author: BRYAN, Judge.

text:
    Gary Dwayne HILL v. PREMIER BUILDERS AND REALTY, LLC.
    2090321.
    Court of Civil Appeals of Alabama.
    Aug. 27, 2010.

      James T. Baxter III of Abies, Baxter, Parker, Pippin & Avant, P.C., Huntsville, for appellant.
    Charles A. Ray IV of Maples & Ray, P.C., Huntsville, for appellee.
   BRYAN, Judge.

Gary Dwayne Hill, the defendant and counterplaintiff below, appeals from a judgment in favor of Premier Builders and Realty, LLC (“Premier”), the plaintiff and counterdefendant below. We affirm in part; reverse in part; and remand with instructions.

The following facts are undisputed. In 2006, Hill negotiated with Cathy Story regarding the purchase of her house in Madison County (“the Story house”). When those negotiations were unsuccessful, Hill negotiated with Deidre Boyd, the owner and manager of Premier, a licensed home builder, regarding (1) his purchasing a lot near the Story house that was owned by Premier and (2) Premier’s building a house for him on the lot that was like the Story house but with certain specified changes. Hill and Boyd orally agreed that Premier would sell Hill the lot and build a house on it like the Story house but with the specified changes for a total price of $232,000. Boyd prepared a written contract for execution by Hill and Premier.

In pertinent part, the written contract provided:

“1. [Premier] covenants and agrees to construct a dwelling and sell the lot to [Hill] ... for the total sum of Two Hundred Thirty-two Thousand Dollars ($232,000), strictly in accordance with the plans and specifications hereto attached and signed by the parties and made a part of this Agreement. See attached Exhibit A. This price includes the purchase of the lot from [Premier],
“9. If any action is brought to enforce this contract or any provision of this contract, to rescind the contract, to collect damages for an alleged breach of this contract, for a declaratory judgment under the terms of this contract, for specific performance of this contract, the prevailing party in such action, whether plaintiff or defendant, shall be entitled to an allowance for reasonable attorney fees, in addition to cost of suit.
“ADDITIONAL PROVISIONS:
“See attached Exhibit A ‘Specifications’ which is made a part of this contract. Also see attached Exhibit B Presale Selection Sheet and signed copy of floor plans with changes.”

(Emphasis added.)

In pertinent part, Exhibit B to the written contract provided:

“Decoration & Selection Information
“Please call the vendors ahead of time if a phone number is included to make an appointment. Be sure to take a copy of your floor plan to make selections.
“1. Samples at Premier Builders office: “Paint: Three wall colors and one trim color. Must be able to cover in two coats or additional labor charges may apply.
Vinyl siding
Cultured Marble
Formica countertops
Hardwood floor
“2. General Shale Brick:....
Allowance: Brick $280 per 1000, Mortar $6.95 per bag
“3. Madison Paint and Decorating....
Carpet (study, hall, bedrooms, closets) $13 per sq. yd. installed
Tile (Kitchen, utility, baths) $5 per sq. ft. installed
Hardwood (foyer, dining room, family rm) $5 per sq. ft. installed
Door hardware, shelving, mirrors, shower door & towel bars $1,500 allowance
“4. Appliances: Sears Commercial One....
Allowance — $1,400 Be sure to get a print out of appliances to give to cabinet maker.
“5. Plumbing Fixtures: McCrary Supply. ... No appointment needed.... Allowance $2,000
“6. Cabinets and kitchen countertop: Custom Cabinets & Countertops.... Allowance $8,500
“7. Lighting: Inline Lighting.... Allowance $1,450
“If upgrades are made, a change order must be completed with [Premier] and cost paid before installation ivill occur. Selections must be made with the [Premier’s] vendors for warranty purposes.”

(Emphasis added.)

On September 22, 2006, Hill and Premier signed the written contract, Exhibit A to the contract, and Exhibit B to the contract. Thereafter, Hill and Premier closed the sale of the lot for a purchase price of $32,500. Premier then began building the house on the lot; however, Hill ordered Premier to stop working on the house in December 2006. Subsequently, Hill obtained a new building permit in his own name and employed subcontractors who completed the house.

On January 31, 2007, Premier sued Hill, stating a claim of breach of contract and seeking compensatory damages, prejudgment interest, costs, a reasonable attorney fee, and the enforcement of a ma-terialman’s lien. Answering Premier’s complaint, Hill denied liability, asserted various affirmative defenses, asserted a counterclaim, and demanded a jury trial. As one of his affirmative defenses, Hill asserted that the written contract was not enforceable because, he alleged, he had been induced to sign the written contract by a misrepresentation by Premier. Specifically, he alleged that Premier had represented to him that the written contract incorporated their oral agreement that Premier would sell Hill the lot and build him a house on the lot like the Story house except for the specified changes for a total price of $232,000; that that representation was false because, Hill alleged, the allowances specified for interior selections in Exhibit B to the written contract were too small to buy the same quality of interior selections that had been used in the Story house; that, pursuant to the written contract, exceeding the allowances for the interior selections specified in Exhibit B to the written contract would result in a change order increasing the contract price of $232,000; and, therefore, the written contract did not provide that Premier would sell him the lot and build him a house like the Story house except for the specified changes for a total price of $232,000. Hill’s counterclaim stated a claim of misrepresentation based on those same allegations. Premier answered Hill’s counterclaim and denied that it had misrepresented any facts to Hill.

Thereafter, the action proceeded to trial before a jury. During the trial, Premier did not introduce any evidence regarding its claim for a reasonable attorney fee. At the close of all the evidence, the trial court granted Premier’s motion for a judgment as a matter of law (“JML”) with respect to Hill’s counterclaim. During the discussion regarding jury charges, counsel for Premier indicated that it was Premier’s position that the judge could award Premier a reasonable attorney fee after the trial if the jury returned a verdict in favor of Premier. Hill’s counsel asserted that Hill was entitled to a jury trial with respect to Premier’s claim for a reasonable attorney fee. Thereafter, the trial court submitted Premier’s breach-of-contract claim to the jury but did not charge the jury with respect to Premier’s claim for a reasonable attorney fee. Premier’s counsel did not object to the trial court’s failure to charge the jury with respect to Premier’s claim for a reasonable attorney fee. The jury returned a verdict in favor of Premier and awarded Premier damages in the amount of $19,032.33. On June 17, 2009, the trial court entered a judgment on the jury verdict. On July 13, 2009, Premier applied to the trial court for an award of a reasonable attorney fee and costs and submitted affidavits and documentary evidence in support of its application. On August 4, 2009, without conducting a hearing regarding Premier’s application for a reasonable attorney fee and costs, the trial court entered an amended judgment that awarded Premier an attorney fee in the amount of $24,425.45 and costs in the amount of $2,263.75 as well as the $19,032.33 in damages awarded by the jury.

On September 1, 2009, Hill filed a post-judgment motion challenging the judgment, as amended, on the grounds, among others, that he was entitled to a jury trial with respect to Premier’s claim for a reasonable attorney fee; that he was entitled to have his counterclaim submitted to the jury; and that the jury’s award of compensatory damages in the amount of $19,032.33 was excessive. On October 20, 2009, the trial court denied Hill’s post-judgment motion. Hill then timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Hill first argues that the trial court erred in awarding Premier an attorney fee after the jury returned its verdict because, he says, he was entitled to have a jury decide whether Premier was entitled to recover a reasonable attorney fee and, if so, the amount of that fee. Premier, on the other hand, argues that it would have been premature for the trial court to submit issues regarding an attorney fee to the jury before the jury determined whether Premier was entitled to prevail on its breach-of-contract claim because, Premier says, the written contract signed by the parties provided that the “prevailing party” in a breach-of-contract action was entitled to a reasonable attorney fee and Premier was not the prevailing party until the jury returned a verdict in its favor on its breach-of-contract claim.

In Goodwin v. Household Finance Corporation of Montgomery, 45 Ala.App. 442, 231 So.2d 766 (1970), Household Finance Corporation of Montgomery (“Household Finance”), the holder of a note signed by Goodwin, sued Goodwin to recover $552 pursuant to the note, prejudgment interest, and a reasonable attorney fee. Goodwin demanded a jury trial. With regard to the recovery of an attorney fee, the note provided that “ ‘[t]he amount of any judgment hereon in favor of the holder may include the holder’s actual and reasonable attorney’s fees as determined by the court.’ ” 45 Ala.App. at 444, 231 So.2d at 768 (emphasis omitted). At trial, the judge submitted Household Finance’s claim to the jury. The jury returned a verdict in favor of Household Finance in the amount of $426.24 and requested instructions regarding whether it should include an amount for an attorney fee. Counsel for Household Finance declined to introduce evidence regarding a reasonable attorney fee on the ground that the note specified that that determination was to be made by the “court,” which he interpreted to mean the judge. Over Goodwin’s objection, the judge determined that the language of the note authorized him to determine the amount of a reasonable attorney fee and awarded Household Finance an attorney fee in the amount of $125. Goodwin then appealed to this court. We held that the trial court had erred in removing the issues regarding the award of an attorney fee from the jury. In pertinent part, we stated:

