author: BRYAN, Judge.

text:
    Tracy Lynn MULLINS v. Lisa Christine SELLERS.
    2100247.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.

      Cliff Kerry of Kerry & Associates, Huntsville, for appellant.
    Julia Smeds Roth and Carl A. Cole III of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellee.
   BRYAN, Judge.

This is the second time these parties, Tracy Lynn Mullins (“the father”) and Lisa Christine Sellers (“the mother”), have been before this court. In Mullins v. Sellers, 58 So.3d 817 (Ala.Civ.App.2010), the father appealed from a judgment of the Madison Circuit Court (“the trial court”) that found him guilty of 140 separate acts of contempt and assessed a child-support arrearage. This court reversed that judgment and “remand[ed] the cause with instructions to the trial court to clarify its judgment and address [certain] discrepancies in the judgment,” as discussed in the opinion. Id. at 822. The father now appeals from the judgment entered by the trial court on remand.

We set forth the pertinent facts and procedural history in Mullins, supra, as follows:

“The father and [the mother] were divorced by the trial court in September 1995. Two children were born of the parties’ marriage, a boy born in September 1985 (‘the older child’) and a boy born in August 1990 (‘the younger child’) (hereinafter the older child and the younger child are referred to collectively as ‘the children’). Pursuant to the divorce judgment, the mother was awarded physical custody of the children and the father was ordered to pay child support. On or about May 25, 2001, the parties entered into an agreement modifying the divorce judgment so that the father was awarded custody of the older child and neither party was responsible for the payment of child support; that agreement was incorporated into a judgment of the trial court (‘the May 2001 modification judgment’). The May 2001 modification judgment included a provision that the father would not be responsible for any past or future dental expenses of the children arising from a genetic disorder that the children had.
“The divorce judgment was modified again on August 30, 2001 (‘the August 2001 modification judgment’), and, pursuant to that modification judgment, the mother was awarded custody of the older child and the father was ordered to pay $451.08 a month in child support, beginning on August 13, 2001. The father was ordered to make the child-support payments on the 15th day of each month through the clerk of the trial court. The parties were also ordered to equally share the cost of the children’s ‘health care services which are not covered by insurance ... including bills for doctors, hospitals, prescription drugs, orthodontic, dental, and optometric expenses.’
“On June 13, 2008, the mother filed a petition for a rule nisi alleging that the father had failed to pay court-ordered child support from August 13, 2001, until the day she filed her petition, and she requested that the father be ordered to pay the child-support arrearage due with interest. The mother also requested an award of her attorney’s fees. The father filed an answer to the mother’s petition for a rule nisi, and he denied all the allegations made by the mother.
“The trial court conducted an ore ten-us hearing on October 21 and 22, 2009. The mother and the father both testified that the father had paid his child-support obligation as ordered in the August 2001 modification judgment from August 2001 through May 2002. It was also undisputed that the father had not made a single child-support payment through the clerk of the trial court from June 2002 through the date of the final hearing in October 2009.
“The evidence revealed that both the older child and the younger child had lived, at times, with the father despite the fact that the mother had had physical custody of the children. According to the mother, the older child had lived with the father from June 2002 through December 2002. However, according to the father, the older child had lived with him from June 2002 through May 2004. The mother testified that the father had stopped paying child support after the older child moved into the father’s home. According to the father, he and the mother had agreed in June 2002 that the father no longer had to pay child support because the older child was living with him and the younger child was living with the mother. The mother denied that the parties had reached such an agreement. The father stated that he began paying child support directly to the mother after the older child turned 19 years old in September 2004.
“Tina Mertz, the father’s sister, testified that she was present when the mother and the father reached an agreement in May 2002 that the father would not owe child support to the mother because the older child was going to live with the father. The mother testified that she agreed in June 2002 that, as long as the older child was in high school and was living with the father and the younger child was living with her, she would not require the father to pay child support. The mother stated that she expected the father to resume paying child support in December 2002, after the older child graduated from high school.
“The father testified that when the older child lived with him he provided the older child’s housing, utilities, cable television, food, clothing, vehicle, car insurance, gasoline, and vehicle maintenance and paid for the older child’s extracurricular activities. The father stated that, even though he and the mother had reached an agreement that he did not have to pay child support while the older child was living with him, he had paid the mother child support during that time. The older child graduated from high school in December 2002, and the mother testified that she had supported the older child while he was in high school and after he graduated from high school by purchasing clothing for the older child and by giving him money.
“According to the mother, the younger child moved in with the father in October 2008, but the father testified that the younger child had begun living with him in June 2008. The father testified that, when younger child lived with him, he paid for the younger child’s housing, utilities, Internet service, vehicle, vehicle maintenance, clothing, and food. The father testified that he only gave the mother child support when she asked for it.
“The mother submitted an exhibit that calculated the father’s child-support obligation from June 13, 2002, until July 13, 2009, which was the month before the younger child turned 19; according to the mother, the father’s child-support arrearage for that period totaled $42,942.12, including interest. However, the mother testified that, because the younger child had gone to live with the father in October 2008, she was not seeking child support from the father that would have been due after October 2008. The mother submitted an exhibit that calculated the father’s child-support arrearage, including interest, due from June 2002 through October 2008. According to the mother’s calculations, the father owed $38,343.20 in child support for that period.
“The father was responsible for payment of one-half of the medical and dental expenses of the children, and the mother testified that the father had given her money, in the form of checks, to cover his one-half of the medical expenses of the children. The mother testified that the younger child had several medical conditions, including a genetic disorder, and that she had incurred approximately $8,000 in medical bills for the younger child in 2008. The father alleged that he did not have to pay for the medical treatment of the younger child insofar as it arose from his genetic disorder, pursuant to the May 2001 modification judgment. However, he admitted that he did have to pay half of the children’s regular dental costs.
“The mother stated that the father had provided some child support directly to her and that she was willing to allow the father’s child-support arrearage to be credited to reflect the payments that the father had made directly to her. The father submitted an exhibit into evidence that contained copies of approximately 19 canceled checks payable to the mother between March 2004 and January 2009, which totaled $11,614.73. The father admitted that approximately $414.73 from those payments was to reimburse the mother for payment of the younger child’s medical expenses. The father also submitted an exhibit into evidence that contained check stubs that purported to show that he had paid the mother approximately $3,600 from July 2004 through July 2006. The mother further admitted that the father had paid her $600 in October 2007. The father also estimated that he had paid the mother approximately $2,500 in child support between June 2002 and March 2004 that he could not support with evidence from his check register or with canceled checks. The mother testified that at least $3,364.73 that the father had given her in 2008 was for payment of one-half of the younger child’s medical expenses for which the father was responsible. The mother also testified that approximately 80% of the money that the father had provided to her was for payment of his half of the children’s medical expenses. The father claimed that the checks he had given to the mother were for child support and not for medical expenses.
“The father owned his own plumbing business, which was incorporated in 2006. The father’s income-tax records demonstrated that his gross income was $40,801 in 2002, $15,304 in 2003, $13,612 in 2004, $47,327 in 2006, $97,187 in 2007, and $153,348 in 2008. The father stated that he did not have the ability to pay child support on a regular basis before 2006, but he admitted that he had had the ability to pay child support for the three years before the ore tenus hearing.”

Mullins, 58 So.3d at 818-20 (footnotes omitted).

