author: MOORE, Judge.

text:
    M.H. v. B.F. and Lee County Department of Human Resources.
    2100116.
    Court of Civil Appeals of Alabama.
    June 10, 2011.
    Certiorari Denied Aug. 12, 2011 Alabama Supreme Court 1101078.

      Melissa S. Gowan, Opelika, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, asst. atty. gen., Department of Human Resources, for ap-pellee Lee County Department of Human Resources.
   MOORE, Judge.

M.H. (“the mother”) appeals from a judgment of the Lee Juvenile Court (“the juvenile court”) awarding legal and physical custody of V.F. (a daughter born on January 16, 1996), R.F. (a son born on January 4, 1998), A.F. (a son born on November 9, 1999), L.F. (a son born on January 27, 2001), and F.F. (a daughter born on March 14, 2003) (collectively, “the children”) to their father, B.F. We affirm in part and reverse in part.

Procedural Background

On May 7, 2010, the Lee County Department of Human Resources (“DHR”) filed petitions with the juvenile court alleging that the children were dependent because the mother and B.F. (“the father”), who had been involved in a relationship for 17 years, had recently separated and that the mother and the father disagreed as to with whom the children should live and were engaging in actions adversely affecting the children’s welfare by “pulling [the children] back and forth and [the children] do not have a stable and healthy environment as a result.” DHR also alleged that “the mother went to the [children’s] schools with a video recorder to speak with the children and record them” and that the mother “has exhibited other irrational behaviors and may need a mental health assessment.” More specifically, DHR alleged that, as to L.F., the mother had refused to provide the father with the child’s asthma medication, which had led to the child’s hospitalization.

On May 25, 2010, after a hearing, the juvenile court entered a pendente lite order placing the children in the temporary custody of the father, allowing the mother only supervised visitation, and scheduling a final hearing for August 20, 2010. The juvenile court appointed a guardian ad li-tem for the children and ordered the mother to submit to a psychological assessment.

On August 20, 2010, the scheduled trial date, the guardian ad litem sought a continuance because the mother had not submitted to the court-ordered psychological assessment. The mother’s appointed counsel objected, asserting that the father also should be required to undergo a psychological evaluation. The juvenile court continued the trial and ordered the father to submit to a psychological assessment.

On October 5, 2010, the mother was appointed new counsel; that new appointment was made because of changes in the juvenile court’s contract with appointed attorneys. On October 15, 2010, the mother’s new counsel requested a continuance of the case; on that same date, the mother’s new counsel filed her first discovery request. The juvenile court granted the mother’s discovery request, but it held in abeyance her request for a continuance of the final hearing; the juvenile court noted that the motion would be considered at the time scheduled for trial.

On October 20, 2010, the date scheduled for the final hearing, the juvenile court denied the mother’s motion to continue. The mother raised no objection to that ruling and, after briefly reviewing DHR’s discovery responses, indicated that she was ready to proceed. The cause was tried before the juvenile court, which received ore tenus evidence.

On October 21, 2010, the juvenile court entered its final judgment finding the children dependent, awarding custody of the children to the father, ordering the mother to pay child support, allowing the mother supervised visitation, and ordering DHR to supervise the case for the purpose of implementing counseling for the mother and the children. The mother timely filed her notice of appeal on October 27, 2010.

Factual Background

At the October 20, 2010, hearing, the evidence established the following. Farrell Seymore, the principal at Opelika Middle School, testified that, on one occasion during the spring of 2010, both the mother and the father arrived at the school and sought to check A.F. and R.F. out of school. Seymore testified that the school was unsure how to proceed because the mother and the father were disputing with whom A.F. and R.F. should leave and the school’s paperwork regarding A.F. and R.F. indicated that both parents held custody of them. Based upon instructions from DHR, Seymore allowed the children to decide with whom they would leave; they chose to leave with the father. Sey-more testified that both A.F. and R.F. were A/B students and that, other than their parents’ dispute regarding custody, the school had no other complaints or concerns regarding them.

Sherrioda Heard, the school counselor for the Opelika City School System, testified that she had had contact with V.F. and F.F. in April 2010 because they were frequently coming to school late and were leaving school early and it was beginning to affect the academic performance of at least one of them. Heard testified without objection that she had heard from others that the mother had arrived at the school with a video camera, which she had used to videotape V.F. and F.F.; Heard, however, had not witnessed that incident. Heard learned by the end of the school year that the father had received temporary custody of V.F. and F.F. and that they would be transferring to another school.

Britney Ware, a DHR assessment worker, first became involved in the case in February or March 2010 because of a report that the father was sexually abusing two of the male children; according to Ware, DHR could not substantiate that report and it was found to be “not indicated.” During that investigation, some of the children had reported to DHR that the mother had physically abused them and that they did not want to return home to her. DHR could not substantiate those reports, and those claims subsequently were found to be “not indicated.” It was during the pendency of that investigation, however, that Seymore contacted DHR and reported that the parents were frequently checking A.F. and R.F. out of school in an attempt to keep them away from the other parent as part of their ongoing custody dispute. DHR then filed dependency petitions regarding all the children.

Ware testified that she had learned that one of the children, L.F., had been hospitalized as a result of a severe asthma attack; the father had reported to Ware that the mother had refused to provide L.F.’s asthma medications to him. Ware testified that the children had indicated to her a preference to stay with the father; according to Ware, the children had reported that the mother regularly beat them with a metal baton and made them bathe immediately upon entering the house. Ware also testified that DHR was concerned that the mother might be emotionally unstable because she had left hostile messages on DHR’s answering machine and, according to Ware, appeared overly focused on the father rather than on the children.

Ware offered the results of a background check DHR had obtained on the father and his new live-in paramour, M.H. Both had criminal backgrounds, but both had tested negative for recent narcotic use. Ware indicated that DHR had no recommendation regarding placement of the children. Ware testified that, if the father received custody, DHR had no concerns for the safety of the children and recommended that DHR’s file on the family be closed. Ware testified, however, that if the mother received custody, DHR recommended that the juvenile court order family counseling and individual counseling for the mother.

Ware testified that, although the mother repeatedly had accused the father of coaching the children to make accusations against her, L.F. had reported that the mother had urged L.F. to lie to DHR regarding the type of discipline used by the mother. Ware acknowledged that, although the father had been ordered to submit to a psychological examination, he had not done so.

Ware admitted that the mother had filed criminal charges against the father stemming from a domestic-violence incident occurring on April 29, 2010, but, Ware testi-fled, she understood that those charges had been “thrown out.” Ware admitted on cross-examination that the mother could be focused on the father’s tendency to act violently, rather than simply being focused on the father.

