that the circuit court is to “review questions of law and the question of whether or not the decision or order of the [LEPB] is supported by the substantial and legal evidence.” LEPB Rules and Regulations § 10.07(f).

The Sheriffs Office argues that the circuit court properly examined the LEPB’s order and determined, correctly, it says, that the order, and more specifically the LEPB’s reduction of the penalty imposed by the sheriff, was not supported by substantial evidence. Lawson disagrees with the Sheriffs Office, arguing instead that the circuit court was only permitted to determine whether, in setting an appropriate punishment, the LEPB acted within the applicable law. We agree with Lawson.

As noted above, the LEPB is required to hold a hearing at which it is to take evidence and determine, based on that evidence, whether the penalty imposed by the appointing authority should be “affirm[ed], rescind[ed], modified], or increas[ed].” LEPB Rules and Regulations § 10.07(d). In a similar case, we have held that such language in a personnel board’s regulations gave it the authority to order reinstatement of a dismissed employee and to impose a lesser punishment than that imposed by the appointing authority. Board of Water & Sewer Comm’rs of Mobile v. Smith, 591 So.2d 521, 522 (Ala.Civ.App.1991).

Judicial review of administrative decisions like those of the LEPB is generally governed by the enabling act that created the particular administrative body or by the regulations governing the particular administrative body. See, generally, Ex parte Smith, 394 So.2d 45, 48 (Ala.Civ.App.1981). Typically, the standard of review of administrative decisions requires that the circuit court uphold the administrative decision if it is supported by substantial and legal evidence. Ex parte Personnel Bd. of Jefferson County, 648 So.2d 593, 594 (Ala.Civ.App.1994), Board of Water & Sewer Comm’rs, 591 So.2d at 522, and Ex parte Smith, 394 So.2d at 47; see also LEPB Rules and Regulations § 10.07(f). This court has defined “substantial evidence” in the context of an administrative appeal as “relevant evidence that a reasonable mind would view as sufficient to support the determination.” Ex parte Personnel Bd. of Jefferson County, 648 So.2d at 594. When a circuit court’s judgment affirming or reversing the decision of an administrative body is appealed to this court, we apply the same standard of review to the administrative decision as was applied by the circuit court. Ex parte Personnel Bd. of Jefferson County, 648 So.2d at 594; see also City of Mobile v. Personnel Bd. for Mobile County, 57 Ala.App. 516, 518, 329 So.2d 570, 573 (Civ.1976) (noting that the circuit court and the appellate court are to apply the substantial-evidence test to the administrative body’s decision, not to the decision of the appointing authority).

The LEPB found, based on the evidence presented to it at the hearing on Lawson’s dismissal, that Lawson had violated the criminal-eavesdropping statute. It also found that she made statements at the hearing that contradicted statements she had made during the internal investigation. Lawson testified at the hearing before the LEPB that she used the intercom system to listen for activity in Pod B because she knew that Lt. Anderson had gone to Pod B some time earlier and had not yet returned. Thus, Lawson’s testimony suggested that she did not intend to eavesdrop on Sgt. English and Lt. Anderson’s conversation but instead happened upon it while performing her typical duties of monitoring the jail. However, after further questioning, Lawson admitted that she had stated in her interview during the internal investigation that she had first seen Sgt. English and Lt. Anderson together in the Pod B control room on the television monitor and then had purposefully decided, because she had heard that Sgt. English had been making disparaging remarks about her, to listen to their conversation. Other evidence adduced at the hearing established that Lawson was a good employee who met or exceeded expectations and that she had been selected to train other employees. Based on the evidence adduced at the hearing, the LEPB ordered that Lawson be reinstated, that she be punished by a two-month suspension, and that she serve an additional five-day suspension for her contradictory testimony before the LEPB.