On remand, the trial court entered a judgment that made the following specific findings of fact:

“4. The evidence reveals that the [father] made child support payments through the [cjlerk’s [o]ffice through May of 2002, but later never paid any child support through the clerk of the trial court from June 2002 through the date of the final hearing in October 2009 even though required to do so by the [d]ivorce [d]ecree as amended.
“5. The evidence further reveals that, even when prior custody orders of the court vested the [mother] with the primary custody of one or both children at specific intervals, both of the children lived by agreement with the [father] from time to time and the [father] claims a credit should be afforded to him against any child support that the [e]ourt determines to be due and owing.
“6. Accepting the proffered testimony of the [mother] as to intervals of time when the youngest child lived with the [father], the evidence also shows that the parties’ youngest child began living with the [father] in October of 2008 and the [mother] testified that she was not asking for child support for the period of time that the youngest child resided with the [father] beginning in October of 2008. The [mother] further testified that she was willing to give the [father] credit for any child support paid directly to her rather than being through the clerk of the court based on cancelled checks.
“7. As a result, for the period of time of June 2002 through August of 2009 when the [younger] child reached the age of majority, the [c]ourt finds that the sum of $42,942.12 as child support, including interest, would be due and owing pursuant to the [d]ecree of [d]ivorce, as amended, from the [father] to the [mother]. Subtracting child support that would have been due from the time the parties’ youngest child was living with the [father] beginning in October of 2008 through August 2009, reduces the total amount of child support arrearage by $4,510.80 to $38,341.32. Thus, the [c]ourt finds that the amount of child support owed by the [father] to the [mother] for nonpayment of child support from June of 2002 through October 2008 is $38,341.32.
“8. As credit against the child support arrearage determined above, the [father] submitted cancelled checks payable to the [mother] between March 2004 and January 2009 in the amount of $11,614.73, plus he contended he was due a credit of an additional $4,200.00 from check stubs or other admitted receipts of payment which the [c]ourt accepts. The [father] testified that approximately $414.73 from those payments was to reimburse the [mother] for payment of the younger child’s medical expenses and the remaining amount was for child support. By excluding the amount paid to the [mother] for medical expenses, the [c]ourt finds that a credit of $15,400.00 should be awarded to the [father] for support paid directly to the [mother] rather than through the clerk’s office, leaving a balance due and owing to the [mother] of $22,941.32.”

The trial court entered an judgment finding that the father’s child-support ar-rearage totaled $22,941.32, and it ordered the father to pay the mother this arrear-age in monthly installments of $500. The trial court also found the father guilty of 76 separate acts of contempt between June 2002 and October 2008 for his failure to pay child support through the office of the clerk of the trial court as required in the August 2001 modification judgment. The trial court sentenced the father to five days in jail for each act of contempt, for a total of 380 days in jail, with all but 5 days of the sentence suspended so long as the father complied with the trial court’s judgment. Finally, the father was ordered to pay the mother’s attorney’s fees in the amount of $7,000.

On appeal, the father raises several issues that can be summarized as follows: (1) a challenge to the trial court’s finding that he committed 76 separate acts of contempt; (2) a challenge to the trial court’s determination of his child-support arrear-age; and (3) a challenge to the trial court’s award of attorney’s fees to the mother.

Initially, we note that the trial court’s judgment did not specifically state whether it found the father guilty of criminal contempt or civil contempt.

“In 1994, our supreme court adopted Rule 70A, Ala. R. Civ. P., defining criminal and civil contempt arising out of civil actions. Civil contempt is the willful, continuing failure or refusal to comply ■with a court’s lawful order that by its nature is still capable of being complied with. Rule 70A(a)(2)(D); Chestang v. Chestang, 769 So.2d 294 (Ala.2000) (trial court’s contempt order made a finding of civil contempt where owner of servient tenement continued to interfere with use of easement by owner of dominant tenement and fines levied were compensatory in nature and not punitive).
“Rule 70A(a)(2)(C) defines two categories of criminal contempt: (i) misconduct in the court’s presence or ‘so near thereto as to interrupt, disturb, or hinder’ the proceedings and (ii) willful disobedience to a court’s order ‘where the dominant purpose of the finding of contempt is to punish the contemnor.’ ”

Shonkwiler v. Kriska, 780 So.2d 703, 705 (Ala.Civ.App.2000) (second emphasis added).

In Gladden v. Gladden, 942 So.2d 362, 370 (Ala.Civ.App.2005), this court indicated that a consideration of the sentence imposed by the trial court could be used as a basis for determining whether a party was found guilty of criminal contempt or civil contempt when the judgment does not specify which type of contempt the party was guilty of committing. We noted that a “ ‘ “ ‘[c]ivil contempt seeks to compel or coerce compliance with orders of the court’ ” ’ ” and that “ ‘ “ ‘[t]he sanction for civil contempt continues indefinitely until the eontemnor performs as ordered.’ ” ’ ” Id. (quoting Davenport v. Hood, 814 So.2d 268, 272 (Ala.Civ.App.2000), quoting in turn Hill v. Hill, 637 So.2d 1368, 1370 (Ala.Civ.App.1994), quoting in turn State v. Thomas, 550 So.2d 1067, 1072 (Ala.1989)). See also Pate v. Guy, 934 So.2d 1070, 1072 (Ala.Civ.App.2005) (“[A] finding of civil contempt seeks to compel future compliance with court orders.”). Conversely, a finding of criminal contempt seeks to impose a punishment for disobedience of orders of the trial court, and, in Alabama, the sanction for a finding of criminal contempt is limited to a fine of $100 and imprisonment not to exceed five days. Gladden, 942 So.2d at 370. See § 12-11-30(5), Ala.Code 1975. See also Fludd v. Gibbs, 817 So.2d 711, 714 (Ala.Civ.App.2001) (“A finding of criminal contempt is appropriate where a party has shown disobedience to a court’s order and where the acts complained of were specific, identifiable violations from the past.”).

In Gladden, the trial court sentenced the former husband to five days in jail for his act of contempt, and this court concluded that the trial court had found the former husband guilty of criminal contempt “because the trial court sentenced the former husband to a definite term of five days in jail rather than sentencing him to an indefinite jail term lasting until [he complied with the trial court’s order].” 942 So.2d at 371.

In the present case, the mother argues that the trial court’s judgment found the father guilty of civil contempt based solely on the fact that the order of commitment to jail signed by the trial court states that the father was found guilty of civil contempt. However, the order of commitment to jail also sets forth a specific jail sentence to be served by the father. Accordingly, despite the fact that the order of commitment to jail indicates that the father was found guilty of civil contempt, we conclude that the trial court found the father guilty of criminal contempt because it imposed a definite jail sentence as the sanction for the father’s specific and identifiable violations of the August 2001 modification judgment from June 2002 through October 2008. Cf. Taylor v. Taylor, 560 So.2d 768, 770 (Ala.Civ.App.1990) (concluding that a suspended sentence was “primarily penal and not coercive in nature” because the suspended sentence was to be immediately imposed if the husband violated one of the trial court’s directives).

The father argues that the mother failed to prove, beyond a reasonable doubt, that he had willfully failed to pay child support through the clerk of the trial court. The father argues that the trial court erred in finding him in contempt (1) during the time that he and the mother had allegedly agreed that he did not have to pay child support and (2) during the time that the father paid child support directly to the mother.

“ ‘In order to establish that a party is in criminal contempt of a court order, a contempt petitioner must prove beyond a reasonable doubt that the party against whom they are seeking a finding of contempt was subject to a “ ‘lawful order of reasonable specificity,’ ” that the party violated that order, and that the party’s violation of the order was willful. Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001) (quoting United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987)).’ ”

Gladden, 942 So.2d at 371 (quoting L.A. v. R.H., 929 So.2d 1018, 1019 (Ala.Civ.App.2005)). “Furthermore, we have held that, ‘[ajbsent an abuse of discretion, or unless the judgment of the trial court is unsupported by the evidence so as to be plainly or palpably wrong, the determination of whether a party is in contempt is within the sound discretion of the trial court.’ ” Preston v. Saab, 43 So.3d 595, 599 (Ala.Civ.App.2010) (quoting Shonkwiler v. Kriska, 780 So.2d at 706).

It is undisputed that the August 2001 modification judgment required the father to pay his monthly child-support payment through the clerk of the trial court and that the father did not do so between June 2002 and October 2008. The father argues that his failure to pay child support through the clerk of the trial court from June 2002 through September 2004 was not willful because, he contends, he was operating under the agreement he allegedly made with the mother that he was not required to pay child support while he had physical custody of the parties’ older child. The record indicates that the terms of the parties’ agreement were disputed. However, according to the record, even the mother admitted that the parties had agreed that the father did not have to pay child support while he had physical custody of the older child and the older child was in high school, a period from June 2002 through December 2002. The trial court was free to determine the credibility of the parties’ testimony and to conclude that the mother’s testimony was more credible. See Pardue v. Pardue, 917 So.2d 857, 860 (Ala.Civ.App.2005) (concluding that the trial court was free to accept the father’s testimony and to reject the mother’s conflicting testimony regarding when the child lived with the father for purposes of determining the father’s child-support arrearage). But, because the record conclusively demonstrated that the parties had agreed that the father was not required to pay child support for at least a period of seven months, we cannot conclude that the mother proved beyond a reasonable doubt that the father’s failure to make his child-support payments through the office of the clerk of the trial court from June 2002 through December 2002 was willful. Cf. Hollis v. State ex rel. Hollis, 618 So.2d 1350, 1351 (Ala.Civ.App.1992) (plurality opinion; standard of review used in Hollis abrogated by Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)) (“Although the husband cannot alleviate his child support obligations by claiming that he and the wife entered into a mutual agreement, which the wife admitted, this agreement does indicate that the husband was not guilty of contemptuous behavior in failing to comply with the judgment [requiring him to pay child support].”). Accordingly, we conclude that the trial court erred in finding the father guilty of criminal contempt on seven occasions between June 2002 and December 2002.