According to the father’s testimony, he and the mother had been in a relationship off and on for approximately 12 years; he later admitted that their relationship had spanned a longer period but that their actual time together had totaled only 12 years. The father testified that he and the mother had never married but that they had lived together sporadically. The father testified that, although he was the father of the five children and had been named on the children’s birth certificates, no court order regarding paternity or child support had ever been entered. According to the father, he and the mother had separated “for good” approximately five years before the final hearing. When the father had left the family home, all the children had remained with the mother.

The father testified that, in October 2009, the children had telephoned him stating that the mother had left them alone for two days. According to the father, he drove to the mother’s home and, upon finding the children unsupervised, took them with him. After he and the mother had a dispute regarding custody of the children, the father returned three of the children to the mother, but he kept R.F. and A.F. with him.

The father testified that the first time he saw V.F. after he returned her to the mother’s custody, she could barely walk; V.F. reported that the mother had beaten her. After examining V.F., the father contacted DHR. The father testified that, from that point forward, he attempted to check the children out of school before the mother could get to them; the father stated: “I knew that they had told on her and they was scared.” The father testified that the children did not like the schools they were attending at that time, so he withdrew them approximately one week before the end of the school year and enrolled them elsewhere. Although the mother had been awarded supervised visitation with the children, the father testified that the children did not want to continue those visits because the mother said things during those visits that made the children feel uncomfortable.

The mother testified that she and the father began living together in 1993 and that they had continued living together until June 2009, when she had moved out. She testified that the children had remained with her when she and the father separated. According to the mother, on December 12, 2009, the father became enraged because he believed that L.F.’s hair had been cut by another man; the mother testified that the father “stabbed the tires out” of her vehicle. According to the mother, she had taken a taxi to buy some “Fix-a-Flat” and, while she was gone, the father had taken all the children from her home. The mother acknowledged that the father subsequently had returned three of the children to her custody but that A.F. and R.F. had remained with the father.

The mother testified that, even though the children had expressed a preference to stay with the father, she believed they should return to her home. She agreed to attend counseling if necessary. The mother testified that, although the father had been abusive throughout their relationship, she had not filed any charges against him until 2005; she testified that, rather than filing charges, she had begun working with a domestic-violence intervention center. The mother testified to various domestic-violence incidents that had occurred throughout her relationship with the father.

The mother denied that she made the report to DHR alleging that the father was sexually abusing two of the male children. According to the mother, the daughter of the father’s current girlfriend had made that report. The mother denied the father’s version of events regarding L.F.’s hospitalization and his asthma medication. She also testified that she never received a telephone call informing her that L.F. had been hospitalized.

The mother denied the children’s reports that she had beaten them with a baton; the mother testified that she had used a metal spoon, measuring 18 inches long, as a paddle in an attempt to discipline the children. The mother also denied that the children had been unhappy at their schools.

The mother testified that she believed that the father was preventing the children from seeing her and contacting her and that, as long as they were in his custody, she would be unable to have a relationship with them. She testified that if the children could not be returned to her, she believed that they should be placed in foster care so they could be in a neutral environment.

D.F., the mother’s oldest child, who was 20 years old at the time of the hearing and who is not the father’s biological child, testified that he had come to the hearing to ensure that his brothers and sisters were safe. According to D.F., the children had told him stories of physical abuse at the hands of the mother, which he said he believed. He testified that he had been removed from his mother’s home as a minor and had been placed in foster care because of physical and emotional abuse by the mother. He described an incident that occurred when he was a child that had resulted in his receiving stitches after the mother hit him in the head with a high-heeled shoe.

D.F. testified that he had last stayed in the mother’s home two years before the final hearing, for approximately a week; D.F. acknowledged that he and the mother had not parted on good terms. D.F. testified that he believed that the mother needed counseling. According to D.F., when he was younger, the father had served as a parental figure to him; D.F. testified that the father had never abused or mistreated him in any way.

The mother’s written psychological assessment, dated October 15, 2010, was admitted into evidence. In that assessment, the psychologist identified the mother as having a large number of antisocial personality characteristics. The psychologist, however, noted that the mother seemed to genuinely desire to parent her children; the psychologist recommended that the mother attend parenting classes, but she stated that she found no reason to require the mother’s visitation with the children to be supervised.

The juvenile court also admitted into evidence without objection letters allegedly written by the children and addressed to the court. In those letters, the children expressed that they loved the mother but that she frequently used a metal baton and metal spoon to beat them and had “body slammed” them, hit them with her fists, and busted their lips while disciplining them for such “infractions” as losing hair ribbons and inadvertently touching the sink while washing their hands. The children also indicated that the mother made them bathe immediately upon entering the house. All the children indicated that they wished to remain with the father.

Analysis

The mother first argues that the juvenile court lacked subject-matter jurisdiction. Specifically, the mother maintains that the case involved only a custody dispute between the mother and the father and that the juvenile court actually adjudicated a pure custody dispute between parents, which it had no authority to do. The mother further contends that DHR did not present clear and convincing evidence of the dependency of the children. We consider those two issues together.

The juvenile court first obtained jurisdiction over the case based on dependency petitions filed by DHR. In those petitions, DHR essentially alleged that neither the father nor the mother was capable of properly caring for the children and that the children needed the protection of the state. The specific allegations in DHR’s petitions, outlined above, clearly set forth a claim by a third party, i.e., a party other than the parents, that the children were dependent. See B.R.G. v. G.L.M., 57 So.3d 137, 140-41 (Ala.Civ.App.2010); see also § 12 — 15— 102(8)a.6. & 8. (defining “dependent child”). At that point, the case did not involve merely “a custody dispute between parents,” which would fall outside the dependency jurisdiction of the juvenile court. See § 12-15-114(a), Ala.Code 1975.

During the litigation, DHR apparently changed its position, offering evidence indicating that the father could properly care for the children. DHR did not, however, formally withdraw its dependency petitions and it appeared at trial with witnesses. In her brief to this court, the mother argues generally that DHR did not present clear and convincing evidence of the dependency of the children, but her argument rests primarily on the proposition that DHR attempted only to prove the facts alleged in its petitions, which the mother maintains do not rise to the level of dependency. As stated above, those allegations, if proven by clear and convincing evidence, would have established the dependency of the children. Furthermore, and contrary to the mother’s contention, DHR did not limit its evidence to the allegations in its petitions; DHR also proved that the mother had physically abused the children. See M.M.S. v. D.W., 735 So.2d 1230, 1232 (Ala.Civ.App.1999) (“However, contrary to the mother’s argument, the juvenile court can find a child dependent based upon grounds not asserted in the dependency petition. Martin v. State Dep’t of Human Resources, 502 So.2d 769, 770 (Ala.Civ.App.1987) (stating that this court did not need to ‘find that the Department [of Human Resources] proved the specific grounds alleged in the petitions because we [found] that the juvenile court had other sufficient grounds for determining that the children are dependent.’).”). Based partially on that evidence, the juvenile court ultimately decided in its October 21, 2010, judgment that the children were dependent.