Despite the arguments to the contrary by both parties, the LEPB’s findings are supported by substantial evidence and its order imposing a lesser penalty is due to be reinstated. The hearing revealed that Lawson had intentionally eavesdropped on her superiors via the jail’s intercom system, so the finding that Lawson violated the criminal-eavesdropping statute is well supported by the evidence. However, other evidence at the hearing established that Lawson had otherwise met or exceeded all expectations as an employee. The LEPB was invested with the authority to consider, based on the evidence concerning Lawson’s activities, the seriousness of the charged acts, and Lawson’s service record, whether, and to what extent, Lawson should be disciplined. Therefore, the LEPB’s decision to rescind Lawson’s dismissal and to instead impose a 60-day suspension for her improper activities is supported by a consideration of the acts she committed and her otherwise unblemished service record. As we have stated before, “[u]nder its limited standard of review, it was not up to the trial court to judge the wisdom of the decision of [the LEPB].” Board of Water & Sewer Comm’rs, 591 So.2d at 523. Because the circuit court did judge the wisdom of the LEPB’s decision when that decision was supported by substantial and legal evidence, we must reverse the circuit court’s judgment and remand the cause for the reinstatement of the order of the LEPB.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

MURDOCK, J., concurs specially, with writing.

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

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

MURDOCK, Judge,

concurring specially.

A policy argument can be made that some degree of deference should be given by a personnel board to a sheriffs decision regarding disciplinary actions against employees of the sheriffs office. Because the legislature has not seen fit to require the Shelby County Law Enforcement Personnel Board (“the LEPB”) to give deference to such decisions by the sheriff of Shelby County, but instead has given it the authority to revisit those decisions on a de novo basis, and because substantial evidence exists to support the LEPB’s decision in the case now before us, I am compelled to concur in the main opinion.

I also write separately to record my disagreement with Judge Thompson’s conclusion in his special writing that the severity of the employee’s discipline was not within the purview of the circuit court because Act No. 79-524, Ala. Acts 1979, as amended by Act No. 2003-265, Ala. Acts 2003, confínes that court’s review to “ ‘questions of law.’ ” 961 So.2d at 165 (Thompson, J., concurring in the result). As a general rule, the very nature of a court acting in an appellate capacity is that its authority is always limited to “questions of law.” Generally, “[t]he role of appellate courts is limited to deciding questions of law.” Hinds v. Hinds, 887 So.2d 267, 272 n. 2 (Ala.Civ.App.2003). Whether the lower tribunal applied the correct legal standard is a question of law. Equally so is the question whether the lower tribunal abused its discretion in making' its factual findings. If the court acting in an appellate capacity determines that the record does not contain substantial evidence tending to prove a given fact (i.e., evidence from which the lower tribunal reasonably could have found that fact to be true), then it is as a matter of law that the factual finding cannot be upheld. “ ‘[AJppellate courts ... review the factfin-der’s determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law.’ Hinds v. Hinds, 887 So.2d at 272 n. 2 (quoting Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So.2d 1040, 1041 (Ala.1985)). Likewise, when a court takes up the question whether a lower tribunal’s factual findings are against the great weight of the evidence, it is determining whether, as a matter of law, those factual findings can be upheld.

The same is true of appellate review of a discipline, penalty, or punishment imposed by a lower tribunal. It is within the purview of a court acting in an appellate capacity to determine whether the lower tribunal abused its discretion in imposing a discipline or punishment, and whether the lower tribunal acted outside its discretion in doing so is no less a question of law than whether it acted outside its discretion in its fact-finding. Cf. Ex parte Alabama Board of Nursing, 835 So.2d 1010, 1013 (Ala.2001) (upholding a decision by the Alabama Board of Nursing as to an appropriate discipline on the grounds that the choice of discipline “was supported by substantial evidence [and] ... was reasonable”); id. at 1016 (Harwood, J., concurring specially) (explaining that the Alabama Board of Nursing’s decision as to the appropriate discipline was entitled to judicial affirmance based on its consideration of whether the Board’s decision was “clearly erroneous or unreasonable, arbitrary, or capricious, or was characterized by an abuse of discretion or was a clearly unwarranted exercise of discretion”); and Eley v. Medical Licensure Comm’n of Alabama, 904 So.2d 269, 287 (Ala.Civ.App.2003) (holding that judicial review of the Medical Licensure Commission’s choice of an appropriate sanction may consider whether that sanction was “excessive and disproportionate to the wrong ... committed” and reviewing decisions from other states to like effect).