The father, citing Teichmann v. Teichmann, 772 So.2d 1196 (Ala.Civ.App.2000), also argues that the trial court exceeded its discretion by finding him guilty of criminal contempt during the months that he paid child support directly to the mother. However, this court in Teich- mann held that the trial court had exceeded its discretion by failing to credit the father’s child-support arrearage with payments made directly to the mother, despite the fact that the trial court had ordered the father to make his child-support payments through the office of the trial court’s accounts clerk. Id. at 1198. Teiclimann does not include a discussion regarding a finding of contempt, and, therefore, it does not support the legal proposition that it is cited for, i.e., that the trial court could not have found the father guilty of contempt when the evidence indicated he had made child-support payments directly to the mother, albeit in violation of clear terms of the August 2001 modification judgment.

As we stated above, the August 2001 modification judgment clearly required the father to make his child-support payments through the office of the clerk of the trial court, not directly to the mother, and the father failed to do so. Although the father is entitled to a credit for child-support payments made directly to the mother, see Teiclimann, supra, we cannot conclude that the trial court exceeded its discretion or was plainly or palpably wrong in concluding that the father willfully failed to pay child support through the clerk of the trial court during the periods that he paid child support directly to the mother. Accordingly, the trial court’s judgment finding the father guilty of contempt from January 2003 through September 2008 is affirmed (a period of 69 months).

Next, the father argues that the trial court erred in calculating his child-support arrearage. He argues: (1) the trial court failed to give him a credit toward his arrearage for time that the older child lived with him, (2) that the trial court erred in not admitting evidence related to sums that he paid for support of the older child, and (3) that the trial court erred in including in its arrearage calculation the interest on child-support payments that he made directly to the mother.

“When a trial court receives evidence ore tenus in a case involving a child support arrearage, its judgment is presumed correct and will not be reversed on appeal unless the judgment is plainly and palpably wrong. Rubrigi v. Rubrigi, 630 So.2d 67 (Ala.Civ.App.1993). The determination of an amount of child support arrearage and the disposition thereof is largely a matter left to the sound discretion of the trial court. Id.”

Havard v. Havard, 652 So.2d 304, 308 (Ala.Civ.App.1994).

The father argues that the trial court erred in failing to apply a credit toward his child-support arrearage based on the support he provided to the older child while the older child lived with him. However, the father failed to cite any authority to support this argument in his brief to this court, as required by Rule 28(a)(10), Ala. R.App. P.

“It is the appellant’s burden to refer this Court to legal authority that supports its argument. Rule 28(a)(10), Ala. R.App. P., requires that the argument in an appellant’s brief include ‘citations to the cases, statutes, [and] other authorities ... relied on.’ Consistent with Rule 28, ‘[w]e have stated that it is not the function of this court to do a party’s legal research.’ Spradlin v. Spradlin, 601 So.2d 76, 78 (Ala.1992) (citing Henderson v. Alabama A & M University, 483 So.2d 392, 392 (Ala.1986) (‘ “Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.” Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984).’)).”

Board of Water & Sewer Comm’rs of City of Mobile v. Bill Harbert Constr. Co., 27 So.3d 1223, 1254 (Ala.2009). Accordingly, we will not consider the father’s argument that the trial court erred in failing to apply additional credits to his child-support ar-rearage based on support he provided to the older child while the older child lived with him.

The father further argues that the trial court erred when it failed to admit into evidence certain financial records reflecting support he contributed directly to the son. It is well settled that “[a] trial court’s ruling on the admission or exclusion of evidence will be reversed only if it is shown that the trial court exceeded its discretion in so ruling.” Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 7 (Ala.2007).

The record reveals that the trial court sustained the mother’s objection to the entry of certain financial records from the father because the mother had requested those financial records before trial and the father had not properly produced them before trial. On appeal, the father maintains that he had properly made the financial records available to the mother before trial. The only authority cited by the father to support his argument on appeal is a reference to Rule 34, Ala. R. Civ. P. (“Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes”), and a citation to Rule 401, Ala. R. Evid., which defines “relevant evidence.” The father has cited no authority to support his argument that the trial court exceeded its discretion by determining that the financial records were inadmissible because the father had not properly produced the records to the mother before trial. Accordingly, we will not consider this argument. See Rule 28(a)(10); and Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“Inapplicable general propositions are not supporting authority, and an appellate court has no duty to perform a litigant’s legal research.”)

Next, the father argues that the trial court erred in calculating the amount of his child-support arrearage because the trial court’s calculation included interest due on child-support payments that he had paid directly to the mother and was credited for. This court has reviewed the record in the present appeal and the record from Mullins v. Sellers, supra, , and we cannot find any indication that the father presented this argument to the trial court before raising it on appeal.

“The oft-quoted and long-standing rule is that an appellate court may not consider an issue raised for the first time on appeal. See Ex parte Weaver, 871 So.2d 820, 823 (Ala.2003); W.C. v. State Dep’t of Human Res., 887 So.2d 251 (Ala.Civ.App.2003); and Centers v. Jackson County Dep’t of Pensions & Sec., 472 So.2d 1069, 1070 (Ala.Civ.App.1985). ‘“A ... court should not be placed in error [by an appellate court] on matters which the record reveals it neither ruled upon nor was presented the opportunity to rule upon” ’ at trial or in a post-judgment motion. J.K. v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995) (quoting Wilson v. State Dep’t of Human Res., 527 So.2d 1322, 1324 (Ala.Civ.App.1988)); see also Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992).”

D.A. v. Calhoun Cnty. Dep’t of Human Res., 976 So.2d 502, 504 (Ala.Civ.App.2007). Accordingly, because there is no indication in the record that the father first raised this argument to the trial court, we cannot consider this argument. See Prescott v. Prescott, 6 So.3d 552, 553 (Ala.Civ.App.2008) (concluding that this court could not consider the argument made by the mother on appeal because the error she alleged the trial court had committed “occurred, if at all, in the trial court’s judgment” and that, because she did not “bring this issue to the trial court’s attention by filing a postjudgment motion,” the issue was improperly raised for the first time on appeal). Thus, we affirm the trial court’s determination of the father’s child-support arrearage.

Finally, the father argues that the trial court’s award of attorney’s fees to the mother was error in light of the fact that the trial court found him guilty of criminal contempt. In State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So.2d 538, 545 (Ala.1977), our supreme court held that the award of attorney’s fees is not proper in a criminal-contempt action and that any award of attorney’s fees in such an action “must be considered as mere surplusage and severed from the judgment decree.” However, as we stated above, an appellate court “cannot put a trial court in error for failing to consider evidence or accept arguments that, according to the record, were not presented to it.” Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990) (concluding that the appellant’s argument for reversal of an award of attorney’s fees could not be considered because the appellant made the argument for the first time on appeal). Because there is nothing in the record indicating that the father presented to the trial court the argument that he makes on appeal regarding the award of attorney’s fees to the mother, this court cannot reverse the trial court’s judgment on that ground. See Prescott, supra.

Accordingly, we reverse the trial court’s judgment insofar as it found the father guilty of criminal contempt on seven occasions between June 2002 and December 2002, and we remand this cause to the trial court with instructions to enter a judgment consistent with this opinion. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      . We note that subtracting $4,510.80 from $42,942.12 actually equals $38,431.32, not $38,341.32.

      . The father’s argument is based on the premise that he cannot be found in contempt for failing to make his child-support payments when the trial court gave him credit for making child-support payments during the same months. However, we note that the father, in his brief on appeal, does not make the distinction made by the trial court, i.e., that he was found guilty of contempt for his failure to pay child support, as ordered, through the office of the clerk of the trial court.