Hence, we conclude that the juvenile court did not adjudicate the issue of which of the two parents should have custody of the children, i.e., a mere custody dispute between the parents; rather, it decided, initially, whether the children were dependent within the meaning of § 12-15-102 and, secondarily, which custodial disposition would protect the safety and welfare of the children. We conclude that the juvenile court had ample evidence before it from which to make each determination and that it acted properly pursuant to its dependency jurisdiction.

Although recognizing that motions to continue are disfavored and are subject to a trial court’s discretion, the mother next asserts that the juvenile court exceeded its discretion in failing to grant her motion to continue the final hearing. The mother argues that, on the date scheduled for the final hearing, her newly appointed counsel had just received discovery responses from DHR and had just received the results of the mother’s mental-health evaluation. The mother also asserts that the juvenile court’s stated reason for denying her motion to continue was unfounded.

We need not address this argument because the mother failed to preserve this issue for appellate review. At the final hearing, the mother’s counsel agreed with the juvenile court that, if she were allowed a short period to review the discovery responses and the results of the mother’s mental-health evaluation, she would be prepared to proceed with the hearing. After the juvenile court allowed the mother’s counsel time for the requested review, counsel represented to the juvenile court that she was ready to proceed. Thus, the mother’s counsel failed to lodge an objection to the juvenile court’s ruling on her motion.

By failing to object to the juvenile court’s ruling on her motion, the mother waived any error in that ruling. See, e.g., Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990) (refusing to address alleged error in the trial court’s ruling because no objection was raised; noting that a trial court will not be held in error unless that court has been apprised of its alleged error and has been given the opportunity to act thereon); and Hoefer v. Snellgrove, 288 Ala. 407, 409, 261 So.2d 431, 434 (1972) (“It is a well-settled principle of law that matters not objected to cannot be considered for the first time on appeal.”). We, therefore, need not address the mother’s argument on this issue further.

The mother next asserts that she was not afforded her due-process right to notice of the allegations against her. More specifically, the mother argues that because the dependency petitions did not allege physical abuse as a basis for the children’s dependency, she had no reason to believe that those allegations of physical abuse would be addressed at the dependency hearing and, therefore, she was not given the opportunity to adequately prepare a defense to such allegations.

The mother, however, failed to assert any constitutional challenge in the juvenile court, and, as a result, she has waived this constitutional issue for appellate review.

“Even constitutional issues must be properly preserved for appellate review. Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997). ‘Due process does not override the basic law of preservation, ... and the issue must first be presented to the trial court before it will be reviewed on direct appeal.’ Boglin v. State, 840 So.2d 926, 929 (Ala.Crim.App.2002).”

Byrd v. State, 10 So.3d 624, 626-27 (Ala.Crim.App.2008). See also Consolidated Pipe & Supply Co. v. City of Bessemer, 69 So.3d 182, 189 (Ala.Civ.App.2010) (quoting United Servs. Auto. Ass’n v. Wade, 544 So.2d 906, 917 (Ala.1989)) (“ ‘constitutional issues may not be raised for the first time in a post-judgment motion’ ”). Because the mother failed to preserve her constitutional challenge for appellate review, we need not address it further.

The mother next asserts that it was not in the children’s best interest to be placed in their father’s custody. Although the mother fails to cite relevant caselaw in support of her argument, we note that, in W.T.H. v. 915 So.2d 64, 71 (Ala.Civ.App.2005), this court stated: “In making a custodial disposition of a child who is found to be dependent, the trial court may ‘ “choose that alternative which it finds to be in the best interests of the [dependent child].”’ [W.T. v. State Department of Human Res., 707 So.2d 647,] 651 [ (Ala.Civ.App.1997) ] (quoting Wallace v. Pollard, 532 So.2d 632, 633 (Ala.Civ.App.1988)).” See also Ala.Code 1975, § 12-15-314(a) (addressing the options available to the juvenile court, once it has determined that a child is dependent).

Based upon the evidence before it, the juvenile court could have found that the children had expressed a preference for being in the father’s custody; that DHR had no concerns with the children’s safety while in the father’s custody; that, despite his criminal background and the allegations of domestic abuse asserted by the mother, the father was willing and capable of providing a suitable and stable home for the children; and that the children appeared to have thrived under the juvenile court’s pendente lite custody award to the father. Thus, the juvenile court had before it sufficient evidence from which it could have determined that the best interests of the children would be served by an award of custody to the father. We, therefore, reject the mother’s argument that the juvenile court exceeded its discretion in placing the children in the father’s custody-

As her final issue, the mother asserts that the juvenile court exceeded its discretion in ordering her visitation with the children to be supervised and that the juvenile court exceeded its discretion by failing to sufficiently specify the terms of that visitation. We agree only as to the latter part of her argument.

The guiding principle in determining visitation with a child who has been found dependent and brought under the jurisdiction and protection of the juvenile court is the child’s best interest. See Y.N. v. Jefferson County Dep’t of Human Res., 67 So.3d 76, 83 (Ala.Civ.App.2011). “The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion.” Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994). In exercising its discretion over visitation matters, “ ‘[t]he trial court is entrusted to balance the rights of the parents with the child’s best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.’ ” Ratliff v. Ratliff, 5 So.3d 570, 586 (Ala.Civ. App.2008) (quoting Nauditt v. Haddock, 882 So.2d 364, 367 (Ala.Civ.App.2003) (plurality opinion)).

This court previously has addressed the appropriateness of requiring a noncustodial parent’s visitation to be supervised when necessary to protect the children from an unreasonable risk of physical or emotional harm emanating from the condition of the parent. See, e.g., Pratt v. Pratt, 56 So.3d 638, 642 (Ala.Civ.App.2010) (supervised visitation recognized as appropriate to address risk of harm to children posed by mother’s addiction to pain medication). A trial court may not, however, “ ‘select[ ] an overly broad restriction that does more than address a particular concern and thereby unduly infringe!] upon the parent-child relationship.’” Lee v. Lee, 49 So.3d 211, 214 (Ala.Civ.App.2010) (quoting Jackson v. Jackson, 999 So.2d 488, 494-95 (Ala.Civ.App.2007)).

