author: BRYAN, Judge. THOMPSON, Judge,

text:
    Jack SHEWMAKE v. Al DelGRECO and Lisa DelGreco.
    2040016.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2005.

      Laurie Boston Sharp, Birmingham, for appellant.
    R. Gordon Pate and Karen D. Farley of Pate, Lloyd & Cochrun, LLP, Birmingham, for appellees.
   BRYAN, Judge.

The defendant Jack Shewmake appeals a judgment in favor of the plaintiffs A1 DelGreco and Lisa DelGreco. We reverse the trial court’s judgment and render a judgment in favor of the DelGrecos in the amount of $866.49.

On March 13, 1999, the DelGrecos entered into a written contract with Shew-make and Jim Kelly regarding the remodeling of the DelGrecos’ house (“the contract”). The remodeling consisted of adding a playroom and a hobby room underneath an existing wooden deck, replacing the existing wooden deck with a concrete deck, adding a screened-in porch, and adding a third garage. In pertinent part, the contract stated:

“Job Description: Addition to existing house according to plans and specs provided by owner. Addition to be done in a timely and workmanlike manner. Exterior and interior to match existing structure as closely as possible.
“Walls, trim and ceiling of main structure to match existing. Flooring to be carpet with 28.00/sy allowance. Sheet rock walls, acoustic ceiling, driveway and walks to be extended as per owners’ specifications. Paint colors to be selected by owners.
“Best effort has been made to give an accurate estimate for the costs of this job. Allowances have been provided as a guideline to help control costs.
“Any addition requirements by the Greystone ACC will be added to the estimated cost and paid by the owners.
“[The DelGrecos] will be responsible for all labor and materials performed and/or delivered to this site. Any work performed by [Shewmake and Kelly] will be paid as sub-contract labor, (such as clean up, trim work, painting, punch list, etc.)
“[Shewmake and Kelly] to work on a fee of [$]35,000.00 for overseeing construction, obtaining material, scheduling subcontractors and quality control.
“Subcontractors must be paid on Friday of each week by 3:30 p.m.
“Supplierfs] to be paid before the 10th of each month and bills will be discounted if applicable. If special order items are necessary, deposits or advance payment may be required.
“Fee Schedule:
“[$]3,000.00 due upon signing of contract
“[$]6,000.00 due 1st of each month beginning April 1 for five months
“[$]2,000.00 due along with remaining balance of monthly installments upon final inspection.”

The estimated costs and allowances for the labor and materials totaled $114,000.

The remodeling of the DelGrecos’ house began in April 1999. A substantial amount of work had been completed by late July 1999. In late July or early August 1999, a subcontractor, Concrete Designs and Coatings, LLC (“Concrete Designs”), poured the new concrete deck in forms installed by Shewmake and Kelly for a contract price of $5,626. However, after the new concrete deck was poured, the DelGrecos noticed that it allowed rain to leak into the new playroom and hobby room underneath it. They also noticed several other less significant problems with the remodeling work that needed to be corrected. The DelGrecos complained to Shewmake and Kelly regarding all of these problems. Shewmake and Kelly attempted to correct the problems; however, they had not yet successfully corrected the leak in the concrete deck when Mr. DelGreco told Shew-make in November 1999 that the DelGre-cos would not pay Shewmake and Kelly any further money until Shewmake and Kelly had corrected the leak in the concrete deck. After this conversation, Shew-make and Kelly did not perform any further work on the DelGrecos’ house.

When Shewmake and Kelly ceased working on the DelGrecos’ house in November 1999, the DelGrecos employed an architect to determine what needed to be done to correct the defects in the work completed by Shewmake and Kelly. The DelGrecos then employed a substitute contractor to correct the leak in the concrete deck and to complete the remodeling project. In order to eliminate the leaking in the concrete deck, the substitute contractor demolished the concrete deck installed by Shewmake and Kelly and installed a new concrete deck in its place.

On March 6, 2000, the DelGrecos sued Shewmake, Kelly, and Concrete Designs, alleging breach of contract, negligence, fraud, misrepresentation, the tort of outrage, and breach of warranty. The defendants answered the complaint. Shewmake and Kelly asserted the affirmative defense of set-off. In addition, Concrete Designs asserted a cross-claim against Shewmake and Kelly to recover the $5,626 Shewmake and Kelly had agreed to pay Concrete Designs for pouring the initial concrete deck. Before trial, the DelGrecos settled their claims against Concrete Designs on a pro tanto basis.

At a bench trial on October 30, 2003, the trial court received evidence ore tenus regarding the DelGrecos’ claims against Shewmake and Kelly and regarding Concrete Designs’ cross-claim against Shew-make and Kelly. Kelly did not appear for trial.

The evidence at trial established the following facts. The DelGrecos paid Shew-make and Kelly a total of $96,497.78. This total consisted of $21,000 in fees and $75,497.78 for labor and materials. The $75,497.78 for labor and materials included amounts for extras the DelGrecos requested after the written contract had been executed. The DelGrecos paid the architect $1,496.13 for inspecting the work performed by Shewmake and Kelly. The DelGrecos paid the substitute contractor $18,470.36 to demolish the concrete deck Shewmake and Kelly had installed and to install a new one. In addition, the DelGre-cos paid the substitute contractor approximately $57,000 to complete the remodeling of their house.

Shewmake paid $14,800 for labor and materials used in the remodeling work he and Kelly completed for which the DelGre-cos did not reimburse him. In addition, Shewmake owes a supplier $4,300 for materials used in the remodeling work he and Kelly completed for which the DelGrecos did not reimburse him. The DelGrecos did not pay Shewmake and Kelly $14,000 of the $35,000 contractors’ fee contemplated by the contract. Shewmake estimated that the labor and materials necessary to complete the work he had agreed to perform would have cost approximately $10,000 to $12,000.

At trial, the DelGrecos asked the trial court to award them as damages the $96,497.78 they had paid Shewmake and Kelly, the $1,496.13 they had paid the architect, and the $18,470.36 they had paid the substitute contractor to replace the concrete deck installed by Shewmake and Kelly. The DelGrecos expressly waived any claim to recovery of the approximately $57,000 they had paid the substitute contractor to complete the remodeling of their house.

On November 3, 2003, the trial court entered a final judgment awarding the DelGrecos $119,966.49 on their claims against Shewmake and Kelly, jointly and severally, and awarding Concrete Designs $5,626 plus $1,436.22 in prejudgment interest on its cross-claim against Shewmake and Kelly, jointly and severally.

On December 2, 2003, pursuant to Rule 59, Ala. R. Civ. P., Shewmake moved the trial court to alter, amend, or vacate the judgment, or to order a remittitur, or to order a new trial. In support of his Rule 59 motion, Shewmake argued that the trial court had erred because, Shewmake said, the trial court had not used the correct •measure of damages in determining how much the DelGrecos were entitled to recover. Specifically, Shewmake argued that the correct measure of damages was the difference between the market value of the remodeling work completed by Shew-make and Kelly and the market value of the remodeling work as warranted. Shew-make cited McLendon Pools, Inc. v. Bush, 414 So.2d 92 (Ala.Civ.App.1982), and Alabama Pool & Construction Co. v. Rickard, 418 So.2d 149 (Ala.Civ.App.1982), in support of this argument. Shewmake also argued that the trial court erred in awarding the DelGrecos the $96,497.78 they had paid Shewmake and Kelly on the ground that this award unjustly enriched the DelGrecos by compensating them for work that Shewmake and Kelly had performed in a workmanlike manner and that added value to the DelGrecos’ house.

On February 11, 2004, the trial court entered and signed the following order on the case action summary:

“Pursuant to Defendant Shewmake’s Motion to Alter, Amend or Vacate the Judgment or[,] in the Alternative!,] for a New Trial!,] the amount awarded to Plaintiffs in the Final Judgment in this cause dated November 3, 2003[,] is amended from $119,966.49 to $116,364.27.[] By agreement!,] this Court reserves ruling on the merits of said motion which shall be done on or before April 1, 2004.”

On April 1, 2004, the trial court entered and signed the following order on the case action summary:

“The Court finds that the McLendon & Alabama Pool cases [are] not applicable to the calculation of damages in this case. [Shewmake’s] Motion to Alter, Amend or Vacate is DENIED.”

Shewmake timely appealed to the supreme court on May 12, 2004, and, pursuant to § 12-2-7(6), Ala.Code 1975, the supreme court transferred the appeal to this court on October 5, 2004.

On appeal, Shewmake argues that the trial court erred in applying the wrong measure of damages. Citing McLendon Pools and Alabama Pool, he argues that the correct measure of damages for breach of the construction contract in the case now before us is the diminished-value standard, i.e., the difference between the market value of the remodeling work as completed by Shewmake and Kelly and the market value of the remodeling work as warranted. Shew-make further argues that, because the DelGrecos did not introduce any evidence of the market value of the remodeling work as completed by Shewmake and Kelly or the market value of the remodeling work as warranted, the trial court should not have awarded the DelGrecos any damages.

In McLendon Pools, McLendon Pools contracted to construct a pool at Bush’s home. Problems developed with the pool as soon as it was completed. Bush then sued McLendon Pools, alleging breach of contract and breach of warranty. After the trial court entered a judgment on a jury verdict awarding Bush $10,000, McLendon Pools appealed to this court. On appeal, McLendon Pools contended, among other things, that the amount of damages awarded by the jury was erroneous. This court held:

“The general measure of damages in a case of this type is the difference between the market value of the pool as completed and the market value of the pool as warranted. Converse Bridge Co. v. Geneva County, 168 Ala. 432, 53 So. 196 (1909); Fleming v. Lunsford, 163 Ala. 540, 50 So. 921 (1909). No evidence of such measure was presented. The only evidence as to amount of damages was an estimate of $1,600 to replace the cracked concrete deck around the pool and $698 expended for a larger filter stated to be necessary to properly filter the pool.
“Unless [Bush] remits all [damages] in excess of $2,298 by filing a remittitur with this court within ten days following the finality of this opinion, the judgment of the lower court will be reversed and the cause remanded for new trial.”