“In this case there was a demand for trial by jury filed by the defendant in accordance with Title 7, Section 260. There was no withdrawal or waiver of that demand. It thus became mandatory for the court to submit issues of fact to the jury for their consideration and verdict. In a jury trial there can be no judgment without a verdict of the jury. Wilkes v. Stacy Williams Co., 235 Ala. 343,179 So. 245 [ (1938) ].
“The issues involving the recovery of a reasonable attorney’s fee by plaintiff included, not only how much, but if any. The wording of the clause in the note as to recovery of a reasonable attorney fee is as follows: ‘The amount of any judgment hereon in favor of the holder may include the holder’s actual and reasonable attorney’s fees as determined by the court.’ (Emphasis ours.)
“This states that a judgment on the note may include actual and reasonable attorney fees. There is nothing mandatory about this part of the contract. It further requires such fees to be determined upon proof of actual and reasonableness of such fees. Thus, there are at least two issues of fact for determination: 1. Whether plaintiff is entitled to any attorney’s fee, and 2. What actual and reasonable fees are due plaintiff.
“The proposition upon which plaintiffs attorney and the trial judge removed this issue from decision by the jury, was that the note stated such fees were to be determined by the ‘court’ and the ‘court’ was the judge. Even if such meaning could be read into the wording of the note, it would have no legal standing in a trial by jury. We do not interpret the word ‘court’ in this instance to be limited to, or synonymous with the word judge. Websters Third New International Dictionary, Unabridged, includes among various meanings of the word court, the following: ‘the persons duly assembled (under authority of law) for the administration of justice; an official assembly legally met together for the transaction of judicial business.’
“The official assembly constituting the ‘court’ at the trial of this case included a jury of good and lawful men and women....
“Title 1, Section 2, 1940 Code of Alabama, is quoted in part as follows: ‘The words “jury” or “juries” include courts or judges in all cases when a jury trial is waived, or when the court or judge is authorized to ascertain and determine the facts as well as the law.’
“We believe the converse to be true, that is, the word ‘court’ includes the word ‘jury’ in all cases in which a trial by jury is authorized, demanded, and not waived.
“We find the judge below erred in removing the question of the right to, and amount of a reasonable attorney’s fee from the consideration of the jury, and entering separate judgment for attorney’s fee without basis of a jury verdict.
“We think sufficient reason and authority has already been given, but in addition, we cite the following from Sheffield Chamber of Commerce v. Hatch, 220 Ala. 601, 127 So. 173 [ (1930) ]: ‘... the question of what was reasonable to be allowed as attorney’s fee was for the jury, though the expert testimony in respect thereto was undisputed, it was merely advisory and not conclusive.’ ”

45 Ala.App. at 444-45, 231 So.2d at 768-69 (emphasis other than on “may” and “actual” added).

The case now before us differs from Goodwin in that the contract signed by Hill and Premier provided that the award of a reasonable attorney fee to the prevailing party in a breach-of-contract action was mandatory rather than permissive. Consequently, in the case now before us, the issue whether Premier was entitled to recover a reasonable attorney fee was not a question of fact. However, the case now before us is like Goodwin in that the issue of how much money constitutes a reasonable attorney fee is a question of fact that must be determined by a jury. See Goodwin. Accordingly, we hold that the trial court erred insofar as it deprived Hill of a jury trial with respect to the issue of how much money constituted a reasonable attorney fee, and, therefore, we reverse the judgment of the trial court insofar as it awarded Premier an attorney fee.

Furthermore, we hold that, when Premier did not object to the trial court’s jury charge, which did not include instructions regarding Premier’s claim for a reasonable attorney fee, Premier waived that claim. See Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So.2d 1196, 1207 (Ala.2006) (“When the trial court charged the jury, it did not charge the jury regarding Beiersdoerfer’s promissory-fraud claim. Moreover, Beiersdoerfer did not object to the trial court’s failure to so charge the jury. By not objecting to the trial court’s failure to charge the jury regarding his promissory-fraud claim, Beiersdoerfer waived his promissory-fraud claim.... Regions Bank v. Plott, 897 So.2d 239, 247 (Ala.2004) (‘When the [plaintiffs] expressed their approval of the jury charge, which did not include instructions on their claim of intrusion on seclusion, they waived that claim .... ’).”); and Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143, 153 (Ala.2005) (“The omission of the claims against English from the jury charge was tantamount to a JML for English and against the plaintiffs. Regions Bank v. Plott, 897 So.2d 239, 243-44 (Ala.2004).”). Therefore, we remand the action to the trial court with instructions to enter a judgment in favor of Hill with respect to Premier’s claim for a reasonable attorney fee.

Hill also argues that the provision in the contract for an award of “cost of suit” did not authorize the trial court to award Premier amounts for items other than the costs authorized by statute. However, the record does not indicate that Hill raised that argument in the trial court. This court cannot reverse a trial court’s judgment on the basis of an argument that is raised for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”) Therefore, we affirm the judgment of the trial court insofar as it awarded Premier costs.

Hill also argues that the trial court erred in entering a JML in favor of Premier with respect to Hill’s counterclaim.

“The appellate standard for reviewing a ruling on a motion for judgment as a matter of law, a ‘JML,’ is the same as the standard for the original decision by the trial court. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997).
“JML in favor of a movant who does not assert the claim or affirmative defense but who only opposes it, and who therefore does not bear the burden of proof, is appropriate in either of two alternative cases. One is that the claim or affirmative defense is invalid in legal theory. See Harkins & Co. v. Lewis, 535 So.2d 104 (Ala.1988). The other is that one or more contested essential elements of the claim or affirmative defenses is unsupported by substantial evidence. See Banks v. Harbin, 500 So.2d 1027 (Ala.1986), and McKerley [v. Etowah-DeKalb-Cherokee Mental Health Board, Inc., 686 So.2d 1194 (Ala.Civ. App.1996) ]. If either alternative be true, JML is appropriate. See Harkins, supra, Banks, supra, and McKerley, supra. If, however, the nonmovant’s claim or affirmative defense is valid in legal theory and is supported by substantial evidence on every contested element, JML is inappropriate irrespective of the presence or weight of countervailing evidence See Driver [v. National Sec. Fire & Cas. Co., 658 So.2d 390 (Ala.1995) ], and First Financial [Ins. Co. v. Tillery, 626 So.2d 1252 (Ala.1993) ].
“.... West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), explains, ‘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.’ A trial court deciding a motion for JML and an appellate court reviewing such a ruling must accept the tendencies of the evidence most favorable to the nonmovant, Wal-Mart Stores, Inc. v. Manning, 788 So.2d 116 (Ala.2000), Southern Energy Homes, Inc. v. Washington, 774 So.2d 505 (Ala. 2000), and Palm Harbor Homes, supra, and must resolve all reasonable factual doubts in favor of the nonmovant, Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Ex parte Helms, 873 So.2d 1139, 1143—44 (Ala.2003).

Hill, as the counterplaintiff, bore the burden of proving his counterclaim. Because Hill’s counterclaim, which stated a claim of misrepresentation, was valid in legal theory, the dispositive issue is whether Hill introduced substantial evidence establishing each essential element of his misrepresentation claim. Reasonable reliance is one of those essential elements. See Alfa Life Ins. Corp. v. Green, 881 So.2d 987, 991-92 (Ala.2003). In Alfa, the supreme court explained:

“To recover in a fraud action filed after March 14, 1997, a plaintiff must prove that he or she reasonably relied on the defendant’s alleged misrepresentation. Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997). The reasonable-reliance standard was the law before the release of Hickox v. Stover, 551 So.2d 259 (Ala.1989), and again became the law for all actions filed after March 14, 1997. This standard was well-stated in Torres v. State Farm Fire & Casualty Co., 438 So.2d 757, 758-59 (Ala.1983):
“ ‘Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one’s own interests, the right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests. In order to recover for misrepresentation, the plaintiffs’ reliance must, therefore, have been reasonable under the circumstances ....
“ ‘ “If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, ‘vol[e]nti non fit injuria.’ ”[]
‘“Munroe v. Pritchett, 16 Ala. 785, 789 (1849).’ ”

881 So.2d at 991-92 (footnote omitted).

Hill alleged that he was induced to enter into the written contract by Premier’s representing to him that the written contract incorporated their oral agreement that Premier would sell him the lot and build him a house on the lot that was like the Story house except for specified changes for a total price of $232,000; that that representation was false because, he alleged, the allowances specified for interior selections in Exhibit B to the written contract were too small to buy the same quality of interior selections that had been used in the Story house; that, pursuant to the written contract, exceeding the allowances for the interior selections specified in Exhibit B to the written contract would result in a change order increasing the contract price of $232,000; and, therefore, the written contract did not provide that Premier would sell him the lot and build him a house like the Story house except for the specified changes for a total price of $232,000. However, Hill testified that he read Exhibit B to the written contract before he signed that exhibit on September 22, 2006. Thus, he was aware of the amount of the allowances specified in that exhibit for interior selections and that that exhibit provided that his exceeding the allowances would result in a change order increasing the $232,000 contract price. Consequently, he had a duty to investigate whether those allowances were sufficient to buy the same quality of interior selections used in the Story house before he signed the written contract. See Alfa Life Ins. Corp. Hill did not perform such an investigation before he signed the written contract and its exhibits. Therefore, as a matter of law, Hill’s reliance on Premier’s alleged representation that the written contract incorporated their oral agreement that Premier would sell him the lot and build him a house on the lot like the Story house except for the specified changes for a total price of $232,000 was not reasonable. Id. Although the trial court based its JML with respect to Hill’s counterclaim on a ground other than Hill’s failure to prove that his reliance on Premier’s alleged misrepresentation was reasonable, we can affirm “the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial judge....” Ex parte Wiginton, 743 So.2d 1071, 1072 (Ala.1999). Accordingly, we affirm the JML in favor of Premier with respect to Hill’s counterclaim on the ground that Hill failed to introduce substantial evidence indicating that his reliance on Premier’s alleged misrepresentation was reasonable.

Finally, Hill argues that the jury’s award of damages in the amount of $19,032.33 was excessive. We disagree.

