author: PER CURIAM. THOMPSON, Presiding Judge, PITTMAN, Judge,

text:
    T.B. and S.B. v. T.A.P.
    2060392.
    Court of Civil Appeals of Alabama.
    Aug. 3, 2007.

      W. Mark Anderson IV of Smith & Anderson, Montgomery; and Catherine R. Steinwinder of Law Offices of Judy H. Barganier, P.C., Montgomery, for appellants.
    Submitted on appellants’ brief only.
   PER CURIAM.

This appeal stems from an interstate custody dispute involving two children, C.A.P., born in March 1999 (“the older child”), and Z.R.P., born in March 2000 (“the younger child”). S.B. and T.B., the maternal aunt and uncle of the two children, appeal from an order of the Montgomery Juvenile Court refusing to assert temporary emergency jurisdiction over the case. We reverse and remand.

This case has a long and convoluted procedural history. T.A.P. (“the father”) committed repeated acts of domestic violence against A.J.P. (“the mother”) throughout their marriage. In January 2004, after the father admitted that he had been arrested and charged with exhibiting a dangerous weapon in a threatening manner to the mother while he was on probation for a prior domestic-violence charge, a federal magistrate entered an order prohibiting the father from contacting the mother or the children without the permission of a court of competent jurisdiction. The judge further sentenced the father to 30 days’ confinement and required the father, upon his release, to stay within the boundaries of the State of Florida unless he obtained permission from his probation officer.

In February 2005, the Superior Court of Maricopa County, Arizona (“the Arizona court”), entered a judgment divorcing the father and the mother and awarding sole custody of the children to the mother while expressly denying “unsupervised parenting time” with the children to the father; the judgment noted that the father was currently incarcerated and indicated that he had been convicted on more than one occasion of having committed domestic violence against the mother.

The mother subsequently remarried, and the children resided with her and then-stepfather, H.B., in Arizona. On May 4, 2006, the mother was killed in a motor-vehicle accident. The stepfather subsequently petitioned for custody of the children. On May 8, 2006, the Arizona court granted the stepfather temporary custody of the children. The stepfather then took the children to Montgomery, Alabama, where the maternal aunt and uncle reside. On May 23, 2006, the stepfather executed a special power of attorney granting to the maternal aunt and uncle temporary custody rights to the children.

On June 2, 2006, the maternal aunt and uncle filed a petition in the Montgomery Juvenile Court (“the Alabama court”) seeking sole legal custody of the children based on the children’s alleged dependency. In that petition, the aunt and uncle averred that the father had a criminal record and was unable to discharge his responsibilities to the children and that the father was unfit to have custody of, or even visitation with, the children. On June 9, 2006, the stepfather filed a motion in the Arizona court requesting that the Arizona court relinquish jurisdiction, dismiss his custody petition, and transfer the case to Alabama. By the time he filed that petition, the stepfather had moved from Arizona.

On June 13, 2006, the Arizona court held a hearing on the custody issue. Neither the stepfather nor the maternal aunt and uncle appeared at the hearing. The father appeared via counsel. The attorney for the maternal aunt and uncle filed a copy of the Alabama dependency petition with the Arizona court. The father’s counsel asked the Arizona court to award custody to the father. The Arizona court ruled that it retained jurisdiction over the custody issue and granted custody of the children to the father.

On June 15, 2006, the attorney for the maternal aunt and uncle filed a letter brief with the Arizona court requesting the Arizona court to relinquish jurisdiction of the custody issue to the Alabama court. That same day, the attorney for the father filed a letter brief requesting the Arizona court to retain jurisdiction until a full hearing could be held on the jurisdiction issue, at which time the father would request that the Arizona court relinquish jurisdiction to a Florida court. On June 16, 2006, the clerk of the Alabama court made the following entry on the case-action-summary sheet in the dependency action: “Per [the Alabama court judge], Maricopa County, Arizona is going to retain jurisdiction of the case. Verbally advised by [the Alabama court judge] that [complaint] will be dismissed.”

On June 19, 2006, the Arizona court entered another order in which it expounded on the basis for its jurisdiction and documented a telephone conference regarding jurisdiction it had with the Alabama court. The Arizona court concluded that it had exclusive continuing jurisdiction stemming from the 2005 divorce judgment addressing custody and the stepfather’s 2006 petition for custody (the Arizona court determined that, when the stepfather filed his petition, the stepfather and the children were Arizona residents). The Arizona court ruled that it would retain jurisdiction until a hearing set on July 13, 2006. The Arizona court granted the stepfather temporary custody pending that hearing. The Arizona court noted that the Alabama court had agreed to abide by the jurisdictional decision of the Arizona court. On June 21, 2006, the Alabama court entered on the case-action-summary sheet in the dependency action a judgment dismissing the case before it.

On July 13, 2006, the Arizona court held another hearing at which it found that it retained continuing exclusive jurisdiction over the custody issue but that Arizona was no longer a convenient forum since the parties were no longer in Arizona. The Arizona court concluded that Florida would be the appropriate forum. The Arizona court stayed any further proceedings in the Arizona court pending the filing of a custody petition in Florida. The Arizona court left it to the Florida court to determine whether it should relinquish jurisdiction to the Alabama court.

On August 3, 2006, the Arizona court reviewed a copy of the father’s custody petition that had been filed in the Circuit Court of Brevard County, Florida (“the Florida court”). Accordingly, the Arizona court relinquished jurisdiction to the Florida court.

On August 16, 2006, the maternal aunt and uncle filed a motion with the Alabama court entitled “Motion to Reinstate.” In that motion, the maternal aunt and uncle requested the Alabama court to assert temporary emergency jurisdiction over the action, averring that the children needed “special” medical care and that the aunt and uncle “need[ed] proper authority to see that those special medical needs [were] met.” On August 17, 2006, the Alabama court entered an order denying the “Motion to Reinstate” until the Florida court could rule on the jurisdictional issue.

The Florida court decided to exercise jurisdiction over the custody issue on October 27, 2006, and issued an order granting the father a “re-introduction” period during which he was to visit with the children over the telephone and in person in appropriate settings. On November 3, 2006, the maternal aunt and uncle filed a second “Motion to Reinstate” in the Alabama court. The sole significant difference between the first and second motions to reinstate was an averment that the Florida court had decided to exercise jurisdiction. The Alabama court entered an order on November 3, 2006, granting the second “Motion to Reinstate” pending a conference between the Alabama court and the Florida court “and the final jurisdictional determination.” On November 16, 2006, the Aabama court granted the maternal aunt and uncle’s request to conduct a jurisdictional conference with the Florida court.

Before the Aabama and Florida courts engaged in a jurisdictional conference, the maternal aunt and uncle allowed the father telephone contact with the children. According to the maternal aunt and uncle, the younger child became withdrawn and noncommunicative following the telephone calls. The maternal aunt and uncle arranged for a licensed clinical psychologist to assess and treat the younger child. On December 12, 2006, the psychologist issued a report indicating that the younger child was comfortable in his current living situation and that it would be in the child’s best interest for a full custody evaluation to take place before any custody decisions or further placements were made.

On that same day, and without the benefit of the psychologist’s report, the Florida court issued a second order granting the father visitation in order to facilitate his eventual reunification with the children.

On December 19, 2006, the Florida court held a hearing on the father’s emergency motion to pick up the minor children and the maternal aunt’s motion to relinquish jurisdiction. On January 17, 2007, the Florida court determined that the maternal aunt was not a proper party to the Florida action. The Florida court also found that the father had proven he was fit to take custody of the children. The Florida court further found that there was evidence indicating that the father had not received the visitation it had ordered on December 12, 2006. The Florida court again ordered the father to have visitation and warned that if such visitation was not allowed, the Florida court would order earlier reunification with the father so long as it was not detrimental to the children.

Apparently, the Florida court and the Alabama court held a telephone conference in early February 2007 to determine which court should exercise jurisdiction. During that telephone conference, the Florida court indicated that it would retain exclusive jurisdiction over the custody issue. The Alabama court evidently notified counsel that it intended to defer to the Florida court.

On February 6, 2007, the Florida court entered an order transferring physical custody of the children to the father. In that order, the Florida court found that the stepfather had failed to file any pleadings in the Florida action alleging the unfitness of the father or any potential harm to the children by being placed in the father’s custody. Further, the stepfather had not complied with the Florida court’s orders by providing gradual contact between the father and the children. The Florida court ordered that the father would be permitted to immediately pick up the children and bring them to his home in Florida.

The same day the Florida court issued its pick-up order, the maternal aunt and uncle filed a “Motion to Reconsider Jurisdictional Determination” and a “Motion for Emergency Jurisdiction” in the Alabama court. In the first motion, the aunt and uncle argued that the Arizona court had no jurisdiction over the custody issue at the time it issued its June 13, 2006, order and, thus, any action it took on that date or thereafter was void, and that Alabama had had jurisdiction over the matter as the home state of the children since May 2006, when the children moved to this state. In the second motion, the maternal aunt and uncle argued that the Alabama court should assert temporary emergency jurisdiction over the action to make a full custody evaluation because of the younger child’s psychological reaction to the father.

The Alabama court denied the maternal aunt and uncle’s motions on February 8, 2007, noting that there was a case pending in the Florida court and that that court had jurisdiction. The maternal aunt and uncle then filed a notice of appeal and a motion to stay, and this court entered an order on February 16, 2007, staying the effect of the Alabama court’s February 8, 2007, orders pending appellate review.

