author: PARKER, Justice.

text:
    Ex parte State of Alabama. (In re DRUMMOND COMPANY, INC., and Cedrum Land Company, LLP v. ALABAMA DEPARTMENT OF TRANSPORTATION).
    1030447.
    Supreme Court of Alabama.
    Feb. 24, 2006.

      Isaac P. Espy, of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, deputy atty. gen., for petitioner.
    William Anthony Davis III, Philip G. Piggott, and P. Andrew Laird, Jr., of Starnes & Atchison, LLP, Birmingham; and Joseph C. Espy III of Melton, Espy & Williams, Montgomery, for respondent.
   PARKER, Justice.

The State of Alabama petitions this Court for a writ of mandamus directing Judge Charles Price of the Montgomery Circuit Court to dismiss the inverse-condemnation claim of Drummond Company, Inc., and Cedrum Land Company, LLP, against the Alabama Department of Transportation (“ADOT”) based on the constitutional immunity of the State of Alabama from being sued.

I. Background

Drummond Company, Inc., and Cedrum Land Company, LLP, filed an inverse-condemnation action against ADOT, alleging the taking of mineral rights in land parcels acquired to complete the “Corridor X” highway project connecting Birmingham, Alabama, with Memphis, Tennessee. ADOT filed a motion to dismiss the inverse-condemnation action based on the constitutional immunity of the State. See Ala. Const. Art. I, § 14. The circuit court denied the motion, and the State of Alabama filed a petition for a writ of mandamus requesting that this Court direct the trial court to substitute the director of ADOT for AJDOT as the defendant in the litigation.

II. Standard of Review

“A writ of mandamus is a “ ‘drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ”

Ex parte Wood, 852 So.2d 705, 708 (Ala.2002). A petition for a writ of mandamus is the proper vehicle by which to seek review of the denial of a motion to dismiss based on the ground of State immunity:

“The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity. Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002).”

Ex parte Haralson, 853 So.2d 928, 931 n. 2 (Ala.2003).

“In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review.... Under Rule 12(b)(6), Ala. R. Civ. P., a motion to dismiss is proper when it is clear the plaintiff cannot prove any set of circumstances upon which relief can be granted. ‘ “In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether he may possibly prevail.” ’ We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.”

853 So.2d at 981 (citations omitted).

111. Merits

This Court has recognized an inverse-condemnation action as an exception to the doctrine of State immunity:

“There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act, Tit. 7, § 156, et seq., seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, ... 280 Ala. [635] at 639, 197 So.2d 428 [ (1967) ]; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).”

Ex parte Carter, 395 So.2d 65, 68 (Ala.1980) (emphasis added).

As this Court stated in Carter, however, inverse-condemnation actions are to be “brought against State officials in their representative capacity.” This Court has decided cases in which the State or one of its agencies was a party defendant, but those cases did not involve an assertion of a constitutional-immunity defense. In a recent inverse-condemnation case, Alabama Department of Transportation v. Land Energy, Ltd., 886 So.2d 787, 789 n. 1 (Ala.2004), this Court noted:

“At no time did ADOT assert State immunity as a defense at the trial court level. In its principal brief to this Court it states: ‘Though the Director of ADOT is the proper party, this brief maintains the convention used in the pleadings of naming the agency as the party defendant.’ ”

In Engelhardt v. Jenkins, 273 Ala. 352, 354, 141 So.2d 193, 195 (1962), a case in which the State Highway Department condemned the plaintiffs’ property, the Court stated, “no sort of rationale can bring the case within the ban of § 14 of our constitution, prohibiting suits against the State or its agencies,” and allowed the condemnation case to go forward against the director of the State Highway Department.

In this case, in its motion to dismiss before the trial court, ADOT said,

“The proper party in a suit in inverse condemnation is the Director of the Department of Transportation, State of Alabama. D.J. Mclnnes, in his capacity as Director of the Department of Transportation, State of Alabama, submits himself to the jurisdiction of this court for the purpose of answering this lawsuit.”

Although ADOT’s intention in its motion to dismiss may not have been apparent, the State clarified its position in its petition for a writ of mandamus:

“While the defendant State of Alabama moved to dismiss the case, it voluntarily substituted the proper party— the Director. In this posture the plaintiff can get all the relief to which it may be entitled, without offense to the constitution.”

(Petition at 5.) ADOT’s posture before the trial court is correct. Under the proposal to the trial court, the constitution will not be violated and Drummond Company, Inc., and Cedrum Land Company, LLP, will have full opportunity to litigate their case.

TV. Conclusion

The State’s petition for a writ of mandamus is therefore granted, and the Montgomery Circuit Court is hereby ordered to add the director of ADOT as the defendant, to dismiss ADOT as a defendant, and to permit the litigation to proceed accordingly.

PETITION GRANTED; WRIT ISSUED.

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

      . This case was originally assigned to another Justice; it was reassigned to Justice Parker.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Jeffro JONES v. STATE of Alabama.
    1040577.
    Supreme Court of Alabama.
    Feb. 24, 2006.
    Jeffro Jones, pro se.
    Troy King, atty. gen., and P. David Bjurberg and Marc A. Starrett, asst, attys. gen., for appellee.
   LYONS, Justice.

In this proceeding we must resolve a dispute between the Court of Civil Appeals and the Court of Criminal Appeals as to which court is the appropriate appellate forum for this case. The salient facts are set forth in the opinion of the Court of Civil Appeals in Jones v. State, 900 So.2d 1227 (Ala.Civ.App.2004):

“Jeffro Jones (‘the defendant’) was arrested .at his home, pursuant to a search warrant, by officers of the Birmingham Narcotics Unit on October 18, 1996, at which time police officers found, among other things, several marijuana plants, numerous plastic sandwich bags containing marijuana, $19,201 in United States currency, and several firearms. In November 1996, the State of Alabama initiated a civil action in the Jefferson Circuit Court (case number CV-96-6515) seeking a judgment declaring forfeit the currency and firearms found at the time of the defendant’s arrest; the defendant subsequently answered the complaint. The circuit court entered a judgment granting the relief requested by the State in January 1997, and no appeal was taken from that judgment. The defendant was subsequently indicted for the offenses of trafficking in marijuana and failure to affix tax stamps, and criminal proceedings were initiated against the defendant in the Jefferson Circuit Court in case number CC-97-4480; those proceedings resulted in a judgment of conviction entered in August 2000. The defendant’s appeal from that judgment of conviction was affirmed by the Court of Criminal Appeals, without a published opinion. Jones v. State (No. CR-00-0163), 836 So.2d 1002 (Ala.Crim.App.2002) (table).
“On December 18, 2003, the defendant filed, in the criminal proceeding (case number CC-97-4480), a ‘motion for release of seized property and United States currency,’ averring that his property and currency had been unlawfully seized. The trial court entered an order on January 2, 2004, denying the defendant’s motion, and the defendant appeals.”

Jones’s appeal had originally been filed in the Court of Criminal Appeals, and that court transferred the appeal to the Court of Civil Appeals, concluding that Jones’s action was a conversion action under § 6-5-260, Ala.Code 1975 (“The owner of personalty is entitled to possession thereof. Any unlawful deprivation of or interference with such possession is a tort for which an action lies.”). In transferring the appeal, the Court of Criminal Appeals cited Gill v. Burrell, 874 So.2d 1072 (Ala.2003). In Gill, the plaintiff brought a civil claim pursuant to § 6-5-260, seeking return of currency he alleged was taken from him in connection with two separate arrests. The trial court dismissed the claim, and the plaintiff appealed to the Court of Criminal Appeals, which transferred the appeal to the Court of Civil Appeals. This Court approved of the reasoning of the Court of Criminal Appeals, which, in its certificate of transfer, held that, because the appeal involved the dismissal of a civil claim, the appropriate forum for an appeal was the Court of Civil Appeals. This Court further concluded that the Court of Criminal Appeals had correctly distinguished State v. Baker, 703 So.2d 333, 335 (Ala.1997), which held:

“[Bjecause this action arose solely out of a criminal prosecution and because the Court of Civil Appeals has no appellate jurisdiction over criminal matters, that court had no jurisdiction to issue a writ of mandamus ordering the return of property seized in a criminal investigation and introduced as evidence in a criminal trial.”