414 So.2d at 94-95.

In Alabama Pool, Alabama Pool contracted to construct a pool at Rickard’s home for $8,950. Alabama Pool completed enough work on the pool to enable Rickard and his family to use it for swimming. However, there were wrinkles in the pool liner, discolored concrete walkways, chipped and rough concrete decking, a dented ladder, and misaligned coping. In addition, there was evidence that the installation of the pool’s electrical system did not comply with applicable city ordinances. Rickard refused to pay Alabama Pool $2,950 of the contract price.

Alabama Pool sued Rickard and alleged that Rickard had breached the contract by failing to pay Alabama Pool $2,950 of the contract price. Rickard counterclaimed and alleged that Alabama Pool breached the contract by failing to construct the pool in a workmanlike manner and in conformity with the applicable city ordinances and that Alabama Pool had breached express and implied warranties of fitness for a particular purpose. A jury returned a verdict against Alabama Pool on its claim and in favor of Rickard on his counterclaim. The jury awarded Rickard $8,000 as damages. Alabama Pool moved the trial court for a new trial on the ground that the jury’s verdict was unsupported by the evidence, and the trial court denied the motion. Alabama Pool then appealed to this court.

On appeal, Alabama Pool contended that the evidence did not support the award of $3,000 on Rickard’s counterclaim. Agreeing, this court reversed the judgment in favor of Rickard and explained:

“The sole issue presented for review is whether there was sufficient evidence to support the jury’s verdict awarding [Rickard] $3,000 on his counterclaim. Though ... there is ample evidence that [Alabama Pool] breached the pool construction contract, a careful review of the record has failed to reveal any evidence that would warrant a finding that [Rickard] had suffered any compensable damage due to the breach. Because there is no evidence that [Rickard] was damaged, as damages are determined under Alabama law, this court must reverse the verdict awarding damages. Specifically, the trial court erred in not granting [Alabama Pool’s] motion for a new trial due to a lack of evidence to support the jury’s verdict.
“As this court is aware, ... many jurisdictions would apply a ‘cost of repairs’ measure of damages in cases involving defective installation or construction of swimming pools. See generally 13 Am.Jur.2d, Building and Construction Contracts §§ 76-86 (1964). This court, in accordance with previous supreme court cases, has recently held, however, that the ‘diminished value’ measure of damages is applicable to cases involving breach of a pool construction contract. The ‘diminished value’ measure of damages as stated by Presiding Judge Wright in McLendon Pools, Inc. v. Bush, 414 So.2d 92 (Ala.Civ.App.1982), is ‘the difference between the market value of the pool as completed and the market value of the pool as warranted. Converse Bridge Co. v. Geneva County, 168 Ala. 432, 53 So. 196 (1909); Fleming v. Lunsford, 163 Ala. 540, 50 So. 921 (1909).’ In a case such as this, cost of repairs can properly be admitted into evidence and considered by the jury, but only as an aid in determining the diminished value.
“Upon reflection, it becomes apparent from the foregoing statement of the diminished value rule that in order to receive compensation under that rule, [Rickard], in this case, would have had to prove that he paid more for the pool than the pool was worth as it was completed. This [Rickard] has failed to do.
“A review of the record reveals that only one witness was able to testify as to the pool’s value as completed. This witness, who was an expert testifying for [Rickard], testified that the pool had a value of from $6,000 to $6,500 as completed. [Rickard] testified, in response to a question from [Alabama Pool’s] counsel, that he had no estimate of the value of the pool as completed.
“Viewing the evidence most favorably to the prevailing party, as this court is required to do (Cooper v. Peturis, 384 So.2d 1087 (Ala.1980)), we must conclude that the pool had a value of $6,000 in its completed state. Since [Rickard] had paid but $6,000 for the pool, he had paid no more than the pool was worth as completed. Stated differently, [Rickard] paid for a $6,000 pool and he received a $6,000 pool. Consequently, in this instance under these facts, [Rickard] has failed to prove that he was damaged by [Alabama Pool’s] breach.”

418 So.2d at 151.

The DelGrecos argue that the diminished-value measure of damages applied by this court in McLendon Pools and Alabama Pool is not applicable in the case now before us because, they say, McLen-don Pools and Alabama Pool “involved completed work performed regarding a pool, not incomplete work which was to be performed on a house.” (DelGrecos’ brief at p. 8.)

In Fox v. Webb, 268 Ala. 111, 105 So.2d 75 (1958), Fox contracted to build the Webbs a house in accordance with their plans and specifications for a contract price of $8,750. As Fox performed the work, the Webbs became dissatisfied with the quality of Fox’s work and with its nonconformity with the plans and specifications. Fox stopped working on the house before he had completed it. When Fox stopped working, the Webbs, who had previously paid him $6,171.50, refused to pay him the remaining $2,578.50 of the contract price. Fox then sued the Webbs to recover the balance of the contract price. The Webbs counterclaimed to recover the amount necessary to complete the house in accordance with the plans and specifications. Following a bench trial, the trial court awarded Fox the $2,578.50 balance of the contract price plus $147.90 for extras and awarded the Webbs $3,798.54 on their counterclaim. After setting off Fox’s $2,726.40 award against the Webbs’ $3,798.54 award, the trial court ordered Fox to pay the Webbs the net difference of $1,072.14. Appealing to the supreme court, Fox contended, among other things, that the trial court had erred in awarding the Webbs the amount necessary to complete the house in accordance with the plans and specifications. Rejecting this argument, the supreme court stated:

“The court found that the work had not been completed by the contractor in accordance with the terms and conditions of the contract. The evidence was heard orally before the court. Under these circumstances, the findings of the trial court have a presumption of correctness.
“The court found that the amount which was necessary to complete the building in accordance with the terms and conditions of the contract was $3,798.54. It seems to us that the record substantiates such a conclusion. We are not willing to say that the findings of the court were palpably wrong.
“This court in Walstrom v. Oliver-Watts Construction Co., 161 Ala. 608, 619, 50 So. 46, 50 [ (1909),] said:
‘... The authorities above cited are uniform in holding that an owner who has sustained injury by reason of a breach of the building contract on the part of the builder, may recover in a separate action against the builder, or if sued by the builder on a quantum meruit, that he may recoup or set off such damages as are the proximate result of the breach, the amount of which, as above stated, being the difference between the value of the work furnished or building constructed and the value of that contracted for, or the reasonable value of the extra work occasioned the owner in making the building conform to the contract stipulations. 6 Cyc. 113; Suth on Damages, §§ 709-711.’ ”

268 Ala. at 118-19, 105 So.2d at 82 (emphasis added; some citations omitted).

We conclude that the holding in Fox v. Webb governs the case now before us. Under the holding in Fox v. Webb, the $1,496.13 the DelGrecos paid the architect to determine what needed to done to correct the defects in Shewmake and Kelly’s work and the $18,470.36 the DelGrecos paid the substitute contractor to replace the concrete deck installed by Shewmake and Kelly were proper elements of the DelGrecos’ damages. However, the $96,497.78 the DelGrecos had paid Shew-make and Kelly was not a proper element of the DelGrecos’ damages. The trial court’s awarding the DelGrecos the $96,497.78 they had paid Shewmake and Kelly unjustly enriched the DelGrecos. In addition, the evidence established that Shewmake and Kelly had used $19,100 in labor and materials in performing remodeling work on the DelGrecos home for which the DelGrecos had not reimbursed Shewmake and Kelly. Accordingly, the $19,966.49 in damages the DelGrecos were entitled to claim for the work necessary to correct the defects in Shewmake and Kelly’s work is subject to a set-off equal to the $19,100 the DelGrecos had not paid Shew-make and Kelly. Consequently, the DelGrecos are entitled to a net recovery of $866.49.

Conclusion

We reverse the judgment of the trial court, and we render a judgment in favor of the DelGrecos in the amount of $866.49.

REVERSED AND JUDGMENT RENDERED.

CRAWLEY, P.J., and MURDOCK, J., concur.

THOMPSON, J., concurs in part and dissents in part,-with writing, which PITTMAN, J., joins.

THOMPSON, Judge,

concurring in part and dissenting in part.

I agree that the trial court erred in determining the proper measure of damages in this matter. However, I would not render a judgment in this matter. It is for the trier of fact to determine the damages to which the DelGrecos are entitled and the credits that Shewmake should receive. I would, therefore, remand the cause to the trial court for it to decide, in compliance with the law set forth in the main opinion, the proper amount of damages based on the evidence presented at trial.

PITTMAN, J., concurs.

      . The amounts the DelGrecos requested as damages, i.e., the $96,497.78 they had paid Shewmake and Kelly, the $1,496.13 they had paid the architect, and the $18,470.36 they had paid the substitute contractor to replace the concrete deck installed by Shewmake and Kelly, totaled $116,464.27; however, Mr. Del-Greco inadvertently testified that they totaled $119,966.49.
      Although the judgment did not identify the legal theory upon which the trial court found Shewmake and Kelly liable, the parties have treated the judgment as though it found Shewmake and Kelly liable for breach of contract only.

      . The amounts the DelGrecos requested as damages actually totaled $116,464.27, $100 more than this amended award. See note 1.

      . Kelly did not file a notice of appeal and, therefore, is not a party to this appeal.

      . On appeal, Shewmake has neither framed an issue nor presented argument regarding whether the trial court erred in finding in favor of Concrete Designs on its cross-claim. Therefore, Shewmake has abandoned that issue. Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) ("'When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). ‘An appeals court will consider only those issue properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985).’ Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988).").

      . Although Mr. DelGreco testified that there were other defects in Shewmake and Kelly’s work that were less significant than the leak in the concrete deck, the DelGrecos did not introduce any evidence of the cost of repairing those defects.
      Had they not expressly waived any claim to the approximately $57,000 they paid the substitute contractor to complete the remodeling, that completion cost would also be a proper element of damages. However, that completion cost would' have been subject to a set-off equal to the amount the DelGrecos would have been obligated to pay Shewmake and Kelly if they had completed the remodeling.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    UNITED AUTO WORKERS LOCAL 1155 v. Larry FORTENBERRY.
    2030998.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2005.
    Don G. DeCoudres, Birmingham, for appellant.
    James C. King, Robert O. Bryan, and Henry P. Allred of King, Bryan & Wiley, Jasper, for appellee.
   PITTMAN, Judge.