I do not read the opinion of this court in Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285 (1973), or in the other cases cited by Judge Thompson, as foreclosing a reversal by a circuit court of a disciplinary decision by a personnel board when that decision constitutes an abüse of discretion and therefore can be said to be erroneous as a matter of law. The statute construed in Grant expressly provided that “ ‘if upon ... appeal the Court finds that the ruling, order or action appealed from is unlawful or unreasonable within the meaning of this Act it shall have power to vacate or modify the same.’ ” 50 Ala.App. at 689, 282 So.2d at 289 (emphasis added). By its terms, therefore, the statute at issue in that case expressly provided for review not just of factual decisions by the personnel board, but also of the personnel board’s “ruling, order or action” for “unlawful[ness] or unreasonableness].

A portion of the Grant opinion quoted in Judge Thompson’s special writing states that

“the discretionary actions of the Board, to wit, the extent or severity of the punishment, are not to be disturbed by the circuit court on review, but if the findings of fact are supported by substantial evidence, such findings shall be upheld. and the conclusions or order from such findings shall be upheld un less unlawful or unreasonable within the meaning of the act.

50 Ala.App. at 689, 282 So.2d at 289 (emphasis added). I read the first clause of this passage (“the discretionary actions of the Board ... are not to be disturbed by the circuit court on review”), particularly when read in context with the latter, emphasized clause, as merely a loose restatement of the general principle that a court acting in an appellate capacity may not substitute its judgment for that of the lower tribunal as to matters assigned to the discretion of the lower tribunal. In other words, I do not read this passage as meaning anything more than what the Grant court said in its very next statement: “Under Act No. 470, Local Acts of Alabama 1989, this circuit court should not make a determination of the wisdom and propriety of the action of the Board,” 50 Ala.App. at 689, 282 So.2d at 289, or what the Grant court subsequently noted in an effort to explain its opinion: “ ‘It is not within the power of the court reviewing the record to supplant the judgment of the Board with its own as to the extent or severity of the punishment.’ ” Grant, 50 Ala.App. at 690, 282 So.2d at 290 (quoting Edmondson v. Tuscaloosa County, 48 Ala.App. 372, 377, 265 So.2d 154, 159 (Civ.1972)).

The Grant court continued its analysis with statements that further corroborate the notion that a circuit court, acting in an appellate capacity, does not act beyond its authority by assessing whether a personnel board’s disciplinary decision was unwarranted or unreasonable. First, the Grant court examined whether the evidence supported certain factual findings upon which the personnel board had made its decision as to the punishment to be imposed in that case; it concluded that some of those findings were supported by the evidence and that others were not. Grant, 50 Ala.App. at 690, 282 So.2d at 290. Then, on the strength of those findings that it deemed to be supported by sufficient evidence, the court asked:

“Was the reduction of the penalty imposed unwarranted or unreasonable under the law as the circuit court so found? We think not.
“... If [the Board’s] discretionary judgment is supported by substantial evidence, there is no authority in the circuit court upon review to supplant such judgment with its own.
“Here, as seen from above, there is substantial evidence upon which the Board may be warranted in modifying or altering the penalty imposed by the appointing authority.
“As our Presiding Judge Wright stated in Edmondson v. Tuscaloosa County, [48 Ala.App. 372, 265 So.2d 154 (Aa.Civ.App.1972) ]:
“ ‘It is not within the power of the court reviewing the record to supplant the judgment of the Board with its own as to the extent or severity of the punishment.’ [48 Ala.App. at 377, 265 So.2d at 159.]
“In this instance, it appears the court has done just that, and the conclusion that the Board’s order was unwarranted is not correct.”

Grant, 50 Ala.App. at 690, 282 So.2d at 290.