This Court in Gill observed:

“The reason the Court of Civil Appeals had no subject matter jurisdiction in Baker is that no party in Baker had filed any civil action, see Rules 2 and 3, Ala. R. Civ. P., and Baker, the party seeking relief, had filed only a petition in the Court of Civil Appeals for a writ of mandamus directing a judge who had tried a robbery case to order law enforcement officials to relinquish to Baker certain cash that had been seized in a search and introduced as evidence in the robbery trial, a matter within the exclusive appellate jurisdiction of the Court of Criminal Appeals, see §§ 12-3-9 and 12-8-11, Ala.Code 1975.”

874 So.2d at 1074.

Upon transfer of the instant case from the Court of Criminal Appeals, the Court of Civil Appeals concluded that the nature of the underlying proceeding giving rise to the forfeiture controlled as to whether it had jurisdiction. Stating that “it is the nature of the underlying case, not the nature of the relief requested that determines whether [the Court of Civil Appeals] or the Court of Criminal Appeals is the proper appellate forum,” 900 So.2d at 1229, and concluding that the nature of the underlying case is criminal, the Court of Civil Appeals held that it lacked jurisdiction. In so holding, the Court of Civil Appeals relied upon Baker. The Court of Civil Appeals thereupon transferred the proceeding back to the Court of Criminal Appeals. The Court of Criminal Appeals then requested the Chief Justice to order that the case be transferred to this Court for resolution of the difference of opinion between the Court of Civil Appeals and the Court of Criminal Appeals as to which appellate court had jurisdiction. The Chief Justice entered an order pursuant to § 12-3-14, Ala.Code 1975, designating this case to be transferred to this Court for a final determination of the jurisdictional issue.

The distinguishing feature of Baker, as Justice Johnstone noted in Gill, is the presence in Baker of a petition for a writ of mandamus directed to the trial judge, as opposed to a civil action against a defendant seeking recovery of property. Here, the underlying proceeding arises out of a “Motion for Release” in which Jones seeks an order requiring the State to turn over property seized during his arrest. In this posture, with the State, as opposed to the trial judge, named as the adversary, this proceeding should be treated as a civil action for conversion and is therefore governed by Gill, not Baker. Consequently, the appropriate forum for appellate review is the Court of Civil Appeals.

Having made a final determination as to the appropriate forum for appellate review, we return this proceeding to the Court of Criminal Appeals with instructions that it transfer the case to the Court of Civil Appeals for further proceedings.

REMANDED WITH DIRECTIONS.

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


author: SMITH, Justice.

text:
    James FLOWERS v. Lou POPE.
    1031964.
    Supreme Court of Alabama.
    Feb. 24, 2006.

      Richard L. Watters, Mobile, for appellant.
    C. Robert Gottlieb, Jr., and Sarah B. Dorger of C. Robert Gottlieb, Jr., P.C., Mobile, for appellee.
   SMITH, Justice.

The plaintiff below, James Flowers, appeals from the trial court’s summary judgment in favor of the defendant, Lou Pope, in this action alleging negligence, breach of contract, and fraud. We affirm.

Facts and Procedural History

In the fall of 2002, Pope contacted Terry Gordon, who was in the business of cutting timber, about cutting timber on Pope’s property. Gordon and Pope entered into an oral agreement pursuant to which Gordon would cut timber on Pope’s property and sell the timber to a timber company, and Gordon and Pope would split the proceeds from the sale equally. Pope also agreed to help Gordon with the cutting when he was not working at his regular job and on weekends. Gordon and Pope did not discuss whether Gordon would hire workers to complete the job, but Gordon testified that Pope knew that he would be hiring labor to help with the cutting.

Gordon contacted Flowers to ask him if he would be interested in timber-cutting work. Gordon took Flowers to .multiple properties where Gordon had agreed to cut timber for the property owners. When Gordon took Flowers to Pope’s property, they discussed the work to be completed on that property, what Gordon would pay Flowers for his labor, and insurance coverage.

On January 6, 2003, Gordon and Flowers began cutting timber on Pope’s property. Gordon and Flowers used Pope’s tractor to haul the timber, but Gordon provided chainsaws and other tools necessary for cutting the trees. Flowers was injured while hauling one of the cut trees, when the tractor he was driving flipped over and fell on top of him.

On June 25, 2003, Flowers sued both Pope and Gordon, alleging negligence, breach, of contract, and fraud. On June 10, 2004, Pope filed , a motion for a summary judgment. On July 15, 2004, Flowers amended his complaint to add a claim for negligence under the Employer’s Liability Act, Ala.Code 1975, § 25-6-1 et seq. Flowers also realleged the common-law-negligence claim, breach-of-contract claim, and fraud claim in the amended complaint. On July 26, 2004, Pope filed an amended motion for a summary judgment. The trial court granted Pope’s summary-judgment motion as to all claims asserted against Pope. The trial court also certified that judgment as a final judgment under Rule 54(b) of the Alabama Rules of Civil Procedure. Flowers appealed.

Standard of Review

The standard of review for a summary judgment is as follows:

“ “We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:
“ ‘ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of -material fact. Once a party moving for a summary judgment establishes that no genuine issue of material facts exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.” ’
“American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)).”

General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala.2002).

Analysis .

A. Negligence under the Employer’s Liability Act

Flowers’s first argument on appeal is that the trial court erred in entering a summary judgment for Pope because, he argues, there was substantial evidence indicating that Pope is liable under the Employer’s Liability Act, Ala. Code 1975, § 25-6-1 et seq. More specifically, Flowers argues that a summary judgment was improper because, he says, Pope breached a duty created under the Employer’s Liability Act by failing to provide a safe work environment and safe equipment to use in cutting the trees on his property. Flowers alleges that Pope breached a duty created under § 25 — 6—1(a)(1), which states that an employer is liable to an employee “[w]hen the injury is caused by reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the master or employer.”

In order for one to be held liable under the Employer’s Liability Act, there must be an employer-employee relationship between the defendant and the plaintiff. See Lathan Roof America, Inc. v. Hairston, 828 So.2d 262, 265 (Ala.2002) (stating that proving that the plaintiff is an employee of the defendant is an “essential element of [an] Employer’s Liability Act claim”). Pope argues that he cannot be held liable under the Employer’s Liability Act because, he says, there is no employer-employee relationship between him and Flowers. It is undisputed that Gordon, rather than Pope, hired Flowers to cut timber and that Pope was not involved in the decision to hire Flowers or the actual hiring of Flowers. However, Flowers argues that Pope is liable for his injuries under the Employer’s Liability Act because, he argues, Pope and Gordon entered into a joint venture, the single objective of which was the cutting and selling of the timber on Pope’s property. Therefore, Flowers argues, he is an employee of the joint venture, not just an employee of Gordon’s. The main issue on appeal is whether there was substantial evidence showing that a joint venture existed between Pope and Gordon.

“This Court wrote in Arndt v. City of Birmingham, 547 So.2d 897 (Ala.1989):

“ ‘ “A joint venture is an association of persons with intent, by way of express or implied contract, to engage in and carry out a single business venture for joint profit, for which purpose they combine their efforts, property, money, skill, and knowledge, without creating a partnership or a corporation, pursuant to an agreement that there shall be a community of interest among them as to the purpose of the undertaking, and that each participant shall stand in the relation of principal as well as agent as to each of the other coadventurers, with an equal right of control of the means employed to carry out the common purpose of the venture.”
“‘46 Am.Jur.2d Joint Ventures § 1 (1969). As we stated in Moore v. Merchants & Planters Bank, 434 So.2d 751, 753 (Ala.1983), “while every element is not necessarily present in every case, it is generally agreed that in order to constitute a joint venture, there must be a community of interest and a right to joint control.” (Emphasis added [in Arndt ].)
“ ‘What constitutes a joint venture is a question of law, but whether a joint venture exists has been held to be a question of fact for the jury. 46 Am.Jur.2d Joint Ventures § 7 (1969). Unless the trial court can say that the parties were or were not engaged in a joint venture as a matter of law, the question must be presented to the jury. As between the parties themselves, the relationship of joint ventur-ers is a matter of intent. As to third persons, it is generally the rule that the legal rather than the actual intent of the parties controls. 46 Am.Jur.2d Joint Ventures § 9 (1969). “The burden of establishing the existence of a joint venture is upon the party asserting that the relation exists.” Moore v. Merchants & Planters Bank, 434 So.2d 751, 753 (Ala.1983); Kim v. Chamberlain, 504 So.2d 1213 (Ala.Civ.App.1987).
547 So.2d at 399-400; see Moore v. Merchants & Planters Bank, 434 So.2d 751, 753 (Ala.1983).”

Environmental WasteControl, Inc. v. Browning-Ferris Indus., Inc., 657 So.2d 885, 887-88 (Ala.1995).