United Auto Workers Local 1155 (“the employer”) appeals from a judgment of the Walker Circuit Court awarding Larry Fortenberry (“the employee”) permanent-total-disability benefits under the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. (“the Act”). Because we conclude that proper notice under the Act was not provided, we reverse the judgment and remand the cause for the entry of a judgment dismissing the employee’s action.

The record reflects the following facts. The employee has a history of working as an airplane mechanic, most recently for PEMCO Aeroplex, Inc. (“PEMCO”), in Birmingham. While employed at PEM-CO, the employee was a member of the employer, which is a local unit of an international labor union. In 1993, while serving as vice president of the employer, the office of president became vacant, and the employee assumed that office. In doing so, he became a compensated employee of the employer and took a leave of absence from his employment at PEMCO; however, the employee continued to be covered by insurance, including medical insurance, secured by PEMCO for its employees. The employee testified that his work for the employer involved conducting negotiations with PEMCO as necessary and generally providing assistance to the employer’s members. The employee testified that in 1993 he had helped negotiate a three-year labor contract between PEM-CO and the employer and that that agreement was set to expire in 1996, at the end of his term as president.

In 1993, after assuming the presidency of the employer, the employee suffered a stroke. After that stroke, the employee underwent physical rehabilitation in order to re-learn how to walk, was placed on blood-thinning medication, and exhibited permanent weakness in his left side; however, the employee was ultimately able to resume his work for the employer. The record does not reflect that the employee sought temporary or permanent benefits under the Act from the employer with respect to that stroke. However, in either 1994 or 1995, while in the line and scope of his employment with the employer, the employee was involved in an automobile collision that resulted in injuries for which he sought, and received, benefits under the Act; as to that incident, the employee testified that he had notified the employer’s secretary that he had suffered a work-related injury.

The employee was a candidate in an election in May 1996 to retain the office of president of the employer beyond Saturday, June 8, 1996, the last day of his term of office; however, because he was not one of the two candidates receiving the most votes in the first round of balloting in April or May 1996, he was eliminated from contention well before that date. The employee indicated in his testimony that in the last few days of his term of office he had heard from PEMCO representatives concerning PEMCO’s plans for the next three-year labor contract (which was to be negotiated by the employee’s successor) and that he had been involved in an investigation concerning a member whose employment with PEMCO had been terminated.

The employee testified that, on Friday, June 7, 1996, he reported to work at 7:00 a.m., made coffee, and did some residual paperwork; later that morning, the employee drove his automobile one-half mile to the office of PEMCO’s personnel director and, one hour later, returned to the employer’s office. The employee then began gathering and packing his personal effects from the employer’s office in order to make room for his successor as president. The employee testified at trial that he had transported several loaded boxes from his upstairs office to his automobile, which required carrying at least three loads downstairs, when he returned to the office to request a garbage bag from one of his coworkers. At that moment, the employee testified, the employee began experiencing the symptoms of his second stroke. The employee was then transported to a Birmingham hospital to undergo treatment for that stroke.

The record contains no document evidencing that the employee provided written notice to the employer of a potential work-related accident within 90 days after his second stroke. In contrast, the record indicates that on June 14, 1996, one week after that stroke, the employee completed a claims form seeking sickness-and-accident benefits under a policy of insurance held by PEMCO; on that claims form, the employee answered “no” to a question asking whether the employee had filed, or intended to file, a claim seeking workers’ compensation benefits based upon an “on-the-job injury or illness.”

At trial, after the employee had explained on cross-examination about how he had provided notice to the employer’s secretary after his employment-related automobile collision one or two years before his second stroke, the following testimony was elicited:

“Q. With respect to [the June 7, 1996,] stroke, that kind of procedure never took place, did it?
“A. I wasn’t in a position to notify anybody.
“Q. Okay. And you didn’t notify anybody about claiming that this stroke was job related?
“A. I did somewhere along the line because we’re here.
“Q. But you don’t know when?
“A. I don’t recall when, no.
“Q. And you don’t know how it was done?
“A. No, I don’t. Sorry.
“Q. And does it say on [the sickness- and-accident claims form], ‘Have you or do you intend to file a claim for workers’ compensation due to this being an on-the-job injury or illness,’ and you checked no; is that right?
“A. Yeah, probably at that time, I did not.
“Q. But it is your understanding that in order for you to get sick and accident, which you got, you couldn’t also have a workers comp recovery?
“A. Yes.
“Q. And you got sick and accident benefits from PEMCO?
“A. Yes.
“Q. How long did that last?
“A. A year, I think.”

The employee did not return to work for the employer or for PEMCO. Rather, on June 4, 1998, he filed a civil action seeking an award of benefits under the Act with respect to his second stroke. The employer answered the complaint and, in addition to denying that the employee had suffered an accident or an occupational disease covered by the Act, averred that the employee had not given proper notice under the Act of the existence of a compensable injury. The employer moved for a summary judgment on the issue whether the employee’s second stroke arose out of and occurred in the course of his employment; however, the trial court did not rule on that motion until after holding an ore tenus proceeding. The trial court entered a judgment in which that court concluded that the employee was permanently and totally disabled as a result of the second stroke; that the stroke was caused by his employment with the employer (specifically, by “physical and mental stress on the day that he suffered his stroke”); and that the employee was entitled to accrued compensation benefits, plus future compensation “for the remainder of [his] life” and medical benefits “for and during the remainder of [his] lifetime.” In doing so, the trial court summarily stated that the employer “had actual notice of’ what it alternately termed the employee’s “injury” or “event.”

On appeal, the employer has raised three issues. The employer contends that the employee did not demonstrate legal or medical causation by substantial evidence, that the employee failed to provide notice of his claim under the Act, and that the trial court could not properly award benefits under the Act for the remainder of the employee’s life (as opposed to the duration of his disability). We conclude that the employer’s contention regarding notice is meritorious and dispositive of the appeal. We apply the standard of review generally applicable to workers’ compensation judgments: although pursuant to § 25-5-81(e)(2), Ala.Code 1975, “[w]e will not reverse a trial court’s judgment based on factual findings in a workers’ compensation case if those findings are supported by ‘substantial evidence,’ ” the trial court’s legal conclusions are, under § 25-5~81(e)(l), “afforded no presumption of correctness, and this court reviews those conclusions de novo.” United States Steel Corp. v. McBrayer, 908 So.2d 947, 951 (Ala.Civ.App.2005).

The pertinent notice provisions in the Act are contained in § 25-5-78, Ala.Code 1975. That section provides that “an injured employee or the employee’s representative, within five days after the occurrence of an accident, shall give or cause to be given to the employer written notice of the accident.” Failure to give notice, in the absence of “physical or mental incapacity, other than minority, fraud or deceit, or equal good reason,” will defeat a claimant’s entitlement to medical benefits and compensation accrued before notice is ultimately provided. Id. However, § 25-5-78 also provides that “no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident or, if death results, within 90 days after the death” (emphasis added). Thus, while a failure to notify an employer of an accident within 5 days of its occurrence may be excusable under certain circumstances, and will work only a partial forfeiture of benefits, a failure to effect notice within 90 days is an absolute bar to recovery under the Act. See generally Ex parte Murray, 490 So.2d 1230, 1232-33 (Ala.1984). “The employee has the burden of proving that the employer had notice or knowledge of the injury.” Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 908 (Ala.Civ.App.1994).

Although § 25-5-78 requires “written notice,” this court and our Supreme Court have held that “actual” notice to an employer will suffice. See Ex parte Brown & Root, Inc., 726 So.2d 601, 602 (Ala.1998) (stating that “written notice is not required if the employer had - actual knowledge that the employee was injured in the scope of his or her employment” and citing Elliott, 650 So.2d at 908). The employee claims that the employer’s financial secretary, who observed the employee after he had slumped against a wall following his second stroke and who telephoned for medical assistance, had “actual notice” of the existence of a injury compensable under the Act as of the moment that the employee suffered that stroke. The employee attempts to bolster that claim by averring, without citation to legal authority or to the record, that the secretary also knew, or had “reason to know,” that the employee had undergone stress in his final days as president of the employer.

We are constrained to reject the employee’s expansive interpretation of the concept of “actual” notice under the Act. In Ex parte Brown & Root, the Supreme Court opined that “[t]he employer must have actual knowledge that the employee’s injury was connected to the employee’s work activities,” in order for “actual” notice to exist; in contrast, “ ‘[t]he fact that an employer is aware that an employee [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge.’” 726 So.2d at 602 (quoting Russell Coal Co. v. Williams, 550 So.2d 1007, 1012 (Ala.Civ.App.1989)); see also 7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 126.03[l][b] (2005), and 2 Terry A. Moore, Alabama Workers’ Compensation § 22.11 (1998) (employer “must have actual knowledge of information that would lead a reasonable person to believe that an injury had occurred within the course of the employment” (footnote omitted)). Thus, in Ex parte Brown & Root, the Alabama Supreme Court reversed this court’s affirmance of a judgment awarding benefits under the Act based upon the death of a construction supervisor from a “dissecting aortic aneurysm” that had arisen one hour after he had inspected the construction of a tube conveyor section on a day in which he had exhibited “no appearance of physical stress or discomfort.” 726 So.2d at 602.