It was the circuit court’s function in the present case to ask the same question that the Grant court asked: “Was the reduction of the penalty imposed unwarranted or unreasonable?” Just as in Grant, I believe there was “substantial evidence upon which the [LEPB was] warranted in modifying or altering the penalty imposed by the [hiring] authority” and that it cannot be said as a matter of law that the LEPB’s “reduction of the penalty [was] unwarranted or unreasonable.”

THOMPSON, Judge,

concurring in the result.

In Act No. 79-524, Ala. Acts 1979, which is the enabling act for the Shelby County Law Enforcement Personnel Board (“LEPB”), § 16 states, in part:

“The county sheriff or any supervisory employee to whom the sheriff has delegated such disciplinary powers may remove, discharge, suspend or demote any subordinate employee of the sheriffs office ....
“If any aggrieved employee is suspended for more than one day, removed, discharged, or demoted, he shall be entitled to a board hearing on such disciplinary action, upon written demand thereon within ten days of such action....
“.... Upon a hearing, the board may order said employee reinstated with back pay from the time of such action to the date of reinstatement, or take or approve such disciplinary action as, in their judgment, is warranted by the evidence and under the law.”

Act No. 2003-265, Ala. Acts 2003, amends § 19 of the enabling act to state:

“An employee or appointing authority aggrieved by a decision of the board on the original hearing shall be entitled to a rehearing of the issue before the board.... If, on rehearing, the employee or appointing authority is aggrieved by the board’s decision such employee or appointing authority may appeal such decision to the Circuit Court of Shelby County.... Review by the court shall be without a jury and confined to the record, and to a determination of the questions of law presented.”

(Emphasis added.)

The Sheriffs Office and the LEPB have no disagreement as to the factual findings regarding Lawson’s actions. The LEPB did not disagree with the Sheriffs Office’s finding that Lawson committed criminal eavesdropping. In fact, the circuit court agreed with the LEPB’s findings with regard to the evidence. Rather the Sheriffs Office disagrees with the severity of the punishment imposed by the LEPB. However, the severity of the punishment is not within the purview of the trial court’s or this court’s review. In Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285 (Civ.1973), this court reviewed a decision of the Mobile County Personnel Board to set aside the dismissal of a county employee. There, the regulations of the Mobile County Personnel Board were similar to those in this case, stating that the Board “ ‘may rescind, modify, alter or affirm the penalty imposed by the appointing authority, or may impose such additional or different penalty as may be warranted by the evidence adduced at the hearing.’ ” Grant v. City of Mobile, 50 Ala.App. at 688, 282 So.2d at 288. The enabling act for the Mobile County Personnel Board also stated:

“ ‘Any person directly interested may, within five days, appeal to the Circuit Court of Mobile County from any order of said Board.... Findings of fact of said Board contained in such transcript if supported by substantial evidence adduced before said Board or before its Personnel Director after hearing and upon notice to the interested party or parties and after affording such parties an opportunity to be heard, shall be conclusive on such appeal.... If upon such appeal the Court finds that the ruling, order or action appealed from is unlawful or unreasonable within the meaning of this Act it shall have power to vacate or modify the same.’ ”

Grant v. City of Mobile, 50 Ala.App. at 689, 282 So.2d at 289 (quoting Act No. 470, Ala. Local Acts 1939, § XXXIV).

In construing the Mobile Circuit Court’s power to review the decisions of the Mobile County Personnel Board, this court stated that

“section [XXXIV] makes clear that the discretionary actions of the Board, to wit, the extent or severity of the punishment are not to be disturbed by the circuit court on review, but if the findings of fact are supported by substantial evidence, such findings shall be upheld and the conclusions or order from such findings shall be upheld unless unlawful or unreasonable within the meaning of the act.”