“ ‘It is well settled that damages awarded for breach of contract should return the injured party to the position he would have been in had the contract been fully performed.’ In cases where the owner has breached a construction contract after partial performance, the proper measure of damages is the difference between the price agreed upon in the contract and the cost of performance, or, in other words, the contractor’s ‘lost profit.’ ”

Med Plus Props. v. Colcock Constr. Group, Inc., 628 So.2d 370, 375-76 (Ala.1993) (footnote and citations omitted). In the case now before us, Premier introduced evidence proving that Hill had breached the contract after Premier had partially performed it and that Premier lost a profit in the amount of $38,396 as a result of Hill’s breach of the contract. Given that evidence, the jury’s award of $19,032.33 was not excessive.

Accordingly, for the reasons discussed above, we reverse the judgment of the trial court insofar as it awarded Premier an attorney fee; we affirm the judgment of the trial court in all other respects; and we remand the action to the trial court with instructions to enter a judgment in favor of Hill with respect to Premier’s claim for a reasonable attorney fee.

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

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

      . Premier also sued First American Bank, which held a mortgage on the house, seeking the enforcement of a materialman's lien; however, Premier later consented to the entry of a judgment determining that First American Bank's mortgage was superior to the ma-terialman's lien claimed by Premier, and First American Bank is not a party to this appeal.

        . See Black’s Law Dictionary 1605 (8th ed.2004), defining the maxim "volenti non fit injuria" as "[t]he principle that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury.”


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Howard ROSS v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee under the Pooling and Services Agreement Series INABS 2006-B.
    2090311.
    Court of Civil Appeals of Alabama.
    Aug. 27, 2010.

      Howard Ross, Huntsville, for appellant.
    N. John Rudd, Jr., of Johnson & Freedman, L.L.C., Atlanta, Georgia, for appel-lee.
   MOORE, Judge.

Howard Ross appeals from a summary judgment entered by the Madison Circuit Court (“the trial court”) in favor of Deutsche Bank National Trust Company, as trustee under the Pooling and Services Agreement Series INABS 2006-B (“the Bank”). We reverse.

Facts and Procedural History

It is undisputed that the Bank purchased certain property located in Madison County (“the property”) at a foreclosure sale on August 24, 2006, and that Ross subsequently purchased the property on May 11, 2007, at a Madison County tax sale. The issue on appeal is whether the Bank properly redeemed the property from Ross after the tax sale, pursuant to Ala.Code 1975, § 40-10-122.

On September 24, 2007, the Bank filed a complaint requesting that the trial court (1) declare that the Bank owned the property, (2) issue a writ of possession for the property in favor of the Bank, and (3) declare that Ross was exercising unlawful possession of the property. Ross answered the complaint on October 24, 2007. On November 20, 2007, the Bank filed a motion for a summary judgment, along with a brief; an affidavit of Cary B. Stern-berg, a vice president of the Bank; and other evidentiary materials in support of its motion. In Sternberg’s affidavit, he stated that the Bank had redeemed the property. Ross subsequently filed a response to the summary-judgment motion, along with an affidavit in which he stated that the property had not been redeemed pursuant to § 40-10-122 and that he had not received any notice regarding the property.

The Bank then filed a reply to Ross’s response, along with evidentiary materials in support thereof. Specifically, the Bank attached to its reply an affidavit of Jane Dismuke, the chief accountant for the Madison County Probate Court. In her affidavit, Dismuke stated that the Bank had redeemed the property on July 27, 2007, and that she had forwarded the notice of redemption to Ross. The Bank also attached the certificate of redemption issued by the probate court and an affidavit of Patrick Tuten, local counsel for the Bank, in which Tuten stated that he had, on October 23, 2007, personally delivered a letter to Ross that stated: “Please forward your demands for the redemption of [the] property at your earliest possible convenience, being sure to include an itemized statement of the fees you are requesting.”

Ross filed an answer to the Bank’s reply and an affidavit in support thereof. In his affidavit, Ross stated that he had received the certificate of redemption, that he had received the letter from Tuten, that he had placed a list of improvements and insurance premiums for the property in the Madison County courthouse mailbox of Patrick Tuten, and that he had not received payment for the amounts he had expended on improvements and insurance premiums for the property.

After several additional proceedings not relevant to the disposition of this appeal, the trial court entered a summary judgment in favor of the Bank on July 20, 2009, stating, in pertinent part:

“A. The Court finds there are no genuine issues of material fact, and [the Bank] is entitled to judgment as a matter of law.
“B. On July 27, 2007, [the Bank] properly redeemed the property ... from a tax sale to ... Ross, pursuant to Ala.Code [1975,] § 40-10-122. [The Bank] has provided evidence that it made written demand on ... Ross on October 23, 2007[,] requesting improvement figures pursuant to Ala.Code [1975,] § 40-10-122(d), and that no response was received from Ross within the 10 days of receipt of the demand for same, a time limitation imposed by Ala. Code [1975,] § 40-10-122(d)....
“D. [The Bank] ... owns all rights, title and interest in and to the property....
“E. [The Bank] ... is entitled to a Writ of Possession/Execution granting [it] possession of the property and the Circuit Clerk shall issue the said Writ of Possession/Execution immediately.”

Ross filed a motion to vacate the summary judgment on August 18, 2009; that motion was denied by operation of law on November 16, 2009. Rule 59.1, Ala. R. Civ. P. Ross timely appealed to this court on December 23, 2009. This court subsequently transferred the case to the Alabama Supreme Court for lack of appellate jurisdiction; that court then transferred the case back to this court, pursuant to Ala.Code 1975, § 12-2-7.

Standard of Review

“A party is entitled to a summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. ‘Our standard of review in cases involving summary judgments is de novo.’ Lee v. Burdette, 715 So.2d 804, 806 (Ala.Civ.App.1998). ‘In reviewing the disposition of a motion for [a] summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the movant ‘is entitled to a judgment as a matter of law.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c)(3), Ala. R. Civ. P. ‘[I]f the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden ... shifts to the non-movant; ... the non-movant must show “substantial evidence” in support of his position.’ Bass v. SouthTrust Bank, 538 So.2d 794, 798 (Ala.1989). Evidence is ‘substantial’ if it is ‘of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this court must review the record in a light that is most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Manners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Prince v. Wal-Mart Stores, Inc., 804 So.2d 1102, 1103-04 (Ala.Civ.App.2001).

Discussion

I.

On appeal, Ross first argues that his affidavit, in which he states that he placed a list of improvements and insurance premiums for the property in the Madison County courthouse mailbox of Patrick Tuten constituted substantial evidence indicating that he responded to the Bank’s demand for improvement figures, pursuant to Ala.Code 1975, § 40-10-122(d). We note, however, that § 40-10-122(d) requires that the tax-sale purchaser respond to a demand for improvement figures within 10 days from the receipt of that demand. See Ala.Code 1975, 40-10-122(d) (“In response to written demand made pursuant to this subsection, within 10 days from the receipt of such demand, the purchaser shall furnish the proposed redemptioner with the amount claimed as the value of such permanent or preservation improvements as applicable_”). In the present case, although Ross did present evidence indicating that he had responded to the demand for improvement figures, he failed to present any evidence indicating that his response was effected within the requisite 10 days after receipt of the demand. Thus, we conclude that Ross failed to present substantial evidence indicating that he had complied with the procedure set forth in § 40-10-122(d).

II.

Ross next argues that, because § 40-10-122 does not specifically provide for forfeiture of compensation for improvements due to failure to respond to a request for improvement figures, the trial court erred in entering the summary judgment in favor of the Bank. We note, however, that Ross failed to make this argument to the trial court. Thus, we cannot address this argument. See Shiver v. Butler County Bd. of Educ., 797 So.2d 1086, 1088 (Ala.Civ.App.2000) (“Generally, a reviewing court cannot consider arguments made for the first time on appeal.”). Even so, we note that, although § 40-10-122(d) does not specifically provide that a failure to timely respond results in a forfeiture of the right to payment for improvements, the mandatory nature of the procedure set forth in that subsection implies the same.

III.

Ross’s final argument is that the payment of insurance premiums by a re-demptioner is required regardless of whether the tax-sale purchaser responded to a demand for improvement figures. Ross notes that § 40-10-122 makes no provision for a request for insurance figures or a response thereto. We agree. Section 40-10-122(c) provides that if the property at issue “contains a residential structure at the time of the sale regardless of its location, the proposed redemptioner must pay to the purchaser or his or her transferee ... [a]ll insurance premiums paid or owed by the purchaser for casualty loss coverage on the residential structure with interest on the payments at 12 percent per annum.” Section 40-10-122, however, makes no provision for a proposed redemptioner to demand the amount of insurance premiums paid or for the tax-sale purchaser to respond to that demand. Thus, Ross had no statutory duty under § 40-10-122 to respond to the demand by providing the amount of insurance premiums Ross had paid, whereas the Bank did have the statutory duty to reimburse Ross for the amount of insurance premiums that had been paid. As Ross points out, the Bank failed to provide any evidence indicating that it had met this requirement. Accordingly, we conclude that the trial court erred in entering a summary judgment in the Bank’s favor.

Conclusion

Based on the foregoing, we reverse the trial court’s summary judgment, and we remand this cause for further proceedings.

REVERSED AND REMANDED.