      . Although there was an indication in the record that the father did not have the ability to pay his child-support obligation until approximately January 2006, the father has not asserted his inability to pay as a ground for reversal of any of the trial court’s findings of contempt. Because that issue was not raised on appeal, it has been waived. See Ex parte Riley, 464 So.2d 92, 94 (Ala.1985) ("Indeed, it has long been the law in Alabama that failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal.”).

      . On August 3, 2011, this court entered an order, ex mero motu, that incorporated the record from the father's previous appeal in Mullins v. Sellers, supra, into the record in this appeal.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Ryan MUSICK v. Gordon L. DAVIS.
    2091212.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.

      Richard D. Lively, Prattville, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

In January 2009, Ryan Musick, appearing through counsel, sued Gordon L. Davis, two other named defendants, and one fictitiously named defendant in the Montgomery Circuit Court, asserting claims of negligence, wantonness, and fraudulent misrepresentation concerning the condition of a used residence. Davis, appearing pro se, answered the complaint in March 2009, denying liability and asserting various affirmative defenses. Mu-sick’s claims against the other named defendants were dismissed pursuant to a joint stipulation in June 2009, leaving to be adjudicated only the claims asserted against Davis.

According to the computerized case-action-summary sheet in the case, on April 6, 2010, the trial court set the case for a “status/scheduling conference” to be held on April 13, 2010, and copies of that order were apparently transmitted both to Musick’s counsel and to Davis. However, neither counsel for Musick nor either party appeared at that conference. On April 28, 2010, a judgment was entered dismissing the case “for lack of prosecution”; in that judgment, the trial court specifically noted the parties’ absence from the April 13, 2010, conference. Two days later, Mu-sick filed a postjudgment motion to alter, amend, or vacate the judgment, averring that his counsel also had represented Mu-sick in another matter formerly pending before the trial court that had been settled two months previously and that counsel, as a result of an oversight, “apparently did not properly identify which case the ... order was applicable to and[,] thinking that the matter had been settled, did not calendar the hearing.” The trial court denied that postjudgment motion. Musick’s appeal from the judgment of dismissal was transferred to this court pursuant to Ala. Code 1975, § 12-2-7(6).

“Rule 41(b), Ala. R. Civ. P., provides, in pertinent part: ‘For failure of the plaintiff to prosecute or to comply with [the Alabama Rules of Civil Procedure] or any order of [the] court, a defendant may move for dismissal of an action or of any claim against the defendant.’ It is well settled that the decision whether to enter a Rule 41(b) dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. In reviewing the trial court’s dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record.”

Blake v. Stinson, 5 So.3d 615, 617-18 (Ala.Civ.App.2008) (citations omitted). Further, under Alabama precedents, the public interest in disposing of litigation on the merits is said to be overcome, and the “drastic sanction” of a dismissal is deemed warranted, when a clear record of delay, willful default, or contumacious conduct by the plaintiff exists. See Gill v. Cobern, 36 So.3d 31, 33 (Ala.2009).

In this case, the trial court dismissed Musick’s action against Davis approximately 15 months after the case was initiated. Further, that court acted sua sponte, in the absence of a dismissal motion from Davis, 15 days after both parties had neglected to attend a “status/scheduling conference” that was set 7 days in advance. Thus, the sole bases appearing of record that might support the trial court’s decision to dismiss the action are (a) the pendency of the case for 15 months and (b) the nonattendance of Musick or his counsel at the conference.

In Blake, we held that a delay of approximately three years between the filing of an amended complaint and the filing of a motion to reinstate a case to a trial court’s active docket did not alone warrant dismissal under Rule 41(b), Ala. R. Civ. P., opining that the existence of such a dormancy period, “without evidence of contumacious conduct or willful default, is insufficient to justify the harsh sanction of dismissal with prejudice.” 5 So.3d at 620. The sole arguably “contumacious conduct” appearing in the record in this case would be the absence of Musick and his counsel at the “status/scheduling conference” on April 13, 2010. However, immediately upon receipt of the judgment of dismissal, Musick filed a postjudgment motion indicating that his and his counsel’s absence at the conference had been inadvertent, a product of a calendaring oversight related to confusion between two cases, rather than a deliberate act on Musick’s or his counsel’s part; Davis filed nothing tending to rebut Musick’s averments. In Gill, a similar calendaring failure by a plaintiffs attorney was held not to amount to willful delay or contumacious conduct so as to warrant affirmance of a judgment of dismissal for want of prosecution. 36 So.3d at 33-34. Thus, whether the trial court’s decision to dismiss Musick’s action is attributable to the length of time that the case had been pending, the failure of Mu-sick or his counsel to attend the “status/scheduling conference,” or both of them, we must agree with Musick’s contention on appeal that the sua sponte imposition of the ultimate sanction of dismissal under Rule 41(b) was simply not warranted in this case.

The trial court’s judgment of dismissal is reversed, and the cause is remanded for reinstatement to the trial court’s active docket.

REVERSED AND REMANDED.

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

      . That judgment of dismissal, under Rule 41(b), Ala. R. Civ. P., "operates as an adjudication upon the merits.”

      . Although Musick, before appealing, filed a motion in the trial court seeking relief from the judgment of dismissal pursuant to Rule 60(b), Ala. R. Civ. P. — a motion upon which the appellate record reflects no ruling by the trial court — the possible continued pendency of that motion would not destroy our appellate jurisdiction because such a motion “does not affect the finality of a judgment or suspend its operation.” Ex parte R.S.C., 853 So.2d 228, 233-34 (Ala.Civ.App.2002).

      . Davis has not favored this court with a brief.


author: MOORE, Judge.

text:
    Alvin REED, director of the Perry County Department of Human Resources v. Christine WHITE.
    2100444.
    Court of Civil Appeals of Alabama.
    Sept. 9, 2011.

      Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and James E. Long, deputy atty. gen., Department of Human Resources, for appellant.
    Robert H. Turner, Sr., of Turner, Turner & Bryant, Marion, for appellee.
   MOORE, Judge.

Alvin Reed, as director of the Perry County Department of Human Resources (“DHR”), appeals from a judgment of the Perry Circuit Court (“the trial court”) issuing a common-law writ of certiorari requiring Reed to reinstate the employment of Christine White (“White”) with full back pay. We dismiss the appeal with instructions.

Background

As of March 2005, DHR employed Christine White as a financial-support worker. On March 16, 2005, Reed delivered a letter to White notifying her that she was being placed on mandatory leave pending an administrative hearing and that she would be paid from her annual leave balance. See Ala. Admin. Code (Personnel Board), Rule 670-X-15-.06(l) (authorizing such personnel actions by state agencies). Although that letter did not notify White of the reasons for DHR’s action, two days later, on March 18, 2005, Reed sent a second letter to White stating, in pertinent part:

“The purpose of the hearing is to hear charges concerning your fraudulent claiming of a client’s child on your federal income tax return while employed with [DHR] as a Financial Support Caseworker. This action is taken in accordance with the Rules of the State Personnel Board, Employee Work Rules; Rule 670-X-19-.01(l)(J) Participation in unauthorized activity; 670-X-19 — .01(3) Other Sufficient Reasons. You entered into an unethical, improper relationship with a client who receives services from our agency that resulted in a fraudulent act.
“On March 3, 200[5], it was reported to me that you had claimed a client’s child on your federal income tax return. The client had shared the information with the reporter. On March 7, 200[5], I met with the client at her home and she substantiated the report that I had received, admitting to me that she had entered into an agreement with you in which you would claim her child on your Federal Income Tax return for payment.”

On April 12, 2005, White attended the administrative hearing along with her counsel. White refused to answer any questions regarding whether she had claimed someone else’s child as a dependent on her federal income-tax return, asserting her Fifth Amendment right against self-incrimination to those questions.

The day after the administrative hearing, White received a third letter from Reed. In that third letter, Reed informed White that the hearing officer had determined that the evidence presented at the hearing warranted termination of White’s employment; Reed also notified White that her employment was terminated and that she had a right to request a hearing before the State Personnel Board within 10 days.

Rather than seek a hearing before the State Personnel Board, on April 21, 2005, White initiated this action, petitioning the trial court for a common-law writ of certio-rari compelling Reed to reinstate her employment. In her petition, White alleged that she was entitled to the requested writ because, she said, (1) Ala.Code 1975, § 36-26-28, had been applied in such a manner as to deny her due process, (2) no evidence had been presented to support the act of the hearing officer and the hearing officer’s findings were contrary to the undisputed facts, (3) the decision to terminate her employment was clearly erroneous and was an abuse of discretion, (4) the decision to terminate her employment was arbitrary, capricious, and in bad faith, and (5) DHR had failed to carry its burden of proof.