Discussion

The dependency petition filed in the Alabama court by the maternal aunt and uncle on June 2, 2006, constituted an action seeking modification of the Arizona court’s 2005 custody determination. Under Ala.Code 1975, § 30-3B-203, as a general rule, an Alabama court may not modify a child-custody determination made by a court of another state unless the Alabama court had jurisdiction to make an initial custody determination pursuant to Ala. Code 1975, § 30-3B-201. That section provides:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

At the time the maternal aunt and uncle filed their dependency petition, the Alabama court believed it did not have jurisdiction to make any custody determination because the Arizona court was asserting jurisdiction over the matter. Accordingly, it dismissed the petition.

Rule 41(b), Ala. R. Civ. P., states that an involuntary dismissal ordinarily acts as an adjudication of the merits. As an exception, if the court dismisses an action for lack of jurisdiction, the dismissal is not considered an adjudication of the merits. Nevertheless, the dismissal does act as an adjudication of the jurisdiction question and precludes relitigation of that question. See Restatement (Second) of Judgments § 20, com. b and Illus. 1 and 2. Thus, the June 21, 2006, order dismissing the maternal aunt and uncle’s petition constituted a final adjudication of the issue of the Alabama court’s jurisdiction under § 30-3B-203. The maternal aunt and uncle did not file any postjudgment motion relating to that determination or appeal the June 21, 2006, judgment. Hence, this court is precluded from considering the merits of the Alabama court’s determination that it lacked jurisdiction to modify the Arizona court’s 2005 custody judgment under § 30-3B-203.

The maternal aunt and uncle filed a “motion to reinstate” on August 16, 2006. In that motion, the aunt and uncle requested for the first time that the Alabama court assert temporary emergency jurisdiction over the action pursuant to Ala. Code 1975, § 30-3B-204. That section allows an Alabama court to exercise jurisdiction over a custody issue if the child is present within this state and has been abandoned or “it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” Ala.Code 1975, § 30-3B-204(a).

Judge Pittman, in his dissent, characterizes this motion as a Rule 60(b), Ala. R. Civ. P., motion. However, in their August 2006 motion, the maternal aunt and uncle were not requesting relief from the June 21, 2006, judgment. They were asserting facts coming into existence since the entry of the June 21, 2006, judgment; those facts warranted jurisdiction on a wholly different ground. When it dismissed the action for lack of jurisdiction under § 30-3B-203, the Alabama court did not make, and could not have made, any determination that it lacked jurisdiction under § 30-3B-204. Furthermore, it would totally undermine the policies behind § 30-3B-204 if this court were to rule that a juvenile court of this state cannot exercise temporary emergency jurisdiction to protect children within this state solely on the basis that the juvenile court had previously determined it did not have “regular” jurisdiction to modify a child-custody determination.

On August 17, 2006, the Alabama court denied the maternal aunt and uncle’s motion to reinstate. That denial amounted to a final judgment that the Alabama court lacked jurisdiction to modify custody on an emergency basis under § 30-3B-204. The aunt and uncle did not appeal that judgment, but, instead, filed a “motion to reinstate” on November 3, 2006, alleging that the Florida court had assumed jurisdiction over the case. In that motion, the maternal aunt and uncle again requested the Alabama court to exercise temporary emergency jurisdiction over the custody issue.

The November 3, 2006, motion amounted to a Rule 60(b)(6) motion, which the Alabama court subsequently denied on February 8, 2007, following a telephone conference with the Florida court in which the courts agreed that Florida would exercise jurisdiction. The aunt and uncle submitted two additional filings in support of their request that the Alabama court exercise temporary emergency jurisdiction over the custody dispute; those filings were entitled “Motion to Reconsider Jurisdictional Determination” and “Motion for Emergency Jurisdiction.”

On February 8, 2007, after a telephone conference with the Florida court, the Alabama court entered an order denying the motion to reinstate on the basis that the Florida court had proper jurisdiction over the case.

In Wood v. Wade, 853 So.2d 909, 912-13 (Ala.2002), the Alabama Supreme Court stated:

“The decision to grant or deny a Rule 60(b)(6) motion is within the discretion of the trial judge. Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 283 (Ala.1998). The only issue we consider on an appeal from the denial of a Rule 60(b) motion is whether, by denying the motion, the trial court abused its discretion. Id. Therefore, an appeal from the denial of a Rule 60(b)(6) motion ‘does not present for review the correctness of the judgment that the movant seeks to set aside, but presents for review only the correctness of the order from which the appeal is taken.’ Satterfield v. Winston Indus., Inc., 553 So.2d 61, 63 (Ala.1989).
“Rule 60(b)(6) is an extreme remedy and relief under Rule 60(b)(6) will be granted only ‘in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.’ Nowlin v. Druid City Hosp. Bd., 475 So.2d 469, 471 (Ala.1985).”

A trial court exceeds its discretion when it considers factors irrelevant to its determination or bases its decision on a mistaken impression of the law. See Richards v. Aramark Servs., Inc., 108 F.3d 925, 927 (8th Cir.1997). In this case, the Alabama court denied the motion for temporary emergency jurisdiction solely on the ground that a Florida court had assumed jurisdiction over the custody of the children. Under § 30-3B-204, however, the fact that another state has obtained and is exercising jurisdiction over a custody issue involving the same children is irrelevant. Section 30-3B-204(a) allows an Alabama state court to assume temporary emergency jurisdiction over a child within this state if the child is subjected to or threatened with mistreatment or abuse; this emergency jurisdiction is proper even if another state has jurisdiction and even if that other state has exercised its jurisdiction by conducting child-custody proceedings or by making a child-custody determination. See Ala.Code 1975, § 30-3B-204(d).

In cases in which a trial court is faced with a motion for temporary emergency jurisdiction, its decision to grant or deny the motion does not depend on whether another state has jurisdiction over custody matters. Its initial inquiry should be whether there are sufficient grounds to invoke its temporary emergency jurisdiction. That is, the trial court must first decide whether the child is present within this state. If so, the trial court must next decide whether the child has been abandoned or whether an emergency exists in which it is necessary for the court to protect the child because the child is subject to or threatened with mistreatment or abuse. If the party seeking to invoke the temporary emergency jurisdiction of the court reasonably satisfies the court that those conditions are met, the court will obtain temporary emergency jurisdiction, even if another state has jurisdiction.

In this case, the maternal aunt and uncle alleged that the children had special medical needs and that the younger child had an adverse psychological reaction to communicating with his father who, at one time, had been denied any access to the children because of his repeated acts of domestic violence and who, at the time of the final judgment, had obtained an order from the Florida court to pick up the children. The Alabama court should have held a hearing to determine the substance of these allegations and should have made a determination on proper bases as to whether it had acquired temporary emergency jurisdiction instead of summarily dismissing the petition on the erroneous ground that the Florida court was exercising jurisdiction.

In his dissent, Presiding Judge Thompson argues that the Alabama court properly performed its duties under § 30-3B-204 by telephoning the Florida court, verifying that the Florida court was exercising jurisdiction of the case, and yielding to the jurisdiction of the Florida court. Presiding Judge Thompson further argues that we have assumed facts not supported by the record on appeal. We disagree. The plain language of the statute indicates that the Alabama court is to communicate with a court in which a child-custody proceeding has been commenced, not for the purposes of determining which court will exercise jurisdiction over the custody dispute, but to “resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.” Ala.Code 1975, § 30-3B-204(d). In this case, the record on appeal, specifically that portion of the record containing the Alabama court’s own handwritten orders, indicates that the Alabama court simply determined from its telephone call with the Florida court that it would not assume jurisdiction because the Florida court was exercising its jurisdiction over the custody dispute. The Alabama court did not recite any other consideration in its order denying the maternal aunt and uncle’s motion. The order did not attempt to resolve the emergency, to protect the safety of the parties and the child, or to determine a period for the duration of a temporary order. In fact, the telephone call took place without the benefit of any hearing in the Alabama court to determine if, in fact, an emergency existed and without a finding that any order of any duration was necessary to protect the children. The Alabama court could not have possibly discussed with the Florida court “a period for the duration of the temporary order” when it had not even entered such an order or taken any evidence to substantiate such an order.

Accordingly, we reverse the judgment of the Alabama court and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

THOMPSON, P.J., and PITTMAN, J., dissent, with writings.

THOMPSON, Presiding Judge,

dissenting.

Although I agree with the majority opinion insofar as it recognizes a trial court’s ability to exercise emergency jurisdiction and to take interim protective measures in child-custody cases when necessary, I cannot agree with the majority opinion when it holds the trial court in error for failing to exercise temporary emergency jurisdiction in this case. The majority opinion makes assumptions that, I believe, are not supported by the record on appeal.

The Official Comment to § 30-3B-204, Ala.Code 1975, a part of the Uniform Child Custody Jurisdiction and Enforcement Act (“the Act”), states that temporary emergency jurisdiction is “ ‘an extraordinary jurisdiction reserved for extraordinary circumstances.’ ” The Official Comment farther provides that the portion of the Act that has been codified in Alabama as § 30-3B-204

“codifies and clarifies several aspects of what has become common practice in emergency jurisdiction cases under the [Uniform Child Custody Jurisdiction Act] and [the Parental Kidnaping Prevention Act]. First, a court may take jurisdiction to protect the child even though it can claim neither home state nor significant connection jurisdiction. Second, the duties of states to recognize, enforce and not modify a custody determination of another state do not take precedence over the need to enter a temporary emergency order to protect the child.
“Third, a custody determination made under the emergency jurisdiction provisions of this section is a temporary order. The purpose of the order is to protect the child until the state that has jurisdiction under Sections 201-203 enters an order.”

Section 30-3B-204(c), Ala.Code 1975, provides:

“If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.”