Grant v. City of Mobile, 50 Ala.App. at 689, 282 So.2d at 289 (emphasis added). See also City of Mobile v. Robertson, 897 So.2d 1156, 1159 (Ala.Civ.App.2004)(“The trial court is not permitted to judge the wisdom of the decision of the Board.”); Mobile County Personnel Bd. v. City of Mobile, 833 So.2d 641, 642 (Ala.Civ.App.2002)(confirming the standard used in Grant v. City of Mobile, supra); and Williams v. City of Dothan Pers. Bd., 579 So.2d 1350, 1353 (Ala.Civ.App.1990)(eoncluding that, under provisions similar to those in this case, “the appropriate standard of review in appeals of this nature is whether the board properly applied the law involved and whether the ruling is supported by any legal evidence”).

I find that the same rules apply to the decision of the LEPB, namely that neither the trial court nor this court may review the decision reached by the LEPB regarding the severity of the punishment given to Lawson. Here, because the Sheriffs Office does not challenge the factual findings made by the LEPB but only the severity of the punishment, I concur in the result on the basis that the trial court cannot review the severity of the punishment imposed by the LEPB.

      . Section 13A-11-31 reads:
      “(a) A person commits the crime of criminal eavesdropping if he intentionally uses any device to eavesdrop, whether or not he is present at the time.
      "(b) Criminal eavesdropping is a Class A misdemeanor.”

      . This would not be the case, of course, when the law authorizes a de novo or other specialized review of a lower tribunal's decision. That is not the case here.

      . Deciding questions of law is " 'the very essence of the appellate court's role.’ ” Kathleen L. Coles, Mixed Up Questions of Fact and Law: Illinois Standards of Appellate Review in Civil Cases Following the 1997 Amendment to Supreme Court Rule 341, 28 S. III. U.LJ. 13, 19 (Fall 2003) (quoting Patrick W. Brennan, Standards of Appellate Review, 33 Def. L.J. 377, 407 (1984)).

      . Judge Thompson also quotes City of Mobile v. Robertson, 897 So.2d 1156, 1159 (Ala.Civ.App.2004), as stating that "[t]he trial court is not permitted to judge the wisdom of the decision of the Board.” That statement has no different import, however, than do the statements from Grant last-quoted in the text.


author: BRYAN, Judge. MURDOCK, Judge,

text:
    Keith SISTRUNK v. SIKORSKY SUPPORT SERVICES, INC.
    2050622.
    Court of Civil Appeals of Alabama.
    Jan. 5, 2007.

      Steven K. Goozée of Goozée, King & Horsley, LLP, Birmingham, for appellant.
    Steadman S. Shealy, Jr., of Cobb, Shealy, Crum & Derrick, P.A., Dothan, for appellee.
   BRYAN, Judge.

Keith Sistrunk appeals a workers’ compensation judgment insofar as it determined that an injury to Sistrunk’s left shoulder was not compensable under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Because we conclude that the trial court misapplied the applicable law, we reverse the judgment insofar as it determined that the injury to Sistrunk’s left shoulder was not compensable, and we remand the case.

Sistrunk worked as a mechanic for Sikorsky Support Services, Inc. Sistrunk sued Sikorsky Support, seeking workers’ compensation benefits for injuries to his right shoulder. Sistrunk amended his complaint to allege that he also had injured his left shoulder by overcompensating with his left arm for his right-shoulder injuries. Sistrunk and Sikorsky Support later stipulated that Sistrunk had sustained compensable injuries to his right shoulder as a result of accidents at work on September 20, 2000, and September 17, 2002. The -case proceeded to trial, in which the only two issues to be determined by the trial court were: (1) the nature and extent of Sistrunk’s disability; and (2) whether the injury to Sistrunk’s left shoulder was a compensable injury under the Alabama Workers’ Compensation Act.

At trial, the trial court received oral testimony from Sistrunk and Dana Davis, an environmental-health-and-safety manager employed by Sikorsky Support. The trial court also received the deposition testimony of Sistrunk and Dr. Dexter Wal-cott, who had treated Sistrunk after his September 2002 accident. In his deposition testimony, Dr. Walcott testified that he placed Sistrunk on light-duty work restrictions following the accident in September 2002 in which Sistrunk injured his right shoulder. The light-duty work restrictions imposed by Dr. Walcott included no heavy lifting with the right arm and no overhead work with the right arm. Dana Davis testified that Sistrunk’s light-duty activities consisted of shredding paper and sorting small parts, such as nuts, bolts, and washers.