“The elements of a joint venture have been held to be: a contribution by the parties of money, property, effort, knowledge, skill, or other assets to a common undertaking; a joint property interest in the subject matter of the venture and a right to mutual control or management of the enterprise; expectation of profits; a right to participate in the profits; and usually, a limitation of the objective to a single undertaking or ad hoc enterprise. While every element is not necessarily present in every case, it is generally agreed that in order to constitute a joint venture, there must be a community of interest and a right to joint control.”

Moore v. Merchants & Planters Bank, 434 So.2d 751, 753 (Ala.1983) (citing 46 Am. Jur.2d Joint Ventures § 12 (1969)).

In Moore, the plaintiff sued to recover for paving work he performed in a subdivision development. Moore, 434 So.2d at 752. The plaintiff alleged the existence of a joint venture between Johnny O’Grady and Tommy Baker, who owned adjoining property in the subdivision development. 434 So.2d at 752-53. The plaintiff sought to prove that Baker and O’Grady had a joint venture in order to enforce against Baker the debt incurred by O’Grady for the paving work. 434 So.2d at 753. The plaintiff argued that because O’Grady and Baker were engaged in a joint venture in developing the subdivision, they were jointly and severally liable for the debt incurred for the paving work. 434 So.2d at 753.

This Court held that the evidence did not support a finding of a joint venture between O’Grady and Baker. Moore, 434 So.2d at 753. First, we held that there was no evidence of a community of interest because O’Grady and Baker separately owned their respective portions of the subdivision development. In addition, O’Grady and Baker both arranged for separate loans to purchase their respective properties, and they kept money received from the loans in separate accounts. When O’Grady sold one of his lots, O’Grady received all of the benefits from the sale and Baker received nothing. Id. Second, this Court held that there was no evidence to show joint control in the development of the subdivision. 434 So.2d at 754. The plaintiff had negotiated and contracted with O’Grady to do the paving work. The plaintiff had not interacted with or contracted with Baker. The plaintiff knew that O’Grady had a reputation as a general contractor, and the plaintiff relied on O’Grady as the general contractor. The plaintiff had also submitted all of his bills to O’Grady. O’Grady had supervised the paving work, and Baker had never supervised any of the work related to the development of the subdivision. The Court held that the evidence indicated that “the relationship between O’Grady and Baker was clearly one of general contractor and owner, rather than that of two joint ventur-ers.” 434 So.2d at 754.

In Underwood v. Holy Name of Jesus Hospital, 289 Ala. 216, 218, 266 So.2d 773, 775 (1972), the plaintiff sued a hospital and a doctor alleging that they were negligent in X-raying and treating her fractured wrist. The doctor had taken the X-rays of the plaintiffs wrist and had failed to identify the fracture. 289 Ala. at 220, 266 So.2d at 777. The plaintiff sought to prove that the doctor and the hospital were engaged in a joint venture so that the negligence of one could be imputed to the other. The plaintiff specifically argued that because the doctor and the hospital split patient fees the doctor and the hospital were engaged in a joint venture. 289 Ala. at 219, 266 So.2d at 775. However, the evidence indicated that the doctor received fees from the patients he treated, even if the hospital operated at a loss. Therefore, this Court held that because there was no evidence indicating that the doctor had “a proprietary interest in the real or personal property involved in the function of [the radiology] department or that the parties had agreed to share in the losses if any occurred!,]” there was not sufficient evidence of the existence of a joint venture between the doctor and the hospital. 289 Ala. at 220, 266 So.2d at 776.

Pope argues that Flowers did not meet his burden of proving that Pope and Gordon were engaged in a joint venture. See Moore, 434 So.2d at 753 (“The burden of establishing the existence of a joint venture is upon the party asserting that the relation exists.”). “[I]t is generally agreed that in order to constitute a joint venture, there must be a community of interest and a right to joint control.” Moore, 434 So.2d at 753. Therefore, to determine whether the summary judgment for Pope was proper, we must first address whether there was substantial evidence of a community of interest and joint control between Gordon and Pope so as to establish the existence of a joint venture.

1. Community of Interest

Flowers argues that he presented substantial evidence of a community of interest between Gordon and Pope by virtue of the undisputed fact that Gordon and Pope agreed to split the proceeds of the sale of the timber equally. Although Gordon and Pope agreed to split the proceeds of the timber sale, the splitting of fees alone is not substantial evidence of a community of interest. See Underwood, 289 Ala. at 220, 266 So.2d at 776 (holding that even though there was evidence of a fee-splitting arrangement between the hospital and the doctor, there was insufficient evidence of a joint venture). The evidence presented by Pope shows that, like the doctor and hospital in Underwood, Gordon and Pope did not have an equal proprietary interest in the sale of the timber. Pope presented evidence indicating that Gordon alone hired Flowers and that Gordon alone paid for Flowers’s services. There is no evidence showing that Pope agreed to pay for laborers such as Flowers to cut the timber. In addition, Pope presented evidence indicating that Gordon alone was in the timber-cutting business and that Gordon had multiple job sites where he was planning to cut timber when Flowers was hired. Like the doctor in Underwood, Pope would receive proceeds from the sale of the timber even if Gordon operated at a loss. Thus, Pope did not undertake the risks or expenses Gordon undertook and, unliké Gordon, could not have lost money on the arrangement. Although Pope and Gordon agreed to split the proceeds of the sale of the timber, Flowers failed to present sufficient evidence to demonstrate that there was a “community of interest” necessary for the existence of a joint venture. See Underwood, 289 Ala. at 220, 266 So.2d at 776.

2. Joint Control

Even if there was a “community of interest” between Flowers and Gordon, however, there is insufficient evidence to show that both Pope and Gordon had a right of joint control over the cutting and selling of timber on Pope’s property. Flowers argues that he presented substantial evidence indicating that both Gordon and Pope exercised joint control over the cutting of trees on Pope’s property. Flowers states that it is undisputed that Pope allowed Gordon to use his tractor for the job and that Pope told Gordon to “be careful” when using the tractor. In addition, Flowers also states that it is also undisputed that Pope directed Gordon to cut specific trees on the property and that Pope offered to help Gordon on the weekends or when he was not working at his regular job. However, these actions by Pope do not amount to substantial evidence indicating that both Gordon and Pope had a right to control the job of cutting and hauling the trees on Pope’s property.

On the contrary, Pope presented substantial evidence indicating that he did not have a right to joint control with Gordon over the operation. Pope presented the following evidence in support of his motion for a summary judgment: Gordon was in the timber-cutting business; Pope did not have expertise or knowledge related to cutting and selling timber and he was not in the timber business; Gordon controlled the hiring of labor for the timber-cutting work on Pope’s property; Pope was not involved with Gordon’s decision to contract with Flowers for employment; Pope never met Flowers until after Flowers’s injury; Gordon alone negotiated with Flowers as to the amount he would be paid and Gordon paid Flowers; with the exception of the tractor, Gordon provided all of the material necessary to complete the job of cutting and hauling the trees on Pope’s property; Gordon alone supervised the cutting and hauling of the timber on Pope’s property; Pope was not present on his property when the work was being completed; and Gordon contacted timber companies to obtain information about timber prices, and he alone dealt with the timber companies to negotiate a sales price.

Like Baker in Moore, Pope had no involvement with Gordon’s decision to contract with Flowers for employment, and, like Baker, Pope had no direct involvement in the day-to-day operations related to the cutting and hauling of the timber. Pope argues that the evidence shows that only Gordon had the right to hire and fire workers to cut and haul timber on Pope’s property. Flowers did not present any evidence showing that Pope had the right to control whom Gordon hired to help with the job. Flowers did not present any evidence to show that Pope had the right to fire Flowers. In addition, like the general contractor in Moore, Gordon alone supervised the cutting of the timber on Pope’s property and ran the day-to-day operations related to the cutting and hauling of trees on Pope’s property. Pope testified that he “left it up to Terry Gordon regarding how to cut down the pine trees and how to pull the logs.” Flowers has not presented any evidence showing that Pope had either the legal or actual right to control any of the work. Instead, Pope presented substantial evidence that there was no right of joint control of the timber-cutting operation.