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

      . At all times pertinent to this action, Ala. Code 1975, § 40-10-122, provided, in pertinent part:
      “(a) In order to obtain the redemption of land from tax sales where the same has been sold to one other than the state, the party desiring to make such redemption shall deposit with the judge of probate of the county in which the land is situated the amount of money for which the lands were sold, with interest payable at the rate of 12 percent per annum from date of sale, and, on the portion of any excess bid that is less than or equal to 15 percent of the market value as established by the county board of equalization, together with the amount of all taxes which have been paid by the purchaser, which fact shall be ascertained by consulting the records in the office of the tax collector, or other tax collecting official, with interest on said payment at 12 percent per annum. If any taxes on said land have been assessed to the purchaser and have not been paid, and if said taxes are due which may be ascertained by consulting the tax collector or other tax collecting official of the county, the probate judge shall also require the party desiring to redeem said land to pay the tax collector or other tax collecting official the taxes due on said lands which have not been paid by the purchaser before he or she is entitled to redeem the same. In all redemptions of land from tax sales, the party securing the redemption shall pay all costs and fees as herein provided for due to officers and a fee of $.50 to the judge of probate for his or her services in the matter of redemption. This application and payment may be executed by an on-line transaction via the Internet or other on-line provision.

      (c) With respect to property which contains a residential structure at the time of the sale regardless of its location, the proposed redemptioner must pay to the purchaser or his or her transferee, in addition to any other requirements set forth in this section, the amounts set forth below:
      “(1) All insurance premiums paid or owed by the purchaser for casualty loss coverage on the residential structure with interest on the payments at 12 percent per annum.
      "(2) The value of all preservation improvements made on the property determined in accordance with this section with interest on the value at 12 percent per annum.
      "(d) As used herein, ‘permanent improvements' shall include, but not be limited to, all repairs, improvements, and equipment attached to the property as fixtures. As used herein, 'preservation improvements' shall mean improvements made to preserve the property by properly keeping it in repair for its proper and reasonable use, having due regard for the kind and character of the property at the time of sale. The proposed redemptioner shall make written demand upon the purchaser of a statement of the value of all permanent or preservation improvements as applicable made on the property since die tax sale. In response to written demand made pursuant to this subsection, within 10 days from the receipt of such demand, die purchaser shall furnish the proposed redemptioner with the amount claimed as the value of such permanent or preservation improvements as applicable; and within 10 days after receipt of such response, the proposed redemptioner either shall accept the value so stated by the purchaser or, disagreeing therewith, shall appoint a referee to ascertain the value of such permanent or preservation improvements as applicable. The proposed re-demptioner shall in writing (i) notify the purchaser of his or her disagreement as to the value; and (ii) inform the purchaser of the name of the referee appointed by him or her. Within 10 days after the receipt of such notice, the purchaser shall appoint a referee to ascertain the value of the permanent or preservation improvements as applicable and advise the proposed re-demptioner of the name of the appointee. Within 10 days after the purchaser has appointed his or her referee, the two referees shall meet and confer upon the award to be made by them. If they cannot agree, the referees shall at once appoint an umpire, and the award by a majority of such body shall be made within 10 days after the appointment of the umpire and shall be final between the parties.”
      Section 40-10-122 was amended effective September 1, 2009; however, the changes to the statute are not pertinent to the issues in this appeal.

      . The Bank does not dispute that the property "conlain[ed] a residential structure at the time of the sale,” so as to make § 40-10-122(c) inapplicable. Instead, based on the fact that Ross had leased the property to tenants who resided on the property, it appears undisputed that § 40-10-122(c) is applicable to the property.


text:
    Ex parte CITY OF PRATTVILLE. (In re James Pilson v. City of Prattville).
    2090586.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.

      Matthew R. Griffith of Hinton & Hern-don, Montgomery, for petitioner.
    Steven P. Floyd of Guy R. Willis & Assoc., Millbrook, for respondent.
   MOORE, Judge.

The City of Prattville (“the City”) seeks a writ of mandamus ordering the Autauga Circuit Court (“the trial court”) to vacate its order of February 4, 2010. In that order, the trial court ordered the City to authorize pendente lite medical treatment for James Pilson, its employee, pursuant to the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. (“the Act”). We deny the City’s petition.

Background

On January 25, 2008, Pilson, an employee of the Prattville Police Department, was involved in a motor-vehicle accident during the course of his employment. The City received notice of the accident and authorized Dr. James Carpenter to treat Pilson’s injuries from the accident. After quickly becoming dissatisfied with Dr. Carpenter, Pilson began simultaneously seeing Dr. Danny Ingram, his family doctor, at his own cost. At some point, Dr. Ingram referred Pilson to Dr. Patrick Ryan, a neurosurgeon. On February 28, 2008, Pil-son requested that Dr. Carpenter also refer Pilson to Dr. Ryan, but Dr. Carpenter did not do so. Thereafter, Pilson communicated his dissatisfaction with Dr. Carpenter, and he selected a new authorized treating physician, Dr. Daniel Banach, a family-medicine practitioner, from a panel of four physicians provided by the City. See Ala.Code 1975, § 25-5-77.

On March 5, 2008, Pilson started treatment with Dr. Ryan outside the City’s workers’ compensation system. On April 2, 2008, at his initial visit with Dr. Banach, Pilson informed Dr. Banach of all of his previous treatment, which included an MRI exam that showed two herniated disks in his neck at C5-6 and C6-7, epidural injections, and physical therapy that had been prescribed by Dr. Ryan. Dr. Banach reviewed the MRI report and agreed with the diagnosis of two herniated cervical disks. Dr. Banach testified that, ordinarily, he referred a patient with such findings to a neurosurgeon for treatment options. He also testified that, based on his ordinary practice, he had indicated in his medical records that he wanted to refer Pilson to Dr. Ryan and further that he wanted to try to get all Dr. Ryan’s previous treatment of Pilson “under workers’ compensation.” Dr. Banach forwarded to the City a completed workers’ compensation form regarding his evaluation of Pil-son; on that form, Dr. Banach indicated: “refer to Dr. Ryan.” Dr. Banach testified that he made the referral because Dr. Ryan was already treating Pilson and, Dr. Banach stated, “it’s my opinion that [Dr. Ryan] is the best neurosurgeon in this area, so he is the one I would recommend had [Pilson] not seen him already.” Dr. Banach testified that he concurred with Dr. Ingram’s referral of Pilson to Dr. Ryan. However, at that time, the City did not refer Pilson to Dr. Ryan through its workers’ compensation system.

Pilson continued to follow up with Dr. Ryan, showing initial improvement, but he eventually informed Dr. Ryan on March 18, 2009, that conservative measures had not cured his neck pain and that he wanted to proceed with surgery. Dr. Ryan agreed that Pilson needed a cervical diskectomy and fusion, and, on March 31, 2009, Dr. Ryan scheduled the surgery for April 9, 2009. The City did not, however, authorize Dr. Ryan to perform the surgery. On April 2, 2009, Pilson returned to see Dr. Banach. On examination, Dr. Banach found that Pilson continued to have symptoms indicative of cervical disk herniations. Dr. Banach noted that Dr. Ryan had recommended surgery and that Pilson needed a referral from him in order to have that surgery covered by workers’ compensation. Dr. Banach again indicated that he wanted to refer Pilson to Dr. Ryan, this time specifically for the surgery, which Dr. Banach felt Pilson needed. However, a person from the City’s workers’ compensation administrator informed Dr. Banach’s nurse in a telephone call on April 3, 2009, that the City would not authorize Dr. Ryan as a treating physician for Pilson and that, instead, the City wanted Pilson to see an orthopedic surgeon, Dr. Michael Davis.

On May 6, 2009, Pilson filed a complaint seeking benefits under the Act. On that same date, Pilson filed a motion to compel medical treatment. In that motion, Pilson alleged that Dr. Banach had “recommended” treatment with Dr. Ryan and that the City had “failed to authorize and/or approve [that] course of treatment.” The City answered Pilson’s complaint. The City admitted in its answer that Pilson had received injuries in the motor-vehicle accident and that it had received proper notice of the accident. However, the City denied that, as a proximate result of the accident, Pilson had “suffered a head injury, concussion, neck injuries including a bulging disc, numbness and tingling in fingers, laceration to head requiring 18 staples, and loss of full cognitive function,” as Pilson alleged in his complaint. The City also denied that Pilson had obtained medical treatment for those injuries and denied that he needed additional treatment for those injuries. The City stated in its answer that it disputed “the scope and extent of the medical treatment sought by [Pilson] and contends [Pil-son] is seeking recovery for unauthorized treatment which is not related to an on-the-job accident” and that, “[d]ue to [Pil-son’s] refusal to obtain further treatment from an authorized physician, [the City] is without knowledge or information sufficient to form a belief as to the truth of whether [Pilson] is in need of additional treatment.” The City further asserted that Pilson was seeking medical treatment that was not reasonably necessary.

On December 16, 2009, after the parties had conducted discovery, Pilson renewed his motion to compel medical treatment, again seeking to compel the City to authorize his treatment with Dr. Ryan. In support of his renewed motion, Pilson submitted the deposition of Dr. Banach. The City moved for a final hearing; it also opposed Pilson’s renewed motion for medical treatment, asserting that Dr. Banach had never referred Pilson to Dr. Ryan but, rather, that it had been Dr. Ingram who had made the referral. After a hearing, the trial court granted Pilson’s motion. In its order, the trial court found that Dr. Banach had referred Pilson to Dr. Ryan, and it ordered the City to authorize Dr. Ryan’s treatment of Pilson within a reasonable time not to exceed 21 days.

On March 17, 2010, the City petitioned this court for a writ of mandamus directing the trial court to vacate its order. We granted the City’s motion to stay enforcement of the trial court’s order pending the resolution of the City’s petition. The parties completed their briefing to this court on June 16, 2010, at which time the ease was assigned to this judge. We now deny the petition and lift the stay.