In its final judgment, the juvenile court ordered the mother’s visitation with the children to be supervised and ordered that it take place at “Family Connections.” Because the evidence was sufficient to support a finding that the mother had physically abused the children, it cannot be seriously disputed that the juvenile court acted within its discretion in requiring the mother’s visitation to be supervised.

The juvenile court, however, failed to specify dates and times for the mother’s visitation. Thus, the mother has no particular schedule applicable to her visitation with the children. At the final hearing, the mother testified that she had encountered difficulty exercising her visitation with the children at Family Connections; she explained that the children had been allowed to abruptly end the visitation sessions there and that, on some occasions, the children had not been present for visitation at all. Without a definitive schedule, the mother has no reasonable expectation of visitation or rights to rely on and she is unreasonably hampered in maintaining or rebuilding a relationship with the children. As this court has recognized, a trial court exceeds its discretion when it fails to provide a specific schedule of visitation for a noncustodial parent or when it allows a third party complete discretion over that schedule of visitation. See Pratt, 56 So.3d at 644-45 (citing numerous cases).

Because the juvenile court’s judgment failed to set forth a specific visitation schedule for the mother, we reverse that aspect of the judgment, and we remand the cause to the juvenile court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . It was unclear from Seymore's testimony whether he or another representative of the school had spoken with DHR.

      . The mother does not argue that the children could not be found dependent because the father was capable of properly caring for them. See T.K. v. M.G., [Ms. 2091162, April 1, 2011] - So.3d -, - (Ala.Civ.App. 2011) (Moore, J., dissenting). Hence, we consider that issue to be waived.

      . We also conclude that the issue of physical abuse of the children at the mother's hand was tried by the implied consent of the parties. Multiple witnesses testified to such abuse at the final hearing; however, the mother raised no objection to that testimony. See Rule 15(b), Ala. R. Civ. P.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. MOORE, J.,

license: Public Domain

text:
    Ellis ISBELL v. AZTECAS MEXICAN GRILL.
    2100333.
    Court of Civil Appeals of Alabama.
    June 30, 2011.
    Rehearing Denied Aug. 19, 2011.

      Beverly Owen Barber, Pell City, for appellant.
    Deborah Ann Wakefield and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Ellis Isbell filed a complaint against Az-tecas Mexican Grill (“Aztecas”) alleging negligence and wantonness in connection with an injury he suffered while on Azte-cas’s premises. Aztecas answered and denied liability, and it later moved for a summary judgment. On June 21, 2010, the trial court entered a summary judgment in favor of Aztecas. Following the denial by operation of law of Isbell’s post-judgment motion, Isbell timely appealed. Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The evidence submitted by Aztecas in support of its summary-judgment motion indicates the following pertinent facts. Aztecas is a restaurant located in Pell City that serves Mexican food. On April 24, 2008, Isbell and his wife, Tracie Isbell (“Tracie”), went to Aztecas for dinner to celebrate Isbell’s birthday. Isbell testified that he has had three back surgeries because of a 1998 on-the-job injury that still causes him pain and for which he takes daily pain medication. Isbell and Tracie each testified that, because of Isbell’s preexisting back condition, he is often more comfortable sitting on a padded seat, so they requested that the Aztecas hostess seat them in a booth.

Isbell and Tracie testified that, after being seated in a booth adjacent to the door to the kitchen, they ordered their meal and were served their food. Isbell stated that, during the meal, he was aware that another person was sitting in the booth seat directly behind him because he could feel the other person moving in his own seat during the meal. Isbell testified that, when he was almost finished eating, he felt the person behind him move again. Shortly thereafter, the booth seat upon which Isbell was sitting collapsed, causing Isbell to fall to the floor.

Isbell testified that, immediately after falling to the floor, he felt excruciating pain in his back and legs. Isbell stated that two or three of Aztecas’s employees assisted him to his feet and that he was humiliated when those employees and other restaurant employees laughed at him. Tracie testified that one of Aztecas’s employees offered to call an ambulance but that Isbell declined that offer and instead insisted that he be taken home. Isbell testified that he sought medical treatment for his pain the next day. Isbell sued Aztecas on October 1, 2008.

In their depositions, both Isbell and Tracie testified that they had not noticed any defect in the booth at the time they were seated, and Isbell stated that, if he had thought the booth was unstable, he would have asked to be seated at a different table. Neither Isbell nor Tracie heard any creaking or other noise from the booth seat before it collapsed. The couple also stated that none of Aztecas’s employees had indicated that there might be a problem with the booth seat. Isbell and Tracie each testified that he or she had no knowledge regarding what might have caused the booth seat to collapse. Isbell testified that he did not believe his size or weight caused the booth seat to collapse; Isbell is 6 feet, 3 inches tall and weighed- 265 pounds at the time of the incident.

In opposition to Aztecas’s summary-judgment motion and evidentiary submission, Isbell initially submitted only a legal argument, and Aztecas filed a response to that argument. On June 9, 2010, Isbell filed a “supplemental response” to the motion for a summary judgment in which he stated that he had earlier requested and been granted an additional seven days in which to submit evidence in opposition to the summary-judgment motion. In support of that “supplemental response,” Is-bell submitted the affidavit of Elisabeth Ann Presley, and, in his supplemental response, he alleged that he was still attempting to locate additional witnesses to testify that water damage had weakened the booth seat that had collapsed under him.

Aztecas moved to strike Presley’s affidavit. The trial court did not rule on that motion. However, in its summary judgment in favor of Aztecas, the trial court noted that Isbell’s “recent submission failed to produce admissible affidavits in support of [his] opposition” to Aztecas’s summary-judgment motion.

Isbell filed a postjudgment motion. Eighty-nine days following the filing of that postjudgment motion, Isbell filed a “renewed” postjudgment motion, and he submitted, in support of that “renewed” motion, an affidavit of another witness. Isbell’s postjudgment motion was denied by operation of law on the day following the filing of his “renewed” postjudgment motion.

As an initial matter, we note that the trial court’s summary judgment indicates that it did not consider Presley’s affidavit, the only evidence timely submitted by Isbell in opposition to the summary-judgment motion. Isbell has not challenged that part of the trial court’s summary judgment in which the trial court determined that Isbell had failed to submit admissible evidence in opposition to the summary-judgment motion. Issues not raised in the appellant’s brief on appeal are deemed waived. Boshell v. Keith, 418 So.2d 89, 92-93 (Ala.1982). Thus, for the purposes of resolving this appeal, we must conclude that Isbell submitted no admissible evidence in opposition to Aztecas’s summary-judgment motion.