(Emphasis added.)

Subsection (d) of § 30-3B-204 provides as follows:

“A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 30-3B-201 through 30-3B-203, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”

The record reveals that, after the Alabama court granted the maternal aunt and uncle’s second “motion to reinstate,” filed on November 3, 2006, the Alabama court conducted a telephone conference with the Florida court and, following that conversation, deferred to the jurisdiction of the Florida court. When the Alabama court communicated with the Florida court, the Florida court had already assumed jurisdiction of the case. Under § 30-3B-204, even if the Alabama court had entered an emergency order it would have been temporary in nature and would have lapsed after the maternal aunt and uncle had adequate time to obtain an order from the court with permanent jurisdiction. § 30-3B-204(c). In this case, the court with permanent jurisdiction is the Florida court.

The facts of this case are certainly heart-wrenching and raise serious concerns about the father’s being awarded custody of the children. Unfortunately, these are the types of issues the courts have to deal with on a regular basis. The issue of the permanent custody of the children is one for the Florida court to determine, and I cannot hold the Alabama court in error for deferring to the jurisdiction of the Florida court as prescribed by the Act. The issues raised by the maternal aunt and uncle can and should be properly addressed in a full hearing in the Florida court.

PITTMAN, Judge,

dissenting.

I dissent from the reversal. In my view, this court lacks appellate jurisdiction and is allowing hard facts to make bad law.

In juvenile matters, “[i]f no procedure is specifically provided in [the Alabama Rules of Juvenile Procedure] or by statute, the Alabama Rules of Civil Procedure [are] applicable” except where they are inconsistent with the Rules of Juvenile Procedure. Rule 1(A), Ala. R. Juv. P. Although a postjudgment motion in an action governed by the Rules of Civil Procedure may be filed within 30 days of the entry of a final judgment, see Rules 50(b), 52(b), 55(c), 59(b), and 59(e), Ala. R. Civ. P., Rule 1(B), Ala. R. Juv. P., provides that “[a]ll postjudgment motions ... provided for by the Alabama Rules of Civil Procedure ... must be filed within 14 days after entry of judgment and shall not remain pending for more than 14 days.” The “motion to reinstate” filed by the maternal aunt and uncle was filed in case no. JU-06-570 and case no. JU-06-571 on August 16, 2006, more than 14 days after the entry of the Alabama court’s judgment dismissing those cases; therefore, it is not properly cognizable as a “postjudgment” motion directly attacking the Alabama court’s judgment of dismissal.

The only mechanism recognized by Alabama law whereby a litigant may collaterally attack a civil judgment by filing a motion in the same civil action is that set forth in Rule 60(b), Ala. R. Civ. P., which permits the filing of motions for relief from a judgment. Rule 60(b) explicitly provides that various common-law writs permitting reexamination of a civil judgment “are abolished” and that “the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.” Notably, the maternal aunt and uncle did not elect to pay a filing fee and file an independent action; rather, they chose to attack the Alabama court’s judgment via a motion filed in the same court. The “motion to reinstate” thus cannot properly be characterized as anything other than a motion under Rule 60(b), Ala. R. Civ. P., seeking to avoid the effect of the Alabama court’s judgment. See Lewis v. Providence Hosp., 483 So.2d 398, 398 n. 1 (Ala.1986) (holding that a “motion to reconsider” a judgment of dismissal filed more than 30 days after the judgment “could at best be considered a Rule 60(b) motion for relief from judgment”).

Rule 60(b) permits a party to seek relief from a civil judgment on several bases, including where “it is no longer equitable that the judgment should have prospective application” (Rule 60(b)(5)) or where “any other reason justifying relief from the operation of the judgment” exists (Rule 60(b)(6)). The maternal aunt and uncle averred in their motion that the Arizona court had determined on July 13, 2006, that it was no longer a convenient forum, that the Arizona court had relinquished jurisdiction to the Florida court, and that the Arizona court had stated that the Florida court could determine whether “it should defer the matter to Alabama”; the maternal aunt and uncle also averred that the children needed “special” medical care, that the aunt and the uncle “need[ed] proper authority to see that those special medical needs [wejre met,” and that the Alabama court should exercise temporary emergency jurisdiction under Ala.Code 1975, § 30-3B-204. On August 17, 2006, the Alabama court entered an order denying the “Motion to Reinstate.” No appeal was taken from that order.

At the moment the Alabama court denied the maternal aunt and uncle’s “Motion to Reinstate” seeking relief from the judgment of dismissal, the cases brought by the maternal aunt and uncle effectively terminated in that the Alabama court lost jurisdiction to grant relief on the grounds stated in the motion. As we noted in Pinkerton Security & Investigations Services, Inc. v. Chamblee, 934 So.2d 386 (Ala.Civ.App.2005):

“Alabama caselaw has placed a significant limitation upon the availability of relief under Rule 60(b) where a movant has previously sought relief under that rule. As stated by the Alabama Supreme Court in Ex parte Keith, 771 So.2d 1018 (Ala.1998), ‘[ajfter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion.’ 771 So.2d at 1022 (emphasis added [in Pinkerton ]). In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Market Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (‘Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).’); but see McLendon v. Hepburn, 876 So.2d 479, 483 (Ala.Civ.App.2003) (second Rule 60(b) motion held procedurally proper because second motion requested relief based on an ‘entirely different ground’ than first motion, raising an issue ‘that could not even have been raised’ when original judgment was entered).”

934 So.2d at 390-91. Thus, the Alabama court lacked jurisdiction to act upon the motion filed by the maternal aunt and uncle on November 3, 2006, and its orders purporting to act on that motion are void.

In dissenting, I do not intend to minimize the tragic loss of their mother that the children at issue in this case have suffered, nor do I doubt the significant adjustment that awaits them upon reunion with their father. However, the Alabama court has entered a final judgment in this case, and this appeal must be dismissed. Absent a new action alleging facts and events that would warrant an Alabama court’s assumption of emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, the principles of finality will not allow any further interference with the decisions of the Arizona court and the Florida court concerning the custody of the children at issue.

      . The jurisdiction of an Alabama court over child-custody matters is determined as of the time of the filing of the action. See Peterson v. Peterson, 965 So.2d 1096, 1099 (Ala.Civ.App.2007). See also § 30-3B-202, Ala.Code 1975, Official Comment (“Jurisdiction attaches at the commencement of a proceeding.”).

      . Rule 60(b), Ala. R. Civ. P., states:
      “On motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.”


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    William McINTOSH and Winnie C. McIntosh a/k/a Penny McIntosh v. Robert LIVAUDAIS, Donna Livaudais, and Regions Mortgage, Inc. Regions Mortgage, Inc. v. Robert Livaudais and Donna Livaudais.
    2060499.
    Court of Civil Appeals of Alabama.
    Aug. 3, 2007.

      Charles H. Morris III, Gulf Shores, for appellants William McIntosh and Winnie C. McIntosh a/k/a Penny McIntosh.
    Charles C. Simpson III of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Bay Minette, for appellee/cross-appellant Regions Mortgage, Inc.
    Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellees Robert Livaudais and Donna Livaudais.
   MOORE, Judge.

William McIntosh and Winnie C. McIntosh a/k/a Penny McIntosh appeal from a judgment of the Baldwin Circuit Court in which the court declined to order specific performance of an option to purchase certain real estate (“the property”) owned by Robert Livaudais and Donna Livaudais. Regions Mortgage, Inc. (“Regions”), cross-appeals arguing that if the judgment is reversed, the trial court’s judgment determining that its cross-claims are moot should also be reversed. We reverse and remand as to the appeal; we also reverse and remand as to the cross-appeal.

Relevant Procedural History

On December 1, 2004, the Mclntoshes filed a complaint against the Livaudaises requesting, among other things, that the court enjoin the Livaudaises from interfering in the exercise of their option to purchase the property. On March 31, 2005, the Livaudaises answered the complaint. On August 15, 2005, the Mclntoshes filed an amendment to their complaint requesting that the court order specific performance of the option to purchase. On August 23, 2005, the Mclntoshes filed a second amendment to their complaint adding Regions as a defendant and requesting that the court declare the mortgage executed by the Livaudaises in favor of Regions void. On October 25, 2005, Regions answered the complaint and filed a cross-claim against the Livaudaises. Regions asserted that if the Mclntoshes prevailed, then it would be entitled to a constructive trust or equitable lien upon the amount due the Livaudaises as a result of the sale of the property pursuant to the option and to a judgment against the Livaudaises for any deficiency.

On May 2, 2006, the trial court held a hearing at which it received ore tenus evidence. On May 25, 2006, the trial court entered an order in favor of the Livaudais-es on the Melntoshes’ claim and on Regions’ cross-claim. On June 13, 2006, the Melntoshes filed a motion for a new trial and a motion for a judgment as a matter of law. The Melntoshes’ postjudgment motion was denied on July 12, 2006. On August 22, 2006, the Melntoshes filed their notice of appeal to the Supreme Court. On September 1, 2006, Regions filed its notice of appeal. The Supreme Court transferred the appeals to this court, pursuant to § 12-2-7, Ala.Code 1975.

Facts

The Livaudaises purchased the property in 1992; at the time of the purchase, they executed a $60,000 mortgage. In 2000, the Livaudaises began making plans to move to Florida, and they began discussing the possibility of renting or selling the property to the Melntoshes, who were their friends at that time. At that time, the balance owed on the mortgage was approximately $20,000.