Dr. Walcott testified that Sistrunk first complained of an injury to his left shoulder in December 2002. Sistrunk testified that he progressively began to experience pain in his left shoulder following the injuries to his right shoulder. Sistrunk informed Dr. Walcott that he believed that the left shoulder had been injured because of overuse of the left arm while Sistrunk’s right arm was injured. Dr. Walcott diagnosed Sistrunk’s left-shoulder injury as a torn rotator cuff.

Dr. Walcott opined that Sistrunk’s left-shoulder injury was not related to the light-duty work that Sistrunk had been performing after the September 2002 accident. Dr. Walcott stated that Sistrunk’s left-shoulder injury “could” be related to “overcompensation” for the right-shoulder injuries and that it was “possible” that the left-shoulder injury was related to this “overcompensation.” It appears that Dr. Walcott’s use of the word “overcompensation” in this context may have been a reference to “overcompensation” at work only. Dr. Walcott testified that it was “probable” that Sistrunk’s left-shoulder injury was due to “overcompensation” if Sis-trunk performed no other activities with his left arm other than the light-duty activities that he performed while at work. Dr. Walcott also testified that Sistrunk would not have experienced “overcompensation of his left shoulder” were it not for the injuries to his right shoulder.

On April 6, 2006, the trial court entered a judgment determining that Sistrunk had sustained a permanent partial disability as a result of the injuries to his right shoulder and that Sistrunk’s left-shoulder injury was not compensable under the Alabama Workers’ Compensation Act. Sistrunk timely appealed the judgment to this court.

Section 25 — 5—81(e), Ala.Code 1975, provides the applicable standard of review in workers’ compensation cases:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

On appeal, Sistrunk argues that the trial court erred by concluding that the torn-rotator-cuff injury to his left shoulder was not compensable. It is undisputed that the injuries to Sistrunk’s right shoulder are compensable. Sistrunk argues that the injury to his left shoulder is compensa-ble pursuant to the “successive-eompensa-ble-injury test.”

“Our supreme court adopted the successive-compensable-injury test in Ex parte Pike County Commission, 740 So.2d 1080 (Ala.1999). The court explained the test as follows:

“ ‘When determining whether a successive injury is compensable, the general rule is that “[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant’s own intentional conduct.” 1 Larson, [Larson’s Workers’ Compensation Law], § 13.00 [ (1998) ]. In applying this rule ..., the Supreme Court of Appeals of West Virginia held:
“ ‘ “[I]f a worker’s compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment. If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the claimant’s customary activity in light of his condition, then such aggravation is not com-pensable.
‘Wilson v. Workers’ Compensation Comm’r, 174 W.Va. 611, 616, 328 S.E.2d 485, 490 (1984); see also Lou Grubb Chevrolet, Inc. v. Industrial Comm’n, 174 Ariz. 23, 26, 846 P.2d 836, 839 (Ariz.App.1992) (“[An] employee’s reasonable conduct in causing a later nonindustrial injury does not relieve the employer of liability if the later injury is the ‘direct and natural result’ of the compensable work injury”). Thus, “a subsequent injury, whether an aggravation of an original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.” 1 Larson, supra, § 13.11.’
740 So.2d at 1084.
“... The supreme court has also stated, ‘Under the “successive-compensable injury” test, the issue is not whether the primary injury caused the second [non-work-related] accident.’ Ex parte Dunlop Tire Corp., 772 So.2d 1167, 1171 (Ala.2000) (emphasis added [in Kent ]).”

Landstar Ranger v. Kent, 828 So.2d 322, 324 (Ala.Civ.App.2002).