On appeal, Isbell argues that the trial court erred in entering a summary judgment in favor of Aztecas because, he contends, the issue of notice to Aztecas of the alleged defect in the booth seat was a question for the jury.

“ ‘On a motion for a summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact) and that the movant is entitled to a judgment as a matter of law.’ Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 868 (Ala.1996); Rule 56, Ala. R. Civ. P. See McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992). Thus, ‘[t]he burden to present evidence that will establish a genuine issue of material fact does not shift to the nonmovant unless the mov-ant [first] satisfies its burden.’ O’Barr v. Oberlander, 679 So.2d 261, 263 (Ala.Civ.App.1996).”

Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1192-93 (Ala.2002). On appeal, Isbell, in essence, contends that Azte-cas did not meet its burden under the applicable summary-judgment standard so that the burden of presenting evidence that Aztecas had actual or constructive knowledge of the alleged defect shifted to him.

With regard to premises-liability cases, our supreme court has stated:

“ ‘A store owner’s duty is well-established. That duty is “to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers.” Maddox v. K-Mart Corp., 565 So.2d 14, 16 (Ala.1990). Consequently, injured “plaintiffs must prove that the injury was proximately caused by the negligence of [the store owner] or one of its servants or employees. Actual or constructive notice of the presence of the substance [or instrumentality that caused the injury] must be proven before [the store owner] can be held responsible for the injury.” Id.’

Dolgencorp, Inc. v. Hall, 890 So.2d 98, 100 (Ala.2003) (quoting Denmark v. Mercantile Stores Co., 844 So.2d at 1192).

In this case, there is no admissible evidence indicating that Aztecas had actual or constructive knowledge of the defective condition of the booth seat that collapsed beneath Isbell. However, such knowledge is not required in all circumstances. In Edwards v. Intergraph Services Co., 4 So.3d 495 (Ala.Civ.App.2008), this court explained that exceptions exist to the requirement that the plaintiff must present substantial evidence that a business owner had actual or constructive notice of a dangerous or defective condition of the property. Those exceptions include when the business owner “affirmatively created” the defective condition, such as by placing items in an aisle, or when the business owner fails to perform reasonable inspections or maintenance of the premises to discover or prevent the defective condition. Edwards v. Intergraph Servs. Co., 4 So.3d at 503.

In asserting his argument on appeal, Isbell relies on Mims v. Jack’s Restaurant, 565 So.2d 609 (Ala.1990), which he contends sets forth an applicable exception to the requirement that he demonstrate that Aztecas had actual or constructive knowledge of the alleged defect in the booth seat. In that case, Mims was injured when she tripped and fell over a threshold in the doorway to Jack’s restaurant. A witness testified that, at the time Mims fell, the threshold was loose and some screws that were supposed to hold it to the floor were missing. Our supreme court reversed a summary judgment entered in favor of the restaurant, holding that there was “substantial evidence from which a jury could find that a defect existed in the threshold of the door and that the defect caused Ms. Mims to trip, thereby causing her injuries.” 565 So.2d at 610. In reaching its holding, our supreme court explained the standard governing premises-liability actions such as this one, as well as its reasoning in reaching its holding:

“Ms. Mims was a business invitee of the defendant. Therefore, it owed her a duty to exercise ordinary and reasonable care in providing and maintaining reasonably safe premises for her. Cox v. Western Supermarkets, Inc., 557 So.2d 831 (Ala.1989). The question of whether the' threshold, if it was defective, had been defective for such a period of time that Jack’s should have discovered the defect; was for the jury.
“The facts in this case should be distinguished from the facts in a case where a plaintiff slips and falls on a slick spot on a floor caused by food or another substance. In one of those slip and fall cases, a plaintiff not only must make a prima facie showing that her fall was caused by a defect or instrumentality (a substance causing a surface to be slick) located on the premises, but she must also present prima facie evidence that the defendant had or should have had notice of the defect or instrumentality at the time of the accident. Massey v. Allied Products Co., 523 So.2d 397 (Ala.1988); Tice v. Tice, 361 So.2d 1051 (Ala.1978). On the other hand,, in cases where the alleged defect is a part of the premises (in this case, a loose threshold in the main entrance of a restaurant), once a plaintiff has made a prima facie showing that a defect in a part of the premises has caused an injury, then the question whether the defendant had actual or constructive notice of the defect will go to the jury, regardless of whether the plaintiff makes a prima facie showing that the defendant had or should have had notice of the defect at the time of the accident For example, in Winn-Dixie Montgomery, Inc. v. Weeks, 504 So.2d 1210 (Ala.1987), a mother was going through a grocery store pushing a shopping cart, in which her son was sitting. The only unusual thing she noticed about the cart was that the wheels made a loud noise and were wobbly. While she left the cart for a moment, the child leaned over to reach for candy in a display rack, and, as he did so, the cart tilted over and his left cheek was impaled on an allegedly broken wire that was sticking up on the display rack. The defendants, appealing from a judgment based on a jury verdict in favor of the plaintiff, argued that there was no evidence that they had constructive notice of the defect. This Court affirmed, holding that the question whether the grocery store had constructive notice of .the alleged defect was for the jury. Winn-Dixie Montgomery, Inc. v. Weeks, 504 So.2d at 1211.
“In both this case and in Weeks, the alleged defect or instrumentality was a part of the premises. Unlike a spilled-substance, a defective threshold or a cart or a display rack is a fixture that requires ordinary and reasonable maintenance in order to provide safe premises for the store’s customers. Because it was the main entrance of the restaurant, we find that the question whether Jack’s should have known that the threshold was defective was a question for the jury.”

565 So.2d at 610-11 (emphasis added).

We note that this court has interpreted the second paragraph of the above-quoted portion of Mims v. Jack’s Restaurant, supra, as narrowing “the apparent broadness” of the portion of that opinion specifying that actual or constructive knowledge was a jury question when the alleged defect is a part of the premises. Edwards v. Intergraph Seros. Co., 4 So.3d at 505. In Edwards v. Intergraph Services Co., because Edwards had not alleged that the defendant had failed to properly inspect or maintain the allegedly defective portion of the premises, this court held that “neither of the ... exceptions to the rule that an invitee must present substantial evidence that the premises owner knew or should have known of the dangerous or defective condition applies.” 4 So.3d at 505. In that case, however, this court concluded that Edwards had proceeded under the sole theory that a design defect caused his injury. Edwards v. Intergraph Servs. Co., 4 So.3d at 504 (“Edwards’s deposition testimony makes it clear that he sought to impose liability upon Intergraph for a ‘design defect’ ” in the portion of the premises that allegedly caused his injury). In this case, there is no indication that Isbell has limited his claim for recovery in such a manner.