On June 3, 2000, the Melntoshes and the Livaudaises executed a contract stating:

“For the premises at 2410 Choctaw Rd. in Fort Morgan at Gulf Shores. The monthly rental from 6-3-2000 will be $700. Each year following the amount of rent per month will be re-negotiated, not to exceed any addition more than $50 per month. On the first of the month, Penny McIntosh will deposit the monthly rental at Regions Bank into the Livaudaises’ account.... Except, for any unseen act of nature as a hurricane, or such, the renters will be responsible for fixing anything that breaks. No deposit as breakage fees or any earnest money will be needed to rent the house. In the event that William and Penny McIntosh wish to purchase the home at 2410 Choctaw, the amount of rent in total they have paid will be subtracted from the selling price at $140,000. This lease is for five 5 years.”

Robert Livaudais testified that at the time the parties executed the contract, there was an understanding that the Mcln-toshes were supposed to make a down payment toward the purchase of the property within the first year of the lease agreement. He also testified that the amount of the down payment had not been specified at that time but that, in his mind, the down payment was part of the parties’ June 2000 agreement. Donna Livaudais also testified that she signed the June 3, 2000, agreement with the knowledge that the Melntoshes were going to make a down payment. She stated that Peggy McIntosh had informed her that her mother had a contract to sell her house and was planning on giving a portion of the proceeds to Peggy and that Peggy would then use that money to make a down payment on the property. Donna testified that the parties had all agreed that if the Mcln-toshes apprised them of the amount of the down payment, they would execute another contract. Robert Livaudais testified that approximately nine months after the June 2000 contract had been executed, Penny McIntosh promised him that the Melntoshes would make a down payment of $100,000 towards the purchase of the property.

Peggy testified that she had told Donna that if her mother sold her house, she was going to give the Livaudaises $20,000 as a down payment on the property. She testified that she had agreed to make a down payment when and if her mother gave her the money. Her mother, however, did not sell her house until December 2005. Peggy testified that the discussion about the down payment had been very tentative and was not part of the June 3, 2000, agreement.

On June 1, 2001, the Livaudaises and William McIntosh signed a contract that stated:

“To: Bill & Penny McIntosh,
“The rental fee for 2418 Choctaw in Fort Morgan, Al. Is $750.00 per month total for both upper & lower units.
“Before any visit to the property stated above — Bill or Penny will be notified by Robert or Donna Livaudais.
“Last year, as per our conversation, there was no lump sum given towards the sale of the above property.
“The upkeep of the property is the responsibility of the Mclntoshes.
“Each year a new contract will be issued, not exceeding $50 additional fee in rent.”

Robert McIntosh testified that he believed that the June 1, 2001, contract made the June 3, 2000, contract null and void. Donna Livaudais testified that, in her opinion, after the June 1, 2001, contract was executed, there was no longer an option to purchase in effect but simply a month-to-month rental agreement.

In 2002, the Livaudaises refinanced the mortgage on the property in the amount of $140,000. Robert testified that the refinancing was necessary because the Mcln-toshes had failed to make the lump-sum payment that they had promised.

Each year thereafter, the rent amount increased by $50. On March 24, 2005, the Mclntoshes attempted to exercise their option to purchase the property.

At the time of trial, the Mclntoshes had lived on the property for six years and had paid rent regularly throughout those six years.

Discussion

On appeal, the Mclntoshes argue that the trial court erred by not ordering specific performance of their option to purchase the property. They contend that because they exercised the option within the five-year period specified in the June 3, 2000, lease agreement, the option ripened into a binding contract. The Livau-daises argue, however, that there was no meeting of the minds because they believed that they would receive a down payment from the Mclntoshes during the first year of the lease; the Mclntoshes assert that they did not believe that the down payment was required. Regions argues that the language in the June 3, 2000, lease agreement was ambiguous and that, considering the testimony, the trial court properly determined that a contract for the sale of the property was contingent on the Mclntoshes making a down payment on the property.

“Whether a contract is ambiguous is a question of law for the trial court. When its terms are clear and certain, the court has the duty to determine the meaning of the agreement. In order to ascertain the intention of the parties, the clear and plain meaning of the terms of the contract are to be given effect, and the parties are presumed to have intended what the terms clearly state. Extrinsic evidence may be admitted to interpret a contract only if the court finds that the contract is ambiguous.”

Strickland v. Rahaim, 549 So.2d 58, 60 (Ala.1989).

In the present case, we conclude that the June 3, 2000, contract was not ambiguous. The clear and plain meaning of the contract is that the Mclntoshes had the option to purchase the property for $140,000, less the amount of rent paid, during the five-year lease term. See Jen kins v. Thrift, 469 So.2d 1278, 1280 (Ala.1985) (construing option-to-purchase provision in a lease agreement as an option to purchase during the term of the lease). There is no language in the June 1, 2001, contract indicating that the parties intended to rescind the option-to-purchase provision in the June 3, 2000, contract. Because the June 3, 2000, contract was not ambiguous, the Livaudaises were prohibited from introducing evidence to contradict its terms. See Environmental Sys., Inc. v. Rexham Corp., 624 So.2d 1379, 1381 (Ala.1993) (“[A]bsent some evidence of fraud, mistake, or illegality, a party to an unambiguous written contract cannot offer par-ol, or extrinsic, evidence of prior or contemporaneous oral agreements to change, alter, or contradict the terms of the contract.”).

“ ‘An option to purchase real estate is, by its nature, unilateral when entered into. However, when the option is exercised in accordance with its terms mutuality of obligation is created and the option becomes a binding contract of purchase and sale enforceable in equity by specific performance.’ ” Jenkins, 469 So.2d at 1279 (quoting Kennedy v. Herring, 270 Ala. 73, 75, 116 So.2d 596, 598 (1959)). In the present case, it is undisputed that the Mclntoshes exercised their option to purchase within the five-year lease term. Therefore, the option became a binding contract that is enforceable by specific performance. We have considered the application of Ala.Code 1975, § 35-4-76(a), to this case; however, based on Jenkins, 469 So.2d at 1279, we must hold that the limitation period in that statute is not applicable to the present case. Accordingly, the trial court erred by failing to order specific performance of the option to purchase.

Based on the foregoing, we reverse the trial court’s judgment and remand this case for further proceedings in accordance with this opinion. Because our reversal on this claim necessarily impacts the outcome of Regions’ cross-claim, we also reverse the trial court’s judgment on the cross-claim. On remand, the trial court is to also consider the merits of that claim.

APPEAL — REVERSED AND REMANDED.

CROSS-APPEAL — REVERSED AND REMANDED.

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

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

      . We conclude that "the purchase option is sufficiently certain and definite so that specific enforcement is not prohibited by § 8-1-41[, Ala.Code 1975].” Jenkins, 469 So.2d at 1280.

      . Section 35-4-76(a), Ala.Code, 1975, provides, in pertinent part: "Where the instrument creating any such option [to purchase an interest in land] shall place no limit upon the duration of the option or otherwise state the terms controlling the duration of the option, the option shall cease to be enforceable two years after the time of its creation.” In Jenkins, supra, the Supreme Court construed an option-to-purchase provision included in a lease agreement as extending through the term of the lease. Therefore, the Court held that the option to purchase did not “fall within the two-year limitation of § 35-4-76(a).” Jenkins, 469 So.2d at 1279. Based on Jenkins, we must construe the option-to-purchase provision in the present case as extending through the five-year lease term; we must similarly conclude that the option to purchase in the present case does not "fall within the two-year limitation of § 35-4-76(a).” Jenkins, supra.


author: BRYAN, Judge.

text:
    Charles HOLMES and Agnes L. Holmes v. CitiFINANCIAL CORPORATION, L.L.C.
    2060467.
    Court of Civil Appeals of Alabama.
    Aug. 3, 2007.
    Michael B. Smith, Mobile, for appellants.
    Steven J. Shaw of Stephens, Millirons, Harrison & Gammons, P.C., Huntsville, for appellee.
   BRYAN, Judge.

The defendants, Charles Holmes and Agnes L. Holmes, appeal a summary judgment in favor of the plaintiff, CitiFinancial Corporation, L.L.C. We dismiss the appeal because the Holmeses did not timely file their notice of appeal.

Although neither party has raised the issue of the timeliness of this appeal, “ ‘[jjurisdictional issues are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The timely filing of a notice of appeal is a jurisdictional act. Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985).” Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002). “ ‘Subject to certain exceptions not here applicable, Rule 4(a)(1), Ala. R.App. P., requires that in all cases in which an appeal is permitted, the notice of appeal shall be filed within 42 days of the entry of the judgment or order appealed from.’ ” Id. (quoting Boykin v. International Paper Co., 777 So.2d 149, 150 (Ala.Civ.App.2000)) (emphasis omitted). Rule 4(a)(3), Ala. R.App. P., provides that the filing of a postjudgment motion pursuant to Rules 50, 52, 55, or 59, Ala. R. Civ. P., shall suspend the time for filing a notice of appeal until the entry of an order granting or denying the postjudgment motion or until the postjudgment motion is deemed denied under Rule 59.1, Ala. R. Civ. P.

In the case now before us, the trial court entered the summary judgment in favor of CitiFinancial on December 18, 2006. On December 28, the Holmeses, pursuant to Rule 59(e), Ala. R. Civ. P., filed a postjudgment motion to alter, amend, or vacate the judgment. However, on January 8, 2007, the Holmeses filed a pleading stating that they were withdrawing their Rule 59(e) motion, and on January 9, the trial court entered an order stating that “[withdrawal of motion to alter, amend, or vacate filed by [the Holmes-es] is hereby granted” and a second order stating that “[mjotion to amend filed by [the Holmeses] is hereby MOOT.” The Holmeses did not file their notice of appeal until Thursday, February 22, 2007.