On June 1, 2005, Reed moved to dismiss White’s petition. In his motion, Reed asserted that White had failed to timely appeal the decision to terminate her employment to the State Personnel Board and that, as a result, she had failed to exhaust her administrative remedies as required by Ala.Code 1975, § 41-22-20(a). White opposed that motion, asserting that she had been suspended without pay and without the benefit of a prior hearing. She alleged that such a suspension without pay was unconstitutional and was an act subject to correction by a common-law writ of certiorari.

On July 28, 2006, Reed moved the trial court for a summary judgment in his favor. Reed asserted that White had not been suspended from her position with DHR but, rather, had been placed on mandatory annual leave with pay until April 12, 2005, when her employment had been terminated. On September 5, 2006, White opposed Reed’s summary-judgment motion, again stating that her suspension without pay and without a hearing supported the issuance of the requested writ. On May 9, 2007, the trial court denied Reed’s motion to dismiss and his motion for a summary judgment and set the matter for trial.

After a bench trial, at which ore tenus evidence was received, the trial court entered a judgment in which it stated, in pertinent part:

“1. [White] was suspended on March 16, 2005, without pay.
“5. The court conducted a trial and has considered the evidence.
“6. The Court has had an opportunity to observe and listen to the witnesses.
“7. The Court does not accept the testimony from [Reed’s witness] as credible or reliable.
“8. The Court does not accept the evidence as supportive of [Reed’s] decision.
“9. The evidence is not of the character and degree to validate [Reed’s] decision.
“THEREFORE, IT IS ORDERED that the decision by [Reed] is set aside and voided and [White] is reinstated with pay.”

Reed, in his capacity as director of DHR, timely appealed.

Analysis

Reed argues that the trial court erred in asserting jurisdiction over the petition for a common-law writ of certiorari. Reed argues that a common-law writ of certiorari may issue only when a statutory right to certiorari review or to an appeal is not available. See Ex parte Worley, 46 So.3d 916 (Ala.2010). Reed points out that Ala.Code 1975, § 36-26-27, provides that a state employee whose employment has been terminated may appeal that decision to the State Personnel Board. See also Ala. Admin. Code (Personnel Board), Rule 670-X-18-.01. Because White had a right to such an appeal, a right which she indisputably did not pursue, Reed asserts that White could not maintain a petition for a common-law writ of certiorari.

We agree. In Worley, supra, an employee of the office of the secretary of state resigned her employment. That employee later claimed that her resignation had been coerced and that she had been constructively terminated. She filed an appeal to the State Personnel Board, which ultimately concluded that it lacked jurisdiction because the law does not provide a state employee a right to appeal from a voluntary resignation. The employee thereafter appealed the decision of the State Personnel Board and simultaneously filed a petition in the Montgomery Circuit Court for a common-law writ of certiorari seeking a judicial review of her allegedly unlawful dismissal. 46 So.3d at 920. The Montgomery Circuit Court denied a motion to dismiss the petition, prompting the respondents to file a petition for a writ of mandamus with our supreme court. In granting that petition, our supreme court stated, in pertinent part:

“Although a party seeking review of a ruling by an administrative agency may petition the court for a common-law writ of certiorari, this means of review is allowable only when no statutory right of appeal or statutory certiorari review is available. Collins v. Alabama Dep’t of Corr., 982 So.2d 1078, 1080 (Ala.2007). Section 41-22-20, Ala.Code 1975, however, explicitly provides both a statutory vehicle for obtaining judicial review and a definition of the required process. This statutory process, by its existence, forecloses review by way of a petition for a common-law writ of certiorari.”

46 So.3d at 921-22. Finding that the employee was not invoking the appellate mechanism available to her, but was attempting to circumvent that procedure by directly obtaining judicial review via a petition for a common-law writ of certiorari, the supreme court held that the petition was due to be dismissed. 46 So.3d at 923-24.

Our supreme court’s decision in Worley effectively precluded the trial court from assuming jurisdiction over White’s petition for a common-law writ of certiorari insofar as it sought judicial review of the decision to terminate White’s employment. Because § 36-26-27 provided White a statutory right to appeal that decision, she could not circumvent that procedure by filing a petition for a common-law writ of certiorari. The trial court therefore lacked subject-matter jurisdiction to entertain the petition. See Ex parte Connors, 855 So.2d 486, 489 (Ala.2003). The trial court thus erred in failing to dismiss that portion of the petition seeking review of the decision to terminate White’s employment, and its judgment purporting to overturn that decision is void. See Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008).

In her petition, White also sought judicial review of the decision to place her on mandatory leave pending the administrative hearing. In her petition, White asserted that Reed effectively involuntarily suspended her without pay but did so without following the notice requirements set out in Ala.Code 1975, § 36-26-28, thereby unconstitutionally depriving her of due process in relation to her suspension. In its judgment, the trial court found that White had been suspended without pay as of March 16, 2005, and that she was entitled to full reinstatement with back pay. We interpret the judgment as voiding the suspension of White’s employment and restoring any annual leave used to pay White during the period between March 16, 2005, and the date of the termination of her employment on April 13, 2005.

In his initial appellate brief, Reed does not argue that the petition for a common-law writ of certiorari should have been dismissed because White had a statutory right to appeal her suspension. In fact, Reed makes no argument whatsoever regarding that aspect of the judgment addressing the suspension of White’s employment. Ordinarily, this court would have no choice but to affirm that aspect of the judgment. See Bettis v. Thornton, 662 So.2d 256, 257 (Ala.1995) (stating that when an appellant fails to argue the propriety of an aspect of the judgment, the issue is not before the appellate court). However, this court has an imperative duty to ascertain whether a lower court had the necessary subject-matter jurisdiction to enter the judgment from which the appeal was taken. Connors, supra.

Section 36 — 26—28(b) specifically provides an employee of a state agency who has been suspended without pay a right to appeal that suspension. Assuming that White had been suspended without pay, which we do not decide, White could have asserted any procedural or substantive due-process violations relating to her suspension through such an appeal. Hence, for the same reasons as those set out above regarding the termination issue, the trial court did not have subject-matter jurisdiction over that aspect of the petition seeking judicial review of the manner in which White was suspended. Therefore, its judgment in that respect is also void.

A void judgment will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment. Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 274 (Ala.2000). Reed’s appeal is thus dismissed, albeit with instructions to the trial court to vacate its void judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

THOMPSON, P.J., concurs in the result, without -writing.

      . Alabama Code 1975, § 36-26-28, provides, in pertinent part:
      "(a) An appointing authority may, from time to time, peremptorily suspend any employee without pay or other compensation as punishment for improper behavior.... The suspension with loss of pay may be effected only by service upon the employee by the appointing authority of written charges setting out clearly the delinquency for which the suspension was made, a copy of which must at the same time be mailed or delivered to the State Personnel Director, and a written notice of the right to appeal the suspension as provided in subsection (b). The suspended employee shall have the right to file with the appointing authority a written answer or explanation of the charges.”

      . Section 36 — 26—28(b)(1) provides:
      "The suspended employee may within 10 days after notice pursuant to this section file a written notice of appeal from the suspension. If the suspended employee gives notice of appeal from the suspension, the appointing authority shall have the discretion of whether to stay the suspension pending the disposition of the appeal or proceed with the suspension and provide the employee with a post-suspension review subject to the time frames prescribed herein.”


author: THOMPSON, Presiding Judge.

text:
    Ex parte EVEREST NATIONAL INSURANCE COMPANY. (In re Ronald D. Gray v. Danny Gray Flooring et al.).
    2100711.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.

      Michael I. Fish of Fish Nelson, LLC, Birmingham, for petitioner.
    Samuel Maples and Cecelia Brown Freeman of Maples & Jacobs, LLC, Birmingham, for respondent.
   THOMPSON, Presiding Judge.

Everest National Insurance Company (“Everest”) petitions this court for a writ of mandamus directing the Jefferson Circuit Court to set aside its order granting Ronald Gray’s motion to compel Everest to provide a panel of four physicians pursuant to § 25-5-77(a), Ala.Code.1975. For the reasons set forth herein, we deny the petition.