In concluding that Sistrunk’s left-shoulder injury was not compensable, the judgment of the trial court focused on Sis-trunk’s light-duty work activities following his right-shoulder injuries. The trial court’s judgment stated, in pertinent part:

“The Court finds [that Sistrunk’s] left shoulder injury is not compensable under the Alabama Worker’s Compensation Laws and was not caused by or related to the right shoulder injury....
“The Court further noted [that Sis-trunk’s] physician[, Dr. Walcott,] admitted that he did not think that [Sis-trunk’s] left shoulder injury was due to activities at work. Based on the fact that [Sistrunk] was on light duty such as shredding paper for 2 months and then was placed at a desk sorting small parts (nuts <& bolts), [Sistrunk’s] injury to his left shoulder is not work related.
“... [T]he Court finds that [Sistrunk] did not sustain the burden of proof necessary so as to entitle him to recover under the Worker’s Compensation Laws of the State of Alabama nor sustain the burden of proof required so as to substantiate the allegation that he sustained any compensable left shoulder injury under said laws. In sum, it appeared to the Court that from the medical testimony presented by Dr. Walcott, and [from Sistrunk’s] work restrictions, the trial court cannot properly find that the left rotator cuff injury is compensable because it is not a natural and direct result of the right shoulder injury.”

It appears from the judgment that the trial court concluded that, due to the light-duty nature of Sistrunk’s work activities following his right-shoulder injuries, Sistrunk’s left-shoulder injury was not a “natural and direct result” of his right-shoulder injuries. However, a determination whether Sistrunk’s left-shoulder injury is a “natural and direct result” of his right-shoulder injuries is not limited to an evaluation of Sistrunk’s work activities after his earlier injuries. As we have noted, “ ‘ “[i]f a worker’s compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment.” ’ ” Landstar Ranger, 828 So.2d at 324 (quoting Ex parte Pike County Comm’n, 740 So.2d 1080, 1084 (Ala.1999), quoting in turn Wilson v. Workers’ Comp. Comm’r, 174 W.Va. 611, 616, 328 S.E.2d 485, 490 (1984)). For example, the employee in Ex parte Pike County Commission

“had a series of work-related back injuries; he filed the action at issue in that opinion after lifting his 12-pound baby at home. 740 So.2d at 1082. The supreme court affirmed the trial court’s finding that the employee’s injury after lifting the baby was a compensable injury, because ‘[ljifting a 12-pound baby is an activity that is “customary in light of [the employee’s] condition.” Wilson [v. Workers’ Comp. Comm’r], 174 W.Va. [611] at 616, 328 S.E.2d [485] at 490 [ (1984) ].’ 740 So.2d at 1084.”

Landstar Ranger, 828 So.2d at 324. Moreover, “it is not the situs of the second injury (i.e., either the place where the accident occurred or the physical location of the injury) that is controlling, but rather whether the subsequent injury was a natural consequence of a prior compensable injury.” Erwin v. Harris, 474 So.2d 1125, 1128 (Ala.Civ.App.1985).

Sistrunk argued before the trial court that his left-shoulder injury was compensable because, he said, it was a direct result of his overcompensating with his left arm for his right-shoulder injuries. The trial court’s conclusion that Sistrunk’s left-shoulder injury was not compensable appears to be based on a finding that Sistrunk’s alleged overeompensation while working was insufficient to result in a work-related injury. However, it matters not whether Sistrunk’s overeompensation with his left arm, allegedly resulting in his left-shoulder injury, occurred while he was actually working for Sikorsky Support. The applicable standard is whether Sis-trunk’s left-shoulder injury was “the direct and natural result” of his compensable right-shoulder injuries, regardless of whether it was incurred at work or elsewhere. Landstar Ranger, supra; and Erwin, supra. Accordingly, because the trial court misapplied the applicable standard, the judgment of the trial court is due to be reversed insofar as it determined that the injury to Sistrunk’s left shoulder was not compensable.