The period for the Holmeses to file their notice of appeal commenced running, at the latest, on January 10, 2007, the day after the trial court entered its orders regarding the Holmeses’ Rule 59(e) motion. That commencement date would result in the 42d day following the entry of those orders falling on Tuesday, February 20, 2007, which was Mardi Gras Day, a legal holiday in Baldwin County. See Rule 26(a), Ala. R.App. P., and § 1 — 3—8(c), Ala. Code 1975. Because the 42d day fell on a legal holiday, the Holmeses had until the end of the next business day, which was Wednesday, February 21, 2007, to file their notice of appeal. See Rule 26(a), Ala. R.App. P. However, they did not file their notice of appeal until Thursday, February 22, 2007. Therefore, we must dismiss the appeal. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).

APPEAL DISMISSED.

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


author: THOMAS, Judge.

text:
    GULF STATES PAPER CORPORATION v. Randy Lee WARREN.
    2060016.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.

      Wilbor J. Hust, Jr., and R. Matthew Elliott of Zeanah, Hust, Summerford & Williamson, Tuscaloosa, for appellant.
    John W. Ryan, Jr., and James H. Seale III, Greensboro, for appellee.
   THOMAS, Judge.

Gulf States Paper Corporation (“the employer”) appeals from a judgment awarding Randy Lee Warren (“the employee”) workers’ compensation benefits for a permanent partial disability resulting from what, the trial court determined, was a nonscheduled injury to the employee’s left hand. Because we hold that the trial court erred in treating the injury as nonscheduled, we reverse and remand.

On August 10, 2000, the employee was performing general clean-up duties in the sawmill area of the employer’s Moundville facility when he noticed a vine lodged in the conveyor belt of a debarking machine. When the employee attempted to clear the vine, he caught his left hand in the convey- or belt. He was transported by ambulance to the Druid City Hospital emergency room where Dr. John Menard, a plastic surgeon, diagnosed him with a crush injury, burns, and skin loss on the left hand. The employee was hospitalized for three days for nonsurgical wound care and was subsequently released. He was rehospital-ized when the wound became infected within a week of his release. On two other occasions, the employee was hospitalized when Dr. Menard performed surgical de-bridement and skin grafts on the left hand.

On November 13, 2000, the employee returned to work on light-duty status; he was returned to full duty a month later. On February 19, 2001, Dr. Menard, noting that the employee had an unsightly scar but suffered no functional deficits to his hand, determined that the employee had reached maximum medical improvement (“MMI”) for the crush injury to his left hand.

In April 2001, the employee returned to Dr. Menard complaining of pain and numbness in his left wrist. Dr. Menard thought those symptoms might indicate carpal tunnel syndrome, so he referred the employee to Dr. James T. Barnett, an orthopedic surgeon, who performed nerve-conduction-velocity tests on both of the employee’s hands on May 7, 2001. After reviewing those test results, Dr. Menard and Dr. Barnett concluded that the employee suffered from bilateral carpal tunnel syndrome. On May 21, 2001, the employee first complained to Dr. Menard of pain in both wrists. He repeated those complaints on July 2 and August 13, 2001. On August 21, 2001, Dr. Menard performed a carpal tunnel release on the employee’s left hand. On October 3, 2001, Dr. Menard returned the employee to work at full duty with no restrictions. The employee did not undergo a carpal tunnel release on his right hand.

When asked whether the carpal tunnel syndrome in the employee’s left hand was “related to work,” Dr. Menard answered, “I think that it certainly could be associated with it, but it could be associated with various other causes of carpal tunnel syndrome. But I certainly have seen carpal tunnel syndrome arise after hand injuries.” Dr. Menard added, however, that the employee had no permanent impairment as a result of his carpal tunnel syndrome.

Between November 1, 2001, and March 23, 2004, the employee took an approved leave of absence from his employment to serve on active duty as a member of the Alabama National Guard. On February 15, 2003, as part of his National Guard duties, the employee was loading tents into the back of a truck when, he said, his left hand “gave out, as it always does when [he is] carrying something for a long period of time,” and the tents fell on his hands. The employee’s National Guard unit was eventually deployed to Iraq, but the employee did not go because, in December 2003, he was honorably discharged from the National Guard for medical reasons due to his bilateral hand problems.

In December 2003, the employee returned to Dr. Menard complaining of decreased sensitivity in the third and fourth fingers of his left hand. Dr. Menard referred the employee to Industrial Services & Rehabilitation of Tuscaloosa to determine an impairment rating. As a result of that referral, Dr. Menard concluded that the employee had sustained a 7% impairment to the whole body and a 12% impairment to the left upper extremity due to the employee’s August 10, 2000, on-the-job injury.

When the employee returned to work on March 23, 2004, he was assigned the same duties that he had been performing before the crush injury to his left hand. The employee testified at trial that, when he returned to work, his left hand hurt and had “no strength,” so he tried not to use it. Instead, he said, he used his right hand more and that that hand began to cause him a great deal of pain. The employee testified that his right hand “hurt so bad that [he could] hardly lift or pull or do anything that [he needed] to do in order to complete [his] job cycles.”

Scottie Nolan, the employer’s sawmill superintendent, testified that after the employee returned to work in March 2004 he complained that both of his hands were hurting and that he had told Nolan that he had injured his right hand loading military tents. Carla Brown, the employer’s human-resources director, testified that, after the employee returned to work from his National Guard duty, he applied for sickness and accident benefits three times — on January 5, January 19, and February 9, 2005. Brown explained that sickness and accident benefits are given for employees’ nonwork-related injuries. With each application, Brown specifically asked the employee for which hand he was seeking benefits, and, each time, the employee answered his “right hand,” stating that the injury to that hand was not work-related but had occurred while he was on active duty with the military.

In February 2005, the employee consulted Dr. John P. Buckley, an orthopedic surgeon, about pain, swelling, tenderness, and limited motion in his right hand. Dr. Buckley testified by deposition that the employee did not relate the problems with his right hand to his on-the-job injury in August 2000 but instead to “an accident that he had in February of 2003 while working for the National Guard.” Dr. Buckley ordered an MRI and a bone scan of the employee’s right wrist. After reviewing the MRI, Dr. Buckley made the following findings:

“[Tjhere was a bony connection between the lunate and the triquetrum. This is a congenital variation and probably has no clinical significance. There was some marrow edema, which is a very nonspecific finding, involving the scaphoid, which is also one of the bones in the wrist, and the distal radius. It was felt possibly to be related to a specific injury but it was felt also possibly to be related to chronic stress related to some degenerative changes, and there was more clearly on the MRI some marginal os-teophyte formation consistent with early degenerative changes. So I think that the overall impression of this was there was some mild osteoarthritis involving the wrist .... ”

Dr. Buckley testified that the bone scan indicated “trabecular microfracturing or chronic stress reaction.” Dr. Buckley put a cast on the employee’s right wrist, but when immobilization did net produce marked improvement he gave the employee steroid injections in his right wrist and ordered a functional capacities evaluation (“FCE”) for the employee. The FCE, which was conducted on April 18, 2005, indicated that the employee could perform all light-category and some medium-category jobs. Dr. Buckley testified that he could state with a reasonable degree of medical certainty that the condition of the employee’s right hand was not related to his August 10, 2000, on-the-job injury.

The employee testified that he continued to work with pain in both hands for almost a year after March 2004 but that he finally quit work on February 7, 2005. Since that time, he has been unemployed and has not applied for any other jobs. He stated that he is in pain every day and that he can no longer do the things he needs to do at home, such as mowing his grass. At the time of trial, the employee was 45 years old. He is a high-school graduate whose prior work history includes working as a stock clerk in a grocery store, as a county jailer, and as a route manager for a rental company. Before his medical discharge in 2003, he had spent 19 years as a member of a military police unit in the Alabama National Guard.

Dr. Donald W. Blanton, a licensed professional counselor who testified as the employee’s vocational expert, administered various psychological, I.Q., and achievement tests to the employee and reviewed the employee’s medical records, as well as the depositions of Dr. Menard and Dr. Buckley. Dr. Blanton stated that the employee had a full-scale I.Q. of 70, which, he said, placed the employee in the borderline range of intelligence and would make retraining him difficult. Dr. Blanton testified that, in his opinion, the employee suffered from a pain disorder and moderate depression and was permanently and totally disabled.

The trial court’s judgment contains the following findings of fact and conclusions of law:

“The Court finds that the [employee] developed bilateral carpal tunnel syndrome in the line and scope of his employment ....
“It is the duty of the Court to determine whether [the employee’s] injury is nonscheduled or scheduled within the meaning of the Alabama Workers’ Compensation Act. This Court applied the law as found in Ex parte Drummond [Co.], 837 So.2d 831 (Ala.2002), and its progeny. The Court found that there was sufficient evidence ... that [the employee’s] injury has affected his body as a whole. In making these determinations, the Court has considered all evidence including the Court’s personal observations and interpretations of the evidence presented.
“Based thereon, it is the conclusion and finding of the Court that [the employee] suffers from a nonscheduled permanent partial disability within the meaning of the Alabama Workers’ Compensation Act and awards him benefits accordingly.”

Standard of Review

“In reviewing the standard of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” § 25-5-81(e)(1), Ala.Code 1975. “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81(e)(2), Ala.Code 1975. “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Therefore, this court “will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence.” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996).

I.

Section 25-5-57(a)(3)a., Ala.Code 1975, provides, in part:

“a. Amount and Duration of Compensation. For permanent partial disability, the compensation shall be based upon the extent of the disability. In cases included in the following schedule, the compensation shall be 66¾ percent of the average weekly earnings, during the number of weeks set out in the following schedule:
“12. For the loss of a hand, 170 weeks.
“25. For the loss of two hands, 400 weeks.”