This court is bound by the precedent established by our supreme court. § 12-3-16, Ala.Code 1975 (“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals.... ”); Farmers Ins. Exch. v. Raime, 905 So.2d 832, 835 (Ala.Civ.App. 2004). Given our supreme court’s holding in Mims v. Jack's Restaurant, supra, we must agree with Isbell that, because the booth seat that collapsed under him was a fixture or “a part of the premises,” the issue whether Aztecas had actual or constructive notice of the alleged defect in the booth seat should “go to the jury, regardless [of the fact that Isbell failed to make] a prima facie showing that [Aztecas] had or should have had notice of the defect at the time of the accident.” 565 So.2d at 610. For that reason, we reverse the summary judgment in favor of Aztecas and remand the cause for further proceedings.

REVERSED AND REMANDED.

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

MOORE, J.,

concurs in the result, without writing.

      . The record on appeal contains no order granting Isbell additional time to locate evidence in opposition to the summary-judgment motion. A notation on the State Judicial Information System dated June 2, 2010 (seven days before Isbell filed his June 9, 2010, supplemental response to the summary-judgment motion) states "Summary Judgment/No Action.”

      . Subject to certain exceptions not relevant here, the affidavit Isbell submitted in support of his "renewed” postjudgment motion could not be properly considered by the trial court because it was not before that court at the time it considered Aztecas’s summary-judgment motion. Mardis v. Ford Motor Credit Co., 642 So.2d 701, 705 (Ala.1994) ("'[T]he trial court can consider only that material before it at the time of submission of the motion’ and ... ‘[a]ny material filed after submission of the motion comes too late.’ ” (quoting Guess v. Snyder, 378 So.2d 691, 692 (Ala.1979))); see also McCollough v. Regions Bank, 955 So.2d 405, 409 (Ala.2006) ("In order to present new evidence in a motion to alter, amend, or vacate a summary judgment, ' "the plaintiff must show circumstances which prevented his presenting evidence to counter that offered in support of the summary judgment.” ’ ” (quoting Moore v. Glover, 501 So.2d 1187, 1189-90 (Ala.1986), quoting in turn Willis v. ideal Basic Indus., Inc., 484 So.2d 444, 445 (Ala.1986))).


author: THOMAS, Judge.

text:
    Jackie McLEOD v. S.M. McLEOD and Michelle McLeod.
    2100542.
    Court of Civil Appeals of Alabama.
    July 15, 2011.
    Rehearing Denied Aug. 26, 2011.

      Jackie McLeod, pro se.
   THOMAS, Judge.

Jackie McLeod appeals from a summary judgment entered in favor of S.M. McLeod and Michelle McLeod (hereinafter sometimes collectively referred to as “the McLeods”). Jackie sued the McLeods, alleging that S.M. had “mentally and physically assaulted” Jackie by threatening him with a pistol while Jackie was in the swimming pool with Michelle and by hitting Jackie with the pistol once Jackie got out of the pool. In his complaint, Jackie alleged that Michelle had intentionally failed to warn Jackie of her husband’s jealous nature before inviting Jackie to swim with her.

The McLeods filed a one-page motion for a summary judgment. In their motion, the McLeods stated that the incident described by Jackie was “a total fabrication [by] a convicted con and sociopath that is attempting to extort money from his family and insurance companies.” According to the McLeods’ motion, Jackie “has a history of abusing the judicial system to harass and attempt to extort money” and that he “uses the judicial system to attack innocent individuals from his prison cell.” The McLeods attached no evidentiary submissions to their motion and did not direct the trial court to any evidence that might have existed in the court’s file.

In response to the McLeods’ motion, Jackie filed a response in opposition and his own affidavit, in which he recounted the events of the incident giving rise to his complaint. Generally, Jackie averred that he had gone to S.M.’s home to speak to S.M. about renting a house owned by S.M., that Michelle told Jackie that S.M. was not home and that S.M. would be at work until 11:30 that night, and that Michelle invited Jackie to go swimming with her in the pool in the backyard. Jackie further testified in his affidavit that he went swimming in the pool with Michelle, that S.M. arrived home early and found Jackie in the pool with Michelle, and that S.M. became angry. According to Jackie’s affidavit, S.M. brandished a pistol at Jackie and, using profanity, ordered Jackie to get out of the pool. Jackie also testified in his affidavit that S.M. hit Jackie in the head with the pistol, told Jackie to never return to the McLeods’ home, and threatened to kill Jackie if he did return.

The trial court entered a summary judgment in favor of the McLeods. Jackie appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). We reverse the summary judgment in favor of the McLeods.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

Jackie argues on appeal that the McLeods failed to meet their initial burden of showing a lack of a genuine issue of material fact. We agree. “A mere general denial, without more, does not automatically entitle a movant to a judgment as a matter of law.” Clark v. Hackett, 674 So.2d 1306, 1309 (Ala.Civ.App.1995). A trial court deciding a motion for a summary judgment must evaluate the sufficiency of the evidence in support of and in opposition to the motion; “where the evidence is in conflict, the issue must go to the jury.” Kitchens v. Winn-Dixie Montgomery, Inc., 456 So.2d 45, 47 (Ala.1984). “ ‘It goes without saying that “ ‘ “a court may not determine the credibility of witnesses on a motion for summary judgment.” ”” ” Davis v. Sterne, Agee & Leach, Inc., 965 So.2d 1076, 1089 (Ala.2007) (quoting Dixon v. Board of Water & Sewer Comm’rs of the City of Mobile, 865 So.2d 1161, 1166 n. 2 (Ala.2003), quoting in turn Wilson v. Teng, 786 So.2d 485, 498 (Ala.2000), quoting in turn Ex parte Usrey, 777 So.2d 66, 68 (Ala.2000), quoting in turn Phillips v. Wayne’s Pest Control Co., 623 So.2d 1099, 1102 (Ala.1993)).

The McLeods presented nothing but bald statements in their motion for a summary judgment to support their entitlement to a summary judgment on Jackie’s claims.

“However, ‘[mjotions and arguments of counsel are not evidence.’ Williams v. Akzo Nobel Chemicals, Inc., 999 S.W.2d 836, 845 (Tex.App.1999). ‘[Statements in motions are not evidence and are therefore not entitled to evidentiary weight.’ Singh v. Immigration & Naturalization Serv., 213 F.3d 1050, 1054 n. 8 (9th Cir.2000). ‘[B]riefs submitted in support of motions are not evidence to be considered by the Court in resolving a summary judgment motion.’ Direct Media Corp. v. Camden Tel. & Tel. Co., 989 F.Supp. 1211, 1217 (S.D.Ga.1997).”

Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000).

Because the McLeods did not present any evidence supporting their assertions that the incident upon which Jackie based his action did not actually occur or that Jackie was not legally entitled to damages for the alleged assault and battery, the McLeods failed to shift the burden to Jackie. Even so, Jackie responded to the McLeods’ motion with his own affidavit, in which he presented evidence indicating that S.M. had assaulted and battered Jackie at S.M.’s home after S.M. found Jackie in the swimming pool with Michelle. Because the McLeods failed to establish a lack of a genuine issue of material fact as to the claims arising from the alleged incident, the trial court erred when it entered a summary judgment in favor of the McLeods. Accordingly, the judgment of the trial court is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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

      . Jackie amended his complaint at least three times, although, by and large, the factual allegations and the legal claims in the complaints remained the same.

      . Although Jackie referred to violations of his constitutional rights and used other terms like negligence and wantonness in his complaint and amended complaints, his primary claims appear to be a claim against S.M. alleging assault and battery and, against Michelle, a claim of "failure to warn.” In reversing the summary judgment based on the failure of the McLeods to present evidence of a lack of a genuine issue of material fact, we express no opinion on whether Jackie’s claims have any merit.


author: THOMAS, Judge. THOMPSON,

text:
    METALS USA PLATES AND SHAPES SOUTHEAST, INC. v. Albert CONNER.
    2090800 and 2091020.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2011.

      J. Walton Jackson and Benjamin Y. Ford of Armbrecht Jackson LLP, Mobile, for appellant.
    John R. Spencer, Mobile; and C.S. Chie-palich, Mobile, for appellee.
   On Application for Rehearing

THOMAS, Judge.

This court’s opinion of April 29, 2011, is withdrawn, and the following is substituted therefor.

Metals USA Plates and Shapes Southeast, Inc. (“the employer”), appeals from a judgment of the Mobile Circuit Court, in which the trial court determined that Albert Conner was permanently and totally disabled as the result of a workplace accident. We reverse and remand, based on the trial court’s failure to comply with § 25-5-88, Ala.Code 1975.

On September 14, 2005, Conner was injured in a workplace accident while acting in the course and scope of his duties with the employer. At the time of the accident, Conner was standing on a flatbed trailer assisting in the loading of some bundles of angle iron. As Morris Sullivan, another employee, operated a crane to maneuver the angle iron into place on the trailer, the angle iron shifted, crushing Conner’s ankle between the angle iron and another bundle of iron, which had already been loaded onto the trailer. The remaining details of the accident were disputed. At trial, Conner claimed that, after his ankle had been crushed, he fell approximately five feet from the trailer to the ground, landing on his right shoulder. Sullivan, the only witness to the accident, testified that Conner had grabbed hold of the crane cables, that Sullivan had lowered Conner from the trailer, and that Conner had then fallen about two feet, landing in a sitting position.

After the accident, Conner was treated by paramedics and then transported to the emergency room at Mobile Infirmary Medical Center. At the hospital, Dr. Jeffrey M. Conrad examined Conner. Dr. Conrad diagnosed Conner with a bimalleolar fracture of the right ankle and an injured syndesmosis. On September 20, 2005, Dr. Conrad operated on Conner, performing an open reduction internal fixation of the bimalleolar ankle fracture with syndes-modic fixation. As part of the surgery, Dr. Conrad inserted a metal plate into Conner’s ankle, which he affixed with screws. On February 2, 2006, Dr. Conrad performed a second surgery on Conner’s ankle to remove one of the screws because it was causing Conner pain.

On January 18, 2006, Conner filed a complaint in the trial court, alleging, among other things, that he “was caused to sustain severe and disabling injuries to his right foot while performing his job duties for [the employer].” Conner did not reference any other alleged injuries in his complaint. Conner also did not mention any alleged injuries other than to his ankle in his responses to the employer’s interrogatories.

The employer deposed Conner on September 6, 2006, almost one year after the accident. The employer’s counsel inquired of Conner as to what parts of his body were injured or were causing him pain. The following exchange between Conner and the employer’s counsel occurred:

“[The employer’s counsel]. Nothing wrong with your shoulders?
“[Conner]. No — sometimes I have pain in my shoulders, but I don’t know whether it comes from that or not, yes.
“[The employer’s counsel]. What about your arms? You didn’t hurt your elbow or your wrist or your fingers?
“[Conner]. No. I know — and when— when they finally came, I was off the truck. I was laying on the shoulder down, so maybe that’s — that’s where I have it, my shoulder part come in on the shoulder.
“[The employer’s counsel]. What shoulder is hurting you?
“[Conner]. The right one.”

Later in the deposition, the following exchange occurred:

“[The employer’s counsel]. But you’ve already testified today that the only problems that you’re having is your right leg, your right ankle, and your headaches; correct?
“[Conner]. Right.
“[The employer’s counsel]. Okay.
“[Conner’s counsel]: Didn’t he say something about his shoulder?
“[The employer’s counsel]: Well, he said he had some shoulder, but he didn’t think it was caused by this.
“[The employer’s counsel]. Isn’t that correct?
“[Conner]. Well, I happened to be on my shoulder when I fell off the truck, so I don’t know whether that came from it or not.
“[The employer’s counsel]. You don’t know one way or the other?
“[Conner]. When the pain I never got it checked out for that.
“[The employer’s counsel]. Have you ever been treated for your shoulder?
“[Conner]. No.”

On June 14, 2007, Conner amended his complaint, correcting the name of the employer; Conner did not amend his claims or add any additional claims. On April 8, 2008, Conner moved the trial court to compel the employer to provide him with a panel of four physicians pursuant to § 25-5-77(a), Ala.Code 1975. In his motion, Conner alleged that “[a]s a result of the injury and surgery to his foot [Conner] was required to use crutches for approximately twelve months which resulted in an injury to his right shoulder.” Conner further alleged that “Dr. Conrad has refused to treat [Conner’s] shoulder and as a result thereof [Conner] is dissatisfied with the care provided by Dr. Conrad.” The trial court granted Conner’s motion to compel on April 15, 2008, ordering the employer to provide Conner with a panel of four physicians.