We note also that the rotator-cuff injury to Sistrunk’s left shoulder appears to have resulted from gradual deterioration or cumulative physical stress. Sis-trunk testified that he did not injure his left shoulder in an accident and that he progressively began to experience pain in his left shoulder after suffering his right-shoulder injuries. In its judgment, the trial court did not specify whether it found Sistrunk’s left-shoulder injury to be a result of gradual deterioration or cumulative physical stress. Should the trial court find Sistrunk’s left-shoulder injury to be either the result of gradual deterioration or the result of a cumulative-physical-stress disorder, we note that such an injury is “com-pensable only upon a finding of clear and convincing proof that [that injury] arose out of and in the course of the employee’s employment.” § 25-5-81(c), Ala.Code 1975. That is, if Sistrunk’s left-shoulder injury is a cumulative-physical-stress injury, he would have to establish by clear and convincing evidence that it was the direct and natural result of his compensable right-shoulder injuries. § 25 — 5—81(c); and Landstar Ranger, supra. See also Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188, 196-97 (Ala.Civ.App.2001) (stating that a successive compensable injury that is also a cumulative-physical-stress injury must be established by clear and convincing evidence).

We reverse the judgment insofar as it determined that the injury to Sistrunk’s left shoulder was not compensable under the Alabama Workers’ Compensation Act. We remand the case for the trial court to determine whether Sistrunk’s injury to his left shoulder is compensable, applying the standards articulated in this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and THOMPSON, J., concur.

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

MURDOCK, J., dissents, with writing.

MURDOCK, Judge,

dissenting.

I respectfully dissent. The record in this case does not contain substantial evidence indicating that Sistrunk’s left-shoulder injury resulted from overcompensation by Sistrunk outside of work for his right-shoulder injury. Indeed, Sistrunk failed to identify to the trial court and fails to identify to this court what nonwork activity might have precipitated his left-shoulder injury. The only evidence of any nonwork activity by Sistrunk is evidence indicating that he lifted weights for exercise outside of work.


text:
    TITLEMAX OF ALABAMA, INC. v. STATE of Alabama.
    2050952.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.

      Jeffrey L. Ingram and Franklin L. Bell of Galese & Ingram, P.C., Birmingham, for appellant.
    Troy Bang, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   THOMPSON, Judge.

On September 15, 2005, the State of Alabama filed a complaint against Mitchell Bernard Johnson and certain property, including a 1996 Ford Ranger vehicle (hereinafter “the vehicle”), seeking the forfeiture of the vehicle and the other property pursuant to § 20-2-93, Ala.Code 1975. That complaint was served on TitleMax of Alabama, Inc., among others. On October 17, 2005, TitleMax filed an answer asserting its rights as a lienholder on the vehicle. Other parties also filed responses to the State’s complaint, but the facts pertinent to those responses are not relevant to the issue presented on appeal.

On March 27, 2006, the State moved for the entry of a default judgment pursuant to Rule 55(b)(2), Ala. R. Civ. P. However, the record contains no indication that the State served TitleMax with notice of its March 27, 2006, motion for a default judgment. On March 27, 2006, the same day the State filed its motion for a default judgment, the trial court entered a default judgment in favor of the State.

On April 12, 2006, TitleMax filed a motion that was in substance a motion filed pursuant to Rule 55(c), Ala. R. Civ. P. See Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997) (the substance of a motion governs the courts’ interpretation of that motion). In that motion, TitleMax sought to have the March 27, 2006, default judgment set aside; TitleMax argued that it had not been served with notice of the motion for a default judgment. The trial court ordered the State to respond to TitleMax’s Rule 55(c) motion, but the record on appeal does not contain any such response. The April 12, 2006, motion to set aside the default judgment was denied by operation of law, see Rule 59.1, Ala. R. Civ. P., and TitleMax timely appealed.

On appeal, TitleMax argues that it was entitled, pursuant to § 20-2-93, Ala.Code 1975, to notice of the State’s application for a default judgment. The State has filed a brief before this court in which it concedes that the trial court erred in entering the default judgment in the absence of notice to TitleMax and in failing to set that judgment aside. Accordingly, we reverse and remand.

REVERSED AND REMANDED.

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

      . This party was improperly designated as "Titlemax of Troy" on the certificate of service.