Section 25-5-57(a)(3)d. provides:

“d. Loss of Use of Member. The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein. For permanent disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss.”

Section 25-5-57(a)(3)g. provides, in pertinent part:

“For all other permanent partial disabilities not above enumerated, the compensation shall be 66⅜ percent of the difference between the average weekly-earnings of the worker at the time of the injury and the average weekly earnings he or she is able to earn in his or her partially disabled condition ...”

The trial court erred by awarding benefits pursuant to § 25-5-57(a)(3)g., rather than pursuant to § 25-5-57(a)(3)a.l2, because it was not presented with substantial evidence indicating that the employee’s left-hand injury should have been compensated outside the schedule. Although the trial court’s judgment states that it “applied the law as found in Ex parte Drummond [Co.], 837 So.2d 831 (Ala.2002), and its progeny,” we conclude that the trial court failed to follow Drummond and the decisions interpreting it.

In Drummond, our supreme court clarified the proper test for determining whether an injury to a scheduled member should be compensated outside the schedule. The court overruled Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), to the extent that Bell provided two alternatives for taking an injury to a scheduled member outside the schedule, and it approved only the first prong of the Bell formulation, which was based on the following test:

“ ‘[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’ ”

837 So.2d at 834 (quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001)).

None of the employee’s medical providers testified that the effects of the employee’s left-hand injury on August 10, 2000, extended to his right hand or to any other part of his body. Although the employee testified that the injury to his right hand occurred because of his overcompensating for the loss of use of his left hand, that rationale for departing from the schedule is invalid. See, e.g., Stone & Webster Constr., Inc. v. Lanier, 914 So.2d 869, 877-78 (Ala.Civ.App.2005) (holding that worker’s compensating for pain in his right knee by dependence upon his left knee was insufficient to remove the right-knee injury from the schedule; overruling Masterbrand Cabinets, Inc. v. Ruggs, 891 So.2d 869 (Ala.Civ.App.2004), which had held that when the effect of a left-hand injury extended to the right hand because of the worker’s overuse of the right hand, the left-hand injury should be treated as nonscheduled).

Moreover, a court is bound by the scheduled compensation in § 25-5-57(a)(3), even when the effect of an injury to one scheduled member extends to another scheduled member. See General Elec. Co. v. Baggett, [Ms. 2050469, May 11, 2007] — So.2d -, - (Ala.Civ.App.2007) (stating that “any effects of the injury to Baggett’s left knee that may have extended to his right knee would not remove his injury from the schedule because the ‘loss’ of two legs is itself a scheduled injury [pursuant to] § 25-5-57(a)(3)a.26”); Alabama Workmen’s Comp. Self-Insurers Guar. Ass’n v. Wilson, [Ms. 2040523, June 16, 2006] — So.2d -, - (Ala.Civ.App.2006) (stating that “[a]ny interference with the function of both of the employee’s arms is of no legal import given that a loss of both arms is itself a scheduled injury”); Masterbrand Cabinets, Inc. v. Johnson, [Ms. 2030409, June 3, 2005] — So.2d -,-(Ala.Civ.App.2005) (stating that Ruggs was overruled because the analysis in that case “had focused on the fact that the worker’s pain had spread to another part of her body when, in point of fact, that other part of her body was itself a scheduled member”); and Stone & Webster Constr., Inc. v. Lanier, 914 So.2d at 876-78 (noting that the schedule contains an entry for the loss of both legs and holding that when the effects of an injury to the right knee extended to the left knee, the claim was governed by the schedule). Cf. Boise Cascade Corp. v. Jackson, [Ms. 2051041, May 4, 2007] - So.2d -,- (Ala.Civ.App.2007) (stating that “[a]n injury to the knee is considered a scheduled injury to the leg, which, of course, is a larger scheduled member of which the foot is a component. Hence, even if the effects of [the employee’s] left-heel injury extend to the left knee, compensation would be fixed by the schedule for a permanent partial loss of use of the leg” (citation omitted)); and Ex parte Dunlop Tire Corp., 772 So.2d 1167, 1170 (Ala.2000) (stating that, under the schedule, “the loss of an arm includes the loss of a hand”).

Because the employee’s recovery was limited to compensation for a scheduled injury, evidence concerning the employee’s vocational disability was irrelevant. Chadwick Timber Co. v. Philon, [Ms. 2050697, March 16, 2007]-So.2d-,-(Ala.Civ.App.2007); Kohler Co. v. Miller, 921 So.2d 436, 444 (Ala.Civ.App.2005); and Smith v. Michelin North America, Inc., 785 So.2d 1155, 1159 (Ala.Civ.App.2000).

II.

The trial court’s judgment states that it found “that the [employee] developed bilateral carpal tunnel syndrome in the line and scope of his employment.” (Emphasis added.) The employer argues that the employee’s compensation award should be limited to the schedule for the loss of use of one hand — the left — because, it says, the employee did not establish medical causation with respect to the condition of the right hand.

The employee reached MMI for the crush injury to his left hand in February 2001. Two months later, he returned to Dr. Menard, complaining of pain and numbness in his left wrist. Because Dr. Menard thought those symptoms might indicate carpal tunnel syndrome, he referred the employee to Dr. Barnett, an orthopedic surgeon, for nerve-conduction-velocity tests on both hands. After reviewing those test results, Dr. Menard and Dr. Barnett concluded that the employee suffered from bilateral carpal tunnel syndrome. On August 21, 2001, Dr. Menard performed a carpal tunnel release on the employee’s left hand. When asked whether the carpal tunnel syndrome in the employee’s left hand was “related to work,” Dr. Menard answered, “I think that it certainly could be associated with it, but it could be associated with various other causes of carpal tunnel syndrome. But I certainly have seen carpal tunnel syndrome arise after hand injuries.” See Ex parte USX Corp., 881 So.2d 437, 443 (Ala.2003), in which our supreme court stated:

“We recognize that the majority of carpal tunnel injuries are caused by gradual deterioration or repetitive motion and, thus, that the clear-and-eonvincing-evi-dence burden of proof will apply. However, we cannot ignore the medical possibility, as evidenced by the testimony in this case, that in some cases it is medically possible for carpal tunnel syndrome to result from a one-time acute trauma. The trial court must determine the cause of the carpal tunnel injury and then apply the proper burden of proof. If the trial court determines that the injury was caused by a one-time acute trauma or accident, the preponderance-of-the-evidence burden of proof will apply, in accordance with the burdens set forth by the Legislature in § 25-5-81, Ala.Code 1975.”

None of the employee’s treating physicians attributed the condition of the employee’s right hand to an “ ‘accident arising out of and in the course of the employment,’ within the meaning of the first sentence of § 25-5-1(9).” USX Corp. v. Bradley, 881 So.2d 421, 426 (Ala.Civ.App.2003), aff'd, Ex parte USX, supra. The only testimony concerning an accidental injury to the employee’s right hand came from the employee himself, who described a nonwork-relat-ed accident occurring on February 15, 2003, while he was serving in the National Guard.

Hence, in order to be compensa-ble, the condition of the employee’s right hand must have resulted from a nonacci-dental, “cumulative trauma disorder,” arising out of and in the course of his employment, see § 25-5-1(9), Ala.Code 1975. For a nonaccidental injury allegedly caused by gradual deterioration or cumulative physical stress, the elear-and-convinc-ing-evidence standard applies. Ex parte Russell Corp., 725 So.2d 264 (Ala.1998). To establish legal causation, the employee would have to show that “the performance of his ... duties as an employee exposed him ... to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., 680 So.2d at 267. To establish medical causation, the employee would have to prove that the risk to which he was exposed was, in fact, a contributing cause of the injury. Id. at 269. “Clear and convincing evidence” is defined as

“evidence that, when weighted against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

§ 25-5-81(c), Ala.Code 1975. Although the employer argues that the employee failed to establish medical causation with respect to the condition of his right hand, we need not address that issue because we conclude that the employee failed to establish legal causation with respect to the condition of his right hand. He presented no evidence, much less clear and convincing evidence, that “the performance of his ... duties as an employee exposed him ... to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., 680 So.2d at 267.

The judgment of the trial court awarding the employee permanent-partial-disability benefits outside the schedule set forth in § 25-5-57(a)(3)a.l2 is reversed, and the cause is remanded for the trial court to enter an award of permanent-partial-disability benefits pursuant to the schedule.

REVERSED AND REMANDED.

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


text:
    TENAX MANUFACTURING ALABAMA, LLC v. Henry HOLT.
    2050988.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.

      Christopher J. Hughes of Samford & Denson, LLP, Opelika, for appellant.

      Robert C. King, Monroeville, for appel-lee.
   THOMAS, Judge.

Tenax Manufacturing Alabama, LLC, appeals from a judgment awarding Henry-Holt workers’ compensation benefits for a 60% permanent partial disability. On appeal, Tenax argues that the trial court erred by determining (1) that Holt had proved medical causation and (2) that Holt had suffered a 60% loss of earning capacity as a result of an on-the-job injury.

At the time of trial, Holt was a 28-year-old high-school graduate. He had enrolled in a paramedic-training course in junior college and had maintained a “B” average, but he had dropped out after one quarter. His work history consisted of a series of manual-labor jobs, all of which he had held for less than a year before he quit. In July 2003, Holt began working at Tenax, where he had three different jobs — as a needle technician, a dye-stand operator, and a winder operator. His duties were rotated on an hourly basis. As a needle technician, Holt was required to watch fabric running through a machine to make sure that it ran straight between the needles. As a dye-stand operator, he was required to watch nylon fibers flowing through a dye machine and, if one of the fibers came out of its suction tube, to cut the fiber and replace it in the tube. As a winder operator, Holt was required to watch a winder machine, change rolls of fabric when the roll was complete, and wrap the completed roll in plastic.