We must conclude, on this record, that the employee failed to meet his burden of proof that the employer was placed on notice of a connection between the employee’s work and his second stroke. The employee admitted that he gave no written notice, and when directly questioned at trial regarding notice, he could offer only the conjecture that he “must have notified somebody” because a trial was taking place. While the service of a complaint approximately two years after the employee’s second stroke might constitute a form of written “notice,” it falls well short of affording the seasonable notice required under the Act so as to permit the employer to “ ‘make a prompt examination, provide proper treatment, and protect itself against simulated or exaggerated claims.’ ” Ex parte Brown & Root, 726 So.2d at 602. Moreover, under the authorities we have set forth herein, the bare occurrence of the second stroke on the premises of the employer during the employee’s final full day as president cannot be said to amount to “actual” notice of a connection between the stroke and the employment, especially where (1) the employee had suffered a stroke three years previously that had no apparent work-related connection, and (2) the employee himself specifically disclaimed such a work connection in filing a claim for sickness-and-accident benefits to be paid from PEMCO’s plan. We thus conclude that the trial court’s determination that the employer had “actual” notice under the Act is not supported by substantial evidence.

Based upon the foregoing facts and authorities, we reverse the trial court’s judgment. As we have stated, our conclusion renders unnecessary any consideration of the merits of the employer’s two other issues. We remand the cause for the entry of a judgment dismissing the employee’s action. See Ex parte Brown & Root, 726 So.2d at 603.

REVERSED AND REMANDED.

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

      . Although other formulations of the employer’s name appear in the record, counsel for the employer agreed at trial that "United Auto Workers Local 1155,” the name stated in the complaint, was the employer's correct name.

      . That secretary, although apparently "the right one to tell” of a compensable injury, testified that he was not told that the employee was claiming a connection between his work for the employer and his second stroke.

      . Because of the absence of actual notice in this case, we need not determine whether the employee's conduct constitutes "deliberate concealment” that might disqualify him from receiving workers' compensation benefits under the main opinion in Mid-South Electric Co. v. Jones, 848 So.2d 998 (Ala.Civ.App.2002).


author: BASCHAB, Judge. SHAW, Judge,

text:
    James Dwight McKISSACK v. STATE of Alabama.
    CR-02-1845.
    Court of Criminal Appeals of Alabama.
    April 30, 2004.
    Rehearing Denied June 18, 2004.
    Lindsey Mussleman Davis, Florence, for appellant.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

The appellant, James Dwight McKis-sack, was convicted of murder, a violation of § 13A-6-2(a)(l), Ala.Code 1975. The trial court sentenced him to serve a term of life in prison. The appellant filed a motion for a new trial, which the trial court summarily denied. This appeal followed.

The appellant argues that the trial court improperly denied his request that the grand jury proceedings in his case be preserved. In support of his motion, which he filed before the grand jury proceedings occurred, he asserted that he and Michael Craig had been arrested and charged with manslaughter and that they had both made statements on the night they were arrested about their involvement in the offense. The appellant stated that he, Craig, and the victim had been drinking and shooting his revolver; that they had started playing a game of Russian roulette; that they had all fallen asleep in their vehicle; that he was awakened by a gunshot and saw the victim in the seat beside him bleeding from his head; and that he had awakened Craig. Craig stated that the appellant and the victim had been playing Russian roulette; that he had fallen asleep; and that the appellant had awakened him and told him that the victim had shot himself. The appellant also asserted that, during the preliminary hearing, an investigator testified that he believed that the appellant intentionally shot the victim because the preliminary autopsy report indicated that there was not any soot or stippling around the gunshot wound like a person would expect from a contact wound. He further asserted that his counsel had talked to the medical examiner who had performed the autopsy of the victim’s body; that the medical examiner had stated that he had not been able to determine the manner of the victim’s death; that, although there was not any soot or stippling around the gunshot wound, there was an abrasion ring, which was consistent with the barrel of the revolver having been placed against the skin; that the trajectory of the bullet made him wonder whether or not the wound was self-inflicted; and that, in his report, he had listed the manner of death as being “ ‘inconclusive.’ ” (C.R. 20.) Finally, he concluded:

“It is particularly important to transcribe the proceedings in a case like this, where the state is considering elevating the charges to murder, and the state’s main witness, [the medical examiner], has told counsel on two occasions that he cannot determine the manner of death. If the state has a witness that would contradict [the medical examiner’s] testk mony, or presents forensic evidence that would do so, or if [the medical examiner], himself, gives different testimony, counsel should be entitled to a verbatim record of it, or of anything else that is said. Anything else would be unfair and a violation of Due Process.”

(C.R. 26.)

During a hearing on the appellant’s motion, defense counsel stated:

“At this point, we’re just asking that [the grand jury testimony] be preserved. I think that before we would be entitled to it we’d have to make a threshold showing under the caselaw, and while I can make a showing, I think, which would justify preserving it, we can only make that showing really at trial as to whether or not we’re entitled to discovery of any kind of transcript. Right now we’re just asking that it be preserved.
“... And I’m not saying that it needs to be done in every case, but in this particular case where we think there is a good chance that the district attorney is gonna elevate the charges and attempt to get an indictment on murder — I don’t think on capital murder but I can’t be one-hundred percent for sure, and in which I spoke to the medical examiner on a number of occasions and he’s indicated that he cannot determine the manner of death, that there are some things that are consistent with it being a contact wound and self-inflicted wound. This is the Russian roulette case, and some things which indicate that it’s intentional. Under those circumstances and under the circumstances there’s some testimony that came out at the preliminary hearing by the investigator which we have concerns about, all we’re asking for is that it be preserved. And I know that there is issues about secrecy of grand jury proceedings. We’re not asking for it to be divulged. We’re not even asking that we get it. We’re asking that it be preserved so that if the issue comes up, and we think it will, as to whether or not a witness has testified honestly, that we’ll have access to that information.”

(R. 6-9.) Subsequently, defense counsel explained to the trial court, ex parte, that she was concerned about potential inconsistencies in the testimony of the medical examiner and/or the investigator who had testified during the preliminary hearing. Subsequently, the trial court denied the appellant’s motion.

Initially, we recognize that, in most instances, grand jury proceedings are not subject to discovery by the defense. “The long time rule, sanctioned by our courts, is that the proceedings before a grand jury are essentially secret.” Steward v. State, 55 Ala.App. 238, 240, 314 So.2d 313, 315 (Ala.Crim.App.1975). In fact, the Legislature has specifically recognized the importance of protecting the sanctity of grand jury proceedings. Section 12-16-214, Ala.Code 1975, provides:

“The Legislature hereby finds, declares and determines that it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate. The provisions of this division are to be construed for the accomplishment of this purpose and to promote the following:
“(1) That grand juries have the utmost freedom in their discussions, deliberations, considerations, debates, opinions and votes without fear or apprehension that the same may be subsequently disclosed, or that they may be subject to outside pressure or influence or injury in their person or property as a result thereof.
“(2) That those persons who have information or knowledge with respect to the commission of crimes or criminal acts be encouraged to testify freely and truthfully before an appropriate grand jury without fear or apprehension that their testimony may be subsequently disclosed, or that they may be subject to injury in their person or property as a result thereof.
“(3) That those persons who have committed criminal acts or whose indictment may be contemplated not escape or flee from the due administration of justice.
“(4) That those persons falsely accused of criminal acts are not subject to public scrutiny or display and their otherwise good names and reputations are left intact.”

Nevertheless, the secrecy of grand jury proceedings may be invaded in very limited situations.

“While it is true that broader discovery is to be allowed in cases involving capital murder because of the possible imposition of the death penalty, Ex parte Monk, 557 So.2d 832, 836-37 (Ala.1989), a defendant must make a preliminary showing of particularized need before a court can balance this need against the policy favoring grand jury secrecy. Cf. In re Disclosure of Evidence, 650 F.2d 599, modified, 662 F.2d 362 (5th Cir.1981) (pursuant to Rule 6(e)(3)(C)(i), Federal Rules of Criminal Procedure, matters before a grand jury may be disclosed by court order preliminary to, or in connection with, a judicial proceeding when a showing has been made of ‘particularized need’ and ‘compelling necessity’; however, the policies favoring the secrecy [of] grand juries must still be given weight. Id. at 601.).
“ ‘Before a defendant is allowed to inspect a transcript of a State’s witness who testified before the grand jury or before a trial judge should conduct an in camera inspection of such testimony, see Palermo [v. Unit ed States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959)] and Pate [v. State, supra, 415 So.2d 1140 (Ala.1981)], the defendant should at least and at a very minimum make some offer of proof (1) that the matters contained in the witness’ grand jury testimony were relevant to the subject matter of the prosecution; (2) and that there exists an inconsistency between grand jury testimony and trial testimony. Unless defense counsel is merely going on a fishing expedition, he will have some information as to the particular inconsistency in the defendant’s testimony. In this case no such showing was made and the existence of any inconsistency between the witness’ trial and grand jury testimony was never even alleged. Cooks [v. State, supra, 50 Ala.App. 49, 276 So.2d 634 (1973)]. Also, there was no showing that the witness’ grand jury testimony, if available, was “of such nature that without it the defendant’s trial would be fundamentally unfair.” Cooks, 50 Ala.App. at 54, 276 So.2d 634. See also Husch v. State, 211 Ala. 274, 276, 100 So. 321 (1924) (“Moreover, if the solicitor had had such a statement in his possession, defendant could have required its production by a rule of the court if he thought it was favorable to him.”).
“ ‘In laying the proper predicate for examination of a witness’ grand jury testimony, it should also be established that the witness testified before the grand jury and that such testimony was recorded or reduced to writing, unless a -grand juror will be called to disclose the testimony of the witness. Alabama Code 1975, Section 12-16-201.
“ ‘ “When the defendant, in effect, asks for the State District Attorney to produce a document, he should at least establish that this State official has such document or a copy thereof in his possession before the trial court will be put in error.” Strange v. State, 43 Ala.App. 599, 606, 197 So.2d 437, cert. dismissed, 280 Ala. 718, 197 So.2d 447 (196[7]).
“ ‘Once the defendant has laid a proper predicate for the impeachment of a witness who testified before the grand jury, the trial judge should conduct an in camera inspection as outlined in Palermo, supra, and Pate, supra, to determine (1) whether the statement made by the witness before the grand jury “differed in any respects from statements made to the jury during trial,” Pate, supra, and (2) whether the grand jury testimony requested by the defendant “was of such a nature that without it the defendant’s trial would be fundamentally unfair.” Pate, supra. This procedure will best preserve and protect the legislative determination that “it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate.” Alabama Code 1975, Sections 12-16-214 through 226.’
“Millican v. State, 423 So.2d 268, 270-71 (Ala.Cr.App.1982).”