This is the second time this action, arising under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, has been before this court. See Fireman’s Fund Ins. Co. v. Gray, 898 So.2d 753 (Ala.Civ.App.2004). Some of the procedural history relevant to the present proceeding is contained in Fireman’s Fund:

“Ronald Gray sued Danny Gray Flooring (‘Gray Flooring’), a business owned by [Gray], on October 13, 2000, seeking to recover workers’ compensation benefits for injuries he sustained to his lower back on November 1, 1998. Gray Flooring answered the complaint on October 25, 2000. On May 17, 2001, Everest National Insurance Company (‘Everest’) moved to intervene in the workers’ compensation action as a real party in interest. Everest alleged that . [Gray] was the owner of Gray Flooring; that it was the workers’ compensation insurer for Gray Flooring from February 7, 1998, through February 7, 2000; and that the case was not adversarial in nature because [Gray] was the owner of Gray Flooring. Everest sought to intervene in order to fully defend the claim against Gray Flooring and to seek a determination of its obligations, if any, pursuant to the Alabama Workers’ Compensation Act (‘the Act’). The trial court entered an order on June 18, 2001, granting Everest’s motion to intervene.”

898 So.2d at 753-54. Subsequent to Everest’s intervention, several other insurance companies, including Fireman’s Fund Insurance Company (“Fireman’s Fund”), were joined in the action. Both Gray and Everest asserted claims against Fireman’s Fund.

On May 7, 2002, Gray, Gray Flooring, and Everest petitioned the trial court for the approval of a settlement agreement between those parties, which the trial court granted. Pursuant to the settlement agreement, Everest agreed to settle all claims arising from Gray’s November 1, 1998, injury for $105,000, with Everest remaining liable for future medical benefits.

After Gray, Gray Flooring, and Everest had entered into the settlement agreement, the trial court held an ore ten-us proceeding, after which it entered a judgment finding, among other things, that Fireman’s Fund was liable to Gray under the last-injurious-exposure rule.

Fireman’s Fund filed an appeal to this court. This court reversed the trial court’s judgment and remanded the case for the entry of a new judgment. 898 So.2d at 760. On June 10, 2005, the trial court entered a judgment on remand in favor of Fireman’s Fund as to Gray’s and Everest’s claims against it.

On November 4, 2010, Everest filed a motion to reopen the case and to terminate its obligation to provide future medical benefits to Gray. It alleged that Gray had been misusing prescription medications and that his pain-management physician, Dr. Michael Kendrick, had released him from his care. Everest attached to its motion, among other things, some of the medical records of Gray’s treatment. Gray filed a response to Everest’s motion in which he argued that Dr. Kendrick had wrongfully released him from his care. He requested that the trial court order Everest to show cause why it should not be held in contempt for failing to provide him with a pain specialist immediately after Dr. Kendrick released him from his care, and he requested that the trial court order Everest to provide him with a panel of four physicians specializing in pain management for him to select a new physician. See § 25-5-77(a), Ala.Code 1975.

On December 21, 2010, the trial court entered an order denying Everest’s motion to terminate medical benefits. It did not rule on Gray’s request for a panel of four physicians. Everest referred Gray to another pain-management physician.

On February 11, 2011, Gray filed a motion to compel Everest to provide him with a panel of four physicians from which he could choose a physician to replace the pain-management physician Everest had authorized after Gray was released from Dr. Kendrick’s care. He stated that Everest had taken the position that it did not have to provide a panel of four physicians because it previously had provided a panel of four surgeons to Gray. Gray argued that, pursuant to § 25-5-77(a), an injured worker is entitled to a panel of four physicians and a panel of four surgeons.

Everest filed a response to Gray’s motion to compel it to provide a panel of four physicians in which it argued that it had previously provided Gray with a panel of four physicians at Gray’s request after Gray had become dissatisfied with the doctor who had performed surgery on him. Everest argued that Gray had chosen a “new physician/surgeon” from that panel. Addressing Gray’s contention that § 25-5-77(a) provides for a panel of four physicians and, separately, for a panel of four surgeons, Everest argued that “all surgeons are physicians” and, as a result, that “if an injured worker’s first request is for a panel of four surgeons, then he or she ha[s] effectively used both of his potential panel requests at one time.”

The trial court held a hearing, after which, on March 22, 2011, it entered an order compelling Everest to provide Gray with a panel of four physicians from which Gray was to select a physician to replace the physician authorized by Everest after Dr. Kendrick had released Gray from his care. Everest filed an appeal to this court. This court, in an order issued on May 31, 2011, determined that Everest’s appeal was due to be treated as a petition for a writ of mandamus.

Our supreme court has set forth the following standard by which this court considers a petition for a writ of mandamus:

“Mandamus is a drastic and extraordinary writ, to be issued only where 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 Integon Corp., 672 So.2d 497, 499 (Ala.1995). “The petitioner bears the burden of proving each of these elements before the writ will issue.” Ex parte Glover, 801 So.2d 1, 6 (Ala.2001). Moreover, “in mandamus proceedings, we indulge all reasonable presumptions favoring the correctness of the judgment appealed from, and the petitioner must overcome this presumption by satisfactorily countervailing evidence.” Ex parte Boykin, 568 So.2d 1243, 1244 (Ala.Civ.App.1990). “[T]he writ is not to be granted unless there is a clear showing of error in the trial court.” Ex parte Shepherd, 560 So.2d 1089, 1090 (Ala.Civ.App.1990).

Section 25-5-77(a) provides in relevant part:

“If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and the employee shall be entitled to select a second physician from a panel or list of four physicians selected by the employer. If surgery is required and if the employee is dissatisfied with the designated surgeon, he or she may so advise the employer, and the employee shall be entitled to select a second surgeon from a panel or list of four surgeons selected by the employer.”

This court recently discussed the proper application of § 25-5-77(a) with regard to the provision of physician and surgeon panels:

“By its plain language, the [Workers’ Compensation] Act differentiates between physicians and surgeons. As to physicians, the Act grants to an employee dissatisfied with the initial treating physician the right to request that the employer provide a panel of four new physicians from which the employee can select a replacement. As to surgeons, the Act states that an employee shall have a right to have the employer provide a panel of four different surgeons if surgery is needed and the employee is dissatisfied with the surgeon designated by the employer. The two clauses at issue are not overlapping; they are supplemental to one another, intended to cover two different situations. Therefore, the plain language of § 25-5-77(a) suggests that the furnishing of the panel of four physicians pursuant to the first clause does not relieve the employer of the duty to provide an additional panel of four surgeons in the circumstances outlined in the second clause.
“Our literal reading of § 25-5-77(a) comports with its purpose as well. The history of the enactment of § 25-5-77(a) shows that the legislature intended to give an employee some range of choice in the matter of the person providing his or her medical treatment in order to give the employee confidence that his or her medical needs will be met and to thereby encourage and expedite the healing process. See City of Auburn v. Brown, 638 So.2d 1339, 1340-41 (Ala.Civ.App.1993). The legislature evidently concluded that when surgery is required, an employee deserves the additional security provided by a separate panel of four. That legislative intent appears especially insightful in cases like this in which the dissatisfaction of the employee with the surgeon designated by the employer stems from the fact that the employee has twice submitted to surgery by that surgeon without lasting recovery. In such cases, the intent of the legislature to assuage the employee’s dissatisfaction with the employer’s designated surgeon and to assure and expedite the healing process basically demands that the employee receive a panel of four new surgeons from which to choose a new surgical provider. To hold that an employee has exhausted his or her surgical options by previously selecting a different initial treating physician would defeat that beneficent purpose of the Act. See Ala. Acts 1992, Act No. 92-537, § 1 (‘The Alabama Workers’ Compensation Act is remedial in nature and should be liberally construed to effectuate the intended beneficial purposes.’).”

Ex parte Kish, 45 So.3d 772, 775-76 (Ala.Civ.App.2010).

Everest contends that it had previously provided Gray with a panel of four physicians and, as a result, that Gray is not entitled to a second panel of four physicians. It argues that “[a] second panel is only mandated if surgery is required and the employee is not satisfied with the provided authorized surgeon.” Everest states that Gray’s initial authorized surgeon was Dr. Robert Craddock, who performed surgery on Gray in 1999. It states that Gray became dissatisfied with Dr. Craddock’s care, requested a panel of four physicians, and chose Dr. Thomas Staner, a neurosurgeon, from that panel. Everest states that Dr. Staner did not perform surgery on Gray but, instead, directed the course of Gray’s treatment over almost 10 years and “acted solely to coordinate [Gray]’s pain-management treatment.” Thus, Everest concludes, Gray “has been granted his one panel of physicians and is not entitled to a new panel.”