In his reply brief, Flowers argues that the facts of Kim v. Chamberlain, 504 So.2d 1213 (Ala.Civ.App.1987), support his argument that Pope and Gordon were engaged in a joint venture. In Kim, the plaintiff brought his vehicle to a body shop to have it repainted. The owner of the building, Kim, rented the building to the general manager of the body shop, Caire. In addition, Kim’s son worked with Caire at the body shop. The plaintiff met with Caire and Kim’s son and was given an estimate for the painting job. After the vehicle was painted, the plaintiff sued Caire and Kim, alleging that the vehicle was not painted in a workmanlike manner and that the vehicle had been damaged while it was at the body shop. 504 So.2d at 1214. The trial court found that Caire, Kim, and Kim’s son were joint venturers with regard to the painting of the plaintiffs vehicle. 504 So.2d at 1213. Kim appealed, arguing that there was not substantial evidence indicating that a joint venture existed among the three.

The Court of Civil Appeals held that there was sufficient evidence of a community of interest to support the finding of a joint venture because the evidence demonstrated that Caire paid Kim rent by giving him 50% of what he earned from customers in the body shop. 504 So.2d at 1214-15. The evidence also demonstrated that Caire and Kim split the proceeds paid by the plaintiff equally. 504 So.2d at 1215. The Court of Civil Appeals likewise held that there was substantial evidence of joint control. Id. Testimony showed that “Caire and [Kim] were in business together and shared equally in the profits, and that Caire had to obtain the approval for work on each vehicle and its price from the Kims.” 504 So.2d at 1214. The court held:

“Through his son, [Kim] inspected the plaintiffs van and concurred in the price to be charged for painting it. [Kim] accepted the plaintiffs $500 check, apparently inserted his name as the payee thereof, and endorsed the check. Evi-dentially, Caire and [Kim] shared in the proceeds from the check, for they were to equally divide painting receipts. Joint control was exercised by Caire and by [Kim], who acted through his son.”

504 So.2d at 1215.

As was the case in Kim, Gordon and Pope agreed to split the proceeds from the sale of the timber. However, the similarities between the facts of this case and the facts of Kim end there. In Kim, there was evidence indicating that Caire had to obtain approval from the Kims before beginning work on every vehicle and that he had to obtain the Kims’ approval as to the price charged for the work. In contrast, there is no evidence indicating that Gordon had to obtain Pope’s approval for cutting or hauling the timber in a specific manner. In addition, there is no evidence indicating that Gordon had to obtain Pope’s approval before selling the timber to a timber company for a certain price. Rather, the evidence shows that Gordon had complete control over the methods used in cutting and hauling the timber and that Gordon had control over negotiating a sales price with the timber company.

We hold that Flowers failed to meet his burden of presenting substantial evidence that Pope and Gordon had entered into a joint venture; therefore, the trial court did not err in entering a summary judgment for Pope because ‘ Pope cannot be held liable under the Employer’s Liability Act under a joint-venture theory.

B. Commortr-Law-Negligence Claim

In his complaint, Flowers alleged a common-law-negligence claim against Pope in addition to the negligence claim alleged under the Employer’s Liability Act. Although Pope devotes a portion of his brief to addressing the common-law-negligence claim brought against him, Flowers does not argue on appeal that the trial court erred in entering a summary judgment for Pope as to this claim. Therefore, there is no need to address this issue on appeal. See Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1167 (Ala.2003) (“Issues not argued in a party’s brief are waived.” (citing Bogle v. Scheer, 512 So.2d 1336, 1337 (Ala.1987))).

C. Breachr-of-Contract Claim

Flowers argues on appeal that the trial court erred in entering a summary judgment for Pope on the breach-of-contract claim because, he says, Pope failed to present substantial evidence at the summary-judgment stage to negate any of the elements of a breach of contract. In his complaint and amended complaint, Flowers alleges that a contract was formed between Gordon and Flowers and that Gordon breached this contract. Flowers alleges that he and Gordon made an agreement that if Flowers performed work on Pope’s property and was injured while performing that work, Gordon “would file a claim on his insurance to cover any injury to the plaintiff.” Flowers alleges in his complaint that Gordon breached this agreement because Gordon did not file a claim on Flowers’s behalf, and, therefore, Flowers had to pay for his own medical expenses. We hold that the trial court did not err in entering a summary judgment for Pope as to the breach-of-contract claim because Flowers never alleges in the complaint that a contract existed between Flowers and Pope or that, if one did, Pope breached it. Even if we construed the complaint to allege that Gordon’s breach of contract is imputed to Pope because of the alleged joint venture that existed, the trial court properly entered a summary judgment for Pope because Flowers failed to meet his burden of proving that a joint venture existed between Gordon and Pope.

Conclusion

The trial court’s summary judgment in favor of Pope is affirmed.

AFFIRMED. .

■ NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . On appeal, Flowers does not argue that the trial court erred in entering a summary judgment for Pope as to the fraud claim. Therefore, this argument has been waived. See Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1167 (Ala.2003) ("Issues not argued in a party's brief are waived.”).

      . Flowers argues that because Gordon and Pope were engaged in a joint venture, Gordon's negligence can be imputed to Pope. See Underwood v. Holy Name of Jesus Hosp., 289 Ala. 216, 220, 266 So.2d 773, 776 (1972) ("[T]he negligence of one participant in the joint venture or enterprise may be imputed to another participant so as to render the latter liable for an injury sustained by a third person as a result of the negligence.... We have held that each joint adventurer is liable to contribute ratably for the losses resulting from the adventure....”).

      . Pope argues in his brief that there was not substantial evidence to show that Pope was Flowers's employer because, he says, there was insufficient evidence of the "factors” necessary for an employment relationship to exist. Pope cites Lathan Roof America, Inc. v. Hairston, 828 So.2d at 265, which states that this Court considers a number of factors when determining whether an employment relationship exists. This Court noted that "[ojbviously, one of the most important factors is whether there is evidence of an offer of employment and an acceptance of that offer. Another important factor is ‘the degree of control the alleged [employer] retains over the alleged [employee].' " 828 So.2d at 265 (quoting Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635, 639 (Ala.1992)). “Other factors include 'the method by which one receives payment, the furnishing of equipment, ... and whether one had the right to terminate the employment of the worker.’ ” Lathan Roof America, 828 So.2d at 266 (quoting Boyd v. Hinkle Roofing & Sheet Metal, Inc., 596 So.2d 947, 949 (Ala.Civ.App.1992)).
      In contrast to the arguments made by the plaintiff in Lathan Roof America, Flowers does not argue on appeal that there was a "direct” employment relationship between him and Pope. Rather, Flowers argues that an employment relationship was created as a result of the alleged joint venture between Pope and Gordon. Therefore, it is unnecessary to address Pope's argument that Flowers failed to present substantial evidence of a "direct” employment relationship.
      Pope also argues that there was no substantial evidence that Flowers was an employee under the “borrowed-servant” doctrine or the "special employer” doctrine. (See Pope's brief, pp. 14-18.) However, Flowers does not argue on appeal that he was a "borrowed-servant.” See Defoor v. Evesque, 694 So.2d 1302, 1304 (Ala.1997) ("An employee may, however, be transferred from his general employer to a 'borrower' with respect to particular work to be done for that borrower and thus can subject the borrower to liability for certain of the employee’s acts.”). Flowers also does not argue on appeal that Pope is a "special employer.” See Innisfree Corp. v. Estate of Jourdan, 867 So.2d 348, 352 (Ala.Civ.App.2003) (describing special employers as "' "individuals or businesses who, for practical purposes, may be considered primary or co-employers of the injured employee” ’ " (quoting Gaut v. Medrano, 630 So.2d 362, 364 (Ala.1993), quoting in turn Rhodes v. Alabama Power Co., 599 So.2d 27, 28 (Ala.1992))). Therefore, it is also unnecessary to address Pope’s argument that Flowers failed to present substantial evidence indicating that he was a borrowed servant.
      In fact, Flowers argues on appeal that an employment relationship existed between him and Pope only because of the existence of a joint venture between Gordon and Pope.


author:
PARKER, Justice.
     LYONS, Justice

text:
    Kristi CONNELL v. CALL-A-CAB, INC., d/b/a AAA Cab Company.
    1031731.
    Supreme Court of Alabama.
    Feb. 24, 2006.
    . W. Terry Bullard, Dothan, for appellant.
    D. Lewis Terry, Jr., of Jackson, Rhodes, Sherrer & Terry, P.C., Dothan, for appel-lee.
   PARKER, Justice.

■ This is an appeal from the Houston Circuit Court, which entered a summary judgment for defendant Call-A-Cab, Inc., d/b/a AAA. Cab Company (“AAA”), reasoning that “an employer is not liable for the sexual misconduct of its employee even in a common carrier case involving a taxi.” Because the trial court's judgment overlooks Alabama’s long-standing tradition of holding common carriers liable for assaults on their passengers, we reverse and remand.