Arthur v. State, 711 So.2d 1031, 1078-79 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997).

A defendant cannot make the showing that is described in Millican until after a witness has testified at trial. Further, as the court recognized in Millican, part of establishing a predicate for examining a witness’ grand jury testimony is establishing that that witness’ grand jury testimony was recorded or reduced to writing. However,

“[a] Grand Jury is not required to compile records and the testimony in the absence of [a] statute requiring preservation of the proceedings. State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779. There is no such statute in this state.”

Sommerville v. State, 361 So.2d 386, 388 (Ala.Crim.App.1978). Although preserving some record of grand jury proceedings is not required, by Alabama law, it is apparently allowed. Specifically, § 12-17-275, Ala.Code 1975, provides, in pertinent part:

“When directed by the judge, [the official court reporter] shall attend the investigations of the grand jury and there take such notes of the testimony as directed by the district attorney or foreman.”

Logically, if a court can order production of or inspection of grand jury proceedings after a witness testifies at trial, it could certainly order the preservation of the grand jury proceedings before they begin and subsequently determine whether it will order that part or all of those proceedings be produced to the defense or inspected for inconsistencies.

Under the facts of this case, the appellant made a threshold showing that the grand jury proceedings should be preserved. Specifically, he established that there was a genuine concern that there could be inconsistencies between the grand jury testimony and the trial testimony of the medical examiner and/or the investigator. Therefore, the trial court should have ordered that the grand jury proceedings be preserved in some fashion. Subsequently, during the trial, if the defense requested access to grand jury testimony based on alleged inconsistent witness testimony, it could have evaluated the request in light of the standard set forth in Milli-can. Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

COBB and WISE, JJ„ concur; SHAW, J., dissents, with opinion, which McMillan, p.j., joins.

SHAW, Judge,

dissenting.

I disagree with the majority’s conclusion that the trial court committed reversible error in denying the appellant’s motion to have the grand jury proceedings recorded.

With respect to the testimony of the coroner, the indictment contained in the record reflects that the coroner did not testify before the grand jury; the only witness listed on the indictment is the police investigator. Therefore, even if, as the majority holds, the trial court erred in denying the appellant’s motion to have the coroner’s testimony during the grand jury proceedings recorded, that error was not reversible; it was, at most, harmless.

Moreover, although the focus of the appellant’s argument on appeal appears to be on the coroner, to the extent he is also arguing that the grand jury testimony of the investigator should have been recorded, I disagree with the majority’s conclusion that the appellant “established that there was a genuine concern that there could be inconsistencies between the grand jury testimony and the trial testimony of the ... investigator.” At the hearing on the appellant’s motion to have the grand jury proceedings recorded, the appellant’s sole argument regarding the investigator was that he had lied during his testimony at the preliminary hearing. According to the appellant’s counsel, the investigator testified at the preliminary hearing that he had gone to the scene of the crime and searched it with a metal detector in an attempt to find shell casings, but was unable to find any. Counsel asserted that she, too, had gone to the crime scene, and that because the grass at the scene was between three and five feet tall, she believed “there was no way” the investigator could have used a metal detector. (R. 29.) Counsel argued that because the investigator had testified falsely at the preliminary hearing, she believed he may do so again before the grand jury and that, therefore, the appellant was entitled to have the grand jury proceedings recorded for possible impeachment at trial.

Counsel’s basis for requesting that the investigator’s grand jury testimony be recorded was based on an assumption, unsupported by anything other than counsel’s bare allegations, that the investigator testified falsely at the preliminary hearing. A transcript of the preliminary hearing is not contained in the record on appeal; therefore, I do not know what the investigator’s testimony was or what questions were asked of the investigator. However, even taking counsel’s factual allegations regarding the investigator’s testimony at the preliminary hearing as true, the record does not support the assumption that the investigator testified falsely. Assuming, as the appellant argued, that the investigator testified at the preliminary hearing that he had used a metal detector, but did not testify regarding the length of the grass, this does not indicate false testimony; rather, it suggests only that the investigator was not asked about the length of the grass. The bare assertion of appellant’s counsel, based only on her own personal belief, that because of the height of the grass, the investigator could not have used a metal detector does not establish, in my view, “a genuine concern” regarding possible inconsistencies in the investigator’s testimony.

I also note that the record reflects that the investigator testified at trial that he had gone to the crime scene the day after the crime and had used both dogs and a metal detector in an attempt to find shell casings. He stated that the grass was “real high” and that it was difficult to conduct the search. (R. 164.) The investigator’s testimony at the preliminary hearing was entirely consistent with his testimony at trial, and nothing in the record suggests that the investigator’s testimony before the grand jury was any different. Under these circumstances, even if the trial court erred in denying the appellant’s motion to have the grand jury proceedings recorded, any error was harmless.

Because I see no reversible error in the trial court’s denying the appellant’s motion to record the grand jury proceedings, I respectfully dissent.

McMILLAN, P.J., concurs.

      . We recognize that § 12-16-201, Ala.Code 1975, provides that "[a] grand juror may be required by any court to disclose the testimony of any witness examined before the grand jury for the purpose of ascertaining whether it is consistent with the testimony given by the witness before the court or on a charge of perjury against him.” However, in most cases, a recording or transcript of the actual testimony would be more complete and reliable than a grand juror's testimony, and it would protect the anonymity of grand jurors. Also, if a trial court decided to grant access to a part of the grand jury proceedings, it could take further steps to protect the anonymity of the grand jurors by redacting their names or other portions of the proceedings that may reflect their identities.


author: HARWOOD, Justice.

text:
    Ex parte State of Alabama. (In re James Dwight McKISSACK v. STATE of Alabama).
    1031511.
    Supreme Court of Alabama.
    March 4, 2005.
    Troy King, atty. gen., and Michael Bill-ingsley, Robin Blevins Scales, and John M. Porter, asst, attys. gen., for petitioner.
    Lindsey Mussleman Davis of Holt, Mus-sleman, Holt & Morgan, Florence, for respondent.
    Thomas W. Sorrells, Montgomery, for amicus curiae Alabama District Attorneys Association, in support of the petitioner.
   HARWOOD, Justice.

On September 14, 2004, this Court granted the petition of the State of Alabama for a writ of certiorari to examine the argument by the State that the Court of Criminal Appeals had erred in reversing the trial court’s judgment convicting James Dwight McKissack of murder, see Ala.Code 1975, § 13A-6-2(a)(l), and sentencing him to life imprisonment. In its opinion, McKissack v. State, 926 So.2d 361 (Ala.Crim.App.2004), the Court of Criminal Appeals set out the following facts:

“[McKissack] argues that the trial court improperly denied his request that the grand jury proceedings in his case be preserved. In support of his motion [to preserve the grand-jury proceedings], which he filed before the grand jury proceedings occurred, he asserted that he and Michael Craig had been arrested and charged with manslaughter and that they had both made statements on the night they were arrested about their involvement in the offense. [McKissaek] stated that he, Craig, and the victim had been drinking and shooting his revolver; that they had started playing a game of Russian roulette; that they had all fallen asleep in their vehicle; that he was awakened by a gunshot and saw the victim in the seat beside him bleeding from his head; and that he had awakened Craig. Craig stated that [McKissaek] and the victim had been playing Russian roulette; that he had fallen asleep; and that [McKissaek] had awakened him and told him that the victim had shot himself. [McKissaek] also asserted that, during the preliminary hearing, an investigator testified that he believed that [McKissaek] intentionally shot the victim because the preliminary autopsy report indicated that there was not any soot or stippling around the gunshot wound like a person would expect from a contact wound. He further asserted that his counsel had talked to the medical examiner who had performed the autopsy of the victim’s body; that the medical examiner had stated that he had not been able to determine the manner of the victim’s death; that, although there was not any soot or stippling around the gunshot wound, there was an abrasion ring, which was consistent with the barrel of the revolver having been placed against the skin; that the trajectory of the bullet made him wonder whether or not the wound was self-inflicted; and that, in his report, he had listed the manner of death as being ‘inconclusive.’ (C.R. 20.) Finally, he concluded:
“ ‘It is particularly important to transcribe the proceedings in a case like this, where the state is considering elevating the charges to murder, and the state’s main witness, [the medical examiner], has told counsel on two occasions that he cannot determine the manner of death. If the state has a witness that would contradict [the medical examiner’s] testimony, or presents forensic evidence that would do so, or if [the medical examiner], himself, gives different testimony, counsel should be entitled to a verbatim record of it, or of anything else that is said. Anything else would be unfair and a violation of Due Process.’
“(C.R. 26.)
“During a hearing on [McKissack’s] motion, defense counsel stated:
“ ‘At this point, we’re just asking that [the grand jury testimony] be preserved. I think that before we would be entitled to it we’d have to make a threshold showing under the caselaw, and while I can make a showing, I think, which would justify preserving it, we can only make that showing really at trial as to whether or not we’re entitled to discovery of any kind of transcript. Right now we’re just asking that it be preserved.
“ ‘... And I’m not saying that it needs to be done in every case, but in this particular case where we think there is a good chance that the district attorney is gonna elevate the charges and attempt to get an indictment on murder — I don’t think on capital murder but I can’t be one-hundred percent for sure, and in which I spoke to the medical examiner on a number of occasions and he’s indicated that he cannot determine the manner of death, that there are some things that are consistent with it being a contact' wound and self-inflicted wound. This is the Russian roulette case, and some things which indicate that it’s intentional. Under those circumstances and under the circumstances there’s some testimony that came out at the preliminary hearing by the investigator which we have concerns about, all we’re asking for is that it be preserved. And I know that there is issues about secrecy of grand jury proceedings. We’re not asking for it to be divulged. We’re not even asking that we get it. We’re asking that it be preserved so that if the issue comes up, and we think it will, as to whether or not a witness has testified honestly, that we’ll have access to that information.’
“(R. 6-9.) Subsequently, defense counsel explained to the trial court, ex parte, that she was concerned about potential inconsistencies in the testimony of the medical examiner and/or the investigator who had testified during the preliminary hearing. Subsequently, the trial court denied [McKissack’s] motion.”