Standard of Review

“ ‘ “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).... ’

“Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).”

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala.2009).

Analysis

In its petition, the City asserts that the trial court erred in ordering it to authorize Dr. Ryan’s treatment of Pilson because, it says, Dr. Banach, Pilson’s authorized treating physician, made no referral to Dr. Ryan. The City alternatively asserts that, even if the trial court correctly found that Dr. Banach had referred Pilson to Dr. Ryan, the City had expressly limited Dr. Banach’s authority to make such a referral and, as a result, Dr. Banach lacked the authority to refer Pilson to Dr. Ryan. Additionally, the City asserts that an authorized treating physician cannot refer an injured employee to a physician whom the employee is already seeing. Finally, the City asserts that the trial court erred in granting Pilson’s motion to compel medical treatment before deciding the issue of compensability under the Act.

We address the last issue first. Generally speaking, an employee covered by the Act is entitled to the medical benefits set out in Ala.Code 1975, § 25-5-77, if: (1) the employee has sustained an injury due to an accident arising out of and in the course of the employment; (2) the employee notifies the employer of the accident and injury; (3) medical benefits are reasonably necessary to treat the work-related injury; and (4) medical benefits are authorized by the employer. See generally Ex parte Publix Super Markets, Inc., 963 So.2d 654, 658 (Ala.Civ.App.2007). In Publix, this court held that, when an employer disputes the occurrence of a work-related accident and/or disputes that the work-related accident has caused or contributed to an injury for which an employee seeks medical benefits, a trial court may not order authorization and payment of those medical benefits without first resolving the dispute as to compensability via due process, which ordinarily entails an evidentiary hearing. See also Ex paHe Sunbelt Transport, Inc., 23 So.3d 1138 (Ala.Civ.App.2009) (accord).

In this case, the City did dispute the compensability of Pilson’s injuries because, in its answer, the City denied that Pilson had sustained the injuries set out in his complaint as a result of the motor-vehicle accident. However, in his renewed motion to compel medical treatment, Pilson asserted that the City no longer disputed compensability. In its response to the renewed motion to compel medical' treatment, the City did not object to that statement and, in fact, asserted to the trial court as follows:

“The sole issue in this case is whether [the City] should be liable to Pilson for worker’s compensation payments for treatments (surgery) to be performed by Dr. Ryan. [The City] would only be responsible for Dr. Ryan’s treatment of Pilson if Dr. Ryan was authorized as a treating physician (either expressly or impliedly) and if the treatments are reasonably necessary.”

The City then filed briefs with the trial court addressed to the evidence relating solely to the authorization issue. At the City’s request, the trial court then conducted a hearing, presumably based on the issues as framed by the City, ultimately finding that the City had impliedly authorized Dr. Ryan to treat Pilson based on the referral from Dr. Banach.

We conclude that the City, by defining the issues as set out above and by proceeding to the hearing based on those issues, waived any argument that the treatment by Dr. Ryan should not be covered because it was not proven to relate to a condition that was medically caused by the motor-vehicle accident. See McKinley v. McKinley, 277 Ala. 471, 172 So.2d 35 (1965) (recognizing that a party cannot complain on appeal that the trial court considered an issue that that party consented to submit to the trial court). The City could have presented that issue as a ground for denying the motion to compel medical treatment, but it elected to limit its objection solely to the alleged lack of authorization for the surgery by Dr. Ryan. The City did not assert to the trial court that the court could not rule on the motion because of the dispute as to compensability, and it did not ask for a hearing on compensability as a prelude to any ruling on the motion to compel medical treatment, which it would have had a right to do if it continued to dispute compensability. See Publix, supra. It is well settled that “ ‘[a] party may not predicate an argument for reversal on “invited error,” that is, “error into which he has led or lulled” ’ ” the pertinent adjudicative body. Wood v. State Pers. Bd., 705 So.2d 413, 422 (Ala.Civ.App.1997) (quoting Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992), quoting in turn Dixie Highivay Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). Moreover, this court will not issue a writ of mandamus to compel a trial court to perform an act that the trial court was never requested to perform. See Wood v. City of Birmingham, 247 Ala. 15, 19, 22 So.2d 331, 334 (1945) (holding that, when there was no attempt in a motion to set aside that part of a decree that was final, mandamus would not issue to review the action of the lower court in rendering its final decree, since mandamus will not issue to compel the court to do anything that it has not been asked to do). Finally, “[t]his 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. Collect, 567 So.2d 1302, 1304 (Ala.1990).

We next address the question whether Dr. Banach had effectively referred Pilson to Dr. Ryan. That issue involves two separate, but interrelated, inquiries: (1) whether, as a matter of law, Dr. Banach possessed the authority to make such a referral in light of the fact that the City did not expressly authorize him to make the referral, and (2) assuming we answer the first question in the affirmative, whether, in fact, Dr. Banach did refer Pilson to Dr. Ryan. We conclude that Dr. Banach did have that authority and that the evidence sufficiently supports the trial court’s factual determination that Dr. Banach referred Pilson to Dr. Ryan.

In Overnite Transportation Co. v. McDuffie, 933 So.2d 1092 (Ala.Civ.App.2005), this court held that, pursuant to § 25-5-77, an employer has a right to select the initial treating physician for an employee who has been injured in a work-related accident. Once that physician has been selected by the employer, that physician has the implied authority to refer the employee to a specialist for reasonably necessary medical treatment, and the referred specialist thereby becomes an authorized physician. According to the holding in Ovemite, an employer may not limit the power of a selected physician to refer an employee for reasonably necessary medical treatment and it may not deny such a referral on the basis that the referral had not been previously expressly authorized by the employer. 933 So.2d at 1098 (“Nothing in ... the 1992 amendments to the Workers’ Compensation Act ... purports to give an employer direct authority to ‘preapprove’ or reject referrals made by an authorized treating physician.”). Thus, so long as the treatment to be obtained as a result of an authorized treating physician’s referral falls within the parameters of what is “reasonably necessary,” the employer may not refuse to authorize that treatment. Id.; see also Ex parte Massey Chevrolet, Inc., 23 So.3d 33 (Ala.Civ.App.2009) (accord); City of Auburn v. Brown, 638 So.2d 1339, 1341 (Ala.Civ.App.1993) (“[A]s a general rule, the employer may not dictate to the employee that he may not have the medical treatment recommended by his authorized, treating physician.”); and 2 Terry A. Moore, Alabama Workers’ Compensation § 17:17 (1998) (“[An] employer may not limit the scope of the employee’s treatment by refusing to pay for reasonably necessary medical treatment recommended by the physician or agreeing to pay only for certain procedures.”).

The City relies on Marion Homes of Bear Creek, Alabama, Division of Tidwell Industries, Inc. v. Dulaney, 441 So.2d 955 (Ala.Civ.App.1983), in support of its argument that an employer may expressly limit an authorized treating physician’s authority to refer an injured employee to another physician for reasonably necessary treatment. We disagree with the City’s premise and with its reliance on Dulaney. The issue in Dulaney was whether, by granting the injured employee permission to return to his family physician for treatment of a previous injury that the employer believed the employee had aggravated while at work, the employer had authorized the employee to obtain treatment for a wholly separate injury discovered by the family physician. Id. at 957. This court concluded that, because the employer had not specifically restricted the authorization it granted to the employee to return to his family physician for treatment, the employer’s authorization necessarily extended to whatever injury the employee had sustained on the date in question, which was subsequently discovered not to involve the area previously treated by the family physician. Id. In Dulaney, this court did not specifically address the issue now before this court, which has since been authoritatively addressed in Ovemite and the other cases cited above. Thus, we reject the City’s argument that Dr. Banach could not have referred Pilson to Dr. Ryan because the City had not granted Dr. Banach express authority to make such a referral.

As for the City’s argument that the evidence does not support the trial court’s finding that Dr. Banach referred Pilson to Dr. Ryan, we answer that contention by holding that our standard of review compels us to disagree. Pursuant to Ala. Code 1975, § 25-5-81(e), we review factual findings made in workers’ compensation cases solely to determine whether those findings are supported by substantial evidence, i.e., “ ‘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.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

“This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).”

Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007).

The evidence before the trial court, as summarized above, shows that, in his records, in a workers’ compensation form, and during a telephone call, Dr. Banach expressly conveyed to the City his intention that Pilson should be examined and treated surgically by Dr. Ryan. The verb “refer” is defined as “to send or direct for treatment, aid, information, or decision.” Merriam-Webster’s Collegiate Dictionary 1045 (11th ed.2003). The foregoing evidence alone shows that Dr. Banach referred Pilson to Dr. Ryan.

The City points out that, in his deposition, Dr. Banach testified that a referral, “in the official sense,” occurs when his office actually “goes through the necessary procedure to secure an appointment for a patient with another doctor,” whereas a “recommendation” would involve “telling a patient I think you should see Dr. X.” Dr. Banach also testified that he had tried only to “s tart the process” of referral when he sent in the workers’ compensation form on April 2, 2008. Dr. Banach further testified that, when he indicated “refer to Dr. Ryan who is going to do the surgery” in his April 2, 2009, notes, he was merely noting that he intended to try to refer Pilson to Dr. Ryan through the City’s workers’ compensation system and that it was not a referral “in the strict sense”; rather, it was a statement of future intention. Dr. Banach stated that he never completed a “proper referral” to Dr. Ryan to perform the surgery through the City’s workers’ compensation administrator because the administrator had informed him that the administrator was setting up an appointment for Pilson with Dr. Davis. Dr. Banach stated that he could refer a patient only with the authorization of the City and that he had only requested the City to refer Pilson to Dr. Ryan.