I.Case History

The facts, as alleged by Kristi Connell, the plaintiff below, are as follows: In December 2003, Connell telephoned AAA and requested transport by taxi to her place of employment. Anthony Hamlin, a driver for AAA, was dispatched to transport Con-nell. After picking Connell up, instead of proceeding to her place of employment, Hamlin transported her to a side road where he allegedly sexually assaulted her. Hamlin was subsequently arrested and charged with sodomy. Connell sued AAA and Hamlin, alleging as to both assault, the tort of outrage, and trespass to her person. She further claimed damages from AAA based on AAA’s alleged negligent employment of Hamlin.

AAA filed a motion for a summary judgment, which the trial court granted after a hearing. The handwritten summary-judgment entry reads simply:

“6/25/04 Defs Motion for Summary J/M is granted on the premise that an employer is not liable for the sexual misconduct of its employee even in a common carrier case involving a taxi.”

The trial court certified the summary judgment for AAA as final pursuant to Rule 54(b), Ala. R. Civ. P. Connell appealed.

II.Standard of Review

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (quoting Rule 56(c)(3), Ala. R. Civ. P.). If the movant makes that showing, the burden then shifts to the nonmov-ant to present substantial evidence creating a genuine issue of material fact.

“In determining whether the nonmovant has created a genuine issue of material fact, we apply the ‘substantial-evidence rule’ — evidence, to create a genuine issue of material fact, must be ‘substantial’ § 12-21-12(a), Ala.Code 1975. ‘Substantial evidence’ is defined as ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). A court deciding a summary-judgment motion “must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party.” Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

The standard this Court applies in reviewing a summary judgment is the same standard the trial court applied in deciding the motion for a summary judgment. “We review a summary judgment de novo.” Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

III.Legal Analysis

AAA argues in support of the summary judgment that Hamlin was not its employee but was an independent contractor. Whether Hamlin was an employee and, if so, whether he was acting in the scope of his employment at the time of the alleged assault are issues that need not be addressed, because of the high duty a common carrier owes its passengers: “ ‘The duty which a carrier owes to a female passenger to protect her from indecent assaults by its servants cannot be frittered away by questions of whether the servants were acting within the scope of their authority.’ ” Birmingham Ry., Light & Power Co. v. Parker, 161 Ala. 248, 250, 50 So. 55, 55-56 (1909) (quoting from Hutchinson on Carriers §§ 982 and 1101).

Although an employer is generally not liable for the intentional torts of its employees or agents, an exception to this general rule exists for common carriers. Section 37-3~19(a), Ala.Code 1975, provides:

“It shall be the duty of every common carrier of passengers by motor vehicle to establish and provide safe and adequate service, equipment and facilities for the intrastate transportation of passengers in the State of Alabama....”

Decatur Transit v. Jennings, 253 Ala. 322, 325, 45 So.2d 13, 15 (1950), makes clear that taxicabs are common carriers: “[T]he taxicab, a public carrier, owe[s] a high degree of care to its passengers.” This higher, nearly absolute, responsibility placed on common carriers to ensure the safety of their passengers goes back at least to 1869, when this Court noted:

“A. common carrier is one who undertakes, for hire, to transport from place to place the goods of such persons as choose to employ him.... They are public agents, and for reasons peculiar to the important trusts which their employment involves, they are properly held to the most stringent responsibility.”

Selma & Meridian R.R. v. Butts & Foster, 43 Ala. 385, 388 (1869).

Birmingham Railway & Electric Co. v. Baird, 130 Ala. 334, 30 So. 456 (1901), involved a train conductor who had assaulted a passenger. The railroad, like AAA in this case, argued that it was not liable for the intentional tort of its employee. But this Court held:

“[A]s between the carrier and its passengers an entirely different rule prevails. As to them the contract of carriage imposes upon the carrier the duty not only to carry safely and expeditiously between the termini of the route embraced in the contract, but also the duty to conserve by every reasonable means their convenience, qomfort and peace throughout the journey. And this same duty is, of course, upon the carrier’s agents: They are under the duty of protecting each passenger from avoidable .discomfort, and from insult, from indignities, and from personal violence. And it is not material whence the disturbance of the passenger’s peace and comfort and personal security or safety comes or is threatened. It may be from another passenger, or from a trespasser or other stranger, or from another servant of the carrier, or, a fortiori, from the particular servant upon whom the duty of protection particularly rests. In all such cases the carrier is liable in damages to the injured passenger. And it is of no consequence when the wrong is committed by the carrier’s own servant, even that servant particularly charged with the duty of conserving the passenger’s well-being en route, that the act bears no connection or relation with or to the duties of such servant to the carrier and is not committed as an incident to the discharge of any duty; but is utterly violative of all duty and apart and away from the scope of employment as that term is understood in the class of cases first above referred to: The carrier is liable in such cases because the act is violative of the duty it owes through the servant to the passenger and not upon the idea that the act is incident to a duty within the scope of the servant’s employment; and it is manifestly immaterial that the act may have been one of private retribution on the part of the servant, actuated by personal malice toward the passenger, and having no attribute of service to the carrier in it.”

130 Ala. at 343-44, 30 So. at 459-60. The Baird Court quoted approvingly from 4 Elliott on Railroads § 1638:

“ ‘There is much apparent conflict among the authorities upon this subject, but we think some of it is due to the use of the term “scope of employment,” or “line of duty,” in a different sense in different cases, or to a failure to place the decision on the correct ground. It is not merely a question of negligence in such cases, nor is it a question strictly depending upon the scope of the servant’s particular employment. It is a question of the absolute duty of a railroad company to its passengers as long as that relation subsists, and a breach of that duty on its part, whether caused by the willful act of an employee or not.... Either the company or the passengers must take the risk of infirmities of temper, maliciousness, and misconduct of the employees whom the company has placed upon the train, and to whom it has committed the discharge of its duty to protect and look after the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is, therefore, but just to make the company, rather than the passengers, take this risk, and to hold it responsible.’ ”

130 Ala. at 349, 30 So. at 461.

A similar holding is found in Birmingham Railway & Electric Co. v. Mason, 137 Ala. 342, 34 So. 207 (1902). Likewise, in Southern Railroad Co. v. Nelson, 148 Ala. 88, 41 So. 1006 (1906), this Court held that the common carrier must protect its passengers not only against the violence and insults of strangers and other passengers, but also against the violence and insults of the common carrier’s own servants.

In Nashville, Chattanooga & St. Louis Railway v. Crosby, 183 Ala. 237, 62 So. 889 (1913), this Court ruled:

“When the injurious disturbance of the passenger is by the act of the carrier [’]s own servant while he is engaged in its service, and to whom is committed some part of its duty with respect to the custody and safe carriage of its passengers, the carrier’s liability is not grounded on the theory of negligence nor upon the assumption that the act is within the scope of the servant’s authority or within the line of his employment, but rather upon the theory of the breach of an absolute duty resting on the carrier to see that its passengers are not injured by the servants to whose care or custody they have been committed or exposed.”

183 Ala. at 247, 62 So. at 893. The Court also said that “the carrier’s liability for failure to protect from the misconduct of others than its own servants arises only when the wrong is actually foreseen or is of such a character and perpetrated under such circumstances as that it might reasonably have been anticipated or naturally expected to occur.” 183 Ala. at 245, 62 So. at 892 (emphasis added). The synthesis of the holdings of these cases is that the carrier owes a very high duty of care to protect its passengers from injuries by other passengers or strangers, and an even higher, nearly absolute, duty to protect its passengers from injuries by its own servants.

This means the law “requires of [common carriers] the employment of very careful and prudent servants, and of these servants that degree of diligence which very careful and prudent persons take of their own affairs; but infallibility is not expected.” Central of Georgia R.R. v. Robertson, 203 Ala. 358, 361, 83 So. 102, 105 (1919). Thus, the carrier .may escape liability only' for those injuries to its passengers that are inevitable or unavoidable, such as an unforeseeable avalanche, or that do not involve the slightest degree of negligence by the carrier.