926 So.2d at 361-63. After the trial court denied his motion to preserve, McKissaek petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial judge to order the district attorney to preserve the grand-jury testimony at issue, but that court denied the petition without an opinion on February 19, 2002. McKissack v. State (No. CR-01-1053), 854 So.2d 1232 (Ala.Crim.App.2002)(table).

In addressing McKissack’s argument on direct appeal that the trial court erred in failing to preserve the grand-jury testimony in question, the Court of Criminal Appeals recognized the general rule that grand-jury proceedings are not discoverable by the defense:

“ ‘The long time rule, sanctioned by our courts, is that the proceedings before a grand jury are essentially secret.’ Steward v. State, 55 Ala.App. 238, 240, 314 So.2d 313, 315 (Ala.Crim.App.1975). In fact, the Legislature has specifically recognized the importance of protecting the sanctity of grand jury proceedings. Section 12-16-214, Ala.Code 1975, provides:
“ ‘The Legislature hereby finds, declares and determines that it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate. The provisions of this division are to be construed for the accomplishment of this purpose and to promote the following:
“ ‘(1) That grand juries have the utmost freedom in their discussions, deliberations, considerations, debates, opinions and votes without fear or apprehension that the same may be subsequently disclosed, or that they may be subject to outside pressure or influence or injury in their person or property as a result thereof.
“ ‘(2) That those persons who have information or knowledge with respect to the commission of crimes or criminal acts be encouraged to testify freely and truthfully before an appropriate grand jury without fear or apprehension that their testimony may be subsequently disclosed, or that they may be subject to injury in their person or property as a result thereof.
“ ‘(3) That those persons who have committed criminal acts or whose indictment may be contemplated not escape or flee from the due administration of justice.
“ ‘(4) That those persons falsely accused of criminal acts are not subject to public scrutiny or display and their otherwise good names and reputations are left intact.’ ”

926 So.2d at 363. We note that the State has cited in its brief to this Court many cases in addition to Steward v. State, 55 Ala.App. 238, 314 So.2d 313 (Ala.Crim.App.1975), that stand for the principle that, in the absence of a statutory provision, preservation of grand-jury testimony is not required. See, e.g., State v. Sharp, 893 So.2d 566 (Ala.Crim.App.2003); Robinson v. State, 865 So.2d 457 (Ala.Crim.App.2003); and Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001)(opinion on return to second remand).

However, the Court of Criminal Appeals also recognized that the general rule governing the secrecy of grand-jury proceedings is subject to a limited exception upon a defendant’s showing of a “particularized need,” as discussed in Arthur v. State, 711 So.2d 1031, 1078-79 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997):

“While it is true that broader discovery is to be allowed in cases involving capital murder because of the possible imposition of the death penalty, Ex parte Monk, 557 So.2d 832, 836-37 (Ala.1989), a defendant must make a preliminary showing of particularized need before a court can balance this need against the policy favoring grand jury secrecy. Cf. In re Disclosure of Evidence, 650 F.2d 599, modified, 662 F.2d 362 (5th Cir.1981) (pursuant to Rule 6(e)(3)(C)(i), Federal Rules of Criminal Procedure, matters before a grand jury may be disclosed by court order preliminary to, or in connection with, a judicial proceeding when a showing has been made of ‘particularized need’ and ‘compelling necessity’; however, the policies favoring the secrecy [of] grand juries must still be given weight. Id. at 601.).
“ ‘Before a defendant is allowed to inspect a transcript of a State’s witness who testified before the grand jury or before a trial judge should conduct an in camera inspection of such testimony, see Palermo [v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959) ] and Pate [v. State, supra, 415 So.2d 1140 (Ala.1981) ], the defendant should at least and at a very minimum make some offer of proof (1) that the matters contained in the witness’ grand jury testimony were relevant to the subject matter of the prosecution; (2) and that there exists an inconsistency between grand jury testimony and trial testimony. Unless defense counsel is merely going on a fishing expedition, he will have some information as to the particular inconsistency in the defendant’s testimony. In this case no such showing was made and the existence of any inconsistency between the witness’ trial and grand jury testimony was never even alleged. Cooks [v. State, supra, 50 Ala.App. 49, 276 So.2d 634 (1973) ]. Also, there was no showing that the witness’ grand jury testimony, if available, was “of such nature that without it the defendant’s trial would be fundamentally unfair.” Cooks, 50 Ala.App. at 54, 276 So.2d 634. See also Husch v. State, 211 Ala. 274, 276, 100 So. 321 (1924) (“Moreover, if the solicitor had had such a statement in his possession, defendant could have required its production by a rule of the court if he thought it was favorable to him.”)
“ ‘In laying the proper predicate for examination of a witness’ grand jury testimony, it should also be established that the witness testified before the grand jury and that such testimony was recorded or reduced to writing, unless a grand juror will be called to disclose the testimony of the witness. Alabama Code 1975, Section 12-16-201.
“‘“When the defendant, in effect, asks for the State District Attorney to produce a document, he should at least establish that this State official has such document or a copy thereof in his possession before the trial court will be put in error.” Strange v. State, 43 Ala.App. 599, 606, 197 So.2d 437 [(1966)], cert. dismissed, 280 Ala. 718, 197 So.2d 447 (1967).
“ ‘Once the defendant has laid a proper predicate for the impeachment of a witness who testified before the grand jury, the trial judge should conduct an in camera inspection as outlined in Palermo, supra, and Pate, supra, to determine (1) whether the statement made by the witness before the grand jury “differed in any respects from statements made to the jury during trial,” Pate, supra, and (2) whether the grand jury testimony requested by the defendant “was of such a nature that without it the defendant’s trial would be fundamentally unfair.” Pate, supra. This procedure will best preserve and protect the legislative determination that “it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate.” Alabama Code 1975, Sections 12-16-214 through 226.’
“Millican v. State, 423 So.2d 268, 270-71 (Ala.Cr.App.1982).”

The Court of Criminal Appeals noted that a defendant cannot make the showing required by Millican v. State, 423 So.2d 268 (Ala.Crim.App.1982), until after a witness has testified at trial. However, the court recognized that

“ ‘[a] Grand Jury is not required to compile records and the testimony in the absence of [a] statute requiring preservation of the proceedings. State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779 [ (1974) ]. There is no such statute in this state.’
“Sommerville v. State, 361 So.2d 386, 388 (Ala.Crim.App.1978).”

926 So.2d at 365. The Court of Criminal Appeals reasoned that although preservation of grand-jury testimony is not required, it is allowed, and it cited Ala.Code 1975, § 12-17-275, which provides:

“When directed by the judge, [the official court reporter] shall attend the investigations of the grand jury and there take such notes of the testimony as directed by the district attorney or foreman.”

The court then concluded that if a trial court was authorized to order the inspection of grand-jury proceedings after a witness had testified at trial, logically it was authorized to order the preservation of the grand-jury proceedings and to make the records so created available to the defense under the appropriate circumstances, as, for example, when a defendant made the required showing under Millican. This Court need not reach the basic question of whether a trial court can order the preservation of grand-jury testimony under certain circumstances because, even accepting that premise, we conclude that no reversible error occurred when the trial court here refused to order the preservation of grand-jury testimony under the circumstances of this case. The Court of Criminal Appeals based its conclusion that reversible error occurred on the following findings:

“[T]he appellant made a threshold showing that the grand jury proceedings should be preserved. Specifically, he established that there was a genuine concern that there could be inconsistencies between the grand jury testimony and the trial testimony of the medical examiner and/or the investigator. Therefore, the trial court should have ordered that the grand jury proceedings be preserved in some fashion. Subsequently, during the trial, if the defense requested access to grand jury testimony based on alleged inconsistent witness testimony, it could have evaluated the request in light of the standard set forth in Millican [v. State, 423 So.2d 268 (Ala.Crim.App.1982) ].

926 So.2d at 365.

We disagree with the conclusion of the Court of Criminal Appeals that McKissack made the required showing of the likelihood of inconsistencies between the grand-jury testimony of the medical examiner (also referred to as the coroner) and/or the investigator and their trial testimony. After a careful examination of the record, we agree with the factual analysis presented by Judge Shaw in his dissenting opinion in McKissack:

“With respect to the testimony of the coroner, the indictment contained in the record reflects that the coroner did not testify before the grand jury; the only witness listed on the indictment is the police investigator. Therefore, even if, as the majority holds, the trial court erred in denying [McKissack’s] motion to have the coroner’s testimony during the grand jury proceedings recorded, that error was not reversible; it was, at most, harmless.
“Moreover, although the focus of [McKissack’s] argument on appeal appears to be on the coroner, to the extent he is also arguing that the grand jury testimony of the investigator should have been recorded, I disagree with the majority’s conclusion that [McKissack] ‘established that there was a genuine concern that there could be inconsistencies between the grand jury testimony and the trial testimony of the ... investigator.’ At the hearing on [McKissack’s] motion to have the grand jury proceedings recorded, [McKis-sack’s] sole argument regarding the investigator was that he had lied during his testimony at the preliminary hearing. According to [McKissack’s] counsel, the investigator testified at the preliminary hearing that he had gone to the scene of the crime and searched it with a metal detector in an attempt to find shell casings, but was unable to find any. Counsel asserted that she, too, had gone to the crime scene, and that because the grass at the scene was between three and five feet tall, she believed ‘there was no way’ the investí-gator could have used a metal detector. (R. 29.) Counsel argued that because the investigator had testified falsely at the preliminary hearing, she believed he may do so again before the grand jury and that, therefore, [McKissack] was entitled to have the grand jury proceedings recorded for possible impeachment at trial.
“Counsel’s basis for requesting that the investigator’s grand jury testimony be recorded was based on an assumption, unsupported by anything other than counsel’s bare allegations, that the investigator testified falsely at the preliminary hearing. A transcript of the preliminary hearing is not contained in the record on appeal; therefore, I do not know what the investigator’s testimony was or what questions were asked of the investigator. However, even taking counsel’s factual allegations regarding the investigator’s testimony at the preliminary hearing as true, the record does not support the assumption that the investigator testified falsely. Assuming, as [McKissack] argued, that the investigator testified at the preliminary hearing that he had used a metal detector, but did not testify regarding the length of the grass, this does not indicate false testimony; rather, it suggests only that the investigator was not asked about the length of the grass. The bare assertion of [McKissack’s] counsel, based only on her own personal belief, that because of the height of the grass, the investigator could not have used a metal detector does not establish, in my view, ‘a genuine concern’ regarding possible inconsistencies in the investigator’s testimony.
“I also note that the record reflects that the investigator testified at trial that he had gone to the crime scene the day after the crime and had used both dogs and a metal detector in an attempt to find shell casings. He stated that the grass was ‘real high’ and that it was difficult to conduct the search. (R. 164.) The investigator’s testimony at the preliminary hearing was entirely consistent with his testimony at trial, and nothing in the record suggests that the investigator’s testimony before the grand jury was any different. Under these circumstances, even if the trial court erred in denying [McKissack’s] motion to have the grand jury proceedings recorded, any error was harmless.”