The foregoing deposition excerpts merely illustrate that Dr. Banach understood that, as a matter of practice between his office and the City, he could refer injured employees to other doctors only with the express authorization of the City. Based on that understanding, any referral, in the “official” or “strict” sense, would not be completed until the City actually approved of his decision and expressly directed him to secure the appointment with the referred physician. However, as shown above, the law does not allow the City to withhold its authorization. Thus, once Dr. Banach informed the City that he wanted Pilson to see Dr. Ryan, the referral process was, legally speaking, complete. Ultimately, Dr. Banach testified correctly when he stated later in his deposition that, as Pilson’s physician, he should make the medical decisions for Pilson, that he had wanted Dr. Ryan to treat Pilson, and that he had, in fact, referred Pilson to Dr. Ryan on April 2, 2008, and again in April 2009. Therefore, we conclude that substantial evidence supports the trial court’s finding that Dr. Banach referred Pilson to Dr. Ryan.

We also reject the City’s claim that, because it did not specifically select Dr. Ryan as Pilson’s treating physician at the time Dr. Ryan first began treating Pilson, it had no obligation to authorize any subsequent referral of Pilson to Dr. Ryan. The City’s argument appears to be that, because Pilson began treatment with Dr. Ryan outside the Act, the City had no obligation to approve any subsequent referral of Pilson to Dr. Ryan, even when that referral was made by Pilson’s authorized treating physician. Stated differently, the City argues that Dr. Banach could not have referred Pilson, as contemplated by the Act, to a physician he was already seeing. We disagree.

As stated above, an employer is responsible for paying for the treatment choices made by the authorized treating physician so long as that choice falls within the parameters of what is “reasonably necessary” to treat the employee. See Overnite Transp. Co., 933 So.2d at 1096; see also § 25-5-77(a). Dr. Banach clearly stated that he agreed with Dr. Ingram that the referral to Dr. Ryan was reasonably necessary to further Pilson’s recovery from his work-related injuries. The referral therefore falls within the general rule of coverage. The City has cited no legal authority compelling us to hold that the mere fact that Pilson had previously received unauthorized treatment through Dr. Ryan forever barred Dr. Ryan from becoming an authorized physician, thereby carving carve out an exception to the general rule. In reaching our decision, we note that Dr. Banach testified that, when making his referral decision, he had taken into consideration the prior doctor-patient relationship between Pilson and Dr. Ryan, but he also testified that he would have referred Pilson to Dr. Ryan even if no such prior relationship had existed because he considered Dr. Ryan to be the best neurosurgeon in the area. We do not decide how we would treat a case in which an authorized physician merely deferred to the case planning of the injured employee or simply referred an employee to a prior physician for convenience or for purely financial considerations because those facts are not before us. We simply hold that, under the circumstances present in this case, the fact that Pilson had previously been treated by Dr. Ryan outside the Act, standing alone, does not render Dr. Banach’s referral ineffective.

We also reject the City’s argument that it had no notice that Pilson was being treated by Dr. Ryan and that it, therefore, cannot be held responsible for Dr. Ryan’s treatment. See 2 Terry A. Moore, Alabama Workers’ Compensation § 17:2 (1998) (“[A]n employer is not liable for treatment obtained by an employee without justification or prior notice to the employer.”). According to his deposition testimony, on April 2, 2008, Dr. Banach sent the City a form referring Pilson to Dr. Ryan, and he also sent a copy of his medical records on Pilson, which indicated that Pilson was being treated by Dr. Ryan. The City is therefore responsible for the medical treatment provided by Dr. Ryan following that date. We do agree with the City that Pilson began his treatment with Dr. Ryan without its express or implied authorization and that it bears no financial responsibility for any medical charges incurred by Pilson relating to his treatment with Dr. Ryan before April 2, 2008. However, we find no reason to issue a writ in this case because we do not construe the trial court’s order as requiring the City to pay for any charges incurred for Pilson’s treatment with Dr. Ryan before April 2, 2008. By its plain language, the order applies only to treatment received after Dr. Banach referred Pilson to Dr. Ryan.

For the foregoing reasons, we conclude that the City did not have a clear legal right to have the trial court deny the renewed motion to compel medical treatment filed by Pilson. Having also concluded that the trial court did not refuse any demand for a hearing on compensability because no such demand was made, we deny the City’s petition for a writ of mandamus in full.

PETITION DENIED.

THOMPSON, P.J., and BRYAN, J., concur.

PITTMAN and THOMAS, JJ., concur in the result, without writings.

      . Pilson paid for all unauthorized medical treatment referred to herein through his health insurance.

      . Pilson represents that the trial court denied his May 2009 motion without a hearing.

      . Before the trial court (except for a cursory one-line reference in its response to the renewed motion to compel medical treatment), and in its petition and initial brief filed with this court, the City failed to challenge the reasonable necessity of Dr. Banach's referral. The City asserts a challenge to the reasonable necessity of any treatment plan for Pilson's injuries for the first time in its reply brief. "We note ‘the well-established principle of appellate review that we will not consider an issue not raised in an appellant’s initial brief, but raised only in its reply brief.’ ” Kyser v. Harrison, 908 So.2d 914, 917 (Ala.2005) (quoting Brown v. St. Vincent's Hosp., 899 So.2d 227, 234 (Ala.2004)). Thus, we do not consider the City’s belatedly asserted argument regarding the reasonable necessity of the referral to Dr. Ryan.


text:
    J.W. and S.W. v. C.B. L.W. v. C.B.
    2090397 and 2090398.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.

      Shannon R. Clark, Enterprise, for appellants J.W. and S.W.
    William J. Moore, Enterprise, for appellant L.W.
    Gary D. Bradshaw, Enterprise; and Steven E. Blair, Enterprise, for appellee.
   BRYAN, Judge.

J.W. (“the paternal grandfather”) and S.W. (“the paternal grandmother”) (hereinafter collectively referred to as “the paternal grandparents”) and L.W. (“the father”) appeal from a judgment of the Coffee Juvenile Court that modified custody of F.C.W. (“the child”).

Procedural History

On July 21, 2008, the juvenile court, pursuant to a finding of dependency, awarded joint legal custody of the child to the paternal grandparents and S.B. (“the maternal grandfather”) and J.B. (“the maternal grandmother”) (hereinafter collectively referred to as “the maternal grandparents”). Physical custody of the child was awarded to the paternal grandparents. The parties subsequently submitted an agreed-upon visitation schedule that awarded the maternal grandparents visitation with the child and awarded C.B. (“the mother”) and the father visitation with the child at times agreed upon by the mother and the father and the paternal grandparents. A separate provision in the visitation agreement awarded the mother visitation with the child so long as it was supervised by either the maternal grandparents or the paternal grandparents, depending on which set of grandparents was exercising custody of the child at the time the mother requested visitation. The visitation agreement included a provision that stated: “The paternal and maternal grandparents acknowledge that the ultimate goal for [the child] is to see her reunited with [the mother and the father] and will work toward that end.”

On June 9, 2009, the mother filed a “motion for hearing” seeking to be reunited with the child. The mother alleged that she had completed a drug-rehabilitation program and that she had obtained employment. The juvenile court subsequently entered an order that stated that the mother’s June 9, 2009, motion for hearing would be treated as a petition to modify custody of the child because the child’s dependency and custody had been finally adjudicated pursuant to the July 2008 judgment.

The juvenile court conducted an ore ten-us hearing on the mother’s custody-modification petition on August 31, 2009, and entered a judgment modifying custody of the child on December 29, 2009. In that judgment, the juvenile court concluded that the proper custody-modification standard to be applied was the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). Based on that conclusion, the juvenile court found that the mother had demonstrated that a material change in circumstances had occurred since the entry of the July 2008 judgment in that an irretrievable breakdown in communication had developed between the maternal grandparents and the paternal grandparents and between the paternal grandparents and the mother, to the detriment of the child. The juvenile court also found that the positive good brought about by a change in custody would more than offset the disruption caused by the change in custody. Pursuant to those findings, the mother was awarded legal and physical custody of the child, the father was awarded supervised visitation with the child, and the father was ordered to pay child support.

The father and the paternal grandparents filed separate postjudgment motions, pursuant to Rule 59, Ala. R. Civ. P., for a new trial or, in the alternative, to alter, amend, or vacate the juvenile court’s judgment. The paternal grandparents requested a hearing on their motion, and they alleged that the judgment was not supported by the evidence, that the evidence was insufficient to support the judgment, and that newly discovered evidence existed that indicated that false or misleading testimony had been given at the ore tenus hearing that was directly related to the best interests of the child. The father, in his postjudgment motion, challenged certain provisions of his visitation award. The juvenile court denied the paternal grandparents’ and the father’s post-judgment motions, and the paternal grandparents and the father filed sepai-ate notices of appeal to this court. This court consolidated the appeals filed by the father and the paternal grandparents ex mero motu.

Issues

On appeal, both the father and the paternal grandparents challenge the juvenile court’s finding that the mother met her custody-modification burden pursuant to Ex parte McLendon. The paternal grandparents also challenge the juvenile court’s failure to conduct a hearing on their post-judgment motion in violation of Rule 59(g), Ala. R. Civ. P.

Facts

The child was born in November 2006, and she was almost three years old at the time of the ore tenus hearing. The child had lived in the paternal grandparents’ home, at times with the mother, since she was approximately six weeks old. The mother, who was 35 years old at the time of the ore tenus hearing, lived in Metairie, Louisiana. The mother stated that she had voluntarily sought substance-abuse treatment with the Family House substance-abuse program after the entry of the July 2008 judgment. The Family House substance-abuse program required the mother to live in an onsite facility, and the mother participated in that program from July 31, 2008, until February 2009. The mother moved into a two-bedroom townhouse in February 2009 in what she described as a quiet neighborhood. The mother’s rent was subsidized so that she had to pay only 30% of the monthly rent due. The mother worked as a secretary at a real-estate company 30 hours each week, and she earned approximately $10.50 an hour.