Moreover, the duty imposed on common carriers may not be avoided through the common carriers’ use of independent contractors. As this Court stated in Dixie Stage Lines v. Anderson, 222 Ala. 673, 675, 134 So. 23, 24 (1931):

“[A] person is responsible for the manner of the performance of his non-dele-gable duties, though done by an independent contractor, and therefore, that one who by his contract or by law is due certain obligations to another cannot divest himself of liability for a negligent performance by reason of the employment of such contractor. Montgomery Gas[-]Light Co. v. M. & E. Ry. Co., 86 Ala. 372, 5 So. 735 [(1898)]; Mayor, etc., of Birmingham v. McCary, 84 Ala. 469, 4 So. 630 [ (1888) ]; Western Ry. of Ala. v. Turrentine, 197 Ala. 603, 73 So. 40 [ (1916) ]; Baker v. A[tlanta] B. & A. Ry. Co., 163 Ala. 101, 49 So. 751 [ (1909) ]; Southern Ry. Co. v. Lewis, 165 Ala. 555, 51 So. 746, 138 Am. St. Rep. 77 [ (1910) ]; 39 Cyc. 1339; Annotation 29 A.L.R. 737, et seq.; 23 A.L.R. 985, et seq.; Republic, etc. v. Barter, 218 Ala. 369, 118 So. 749 [ (1928) ].
“In this case, if defendant was engaged to transport a party of students on a trip, the law imposed a duty on it to see that it was not done in a negligent manner so as to injure any of them. The defendant could not relieve itself of the responsibility for that duty by engaging the services of a contractor. The duty was to be performed by motorbus service, and the fact that defendant engaged by independent contract one of the busses, in the negligent operation of which plaintiff was injured, did not relieve defendant from liability to plaintiff.
“In some of the cases it is said to be a non-delegable duty; in others it is said that, though defendant by his contract may have imposed upon his contractor the duty, the relation between defendant and plaintiff was not changed, and defendant is liable to plaintiff as though the contractor were the agent or servant of defendant.”

In this case, Connell contacted AAA, not Hamlin, and requested transportation, which AAA agreed to provide. In so providing transportation, AAA assumed a duty to Connell, which AAA retained regardless of whether Hamlin is considered an employee or an independent contractor.

TV. Conclusion

AAA had a very high duty to protect Connell from assault by Hamlin, its driver. There is a genuine issue of material fact as to whether AAA breached that duty. Because a genuine issue of material fact exists, summary judgment for AAA was inappropriate. The judgment of the trial court is therefore reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HARWOOD, J., concurs.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, and BOLIN, JJ., concur in the result.

LYONS, Justice

(concurring in the result).

The main opinion correctly concludes that summary judgment in favor of CallA-Cab, Inc., d/b/a AAA Cab Company (“AAA”) on the' issue of its liability for an alleged sexual assault by Anthony Hamlin, a driver of one of its taxicabs, perpetrated against Kristi Connell, one of his passengers, is due to be reversed.

Connell points out that under § 37-3-19(a), Ala.Code 1975, “[i]t shall be the duty of every common carrier of passengers by motor vehicle to establish and provide safe and adequate service....” AAA does not dispute the applicability here of this Code section. The main opinion deems it applicable as a matter of law, citing authority unrelated to the statutory treatment of common carriers. Because the term “common carrier” has a specialized meaning in Chapter 3 of Title 37, Ala.Code 1975, I treat § 37-3-19(a) as applicable only for the purposes of this appeal. Connell also relies upon Birmingham Railway, Light & Power Co. v. Parker, 161 Ala. 248, 250, 50 So. 55, 55-56 (1909), in which this Court held:

‘“The contract of carriage as to female passengers embraces an implied stipulation that the carrier will protect them against general obscenity, immodest conduct, or wanton approach.’ And again: ‘The duty which a carrier owes to a female passenger to protect her from indecent assaults by its servants cannot be frittered away by questions of whether the servants were acting within the scope of their authority.’

(Quoting Hutchinson on Carriers, §§ 982, 1101; emphasis added.) That principle is applicable to a taxicab. Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 294, 169 So.2d 314, 316 (1964) (“As to the Mobile Cab and Baggage Company, the evidence must also be weighed in the light of the rule which applies to the degree of care imposed by law on common carriers of passengers for hire.”). See also Tinkham v. Groveport-Madison Local School Dist., 77 Ohio App.3d 242, 249, 602 N.E.2d 256, 260 (1991), wherein a taxicab company was held liable for the sexual assault of a minor by one of its drivers, and in which the court held that the “employment status of [the driver was] not determinative of [the company’s] liability as a common carrier for the breach of a nondelegable duty by a driver of one of its taxicabs.”

Therefore, regardless of whether Hamlin was an employee or an independent contractor, AAA owed Connell a nondele-gable duty and, upon a finding of a breach of that duty by Hamlin, is liable for Hamlin’s intentional conduct. The main opinion states: “There is a genuine issue of material fact as to whether AAA breached that duty.” 937 So.2d at 75. I agree with that conclusion; AAA has not conceded that the assault in fact occurred.

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

      . This case was originally assigned to another Justice; it was reassigned tó Justice Parker.

      . See § 37-3-2(3), Ala.Code 1975 (defining “[cjornmon carrier by motor vehicle” as ”[a]ny person who or which undertakes ... to transport passengers or property or any class or classes of property for the general public in the State of Alabama by motor vehicle for compensation....”). But see §37-3-2(6), Ala.Code 1975 (defining "[c]ontract carrier by motor vehicle” as "[a]ny person not included under subdivision (3), who or which under a special or individual contract or agreement, under special or individual contracts or special or individual agreements ... transports passengers or property by motor vehicle for compensation in this state”); § 37-3-4(a) (l)b. (exempting from the requirements of Chapter 3 of Title 37 ”[m]otor vehicles for hire while operating wholly within the limits of a city or incorporated town or within the police jurisdiction thereof, or between two or more incorporated towns or cities whose city limits join or are contiguous or whose police jurisdictions join or are contiguous”).


author: CRAWLEY, Presiding Judge.

text:
    R.P. and J.T.P. III v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2041039.
    Court of Civil Appeals of Alabama.
    Feb. 3, 2006.
    Wendy Ghee Draper of Ghee & Draper, Anniston, for appellants.

      Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth L. Hendrix, asst, attys. gen., Department of Human Resources, for appellee.
   CRAWLEY, Presiding Judge.

In July 2002, the Calhoun County Department of Human Resources (“DHR”) received a child-neglect report indicating that A.P. and J.T.P. IV were living in filth and that their mother, R.P. (“the mother”), was pregnant and drank alcoholic beverages. DHR sent Shirley Jennings to investigate the report. According to Jennings, the conditions at the house where the children were living were unsanitary and unsafe. The house was home to the children, the mother, J.T.P. III (“the father”), the father’s mother, the father’s brother, and another unrelated adult. The floors of the house were littered with trash, empty beverage containers, and cigarette butts. Both of the children, who were two and a half years old and one year old, respectively, were dirty and were wearing a shirt for a diaper with a plastic discount-store bag over it. The shirts were saturated with urine. The children had an odor, and they were infested with head lice so badly that the lice could be seen crawling in their hair. DHR removed the children that day and placed them in foster care. When the parents’ third child, N.P., was born on October 28, 2002, DHR did not immediately remove him from the home. He remained with the parents until September 2004, when he was removed because he had head lice.

DHR began providing services to the family in 2002, after the first two children were removed; primarily, DHR focused on teaching daily living skills, parenting skills, and personal hygiene. DHR also required that the father secure and maintain employment and that the parents find a home of their own as soon as they were able. The parents had visits from in-home workers who assisted the mother with learning the skills to keep a clean and orderly home and with understanding why she needed those skills. After several moves necessitated by the parents’ financial instability, the parents finally settled into a home of their own. The father attempted a few employment ventures with little success; he eventually became employed by a steel manufacturer, and he had maintained that employment for nearly two years at the time of trial. He works 12-hour shifts 6 days a week; his shifts are from 3:00 p.m. to 3:00 a.m. The mother is not employed.

For a time, the parents had unsupervised visitation with the children on weekends. They also received an extended visit over the Christmas holiday weekend in 2004. The children returned from the visit with head lice; apparently certain extended family members who had head lice visited the parents and children during the holiday. DHR filed petitions to terminate the parents’ parental rights in February 2005; however, those petitions were placed on the administrative docket at DHR’s request.

The children were returned to the parents on April 27, 2005, in a “last-ditch” effort to reunite the family. On May 2, 2005, the guardian ad litem for the children made an unannounced visit to the family’s home in the early evening, around dinner time. According to the guardian ad litem, the house was “in bad shape,” with dried food and pots and pans littering the kitchen, crumbs on the floor in the house where the children had eaten snacks like cookies, and dirty diapers on the floor. She also reported that the children were dirty and that the younger children’s diapers needed changing. The guardian ad litem surveyed the entire house, noting that the parents’ room was “chaos,” with clothing strewn everywhere and in such a way as to make it impossible to determine clean items from dirty ones. She moved to have the children removed from the home again; the juvenile court granted -her motion on May 10, 2005, without a hearing and ordered DHR to remove the children. DHR moved to set aside the juvenile court’s order; the juvenile court denied that motion. The parents also moved to set aside the juvenile court’s removal order; the record does not reflect whether the juvenile court addressed that motion. On June 6, 2005, DHR filed a certificate of readiness in which it requested that the pending petitions for termination of the parental rights of both parents be moved from the . administrative docket to the active docket and be set for trial.