926 So.2d at 365-66.

The copy of the indictment in the record lists as the “State Witnesses” who appeared before the grand jury only “Inv. Keith Terry, Florence Police Dept.” The State made that point to the Court of Criminal Appeals in its application for rehearing and reiterated it in both its petition for the writ of certiorari and the supporting brief, stating in each that “[t]he indictment reflects that Investigator Terry was the only witness to testify before the grand jury during these proceedings.” (Petition, p. 4; State’s brief, p. 2.) At no point, before either the Court of Criminal Appeals or this Court, has McKissack argued that the medical examiner did testify before the grand jury. Therefore, we rely on the only evidence on point in the record — the above-quoted endorsement on the indictment — and conclude that the medical examiner did not testify before the grand jury. That being the case, the absence of an order to preserve his grand-jury testimony is academic.

Concerning the investigator, Keith Terry, McKissack argued initially before the trial judge, in the presence of the prosecutor, only that “there’s some testimony that came out of the preliminary hearing by the investigator that we have concerns about.” McKissack’s main focus was on the possibility of testimony by the medical examiner, or someone else, inconsistent with opinions the medical examiner had expressed to McKissack’s counsel during private discussions. During a later ex parte conference between the trial judge and McKissack’s counsel in the judge’s chambers, fully taken down by the court reporter and conducted with the apparent consent of the prosecutor, the following took place:

“[Defense counsel]: Judge, in our brief we talked about the medical examiner and what the medical examiner has told me. In addition we have reason to believe that Investigator Terry testified falsely at the preliminary hearing. We asked him at the preliminary hearing whether or not he used a metal detector to find other shell casings around the area where the shooting happened and if I can just explain a little bit. [McKis-sack] and [his] codefendant both gave statements saying they had been shooting the gun earlier in that — in the same general area and that the killing was a result of the decedent playing Russian roulette at a time when both of the other people were asleep. And we asked if he looked for casings in that area and he said that he did and we asked him if did he use the metal detector and he said that he did. And we have photographs which show the level of the grass being this high, and we had been out there at that time with a metal detector also and there was no way that that could have been done, so basically we have reason to believe that he testified falsely with respect to that, because that would obviously go to the credibility of [McKis-sack]. So we have some concerns about whether or not he will be a truthful witness.
“BY THE COURT: Grass this high on the record is not gonna show it that high — you’re three feet?
“[Defense counsel]: I’m sorry. Indicate five — three or four high — and like I said, that’s something that we’ll have to establish at trial but we have concerns based upon what we believe was a material misrepresentation that there will be others. I just wanted to be heard.
“BY THE COURT: All right.
“[Defense counsel]: Thank you.”

At trial, Terry testified that a day or two after the crime he returned to the crime scene accompanied by three agents from the Bureau of Alcohol, Tobacco, and Firearms and one of their “explosive-detection dogs.” The ATF agents supplied a metal detector. McKissack had earlier told Terry that the revolver had been fired several times during the time the group engaged in “Russian roulette” and that McKissack had thrown the spent shell casings from those firings into the nearby woods. Terry testified that he and the agents searched a fairly extensive area, using “the dog first, the metal detector and then your eyes.” They found no shell casings. The next day he arranged to meet McKissack and his attorney at the scene so McKis-sack could point out where he had thrown the shell casings. Terry then searched the area identified by McKissack, accompanied by other officers, but found no shell casings. During cross-examination by McKis-sack’s attorney at trial, the following exchange took place:

“Q.... Let me start while it’s still fresh on my mind with that last search that you did when you went down there when you said where [McKissack] showed you where the shells were back there or where he had thrown them. You didn’t have any dogs with you at that point. Was this after the dogs had already searched earlier?
“A. Yes, sir. That was the next day and it was the same area that we searched with the dog.
“Q. But the dogs weren’t there the second day; is that what you’re saying?
“A. No.
“Q. Did you have a metal detéetor with you that second day or anything?
“A. No.
“Q. What was the condition of the grass? Was it real high back there?
“A. Oh, yeah. I mean these photographs show it. I mean it’s pretty high.
“Q. Pretty high and thick grass in that area?
“A. Uh-huh.
“Q. Does that make it difficult to search'—-more difficult?
“A. Yes.”

At no time did McKissack’s attorney suggest to the trial judge that Terry’s trial testimony was in any way inconsistent with what he might have said in his testimony before the grand jury. As Judge Shaw noted in his dissenting opinion, Terry’s trial testimony was entirely consistent with his earlier testimony at the preliminary hearing.

Moreover, we see no basis for McKis-sack’s attorney to have apprehended that Terry would testify differently before the grand jury than he had at the preliminary hearing concerning the search using the metal detector. If in fact he was being untruthful at the preliminary hearing concerning the use of the metal detector, the natural expectation would be that he would simply “stick to his story” before the grand jury. Certainly the fact that his testimony at trial was consistent with his preliminary-hearing testimony did not serve in any way to indicate the likelihood that he testified differently before the grand jury. Therefore, we find no basis for the conclusion by the Court of Criminal Appeals that McKissack “established that there was a genuine concern that there could be inconsistencies between the grand jury testimony and the trial testimony of ... the investigator.” 926 So.2d at 365. That prong of the “preliminary showing” not having been established, no error, and certainly no reversible error, can be predicated on the failure of the trial judge to order that Terry’s testimony before the grand jury be preserved.

Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      “ 1 We recognize that § 12-16-201, Ala.Code 1975, provides that ‘[a] grand juror may be required by any court to disclose the testimony of any witness examined before the grand jury for the purpose of ascertaining whether it is consistent with the testimony given by the witness before the court or on a charge of perjury against him.’ However, in most cases, a recording or transcript of the actual testimony would be more complete and reliable than a grand juror’s testimony, and it would protect the anonymity of grand jurors. Also, if a trial court decided to grant access to a part of the grand jury proceedings, it could take further steps to protect the anonymity of the grand jurors by redacting their names or other portions of the proceedings that may reflect their identities.”


author: PER CURIAM.

text:
    Keith Eugene POOLE v. STATE of Alabama.
    CR-04-2224.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2005.

      Aimee C. Smith, Montgomery, for appellant.
   On Application for Rehearing

PER CURIAM.

The appellant, Keith Eugene Poole, pleaded guilty to trafficking in cocaine and receiving stolen property. On June 15, 2005, Poole was sentenced to 10 years; that sentence was split, and he was ordered to serve two years on probation. Poole appealed. On August 9, 2005, we dismissed the appeal because the notice of appeal was untimely. Poole now moves that we reinstate his appeal. We elect to treat Poole’s motion as an application for rehearing.

In Poole’s motion he states that he filed a written notice of appeal in open court on July 27, 2005, forty-two days after Poole was sentenced, but the notice was not transmitted to the circuit clerk until August 3, 2005. Poole attaches the following order issued by the circuit court on August 12, 2005:

“This cause coming before the Court on Defendant’s Motion to Correct Record presented to the Court by the Defendant and the Court having considered the same, it is hereby ordered that the Defendant’s Motion to Correct Record is granted. The defendant’s written notice of appeal was timely made in open court on July 27, 2005. It is hereby ordered that the circuit clerk update the record on appeal to reflect the correct date for notice of appeal in the case action summary. A copy of this order shall be forwarded to the Court of Criminal Appeals within ten (10) days of the date of this order.”

The question posed by this case is whether a written notice of appeal from a criminal conviction is effective if it is filed with a circuit judge but is not transmitted to the circuit clerk.

Rule 4(b)(1), Ala.R.App.P„ governs appeals from criminal convictions. It states:

“In a criminal case a notice of appeal by the defendant shall be filed with the clerk of the trial court within 12 days (6 weeks) after pronouncement of the sentence, provided that the notice of appeal may be oral, as provided in Rule 3(a)(2). A notice of appeal filed after the announcement of a decision or order, but before pronouncement of the sentence, shall be treated as having been filed after pronouncement of the sentence and on the day thereof. If a motion in arrest of judgment, motion for new trial, or motion for judgment of acquittal has been filed within 30 days from pronouncement of the sentence, an appeal may be taken within 42 days (6 weeks) after the denial or overruling of the motion. A motion in arrest of judgment, motion for new trial, or motion for judgment of acquittal filed before pronouncement of the sentence shall be treated as having been filed immediately after pronouncement of the sentence and on the day thereof. When notice of appeal is made or filed before the timely filing of a motion in arrest of judgment, motion for new trial, or motion for judgment of acquittal, or during the pen-dency of such a timely filed motion, the time for filing of the court reporter’s transcript and the clerk’s record shall be governed by Rule 11(b) and (c) as if the notice of appeal had been filed on the date of the overruling of such motion. When an appeal by the state as of right is authorized by statute or rule, the notice of appeal shall be filed in the trial court within 42 days (6 weeks) after the decision, order, or judgment appealed from; except that any pre-trial appeal by the state shall be taken within the time allowed by the rule of criminal procedure providing for such appeals .... ”

(Emphasis added.) “A pleading or other paper may be said to have been duly filed when it is delivered to the proper filing officer.” Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 229, 194 So. 663, 666 (1940). See also United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916).