The mother had three children: a 14-year-old son, the child, and an 8-month-old daughter. The mother had joint legal custody of her oldest child, who lived 15 miles away from the mother’s home in Metairie. According to the mother, she had visitation with her oldest child every other weekend and the “whole summer.” The mother gave birth to her third child in November 2008 while she was participating in the Family House substance-abuse program. According to the mother, she had cared for her youngest child since birth, even while she was participating in substance-abuse rehabilitation. The mother stated that she was certain that the father was the father of her youngest child but that the paternal grandmother had not asked to see her youngest child. The mother stated that she brought the youngest child with her during visitation exchanges with the child so that the paternal grandparents could see her youngest child.

The mother testified that, as of August 2009, she had not used illegal drugs in 14 months. The mother admitted that she had participated in a drug-rehabilitation program in 2004 and that she had continued to use illegal drugs after she had completed that program. The mother stated that she believed that she had control over her drug addiction and that she had a strong support system in Metairie, including the staff at Family House, her caseworker from a housing program, her mother, her father, and her stepparent. She admitted that she was not self-sufficient at the time of the ore tenus hearing and that she still needed people “to keep her in line” so that she could get to a point where she was self-sufficient. The mother stated that she attended Alcoholics Anonymous and Narcotics Anonymous meetings and participated in substance-abuse aftercare.

Even though the mother had completed a drug-rehabilitation program in February 2009, the paternal grandmother testified that she did not think that the mother was ready to receive custody of the child because the mother had completed a drug-rehabilitation program in 2004 and was arrested on drug-related charges 13 months later. The paternal grandmother stated that the mother needed more time to demonstrate that she was not going to relapse into drug use because of the mother’s history of making efforts to improve her situation and then “backsliding.” The paternal grandmother would not state a specific period of how long the mother would have to maintain her independence from drugs before she was satisfied that the mother could adequately care for the child, but the paternal grandmother stated that she wanted the child to return to the mother’s or the father’s custody once it was safe for the child.

The paternal grandmother admitted that the mother had an eight-month-old child that lived with the mother and was cared for by the mother and that she had not taken any steps to remove the mother’s youngest child from the mother’s custody. The paternal grandmother disputed the mother’s claims that she had not tried to see the mother’s youngest child. According to the paternal grandmother, she had made an effort to find out where the mother had given birth to her youngest child so that she could call the mother in her hospital room, but the maternal grandparents had told her that the mother did not want to speak to her. The paternal grandmother testified that she had filed motions with the juvenile court requesting information from the maternal grandparents in an effort to find out where the mother lived and where the child stayed when she went to Louisiana to visit the mother. The paternal grandmother stated that she got no response or very little response. According to the mother, no one had asked her where she lived and she did not think to tell the paternal grandparents because the father had her address. The paternal grandmother admitted that the father, who lived with the paternal grandparents after he was released from jail in early August 2009, had the mother’s address and that the father spoke to the mother regularly.

The mother and the maternal grandparents stipulated that the paternal grandparents had done an excellent job raising the child and that they had no issues with the way that the paternal grandparents were raising the child. The mother also admitted that the paternal grandparents had been the only consistent caregivers that the child had ever known. The mother stated that she would like for the paternal grandparents to continue to see the child if she were awarded custody because it would hurt the child to cut off the relationship with the paternal grandparents.

The mother stated that she thought that she had done everything possible to get custody of the child back. The mother admitted that it would be an adjustment for the child to move into her home and only have visitation with the paternal grandparents, but the mother testified that the child did not have difficulty adjusting to her home when the child came to visit. The child had visited the mother for approximately 12 weeks between September 2008 and the time of the ore tenus hearing. The mother admitted that she had not provided any support for the child to the paternal grandparents, but she stated that her family had provided clothing for the child.

The mother stated that she tried not to speak with the paternal grandparents at all because it made her extremely uncomfortable. According to the mother, supervised visits with the child at the paternal grandparents’ home were extremely tense and she avoided that situation so as not to harm the child. The mother admitted that the only communication she had with the paternal grandparents was at visitation exchanges and that she did not call the paternal grandparents while they had custody of the child. The mother thought that the paternal grandparents hated her, and she said that that feeling contributed to her inability to communicate with them. The paternal grandmother testified that she liked the mother. The mother stated that she had tried to be the “bigger person” by sending the paternal grandparents pictures of the child while she was exercising visitation with the child and by allowing the child to speak to the paternal grandparents during her visitation periods. According to the mother, the paternal grandparents did not telephone her.

The maternal grandfather testified that, at the child’s dependency proceeding in July 2008, he told the juvenile court that the mother should not have custody of the child. But, he testified, after monitoring the mother’s rehabilitation closely, he was convinced that the mother should have custody of the child returned to her. According to the maternal grandfather, the mother is a good mother to her youngest child and he would not hesitate to notify the juvenile court if he saw something about the mother that caused him to be concerned about the welfare of the child. The maternal grandfather testified that he believed that the child would easily adjust to living with the mother because there was never an adjustment period for the child during visitation periods with the mother.

Standard of Review
“On appellate review of custody matters, this court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court’s determination will not be disturbed ‘absent an abuse of discretion or where it is shown to be plainly and palpably wrong.’ Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993) (citing Benton v. Benton, [520 So.2d 534 (Ala.Civ.App.1988) ]). As the Alabama Supreme Court highlighted in {Ex parte ] Patro-nas, [693 So.2d 473 (Ala.1997) ], ‘ “[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.” ’ Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment. See Patronas, 693 So.2d at 475.”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007).

Discussion

We will address the argument made by the father and the paternal grandparents that the juvenile court erred by concluding that the mother had met the custody-modification burden set forth in Ex parte McLendon, supra.

The juvenile court properly concluded that the McLendon standard applied to the mother’s request for custody of the child. See M.B. v. S.B., 41 So.3d 79 (Ala.Civ.App.2009). Pursuant to that custody-modification burden, the mother, as the noncustodial parent seeking a change of custody, was required to demonstrate

“ ‘(1) “that ... she is a fit custodian”; (2) “that material changes which affect the child’s welfare have occurred”; and (3) “that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.” Kunkel v. Kunkel, 547 So.2d 555, 560 (Ala.Civ.App.1989) (citing, among other cases, Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984) (setting forth three factors a noncustodial parent must demonstrate in order to modify custody)).’ ”

AW. v. K.L.W., 27 So.3d 558, 560 (Ala.Civ.App.2009) (quoting McCormick v. Ethridge, 15 So.3d 524, 527 (Ala.Civ.App.2008)).

A review of the record reveals that there was evidence to support the juvenile court’s implicit finding that the mother was fit to care for the child. The evidence indicated that the mother had cared for her eight-month-old daughter for that child’s entire life and that neither the maternal grandparents nor the paternal grandparents thought it necessary, for the welfare of that child, to seek to remove her from the mother’s custody. The mother testified that she had been drug-free for 14 months and that she had obtained a stable home and stable employment, and the maternal grandfather testified that he saw no reason why the mother could not care for the child.

Regarding the second prong of the McLendon standard, this court has held:

“In order to prove a material change of circumstances, the noncustodial parent must present sufficient evidence indicating (1) that there has been a change in the circumstances existing at the time of the original custody judgment or that facts have been revealed that were unknown at the time of that judgment, see Stephens v. Stephens, 47 Ala.App. 396, 399, 255 So.2d 338, 340-41 (Civ.App.1971), and (2) that the change in circumstances is such as to affect the welfare and best interests of the child. Ford v. Ford, 293 Ala. 743, 310 So.2d 234 (1975). The noncustodial parent does not have to prove that the change in circumstances has adversely affected the welfare of the child, but he or she may satisfy the first element of the McLen-don test by proving that the change in circumstances materially promotes the best interests of the child. Id.”

C.D.K.S. v. K.W.K., 40 So.3d 736, 740 (Ala.Civ.App.2009).

Insofar as the mother was required to prove that a material change in circumstances had occurred since the entry of the July 2008 judgment, it is well settled that the mother’s rehabilitation alone is not a proper basis for modifying custody of the child in favor of the mother. See S.L.L. v. L.S., 47 So.3d 1271, 1280 (Ala.Civ.App. 2010) (citing Ex parte McLendon, 455 So.2d at 866) (“[Although the mother’s rehabilitation and the positive path on which she appears to be is commendable, such rehabilitation alone is an improper basis for regaining custody.”). The juvenile court, in its final judgment, found that a material change in circumstances had occurred since the entry of the July 2008 judgment because an irretrievable breakdown in communication had occurred between the paternal grandparents and the mother and the maternal grandparents. The juvenile court also found that the deterioration in communication between the parties was having a detrimental affect on the child. Thus, the juvenile court’s judgment modifying custody of the child did not rely solely on the mother’s self-improvement.

The paternal grandparents argue that there was no evidence to support the juvenile court’s finding that the deterioration in communication between the paternal grandparents and the mother and the maternal grandparents was having a detrimental affect on the child, and they cite S.L.L. v. L.S., swpra, to support their argument that any alleged lack of communication between the parties is not a material change in circumstance sufficient to support modification of custody. In S.L.L. v. L.S., this court reversed a judgment modifying custody of a child from the father to the mother, and we concluded that the mother’s allegations that the father failed to cooperate with the mother by communicating with her about the child was not sufficient to support a modification of custody. 47 So.3d at 1280.