•At the trial, the testimony revealed that the parents had had the most difficulty in keeping a clean house. DHR caseworkers and DHR contract workers from other agencies like Family Values and Family Options provided in-home services to assist the mother in learning to maintain her house; however, all of those workers indicated that the mother did not seem interested in keeping the house clean and that the mother could perform tasks if instructed to do them and reminded to perform them. Notably, at least three workers testified that if S.G., the children’s maternal grandmother, was present, the house was appropriately clean and the children were suitably dressed and clean.

In addition to the aforementioned head-lice problems, which the parents appeared to have under control in their own home, the parents had had an insect-infestation problem at each place they had lived. The testimony revealed that, at times, the insects were nesting under the tray of the youngest child’s high chair, which was being used. Most of the workers testified that the mother’s proclivity to leave food out and her lack of housekeeping skills contributed to the infestations.

Angela Davis, an independent counselor at Counseling Associates, provided counseling to the parents two times during the pendency of the case. She first counseled the family when the children first came into foster care in 2002, when Davis was working with another counseling agency. At that time, Davis addressed with the parents the issues of adequate housing, stable employment, and having enough food in the house for the children. She said that the father did get a job and that the parents moved into their own home during that first counseling relationship. In 2004, Davis began counseling the parents for a second time. She said that she addressed job maintenance, the continued need to maintain adequate housing, parenting skills, and personal-hygiene issues during the second counseling relationship. She testified that the skills she had addressed in 2002 had not been adequately applied, but she noted that she saw improvement once the second counseling relationship began. Davis noted that the parents’ decision-making skills are poor, especially in regard to the mother’s choice to spend a significant sum of the parties’ income-tax refund on the purchase of a dog. Davis also commented that the parents often appeared to have “rolled out of bed” to get to the counseling appointments. According to Davis, the parents would likely not be able to maintain a clean house without someone present consistently to guide the mother to the tasks that needed to be done.

Other workers who assisted the parents also voiced their opinion or concern that the mother would need help maintaining a clean house. At least one worker indicated that she was not certain that the mother had the ability to learn what needed to be done and to apply it on her own without assistance.

The mother’s psychological evaluation revealed that she had limited cognitive abilities; Dr. Samuel Fleming described her as having borderline to low average intelligence. The mother’s possible diagnoses, based on her personality testing, included borderline personality disorder and schizoaffective disorder. Dr. Fleming noted that people with the mother’s personality profile tend to be seen as indecisive, perplexed, and even hostile and irritable. Notably, Dr. Fleming commented that the mother was likely distrac-tible, would “disorganize” under stress, and would perform only fairly at achieving goals set for her. Dr. Fleming recommended that the mother seek mental-health counseling. The mother did seek counseling as recommended, but when she reported to the father that she would need several six- to eight-hour sessions at $15.00 per hour, he told her that they could not afford the counseling. Although DHR presented evidence indicating that the mother was incorrect about being required to attend six- to eight-hour counseling sessions, the father testified that he had called the mental-health center and was told that the mother would need to be observed more than once for an extended period of time. According to the father, he could not see how he could afford to pay $5.00 more than he earned per hour for six to eight hours of mental-health counseling. The father indicated a willingness to support mental-health counseling for the mother if it was affordable or if they were to receive assistance with the cost. He also noted that he needed assistance with transporting the mother to and from counseling, because he needed to sleep some during the day and the mother did not have a drivers’ license. DHR did not indicate that it had offered transportation or financial assistance to the mother in an effort to get her the mental-health counseling it desired her to receive.

“The right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution. Pursuant to this right, Alabama courts recognize a presumption that parental custody will be in the best interests of a child. This prima facie right of a parent to custody of his or her child can only be overcome by clear and convincing evidence that permanent removal from the parent’s custody would be in the child’s best interests, but the primary consideration in any proceeding to terminate parental rights is always the best interests and welfare of the child. In making that determination, the court must consider whether the parent is physically, financially, and mentally able to care for the child. If the court finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child, his or her parental rights can then be terminated, pursuant to § 26-18-7(a), Ala.Code 1975,

Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988) (citations omitted).

A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990). As the supreme court has explained, “[f]irst, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7.” Ex parte Beasley, 564 So.2d at 954. In those cases where the state (or any other nonparent) is a petitioning party, the petitioner must also show that the child is dependent. Id. After the court has determined that grounds for termination exist, “the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered.” Id.; see D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 85-95 (Ala.Civ.App.2003) (discussing the application of the “viable alternative” prong of the Ex parte Beasley test).

The statutory grounds upon which a juvenile court may terminate parental rights are set out in Ala.Code 1975, § 26-18-7. In part, the statute provides that termination of parental rights is an option when “the parents of [the] child are unable or unwilling to discharge their responsibilities to and for the child ... and such conduct or condition is unlikely to change in the foreseeable future.” Ala.Code 1975, § 26-18-7(a). A juvenile court’s decision to terminate parental rights that is based on evidence presented ore tenus is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995).

A court may terminate parental rights when “the parents of [the] child are unable or unwilling to discharge their responsibilities to and for the child ... and such conduct or condition is unlikely to change in the foreseeable future.” Ala.Code 1975, § 26-18-7(a). Sections 26-18-7(a)(l)-(6) and (b)(l)-(4) list factors a juvenile court must consider in making the difficult decision to terminate parental rights. Among those factors are that efforts by DHR to rehabilitate the parents have failed, § 26-18-7(a)(6), and, when the child is no longer in the custody of the parents, the “[l]ack of effort by the parent[s] to adjust [their] circumstances to meet the needs of the child in accordance with agreements reached ... with [DHR].” § 26-18-7(b)(4).

The mother and the father do not argue that DHR did not establish grounds for termination. Instead, they argue that DHR failed to prove that there existed .no viable alternatives to termination in the present case. They argue that the children’s maternal grandmother was a viable alternative in the present case and that DHR failed to pursue a home study to determine if she could assume custody of the children. In addition, during the maternal grandmother’s testimony, she offered to assist the mother on a daily basis if the children were allowed to remain in the parents’ custody. We have held that DHR has a duty to investigate the current circumstances of possible relative resources, V.M. v. State Department of Human Resources, 710 So.2d 915, 921 (Ala.Civ.App.1998), and we also noted in V.M. that “the grandmother’s availability and willingness to help provided another viable alternative to termination.”

The parents point out that on May 12, 2005, DHR filed a motion to set aside the juvenile court’s order requiring that the children be removed from the parents’ custody. The parents also filed a motion to set aside the juvenile court’s order. As an exhibit to the parents’ motion, they attached a letter dated May 9, 2005, from Larry Shirley, a caseworker assigned to the case, in which he explained that the parents had cleaned up their house after the May 2 visit from the guardian ad litem and that they had made a plan for keeping the house clean with the assistance of the Family Options and Family Values in-home counselors; Shirley noted that the schedule appeared to be working. In addition, that letter notes that the maternal grandmother had agreed to assist the mother on a regular basis. Shirley noted that part of the problem the parents had encountered after having the children returned to them was the mother’s reluctance to ask her family for help for fear that it would reflect poorly on her own skills. Shirley noted in his letter that he had since explained to the mother that seeking assistance from family members was an appropriate response when she felt overwhelmed. Shirley also commented specifically that the maternal grandmother had indicated that she would help the mother on a regular basis and that the maternal grandmother’s influence was a positive one that DHR felt would assist the mother in learning positive parenting skills. Most importantly, however, Shirley’s letter noted that the reunification of this family had resulted in strong familial bonds between the children and the parents; the letter read:

“The family appeared to be closely bonded with one another. They interacted naturally with one another and the children seemed excited to have company. They proudly showed off their own rooms.”

There was also evidence indicating that the family was maintaining progress in keeping the house maintained after the children were removed on May 2, 2005. Shaketa Wallace, a support worker from Family Values, had been regularly visiting the home since May 2005. She said that she transports the children to the parents’ home for visitation. Her testimony supports Shirley’s comment that the schedule instituted to keep the house clean appeared to be working. Wallace stated that if the maternal grandmother was at the house, the house was clean. If the maternal grandmother was not there, Wallace commented that the house was not “too messy.” She did note that, on occasion, “sippy” cups or some food and dishes from the night before may still be out in the kitchen or that grocery bags might be on the floor. She noted that she had seen a few bugs on her visits but not enough to cause concern about an infestation.