The evidence of record in this case is sparse. For example, Everest attached a few medical records to its petition to terminate medical benefits, and a copy of an e-mail exchange between the attorneys for Everest and Gray is attached to Gray’s motion to compel the provision of a panel of four physicians and Everest’s response thereto. No evidence contained in the materials before this court directly addresses the one overriding question that must be answered for the requested writ to issue: whether Gray sought the panel of doctors to replace Dr. Craddock because additional surgery was necessary and Gray was not satisfied with Dr. Craddock’s performing that surgery or whether, in requesting a new panel, Gray was seeking a new physician for the performance of other medical treatment. See § 25-5-77(a); Kish, 45 So.3d at 775-76. Indeed, the materials before this court contain very little evidence relating generally to the provision of the first panel to Gray.

As previously noted, it was Everest’s burden to demonstrate, among other things, that it had “a clear legal right” to the denial of Gray’s motion to compel it to provide a panel of four physicians. Ex parte Glover, 801 So.2d at 6; Ex parte Integon Corp., 672 So.2d at 499. Although Everest has provided this court with argument, we cannot discern from the materials before this court any evidence that would overcome the presumption in favor of the trial court’s decision to require Everest to provide Gray with the panel of physicians he requested. See Ex parte Boykin, 568 So.2d at 1244. See also Ex parte Shepherd, 560 So.2d 1089, 1090 (Ala.Civ.App.1990) (denying petition for writ of mandamus because, although the father contended that the trial court lacked jurisdiction under Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (West Supp.1986), the evidence before the appellate court on petition for writ of mandamus did not provide a basis on which to determine that the trial court had erred in its contrary conclusion). Because it has failed to cite any relevant evidence bearing on the issue raised by its petition, Everest has failed to demonstrate a clear legal right to a writ of mandamus, and this court is without a basis on which to grant the petition.

Based on the foregoing, Everest’s mandamus petition is due to be, and is hereby, denied.

PETITION DENIED.

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

      . The last-injurious-exposure rule is used "to determine which insurance carrier bears responsibility for paying workers’ compensation benefits when an employee suffers two or more episodes of compensable disability with an intervening change of employers or change of insurance carriers by the same employer.” Ex parte Pike Cnty. Comm'n, 740 So.2d 1080, 1083 (Ala.1999).

      . Because this proceeding began as an appeal, the circuit clerk prepared and transmitted to this court a record of the proceedings in the trial court. Normally, in a mandamus proceeding, the trial court clerk would not prepare a record, and this court would rely on the documents attached to the petitioner’s petition. See Rule 21, Ala. R.App. P. We note that Everest designated only certain portions of the trial court’s record for inclusion in the appellate record.

      . The parties’ briefs contain numerous factual assertions relating to the provision of the panel to Gray from which he selected Dr. Staner. However, those statements are largely unsupported by any evidence or citation to eviden-tiary material; the statements themselves do not constitute evidence. See Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005) ("The unsworn statements, factual assertions, and arguments of counsel are not evidence.”). Cf. Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 345 (Ala.2006) (" 'In considering a mandamus petition, we must look at only those facts before the trial court.' Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995) (emphasis added). Of course, facts must be based upon ‘evidentiary material,’ which does not include statements of counsel in motions, briefs, and arguments.”).


text:
    Austin CONNER v. ALABAMA STATE BOARD OF PHARMACY.
    2100589.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.

      Thomas H. Benton, Jr., of McFadden, Lyon & Rouse, LLC, Mobile, for appellant.
    James S. Ward of Ward & Wilson, L.L.C., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Austin Conner, a licensed pharmacist, appeals from a Montgomery Circuit Court judgment denying his petition seeking review of a decision of the Alabama State Board of Pharmacy (“the Board”).

After a December 16, 2009, hearing in the underlying administrative action, the Board determined that Conner had testified falsely in a previous disciplinary hearing, which had been held in August 2009. On December 30, 2009, the Board entered a decision ordering that Conner be placed on probation for five years and ordering him to pay a $5,000 fine. Conner timely filed a petition for review of the Board’s decision in the circuit court. The only issue Conner raised before the circuit court was whether the Board had properly served him with notice of the December 16, 2009, hearing. After a hearing on the petition, the circuit court entered a final judgment on February 22, 2011, denying Conner’s petition and dismissing the case with prejudice. Conner timely appealed the circuit court’s judgment to this court.

The only issue Conner raises on appeal is whether the Board’s December 30, 2009, decision is void on the ground that Conner did not receive timely notice of the charges against him or of the December 16, 2009, hearing, as required by § 34-23-34, Ala. Code 1975. The record contains the following relevant facts.

On October 22, 2009, Herb Bobo, the Board’s executive director, sent a Statement of Charges and Notice of Hearing (“the notice”) to Conner. In the notice, the Board charged that Conner had violated § 34-23-33, Ala.Code 1975, which sets forth the bases upon which a pharmacist’s license may be revoked or suspended. Specifically, the notice stated that Conner had made false statements to the Board during an August 2009 hearing regarding allegations that he had engaged in sexually inappropriate conduct with people under his supervision. The notice also stated that a hearing on the allegation was scheduled for December 16, 2009, at 1 p.m. at the Board’s office in Birmingham.

The notice was sent by certified mail to Conner’s home address in Florida — the same address where he received papers relating to the previous hearing and the same address Conner had provided to the Board. Records of the United States Postal Service (“USPS”) indicate that Conner was notified at his residence on October 28, October 31, and November 12, 2009, that he had a certified letter awaiting him at the post office.

At the December 16 hearing, Conner initially testified that he did not receive the certified-mail notices from the USPS. He then testified that his children or his wife might have received the notices but that he did not. After providing evasive testimony regarding whether he received mail at his home address, Conner made the following statement: “I never got the paperwork [the certified-mail notices]. When I got the paperwork, it was too late for me to get there. The paperwork — my wife get a lot of paperwork when my kids come home. I get home late at night. And I didn’t get the paperwork to get done to the pick — when I got a paperwork— when I got the letter — ” Conner then went back to his original assertion that he had not received “any notice.” After being reminded that he was under oath, Conner testified that he had found a certified-mail notice “piled up on [his] desk” the Friday before the December 16 hearing. He said he went to the post office to claim his letter the next day, Saturday, but, he said, the post office was closed. He claimed that he had not seen the statement of charges against him until the day of the hearing.

Board records indicate that on December 8, 2009, the certified letter it had sent to Conner’s home address was returned. On December 9, 2009, the Board’s attorney forwarded the notice to the attorney who had represented Conner at the August 2009 hearing, who, in turn, forwarded the notice to Conner via electronic mail (“email”). At the December 16, 2009, hearing, Conner claimed that he had not received that e-mail.

On December 11, 2009, Conner’s attorney moved to continue the December 16, 2009, hearing on the ground that Conner had not been properly served with notice of the hearing or of the charges against him. The Board responded, setting forth the facts surrounding its attempt to serve Conner by certified mail. The hearing officer denied the motion to continue, and the hearing went forward as scheduled on December 16, 2009. Conner was present at the hearing, but without counsel present. As mentioned, at the conclusion of the hearing, Conner was found guilty of making false statements during the August 2009 hearing.

Conner appealed the Board’s decision to the circuit court, which upheld the Board’s decision. He then appealed to this court.

“ ‘ “Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.” ’ ”

Ex parte Medical Licensure Comm’n of Alabama, 897 So.2d 1093, 1097 (Ala.2004) (quoting Ex parte Alabama Bd. of Nurs ing, 835 So.2d 1010, 1012 (Ala.2001), quoting in turn Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989)); see also § 41-22-20(k), Ala.Code 1975. Review of the hearing officer’s conclusions of law or application of law to the facts is de novo. Medical Licensure Comm’n of Alabama v. Herrera, 918 So.2d 918, 926 (Ala.Civ.App.2005); State Dep’t of Human Res. v. Funk, 651 So.2d 12, 16 (Ala.Civ.App.1994). Furthermore, this court reviews a circuit court’s judgment as to an agency’s administrative decision without a presumption of correctness because the circuit court is in no better position to review the agency’s decision than is this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala.Civ.App.1994).