The evidence in this case indicated that the mother and the paternal grandparents did not have an amicable relationship and that there was a general lack of communication between the paternal grandparents and the mother and the maternal grandparents. Unfortunately, parties involved in sharing custody of a child often have difficulty communicating with one another, and, although we agree that the child would benefit if the parties were able to communicate more effectively, we cannot conclude that the circumstances of this particular case rise to a level that warrant modification of custody. Our review of the evidence reveals that the mother was partially responsible for any lack of communication between herself and the paternal grandparents. Although there was evidence indicating that the mother had made some effort to communicate with the paternal grandparents while she had visitation with the child, the mother also testified that she tried not to speak with the paternal grandparents and that she did not telephone the paternal grandparents even to speak to the child. Other evidence indicated that the mother had stated to the paternal grandparents that she did not want to speak to them. In light of undisputed evidence indicating that the mother contributed to the breakdown in communication between herself and the paternal grandparents, we cannot affirm the juvenile court’s judgment insofar as it found a material change in circumstances sufficient to modify custody.

Accordingly, because the evidence in the record is not sufficient to support the juvenile court’s finding that a material change in circumstances had occurred since the entry of the July 2008 judgment, we must reverse the judgment of the juvenile court insofar as it modified custody of the child from the paternal grandparents and the maternal grandparents to the mother. The case is remanded to the trial court with instructions to enter an order consistent with this opinion.

APPEAL NO. 2090397 — REVERSED AND REMANDED WITH INSTRUCTIONS.

APPEAL NO. 2090398 — REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . In W.T.M. v. S.P., 802 So.2d 1091 (Ala.Civ.App.2001) (Crawley, J., with one judge concurring and diree judges concurring in the result), a plurality of this court concluded that a father who was not a party to a custody determination following a dependency adjudication had standing to appeal the custody award in light of the fact that the father retained "residual parental rights and responsibilities” to the child. See § 12-15-102(23), Ala.Code 1975. Although the father in this case did not have custody of the child before the entry of the December 2009 custody-modification judgment, and although he did not request, nor was he awarded, custody of the child pursuant to the December 2009 judgment, we believe that the father’s residual parental rights, insofar as he was awarded visitation with the child and ordered to pay child support for the child, confer legal standing on the father so that this court may consider his appeal of the award of custody.

      . Because we have concluded that the judgment of the juvenile court is due to be reversed, we pretermit discussion of the remaining issue in the paternal grandparents’ appeal regarding the juvenile court’s failure to conduct a hearing on their postjudgment motion.


text:
    STATE DEPARTMENT OF REVENUE v. BOYD BROTHERS TRANSPORTATION, INC.
    2090276.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.

      Margaret Johnson McNeill, asst, counsel, Alabama Department of Revenue, and asst. atty. gen., for appellant.
    James M. Sizemore, Jr., Alexander City, for appellee.
   BRYAN, Judge.

The State Department of Revenue (“the Department”) appeals from a summary judgment of the Barbour Circuit Court determining that the Department erred in assessing the sales tax against Boyd Brothers Transportation, Inc. (“Boyd Brothers”), on certain transactions. We affirm.

Factual Background and Procedural History

Boyd Brothers operates a long-haul trucking business. Boyd Brothers and 70 of, its drivers entered into individual “lease[-]purchase” agreements involving trucks owned by Boyd Brothers. Each agreement provided that a driver would take possession of a truck and lease that truck from Boyd Brothers by making monthly payments during a fixed period. The monthly payments were determined by dividing the fair-market value of the truck by the number of months in the agreement period. The agreements provided that, after a driver had made all the required monthly payments, that driver would have the option of purchasing the truck for a payment of $1. The agreement provided that Boyd Brothers would retain title to a truck during the period that the monthly payments were being made. Boyd Brothers transferred title to a truck only when a driver had exercised the $1 purchase option after making all the monthly payments. Of the 70 drivers who entered into the agreements, 66 drivers defaulted on the agreements and 4 drivers purchased trucks. When a driver defaulted, Boyd Brothers took possession of the truck.

The Department determined that the transactions reflected in all 70 agreements constituted conditional retail sales of the trucks. Consequently, the Department entered a sales-tax assessment against Boyd Brothers on the approximately 2,300 payments made pursuant to those agreements during the period between October 1, 1997, and March 30, 2003. Pursuant to § 40-2A-7(b)(5)a., Ala.Code 1975, Boyd Brothers sought administrative review of the assessment by appealing to the Department’s Administrative Law Division, and the case was heard by an administrative law judge (“the ALJ”). Following a hearing, the ALJ issued an order upholding the Department’s assessment of the sales tax in the amount of $38,305.37. The ALJ determined that the transactions between Boyd Brothers and the 70 drivers constituted conditional sales subject to the sales tax. The ALJ also addressed whether, pursuant to Rule 810-6-1-.33, Ala. Admin.Code (Department of Revenue), the transactions in this case were “casual sales” that would not constitute taxable sales. The ALJ determined that the transactions did not qualify as casual sales that would create an exemption from the imposition of the sales tax.

Boyd Brothers appealed the ALJ’s order to the circuit court, pursuant to § 40-2A-9(g), Ala.Code 1975. Boyd Brothers then moved for a summary judgment, asserting that it owes no sales taxes on the transactions in this case. The circuit court subsequently entered a summary judgment reversing the ALJ’s order and determining that Boyd Brothers has no sales-tax liability. The Department appealed to this court.

Standard of Review

This court’s review of a summary judgment is de novo. Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003).

Discussion

We first address the 66 “lease[-]purchase” agreements on which drivers defaulted. The Department argues that the transactions arising out of those agreements constituted conditional sales made by Boyd Brothers. The Department therefore contends that Boyd Brothers is liable for sales taxes on those transactions. In support of its argument, the Department cites Lawson State Community College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988), overruled on other grounds by Berner v. Caldwell, 543 So.2d 686 (Ala.1989). In Lawson State, our supreme court discussed the distinction between a “true lease” and a “disguised” conditional sale secured by a security agreement. 529 So.2d at 929. Lawson State was not a tax case; rather, that case concerned whether a certain transaction was governed by Article 9 of the Uniform Commercial Code. Id. at 929-30.

Assuming, without deciding, that the 66 agreements on which drivers defaulted were actually conditional-sales agreements, the Department has not established that Boyd Brothers is liable for sales taxes on the transactions arising from those agreements. “Alabama sales tax applies only to sales that are ‘closed’ within the State. Sections 40-23-1(a)(5), -2(1), Code of Alabama (1975).” State v. Delta Air Lines, Inc., 356 So.2d 1205, 1207 (Ala.Civ.App.1978). Section 40-23-1(a)(5), Ala.Code 1975, provides that “a transaction shall not be closed or a sale completed until the time and place when and where title is transferred by the seller or seller’s agent to the purchaser or purchaser’s agent.” In this case, it is undisputed that, regarding each of the 66 agreements on which a driver defaulted, no title to any truck was transferred from Boyd Brothers to any driver. Because there was no transfer of title, there was no completed sale; therefore, no sales taxes are due regarding transactions stemming from those 66 agreements.

We next address the four agreements that resulted in drivers exercising the purchase option and taking title to the trucks. Boyd Brothers concedes that the transfer of title in those four cases constituted a “sale” for the purposes of determining whether the sales tax is owed. However, the parties dispute whether those four sales are subject to the sales-tax exemption for “casual sales” found in Rule 810-6-1-.33, Ala. Admin. Code (Department of Revenue). See, e.g., State v. Bay Towing & Dredging Co., 265 Ala. 282, 90 So.2d 743 (1956) (discussing the casual-sales exemption). In its summary judgment, the circuit court seemingly determined that the four sales in this case were casual sales. Rule 810-6-1-.33 provides, in pertinent part:

“(1) Other than the exception noted in (3) below, casual or isolated sales by persons not engaged in the business of selling are not required to be reported to the Department of Revenue by the provisions of the Sales Tax Law.
“(3) Casual sales of automotive vehicles, motorboats, truck trailers, semitrailers, travel trailers, and manufactured homes are subject to sales or use taxes pursuant to the provisions of Sections 40-23-100, et seq., Code of Ala. 1975.”

Based on the exception found in Rule 810-6-1-33(3) to the casual-sale exemption, we conclude that the casual-sale exemption has no application to the sale of the four trucks in this case.

However, regarding the sale of the four trucks, the circuit court also determined that the sales tax could not be levied against Boyd Brothers based on § 40-23-101(a), Ala.Code 1975. That statute provides, in pertinent part:

“(a) There is hereby levied ... a sales tax upon every person, firm, or corporation purchasing within this state, other than at wholesale, any automotive vehicle, motorboat, truck trailer, trailer, semitrailer, or travel trailer ... from any person, firm or corporation that is not a licensed dealer engaging in selling automotive vehicles, motorboats, truck trailers, trailers, semitrailers, or travel trailers.... ”

The record establishes that Boyd Brothers is not a “licensed dealer” under § 40-23-101(a). Therefore, that statute levies a sales tax against the drivers who bought the four trucks, not against Boyd Brothers. The Department does not address the application of § 40-23-101(a) in this case. Based on § 40-23-101(a), we conclude that Boyd Brothers is not liable for the sales tax on the sale of the four trucks.

Based on the foregoing, we affirm the summary judgment of the circuit court determining that Boyd Brothers has no sales-tax liability in this case.

AFFIRMED.

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

      . This appeal does not concern any possible lease taxes that may have attached to transactions in this case. See § 40-12-220 et seq., Ala.Code 1975.