“As pointed out by the authorities, the word ‘file’ is derived from the Latin word ‘filum,’ a thread, and its application is drawn from the ancient practice of placing papers on a thread or wire for ready reference. In Words and Phrases, Second Series, vol. 2, page 531, is the following definition: ‘There can be no “filing” of a paper in a legal sense except by its delivery to an official whose duty it is to file papers and who is required to keep and maintain an office or other public place for their deposit, and the paper must either be delivered personally to such officer with the intent that the same shall be filed by him, or delivered at the place where the same should be filed.’ ”

Ex parte State ex Rel. Breitling, 221 Ala. 398, 399, 128 So. 788, 788 (1930).

“The object of ‘filing’ is to deposit the document in a public place so that it may be seen and examined by any person interested. A document may be said to be ‘filed’ with an officer when it is placed in his official custody and deposited in the place where his official records and papers are usually kept. A document is ‘filed’ when delivered in a public office to the custodian of the records thereof.”

State v. Brazzel, 229 La. 1091, 1095-96, 87 So.2d 609, 610-11 (1956).

We are aware of no provision in the Alabama Rules of Appellate Procedure or any case precedent that allows for the filing of a written notice of appeal with a trial judge. In fact, in Scribner v. State, 372 So.2d 1311 (Ala.Civ.App.1979), the Court of Civil Appeals considered whether a written notice of appeal filed with the family court judge was sufficient to constitute “filing” under § 26-12-8, Ala.Code 1975. The Court of Civil Appeals, in holding that the notice was not sufficient to comply with the statute, stated:

“[Section 26-12-8, Ala.Code 1975,] was construed in the case of LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581 (1972), where it was said that an appeal is not a matter of vested right, but by the grace of statute, and must be perfected pursuant to the time and manner prescribed in the controlling statute, and if . the requirements of such statute are not met, the appeal must be dismissed.
“In the present case, the clerk of the family court would have been the proper filing officer. Filing cannot be complete until notice is delivered to the proper filing officer. Moutry v. State, 359 So.2d 388 (Ala.Civ.App.1978); Rule 5(e), [Ala.]R.[Civ.]P.
“Because of defendant’s failure to timely file notice of appeal with the clerk of the family court in accordance with the statute, the circuit court’s jurisdiction never attached, and the trial court properly dismissed defendant’s appeal.”

372 So.2d at 1312. Rule 5(e), Ala.R.Civ.P., cited in Scribner, now provides as follows:

“The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.”

However, as noted in Scribner, Rule 5(e) has not been applied to the filing of notices of appeal.

. The Alabama Supreme Court in In re State ex rel. Attorney General, 185 Ala. 347, 64 So. 310 (1914), considered the question whether a timely mailed application for rehearing constituted a proper filing. The Court stated:

“Manifestly the posting of an application, properly addressed, is not a compliance with the rule. It must be filed within the period stipulated. The mail must and could only be the agent or agency of the party applying for rehearing.. If there be delay in the transmission of the application by the mail, however, free from fault or negligence the applicant may have been, it cannot be said that he has complied with this very necessary and wholesome provision of the rule. In mailing or otherwise transmitting the application, the chance of miscarriage or delay is a contingency, the happening of which the applicant must assume. Such miscarriage or delay will rarely occur; but when they do, it cannot be affirmed that seasonable, proper posting answers the prescription of the rule.”

185 Ala. at 349-50, 64 So. at 311. See also Perry v. City of Birmingham, 906 So.2d 174 (Ala.2005); Olsen v. Moffat Road Veterinary Clinic, 441 So.2d 971 (Ala.Civ.App.1983).

Here, the notice of appeal was not filed with the proper official within 42 days of the date of sentencing. When Poole deposited the notice with the circuit court without filing the notice with the circuit clerk he assumed the risk that the notice would not be timely forwarded to the circuit clerk. See In re State ex rel. Attorney General, supra.

Rule 4(b)(1), Ala.R.App.P., authorizes two different types of notices of appeal from a criminal conviction. An oral notice of appeal may be made at the time of sentencing, or a written notice of appeal may be filed with the circuit clerk within 42 days of the date of sentencing. This Rule is unambiguous, mandatory, and is not subject to interpretation. Poole failed to comply with Rule 4(b)(1), Ala.R.App.P.; therefore, the notice of appeal filed with the circuit court but not forwarded to the circuit clerk until August 3, 2005, more than 42 days after the date of sentencing, was untimely. The Court of Criminal Appeals has no authority to suspend the time for filing a notice of appeal. See Rule 2(b), Ala.R.App.P.

Poole’s motion to reinstate this appeal is denied. Accordingly, this application for rehearing is hereby overruled. Poole’s relief, if any, is to file a petition for postcon-viction relief pursuant to Rule 32.1(f), Ala. R.Crim.P.

APPLICATION FOR REHEARING OVERRULED.

McMILLAN, p.j., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . This section states that notice of appeal is to be filed with the clerk of the appropriate court. This same provision is contained in Rule 4, Ala.R.App.P.

      . Rule 5(e) has been amended since it was quoted in the 1979 opinion in Scribner. Substantively, however, the rule has not changed.


author: PER CURIAM. RAMIREZ, J.

text:
    UNITED AUTOMOBILE INSURANCE CO., Petitioner, v. HIALEAH MEDICAL ASSOCIATES, INC., etc., et al., Respondents.
    No. 3D04-3042.
    District Court of Appeal of Florida, Third District.
    March 2, 2005.
    Johnson, Letter & Belsky, and Eric G. Belsky, Fort Lauderdale, for petitioner.
    Lopez & Best, and Virginia M. Best, for respondents.
    Before GREEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

The petition for writ of certiorari is denied.

GREEN and WELLS, JJ., concur.

RAMIREZ, J.

(concurring).

I concur in the denial of the petition for writ of certiorari to review the circuit court’s affirmance of the county court’s order striking the Petitioner’s defensive pleadings for perpetrating a fraud on the court. The Petitioner alleges that the county court denied it procedural due process because the motion to strike its pleadings was unverified and the court did not hold an evidentiary hearing.

I have carefully reviewed the Petitioner’s Response to Plaintiffs Motion to Strike Pleading and its Motion for Rehearing and Reconsideration of Order Granting Plaintiffs Motion to Strike Pleadings and I have found no objection to the unverified nature of the motion to strike, nor any complaint, objection or protestation to the county court’s summary proceeding. All of Petitioner’s pleadings simply argued the facts or the law, but never intimated that there were any procedural infirmities attendant to the actions of the trial court. We have been provided with no transcripts of hearings that I can inspect in an effort to find that the issue was preserved. Petitioner seems to have tacitly agreed to have the issue summarily decided and only after it was defeated did it complain about the procedure. The denial of procedural due process is not an issue that can be raised for the first time on appeal. See E.J. Assoc. Inc. v. John E. and Aliese Price Found., 515 So.2d 763, 764 (Fla. 2d DCA 1987) (citations omitted).

While I would agree with Judge Gen-den’s dissent that Petitioner’s actions did not merit the striking of its pleadings, it is improper on this second tier review for us to revisit the issue of whether the evidence was competent and substantial to find that Petitioner perpetrated a fraud upon the court. See Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003).


text:
    Elsy Y. LOZANO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Department of Corrections, Region III, Appellee.
    No. 3D04-2250.
    District Court of Appeal of Florida, Third District.
    May 4, 2005.

      Sirkin & Cuello, and Daniel J. Sullivan, for appellant.
    Louis A. Gutierrez, Unemployment Appeals Commission (Tallahassee), for appel-lee.
    Before LEVY, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

Elsy Lozano appeals from an order of the Unemployment Appeals Commission affirming the referee’s recommended denial of her application for unemployment compensation benefits. For the following reasons, we affirm.

Lozano worked as a data entry clerk for the Department of Corrections. She previously worked in one of the Department’s downtown Miami offices but had requested a transfer and was reassigned to an office closer to her home in Southwest Miami-Dade County. She had a ten-minute commute to her new office. Unfortunately, her office in Southwest Miami-Dade caught fire and the employees at that location were temporarily reassigned to other locations throughout the county while the office was repaired and rebuilt. Lozano requested temporary reassignment either to the Homestead office (which also required a ten-minute commute) or permission to work from home. Alternately, she asked for a leave of absence until her office was rebuilt. There were no openings in the Homestead office, so that request was denied. Instead, the Department responded to her request by assigning her to another Downtown Miami office, which, by her estimation, required a sixty to ninety-minute commute. As a consequence of this new commute, Lozano voluntarily resigned.

An employee is entitled to unemployment benefits when she leaves her job for good cause attributable to her employer. § 443.101(1)(a), Fla. Stat. (2004). “Good cause” is defined as “those circumstances which would impel the average, able bodied, qualified worker to give up employment.” Ferguson v. Henry Lee Co., 734 So.2d 1161, 1162 (Fla. 3d DCA 1999) (citations omitted).

In this ease the referee found, and the commission agreed, that an average, able-bodied, qualified worker would not have resigned in response to a temporary reassignment required after an unfortunate workplace fire. This conclusion is supported by competent, substantial record evidence. See Walukiewicz v. Unemployment Appeals Comm’n, 861 So.2d 1288 (Fla. 5th DCA 2004) (“The standard of review of an administrative agency’s adjudicative findings is whether the findings are supported by competent, substantial record evidence. If they are so supported, the findings may not be disturbed on appeal.”); Wyche v. Unemployment Appeals Comm’n, 469 So.2d 184 (Fla. 3d DCA 1985) (same).

Affirmed.