On June 29, 2004, Holt was wearing rubber-soled shoes supplied to him by Te-nax and standing on a rubber mat in front of the dye-stand machine when he slipped in a puddle of water that had collected as a result of condensation dripping from the machine. Holt testified that he fell and landed on his “tailbone,” after which he hit his back and his head. He was alone at the time, and he lay on the floor until a coworker arrived to help him up. He was later transported to the emergency room of a local hospital where he was treated by Dr. Mark Roberts, who prescribed a painkiller and a muscle relaxer and ordered X-rays of Holt’s lumbar spine. The X-rays revealed:

“FINDINGS: The vertebral body heights, intervertebral disc spaces and the alignment of the vertebrae are maintained. No fracture, subluxation, or other bone abnormality is identified.”

When he continued to experience pain and muscle spasms in his back, Holt returned to Dr. Roberts, who ordered an MRI of the lumbar spine. That test, performed on July 2, 2004, revealed:

“FINDINGS: Vertebral alignment and disc spaces are maintained. The discs are hydrated with no evidence of significant bulge or herniation. The neural foramina are all patent. Surrounding bony and soft tissue structures are unremarkable.”

Dr. Roberts returned Holt to work on light duty. Tenax assigned Holt to check for holes in fabric and made a chair available to him so that he could sit or stand as needed.

Holt returned to Dr. Roberts on July 6, 2004, still complaining of back pain. Dr. Roberts referred him to physical therapy. On August 16, 2004, the physical therapist reported to Dr. Roberts that, after 16 visits, Holt’s main complaint was “7/10 pain at his tailbone at night.” However, the physical therapist also reported that, “[djuring the day, Holt states that his pain is ‘barely noticeable’ ” and that he is “ready to go back to work.” The physical therapist provided the following assessment:

“[It has] been difficult to link [Holt’s] treatments to his ability or non-ability to perform certain PT specific activities. [Holt’s] intensity while performing specific exercises has remained inconsistent. ...”

During his next visit to Dr. Roberts, Holt reported that there had been little or no improvement in his condition. Dr. Roberts referred Holt to Dr. Jeffrey G. Pirof-sky, an osteopath/physiatrist who specializes in physical medicine and rehabilitation. Dr. Pirofsky first saw Holt on August 20, 2004. Holt related a history of a work-related fall, pain with walking, and a dull ache in his lower back. He denied any radiating pain, numbness, or tingling in his legs. Dr. Pirofsky examined Holt and ordered X-rays, which revealed a slight curvature of the spine and “some minor degenerative aging changes.” Dr. Pirofsky testified by deposition that Holt displayed “exaggerated pain behavior to superficial touch,” which he explained by saying that Holt’s response “didn’t match what [he] would have expected for the light touch that was performed by [him].” Dr. Pirof-sky also testified that it was difficult to assess Holt’s hip flexion by manipulation because of his “guarding and pain complaints,” but when he tested hip flexion another way, by a straight-leg raising test, the result was negative. Dr. Pirofsky said that the “strength portion of the examination was not consistent with [Holt’s] ability to walk and get up on his toes and heels.” Dr. Pirofsky’s diagnosis was “low back pain, lumbar spondylosis, which is the degenerative portion, and cannot rule out symptom magnification.” He explained “symptom magnification” by saying that there were “inconsistencies during the examination [such that Dr. Pirofsky] did not feel that Mr. Holt was being totally forthcoming.” Dr; Pirofsky ordered that Holt be given an epidural cortisone injection, and he prescribed the following medications: Ultracet, a pain reliever; Robax-in, a muscle relaxer; and a Medrol (cortisone) “dosepak.”

Holt continued to complain of back pain at a follow-up visit on September 7, 2004. Dr. Pirofsky’s office notes indicate that he could “not explain [Holt’s] lack of improvement based upon treatment with physical therapy, medications, and lumbar epidural. He has also had adequate time to heal based upon no diagnostic abnormalities.” Dr. Pirofsky referred Holt to Dr. F. Donovan Kendrick, a neurosurgeon, for a second opinion. Dr. Kendrick, who saw Holt on September 30, 2004, reviewed Holt’s X-rays and MRI and found “no evidence of disc herniation, nerve root compression or other abnormality.” He concluded that Holt’s “back pain is not related to any abnormality within the lumbar spine but may be perhaps soft tissue in origin.”

Holt was then referred for a functional capacities evaluation (“FCE”), which was performed on October 26, 2004. The results of the FCE were reported to Dr. Pirofsky. Dr. Pirofsky testified that Holt’s FCE was invalid because Holt had scored only 57% on the validity criteria built into the test and a score of at least 81% is required to ensure validity. To achieve a score of 81%, the subject must exert maximal effort on a consistent basis.

Dr. Pirofsky last saw Holt on November 2, 2004, at which time Holt was still complaining of back pain, but, in addition, he complained for the first time of pain radiating into his left leg. Dr. Pirofsky testified that he could not explain that complaint in light of a normal MRI and the treatments Holt had received. He concluded that he had “nothing else to offer” Holt, placed him at maximum medical improvement (“MMI”), gave him a physical-impairment rating of “zero,” and released him to return to work without restriction. When Holt was returned to “full duty” at work, he left his employment at Tenax and did not apply for other employment.

After Dr. Pirofsky released him, Holt consulted his family physician, Dr. Stanley Barnes of Evergreen, complaining of back and leg pain. Dr. Barnes examined Holt and ultimately referred him to Dr. Robert L. White, a Mobile neurosurgeon. Dr. White testified by deposition that he saw Holt one time, on December 17, 2004. He took a history from Holt and examined him. He also reviewed Dr. Barnes’s medical records pertaining to Holt as well as Holt’s MRI. He did not, however, have the medical records of Dr. Roberts, Dr. Pirof-sky, or Dr. Kendrick. Based on his review of the MRI, Dr. White thought that Holt had sustained either an “upward herniation of the L5/S-1 disc into the body of the vertebra of L5 with adjacent inflammatory changes, or a compression fracture of the inferior body of L5 by about 20 percent with adjacent inflammatory changes.”

Dr. White explained that he thought that, as a result of Holt’s fall at work, the lower portion of the last vertebrae in Holt’s lower back had “caved in about 20 percent of its normal volume,” which he characterized as a “low degree of compression.” Dr. White assigned Holt a physical-impairment rating of 5% to the body as a whole and said that there was “no surgical indication for repair” 6 months after the injury. Instead, the injury — which, Dr. White said, was considered a permanent one — should be managed conservatively through a physical-rehabilitation program. Dr. White also testified that the MMI date for a compression fracture was usually about 12 months after the injury and that Holt, therefore, had not yet reached MMI. Thus, Dr. White said, he was not surprised at the results of Holt’s FCE, which had been performed only four months after the injury.

After he filed his complaint seeking workers’ compensation benefits, Holt asked Tenax for another treating physician, and, from a list of four doctors, Holt chose a Dr. Jeff D. Wade at Alabama Orthopaedic Center, P.C., in Birmingham. The record indicates that Holt saw Dr. Wade on August 8, 2005. Holt testified that Dr. Wade did not examine him. Instead, Holt said, Dr. Wade reviewed his MRI and stated that “he didn’t see anything wrong with [Holt],” after which, Holt said, Dr. Wade “brushed [him] off and sent [him] right on out of [the office]” before Holt had finished “filling out [his] paperwork.” The record contains the following from Dr. Wade’s office notes:

“IMPRESSION AND PLAN: I have indicated to [Holt] that he has really tried all of the conservative treatment options for his back and unless he would want to try some more Epidurals through pain management, I really wouldn’t have anything else to offer him. I would basically say that based on his MRI he can be released to full duty and placed at MMI but he doesn’t seem to be happy with this and will probably want another opinion as well. I have again told him that as a surgeon I really have nothing else to offer him based on his normal structural MRI and would advise him to seek out a pain specialist if he so desires.”

Holt testified at trial that, after he saw Dr. White, he received no further treatment from any physician other than Dr. Barnes, his family doctor, who continues to prescribe Lortab and Flexeril for him. Holt said that he took at least one Lortab every day and that sometimes he took two or three Lortabs a day. He stated that he had not applied for any other jobs because he was in pain and he knew he could not work. He testified that he could stand for no longer than 20 minutes before his back started hurting. He also had problems with lifting; he stated that he could not lift his daughter, who weighed about 40 pounds, without pain. In addition, he said that he could not walk much without his legs hurting.

Holt testified that he had good days and bad days. On a good day, he said, he was able to drive, cut his grass with a riding lawn mower for awhile, go shopping, and do light housework. On a bad day, he said, he had to stay inside sitting or lying down. Holt testified that he cared for his four-year-old daughter every afternoon until her mother returned from work. When asked if he could perform the physical requirements of any of the jobs he had previously held, Holt answered in the negative. When asked whether there was “any type of job” that he thought he could do, Holt stated that he was “not sure.”

Standard of Review

“In reviewing the standard of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” § 25-5-81(e)(1), Ala.Code 1975. “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81 (e)(2), Ala.Code 1975. “[Sjubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Therefore, this court “will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence.” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996).