DHR argues that, during the years the children have been in foster care, the parents have proven that they cannot maintain a clean house. DHR also argues that it investigated and rejected the relatives that the mother had previously suggested as potential resources. DHR specifically points out that the mother never gave the name of the maternal grandmother as a relative resource and that the maternal grandmother never stated on the stand that she wanted to be considered for placement. In any event, DHR states in its brief on appeal that it would reject the maternal grandmother as a placement resource because of her medical conditions, the fact that she has had unstable living patterns in the past, and because she now has her son, his wife, and their infant child living with her (albeit, according to the maternal grandmother, on a temporary basis because the basement of their house had been flooded and was unlivable during the repairs). Thus, DHR contends, no viable alternative to termination exists in the present case.

However, DHR’s position on the reunification of this family took an abrupt turn between May 12, 2005, and June 6, 2005, for a reason not apparent from the record. Shirley’s May 9 letter makes it clear that DHR was supportive of the family’s reunification, understood that the May 2 incident was not completely indicative of the family’s ability to properly maintain the house, and was in favor of the continued daily involvement of the maternal grandmother as a positive influence, helpful assistant, and role model for the mother. In fact, the May 9 letter itself contains one viable alternative to terminating the parental rights of this mother and father — to utilize the maternal grandmother to assist the mother and to teach her appropriate housekeeping and parenting skills. The mother may not have the ability to learn and implement all the necessary skills to parent the children and maintain the house alone during the day; however, with the assistance of the maternal grandmother, the mother is able to maintain the house and properly care for the children. In addition, DHR could provide financial assistance and transportation to any necessary mental-health counseling for the mother, which could assist the mother in becoming a better parent and in improving her basic living skills.

As noted above, the mother had finally been encouraged to seek the help of her family, despite the mother’s obvious confusion about using her family as a resource in light of DHR’s earlier insistence that the parents get their own place with no other people, be they related or not, living with them. The mother’s housekeeping skills had become better, although they were not perfect. The parents had made strides since the May 2 incident, and they love their children and the children love them. Although the parents had lived in disturbingly filthy conditions at the time of the older children’s removal and at other times since the older children’s removal have had issues with cleanliness and hygiene, they had finally managed to make the appropriate adjustments in their circumstances when DHR abruptly decided to go forward with termination proceedings. Had DHR proceeded with termination proceedings months earlier, when the parents were still having trouble with lice and insect infestations and had not yet been able to implement the skills they were being taught by the in-home workers, termination of their parental rights may well have been warranted. However, the evidence in this case demonstrates that the parents are finally making sufficient progress. At least one potential viable alternative to termination is available in the present case. As the plurality opinion in D.M.P. explained, a juvenile court faced with a case in which the grounds for termination exist but in which a viable alternative to termination is available must consider whether the termination of the parents’ rights is in the children’s best interests. D.M.P., 871 So.2d at 95. Therefore, we reverse the judgment of the juvenile court terminating the parents’ parental rights and remand the cause to the juvenile court to consider whether, in light of the potential viable alternative available in the present case, i.e., the assistance of the maternal grandmother, termination of the parents’ parental rights is in the best interests of these children. .

REVERSED AND REMANDED WITH INSTRUCTIONS.

MURDOCK, J., concurs.

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


author: PITTMAN, Judge.

text:
    Carol Renee RODEN v. Melvin Loy RODEN.
    2040796.
    Court of Civil Appeals of Alabama.
    Feb. 3, 2006.

      Bingham D. Edwards of Edwards, Mitchell & Reeves, Decatur, for appellant.
    Timothy D. Littrell, Moulton, for appel-lee.
   PITTMAN, Judge.

On January 14, 2005, the Lawrence Circuit Court entered a judgment that, among other things, divorced Carol Renee Roden (“the wife”) and Melvin Loy Roden (“the husband”). On February 4, 2005, both parties filed postjudgment motions pursuant to Rule 59(e), Ala. R. Civ. P. However, on February 8, 2005, the husband filed a postjudgment motion that precisely duplicated his previous postjudgment motion in each substantive respect and in every formal detail except that the margins on the sides of the pages were different. The trial court, after a hearing, entered an order purporting to amend the divorce judgment on May 6, 2005, 91 days after February 4 and 87 days after February 8, 2005. The wife appeals. The sole issue presented in this appeal is whether the trial court had jurisdiction to amend its January 14, 2005, judgment.

Under Rule 59(e), a motion to alter, amend, or vacate a judgment must be filed within 30 days of the date upon which the pertinent judgment was entered. Under Rule 59.1, Ala. R. Civ. P., a postjudgment motion filed pursuant to, among other rules, Rule 59 is deemed denied by operation of law 90 days after such a motion is filed unless the parties expressly consent on the record to extend the 90-day period or the appropriate appellate court allows such an extension. Rule 59.1 has been held to apply separately to each distinct timely filed postjudgment motion so as to afford the trial court a full 90-day period to rule on each separate motion (see Spina v. Causey, 403 So.2d 199, 201 (Ala.1981)). Similarly, if a subsequent filing is deemed to be an amendment to a previous post-judgment motion, that amendment will trigger a new 90-day jurisdictional period only if the amendment is filed within 30 days after the original judgment, ie., within the time for filing an “original” post-judgment motion. Compare Thompson v. Keith, 365 So.2d 971, 973 (Ala.1978) (amended motion filed more than 30 days after judgment did not restart 90-day clock under Rule 59.1), with Ex parte Cleveland Consol., Inc., 435 So.2d 1285, 1287 (Ala.1983) (90-day period under Rule 59.1 began to run from date of filing of amended postjudgment motion filed less than 30 days after entry of judgment).

However, in the instant case, the February 8, 2005, motion filed by the husband is neither fish nor fowl — that motion neither requests that the trial court alter, amend, or vacate its January 14, 2005, judgment on grounds different from or additional to the grounds asserted in the husband’s February 4, 2005, motion so as to amount to a proper amendment to the earlier motion nor seeks different post-judgment relief so as to be a separate postjudgment motion (one perhaps cognizable under Rule 52(b) or Rule 59(a), Ala. R. Civ. P., governing amendment of findings or the grant of a new trial). Quite simply, the husband’s February 8, 2005, motion is an exact substantive duplicate of his February 4, 2005, motion.

Although no reported Alabama case appears to have dealt with the effect of such repetitive filings by a party, our research indicates that in the analogous context of repetitive filings of the same document by a trial court, the earlier filing will be deemed operative. In Lyman v. Lyman, 753 So.2d 1159 (Ala.Civ.App.1999), this court was confronted with deciding which of two filed copies of a trial court’s judgment had initiated the running of the time for filing postjudgment motions and notices of appeal. The trial court in that case rendered and entered a final judgment on May 21, 1998; however, an exact duplicate of that judgment was filed on May 28, 1998. We held in Lyman that the time for filing postjudgment motions and notices of appeal was to be calculated based upon the earlier filing date, which took precedence over the date of the dupli-cative refiling.

On the authority of Lyman, we conclude that the operative date for determining the commencement of the 90-day period set forth in Rule 59.1 was February 4, 2005, the date on which the husband first filed his postjudgment motion and the wife filed her separate postjudgment motion. Because the husband’s February 8, 2005, filing did not state further or other grounds for alteration, amendment, or va-catur of the January 14, 2005, judgment, and did not seek different relief from the trial court, that filing did not amount to a separate postjudgment motion under Spi-na or an amendment to a postjudgment motion cognizable under Cleveland Consolidated. Just as it would be “improper for a court to circumvent the Rules of Procedure in an attempt to artificially renew the period in which a party may appeal” (Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cobb, 717 So.2d 355, 356 (Ala.1998)), it would be improper to allow a party to circumvent the normal operation of Rule 59.1 in-an effort to artificially renew a trial court’s postjudgment jurisdiction simply by repetitive filings of the same post-judgment motion.

The trial court’s May 6, 2005, order was entered more than 90 days after February 4, 2005, and, as such, is void and will not support an appeal. J.B. v. A.B., 888 So.2d 528, 532 (Ala.Civ.App.2004). We therefore dismiss the wife’s appeal and direct the trial court to vacate its May 6, 2005, order.

APPEAL DISMISSED WITH INSTRUCTIONS.

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