Conner relies on § 41-22-12(a), Ala. Code 1975, a provision of the Alabama Administrative Procedure Act (“the AAPA”), § 41-22-1 et seq., Ala.Code 1975, and § 34-23-34, Ala.Code 1975, which governs the notice required to revoke or suspend the license of a pharmacist, to support his contention that the Board did not timely serve him with notice of the charges against him and of the hearing date.

Section 41-22-12(a) provides:

“In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice in writing delivered either by personal service as in civil actions or by certified mail, return receipt requested. However, an agency may provide by rule for the delivery of such notice by other means, including, where permitted by existing statute, delivery by first class mail, postage prepaid, to be effective upon the deposit of the notice in the mail. Delivery of the notice referred to in this subsection shall constitute commencement of the contested case proceeding.”

Section 34-23-34 provides:

“No action to revoke or suspend the license of any pharmacist or the permit to operate any pharmacy in this state shall be taken until the licensee or holder of such permit has been furnished a statement in writing of the charges against him or her together with a notice of the time and place of hearing. The statement of charges and notice shall be served upon such a person at least 30 days before the date fixed for the hearing, either personally or by registered or certified mail sent to his or her last known post-office address. The burden of proof shall be on the board.”

Conner points out that, pursuant to the Alabama Rules of Civil Procedure, service by certified mail, the method of service the Board attempted in this case, is deemed complete “from the date of delivery to the named addressee or the addressee’s agent as evidenced by signature on the return receipt.” Rule 4(i)(2)(C), Ala. R. Civ. P. He notes that the return receipt in this case was never signed; thus, he says, there was no valid service in this case. Additionally, Conner argues that he did not have at least 30 days’ notice of the hearing or of the charges against him; therefore, he says, the Board failed to comply with the requirements of § 34-23-34. Because he was not served with the notice, Conner says, the Board’s decision of December 30, 2009, must be overturned and the circuit court erred in its refusal to do so.

In response, the Board argues that to set aside the Board’s decision on the ground asserted by Conner would be to allow Conner to benefit from avoiding service. When considering service in general, Alabama appellate courts have recognized that “the return of certified mail ‘unclaimed’ does not in and of itself constitute avoidance of service of process so as to justify service of process by ordinary mail or by publication.” Wise v. Siegel, 527 So.2d 1281, 1281 (Ala.1988). However, neither the AAPA nor § 34-28-34 allow for service by ordinary mail or by publication. Indeed, both provisions require service by certified mail or personal service.

The most closely analogous Alabama case our research has revealed is Asam v. Alabama State Bar, 675 So.2d 866 (Ala.1996) (superseded by rule on other grounds, Rule 5.1.(d), Ala. R. Disc. P.), in which our supreme court held that, despite Asam’s contention that she had been denied due process because she had not been properly served with notice of the disciplinary proceedings against her, the evidence indicated that Asam had, in fact, been provided with sufficient notice of the disciplinary proceedings against her. The court noted that the Alabama State Bar had mailed notice of the disciplinary hearing to Asam’s home and to her office both by regular first-class mail and by certified mail. Even though the certified-mail receipts for the notices of the hearing were returned to the Bar indicating that the notices had been unclaimed, the supreme court determined that Asam had sufficient notice of the disciplinary hearing against her, noting that “[t]he record makes it clear that, despite her assertions to the contrary, Asam had sufficient notice of the disciplinary hearing involving the complaints against her, and the record makes it clear that her conduct showed a pattern of avoiding service of process.” Asam, 675 So.2d at 872. We note that in Asam the Tuscaloosa County Sheriffs Department had previously served Asam with the summons and complaint in the action.

In support of its contention, the Board cites Marcus v. Ambach, 136 A.D.2d 778, 523 N.Y.S.2d 241 (1988), the facts of which are more closely on point with those in the instant case. Marcus was a podiatrist who challenged the revocation of his license to practice podiatry after he was found guilty of professional misconduct. Among the grounds for Marcus’s appeal was his contention that he had been denied due process because, he said, he had not been notified of the date for his hearing. Id., 136 A.D.2d at 779, 523 N.Y.S.2d at 242.

According to the opinion, Marcus had been served with a statement of the charges against him and a notice of the hearing date. 136 A.D.2d at 778, 523 N.Y.S.2d at 241. At Marcus’s request, the hearing was continued. Notice of the rescheduled hearing was sent by certified mail to Marcus’s attorney of record and to Marcus at the address he had provided. The USPS attempted to deliver the certified letter on 3 occasions over 15 days, but the letter was eventually returned as “unclaimed” to the review committee hearing his case. Id., 136 A.D.2d at 778-79, 523 N.Y.S.2d at 241 — 42. Marcus did not appear at the hearing, and he was not represented by counsel. The review committee held the hearing as scheduled despite Marcus’s absence and recommended revocation of his podiatrist license. The relevant authority accepted the recommendation. Id., 136 A.D.2d at 779, 523 N.Y.S.2d at 242.

In response to Marcus’s assertion that he had been denied due process, the New York appellate court explained that due process requires “ ‘ “notice reasonably calculated, under all the circumstances, to apprise [one] of the pendency of the action and ... an opportunity to present [one’s] objections” ’ (Silverstein v. Minkin, 49 N.Y.2d 260, 263[, 425 N.Y.S.2d 88, 401 N.E.2d 210 (1980) ], quoting Mullane v. Central Hanover [Bank &] Trust Co., 339 U.S. 306, 314[, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) ]).” Marcus, 136 A.D.2d at 779, 523 N.Y.S.2d at 242.

The New York court stated that Marcus’s attorney of record had been notified of the hearing, noting that even though Marcus claimed to have “fired” that attorney, he had failed to notify the review committee of that development. The court went on to state that

“notice was sent to [Marcus] at his registered address, which he must keep current pursuant to Education Law § 6502(5) and 8 NYCRR 59.8(c) and (f), particularly when charges of misconduct are pending (see, Matter of Stern v. Ambach, 128 A.D.2d 232, 235-236, 516 N.Y.S.2d 319 [(1987)]). Significantly, [Marcus] verified that he still resided at that address when he commenced this CPLR article 78 proceeding. Thus, it was [Marcus’s] inaction in claiming his mail, not respondent’s conduct, which denied, him the heañng notice he claims was lacking.”

Marcus, 136 A.D.2d at 779, 523 N.Y.S.2d at 242 (emphasis added).

We agree with the rationale expressed by the appellate courts in Asam and in Marcus. In this case, Conner was warned during the August 2009 hearing that if an investigation led to evidence indicating that he was making false statements during that hearing, more charges would be levied against him. Within two months of that warning, the Board sent the statement of charges involving the false statements and the notice of hearing to Conner’s address. Essentially, the present action is a continuation of the August 2009 action, and Conner was aware that additional charges arising from his conduct in that action would possibly be forthcoming. Each of the USPS notifications to Conner that he had received a letter via certified mail was delivered more than 30 days before the December 16, 2009, hearing. Conner acknowledged that the notice was mailed to the proper address. During his testimony at the December 16 hearing, Conner gave several conflicting versions regarding whether the USPS notices regarding the certified letter had reached him or his residence. His testimony ranged from a denial that he had ever received such a notice to an acknowledgment that he had such a notice on his desk but that he had failed to discover it on time. Without a doubt, as was the case in Marcus, it was Conner’s own conduct in failing to retrieve the certified letter, not the conduct of the Board, that led to the supposed “lack” of due process of which he now complains.

Pharmacy is a profession whose members deal with the safety and general welfare of the public. Licensed pharmacists cannot be allowed to frustrate the Board’s policing powers, and endanger the health and welfare of the public, simply by refusing to retrieve a certified letter. Under the facts of this case, we conclude that the Board carried out its obligation to notify Conner of the statement of charges against him and the date, time, and place of the hearing scheduled to consider those charges. The evidence supports a finding that it was Conner’s conduct, and not the Board’s, that supposedly “deprived” him of due process in this case.

Accordingly, the judgment of the trial court upholding the Board’s decision is affirmed.

AFFIRMED.

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

      . The record in this case indicates that, at the August 2009 hearing, the Board's president warned Conner that certain of his statements would be investigated and, if it was discovered that he was not being truthful, other charges would be levied. Conner was found guilty of inappropriate conduct as charged. As a result, Conner was placed on probation for two years and was ordered to pay a fine.