Medical Causation
“ ‘For an injury to be compen-sable, it must be “caused by an accident arising out of and in the course of’ the employee’s employment. § 25-5-51, Ala. Code 1975. The phrase “arising out of’ an employee’s employment requires a causal connection between the injury and the employment. The phrase “in the course of’ the employee’s employment refers to the time, place, and circumstances under which the accident occurred. In accidental cases, i.e., those involving a sudden and traumatic event, an employee must produce substantial evidence tending to show that the alleged accident occurred and must also establish medical causation by showing that the accident caused or was a contributing cause of the injury. Medical causation may be found by the trial court without testimony from medical doctors. The totality of the evidence, including both lay and expert testimony, may satisfy a showing of medical causation.’ ”

Hooker Constr., Inc. v. Walker, 825 So.2d 838, 842 (Ala.Civ.App.2001) (quoting Pair v. Jack’s Family Rests., Inc., 765 So.2d 678, 681 (Ala.Civ.App.2000)).

Tenax contends that the trial court’s determination of medical causation is not supported by substantial evidence. It does not dispute the fact that Holt suffered a work-related accident; it disputes the fact that the accident caused a back injury. Essentially, Tenax argues that the trial court’s reliance upon Dr. White’s opinion, rather than upon the opinion of four other physicians who reviewed Holt’s MRI — Dr. Roberts, Dr. Pirofsky, Dr. Kendrick, and Dr. Wade — was misplaced. Tenax maintains that Dr. White’s opinion that Holt suffered a compression fracture to a vertebra in his lower back was less credible than the opinions of the other physicians who reviewed Holt’s MRI and found nothing wrong with his back because (1) Dr. White saw Holt only once, (2) Dr. White did not obtain a detailed history regarding the nature of Holt’s fall at work, and (3) Dr. White’s diagnosis was somewhat uncertain because he described two possible mechanisms by which the fall could have caused the compression fracture.

We do not consider those arguments persuasive for several reasons. First, it appears that, of the four physicians who rendered an opinion that Holt’s MRI showed no back injury, two physicians— Dr. Kendrick and Dr. Wade — had also seen Holt only once. Moreover, the relevant inquiry is which physician correctly interpreted Holt’s MRI, an inquiry that is not necessarily dependent upon repeated access to the patient. In addition, all the physicians who reviewed Holt’s MRI knew that he had fallen at work and landed on his back. Finally, Dr. White’s dual-mechanism diagnosis was not uncertain. Although he described two mechanisms by which the vertebra could have “caved in,” he stated that either mechanism would cause a compression fracture.

Whether the employment caused an injury is a question of fact to be resolved by the trial court. See Ex parte Valdez, 636 So.2d 401, 404 (Ala.1994); Statewide Painting Co. v. Sharron, 693 So.2d 518 (Ala.Civ.App.1997). On this issue, the trial court made the following findings of fact:

“The Court determines that the injuries to Henry Holt’s back and his L5 compression fracture were caused by the work-related accident that occurred on June 29, 2004....
“The Court is aware that this determination is in conflict with the testimony of Dr. Pirofsky and Dr. Wade, however the Court is not bound by expert testimony, even on medical conditions, especially when the medical doctors are in disagreement regarding the extent and effects of an injury. The Court does not find Dr. Pirofsky’s and Dr. Wade’s testimony persuasive.
“The Court is instead persuaded by the credible and cogent description of the injuries by [Holt] and by the medical records and testimony of Dr. Robert White.”

“Conflict in the evidence as to medical causation is an issue of fact to be resolved by the trial court, not by the appellate courts.” ATEC Assocs., Inc. v. Stewart, 674 So.2d 1296, 1298 (Ala.Civ.App.1995).

The Disability Determination

Section 25-5-57(a)(3)g., Ala. Code 1975, provides, in pertinent part:

“For all... permanent partial disabilities not... enumerated [in the compensation schedule of § 25-5-57(a)], the compensation shall be 66⅜ percent of the difference between the average weekly earnings of the worker at the time of the injury and the average weekly earnings he or she is able to earn in his or her partially disabled condition .... ”

The statute requires that compensation for an unscheduled permanent partial disability be based upon loss of earning capacity. Discovery Zone v. Waters, 753 So.2d 515, 517 (Ala.Civ.App.1999). “Lost earning capacity is not determined by a worker’s loss of actual earnings but by his loss of ability to earn.” Wilde v. Taco Bell Corp., 531 So.2d 918, 919 (Ala.Civ.App.1988) (citing Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978)).

Tenax contends that Holt failed to present substantial evidence that could serve as a basis for the trial court’s finding that Holt suffered a 60% reduction in his earning capacity. It points out that no vocational expert testified to Holt’s loss of ability to earn; that no physician placed any physical restrictions on Holt; that Holt exaggerated his symptoms and failed to exert maximum effort on his FCE; that Holt never attempted to apply for another job after leaving Tenax; and that Holt admitted that he cuts his grass, does light housework, and cares for his four-year-old daughter every afternoon until the child’s mother returns from work.

Assessing the extent of an employee’s disability is within the trial court’s discretion; the trial court’s decision will not be disturbed on appeal if there is evidence to support it. Golden Poultry Co. v. Staggs, 660 So.2d 1348, 1352 (Ala.Civ.App.1995). In reaching its decision, the trial court considers all the evidence, including its own observations, and interprets what it has heard and observed according to its own best judgment. Id. The trial court is able to observe the worker and to judge for itself the extent of his disability. Sprinkle v. Baldwin Pole Leasing, 733 So.2d 444, 445 (Ala.Civ.App.1999).

In determining the extent of loss of earning capacity, the trial court may properly consider “ ‘ “such factors as age, education, past work history, and the effect of the injury on the employee’s earning ability.” ’ G.UB.MK. Constructors v. Traffanstedt, 726 So.2d 704, 708 (Ala.Civ.App.1998) (quoting Paschel v. Emro Mktg. Co., 632 So.2d 971, 973 (Ala.Civ.App.1993)).” Dolgencorp, Inc. v. Hudson, 924 So.2d 727, 734 (Ala.Civ.App.2005). In Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982), this court noted that “[t]he only type work [the employee] had ever performed was manual labor” and that, “[w]ith this back injury, [the] employee’s future as a manual laborer was obviously very limited.” 410 So.2d at 111. We held that evidence of “[t]he employee’s lack of education and vocational training coupled with the medical testimony [of a 20% physical impairment] [was] clearly sufficient evidence to support the trial court’s judgment regarding the employee’s [40%] loss of ability to earn”. Id.

“[W]hile medical testimony as to an employee’s degree of impairment is probative, as is the testimony of a vocational expert, it is well settled that neither is required in order for the trial court to determine an employee’s degree of impairment.” Ex parte Northam, 689 So.2d 854, 857 (Ala.1996). A finding of loss of earning capacity can be made without expert testimony. See Ex parte Ellenburg, 627 So.2d 398 (Ala.1993), in which our supreme court held:

“It is settled law that a trial court in a workers’ compensation case may make a finding of permanent total or partial disability without even receiving expert testimony. Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973); Bankhead Forest Industries, Inc. v. Lovett, 423 So.2d 899 (Ala.Civ.App.1982). The reasoning behind this rule is stated in Stewart v. Busby, quoting 3 Larson, Law of Workmen’s Compensation, § 79.83, as follows:
“ ‘ “In arriving at the rule permitting awards in the absence or even in contradiction of medical testimony, two underlying reasons may be discerned: The first is that lay testimony, including that of claimant himself, is of probative value in establishing such simple matters as the existence and location of pain, the sequence of events leading to the compensable condition, and the actual ability or inability of claimant to perform his work; ...”
“ ‘Clearly, such a determination is not just a medical question, but is a complex concept involving several combinations of questions as to the claimant’s inability to perform his job, and inability to get suitable work.’
51 Ala.App. at 246, 284 So.2d at 273.”

Elleriburg, 627 So.2d at 399.

Moreover, even if expert testimony had been presented, “the trial court [would] not [have been] bound by the opinions of experts, and it [could have] considered] its own observations and the worker’s testimony concerning pain and discomfort in determining the extent of a worker’s disability.” Musgrove Constr., Inc. v. Medley, 912 So.2d 227, 254 (Ala.Civ.App.2003) (opinion on return to remand) (citing Compass Bank v. Glidewell, 685 So.2d 739, 741 (Ala.Civ.App.1996); Jim Walter Res., Inc. v. Budnick, 619 So.2d 926, 927 (Ala.Civ.App.1993); and Alabama Catfish, Inc. v. James, 669 So.2d 917, 919 (Ala.Civ.App.1995)).

Because the trial court accepted Dr. White’s opinion that Holt’s MRI revealed a compression fracture, it had a reason to discount the testimony of the four other physicians who had assigned Holt no impairment rating and had given him no physical restrictions. Accepting Dr. White’s testimony also meant that the trial court had a basis for according little or no weight to the FCE that was determined to be invalid for lack of consistent effort on Holt’s part. Dr. White opined that the FCE had been performed too soon after Holt’s injury and that Holt had not yet reached MMI when the FCE was conducted.

In light of Holt’s prior employment history, which had been limited to manual-labor jobs, Holt’s testimony concerning his pain, and the trial court’s acceptance of Dr. White’s opinion as to the existence of a compression fracture that, Dr. White said, was revealed by Holt’s MRI, we cannot hold that the trial court was not presented with substantial evidence to support its judgment that Holt had suffered a 60% loss of ability to earn.

The judgment of the Conecuh Circuit Court is affirmed.

AFFIRMED.

PITTMAN and MOORE, JJ., concur.

THOMPSON, P.J., and BRYAN, J„ concur in the result, without writing.