On April 17, 2008, the employer filed a motion requesting that the trial court withdraw or, in the alternative, reconsider its order compelling the employer to provide Conner with a panel of four physicians. The employer argued in its motion that it had not had an opportunity to respond to Conner’s motion before the trial court entered its order. The employer also, among other things, denied that Conner’s alleged shoulder injury was the result of a workplace accident or had arisen from another workplace injury. Therefore, the employer argued, because the alleged injury to Conner’s shoulder had not been determined to be a compensable injury, it should not be ordered to provide treatment for that injury. The employer later filed a supplemental brief in support of its motion, in which it argued that Conner was not entitled to a panel of four physicians. The employer argued:

“[Conner] now claims that he is entitled to medical treatment for shoulder problems resulting from using crutches while he was recovering from his ankle injury. [Conner’s] complaint does not allege that he suffered a shoulder injury in any purported work place accident and does not include an allegation that his ankle injury extends to other parts of his body. However, the [employer] denies that [Conner] suffered an injury to his shoulder in any work place accident, or that he injured his shoulder using crutches while recovering from his ankle injury. In fact, Dr. Conrad testified that, other than rubbing the armpits, he had never heard of a shoulder injury resulting from the use of crutches, and Dr. Conrad is a shoulder specialist.”

The trial court granted the employer’s motion to withdraw its April 15, 2008, order, and it set a date for a hearing on Conner’s motion to compel. Following a hearing, the trial court entered an order on July 25, 2008, directing the employer to provide Conner with a panel of four physicians. The trial court also stated in its order that “the parties are requested to notify the Court so that a hearing may be heard on the issue of compensability as to the shoulder.” The employer petitioned this court for a writ of mandamus, challenging the trial court’s order. This court denied the employer’s petition by order, “on the condition that the [trial] court’s July 25, 2008, order be construed not to include any assessment of or treatment for an alleged shoulder injury.”

The trial court conducted a trial on Conner’s complaint on November 12, 23, and 24, 2009, at which the trial court heard ore tenus evidence. Conner presented testimony and evidence regarding his alleged injuries. Conner testified at trial that, after his ankle had been crushed by the angle iron, he had fallen off the trailer and had landed on his shoulder. Conner testified that he had injured his shoulder in the fall. Conner testified that he first noticed pain in his shoulder in November 2005, approximately two months after the accident. According to Conner, he began suffering lower-back pain in the middle of 2008. Dr. Robert Zarzour, an orthopedic surgeon who had treated Conner, testified in his deposition that there is a high association between an altered gait and lower-back pain. The employer elicited testimony from Conner and provided evidence indicating that Conner had not included a shoulder or lower-back injury in his complaint and that he had never amended his complaint to include either injury.

Both parties filed posttrial briefs in the trial court. The employer argued in its posttrial brief that Conner’s shoulder-injury claim and his lower-back-injury claim were barred by the statute of limitations because, it argued, neither Conner’s complaint nor his amended complaint included those claims. The employer further argued that

“Mr. Conner apparently has alternative theories as to the cause of his purported shoulder and lower back injuries. Under .one theory, Mr. Conner contends the he injured his shoulder using crutches, and his lower back as the result of an altered gai[t]. The other theory is that he actually suffered three injuries in his September 14, 2005 accident, an ankle injury, a shoulder injury (as a result of a fall) and a lower back injury (as a result of a fall), Mr. Conner no doubt filed his lawsuit with respect to the ankle injury within two years of his September 14, 2005 accident. However, to the extent he is claiming separate injuries (the shoulder and the lower back) arising from that accident, he did not file a claim for those injuries within two years of the accident.”

The trial court entered a judgment on April 22, 2010, determining that Conner was totally and permanently disabled. Among its findings of fact, the trial court found:

“2. ... On September 14, 2005, [Conner] suffered a bimalleolar ankle fracture to the right ankle in a work accident as defined by Alabama’s Workers’ Compensation Act. The injury arose out of and was suffered while working within the line and scope of his employment with [the employer], [The employer] received prompt and actual notice of the said accident.
“10. [Conner] first noticed pain in his right shoulder when he laid down on his right side approximately 2 months following the September 14, 2005[,] work accident. Although Dr. Conrad does not recall the event, [Conner] reported the shoulder pain to Dr. Conrad at that time. The pain in [Conner’s] shoulder became progressively worse the longer he remained on crutches.
“11. [Conner] began experiencing pain in his lower back in mid to late 2008. The lower back pain has become progressively worse. As several medical experts testified in this case, an altered gait can lead to chronic low back pain. As the Court observed at time of trial, [Conner] walks very slowly, with a pronounced antalgic gait and required the assistance of a cane to ambulate. As Dr. Robert Zarzour, an orthopedic surgeon with more than 30 years of experience testified, [Conner’s] lumb[a]r problems are related to the trauma he suffered when his ankle was crushed and he fell off of the truck.
“21. ... [Conner] injured his right shoulder in the September 2005 work accident when he fell from the top of a flatbed trailer, striking his right side on the ground. The shoulder injury was aggravated thereafter by the prolonged use of crutches for approximately 1 year following this work accident.”

Among its conclusions of law, the trial court determined:

“27. On September 14, 2005, [Conner] injured his right ankle and right shoulder when his ankle was crushed by a shifting load of angle iron, and [Conner] thereafter fell appi-oximately 5 feet from the top of a flatbed trailer landing on his right side. At the time of the accident, [Conner] was acting within the line, course and scope of his employment with [the employer]. [The employer] received prompt and actual notice of the said accident.
“28. [Conner] has presented substantial evidence that the use of crutches for approximately 12 months following the work accident aggravated the original injury to his shoulder. ‘If a worker’s compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment.’ Ex parte Pike County Comm., 740 So.2d 1080 (Ala.1999). This Court finds that the aggravation of the injury to the right shoulder is a natural consequence flowing from the initial injuries suffered in the work accident, that [the employer] received appropriate notice of the shoulder injury, and that the injury to [Conner’s] shoulder is a compensable injury.
“30. ... [Conner] has presented substantial evidence that he suffers chronic pain in his ankle and lower back. The chronic back pain is a natural consequence flowing from the initial injury to [Conner’s] ankle because of the change in [Conner’s] gait.”

In its judgment, the trial court also stated that

“[Conner] has filed a Motion to Tax Costs and the [employer] has filed a response in opposition thereto. A hearing on the same is currently scheduled for April 30, 2010. Any costs incurred by [Conner] in the prosecution of his claim that may be taxed against the [employer] shall be addressed by separate order following the hearing on that issue.”

The trial court did not make any findings of fact or conclusions of law with respect to the employer’s statute-of-limitations argument.

On May 24, 2010, the employer appealed to this court (case no. 2090800). On May 25, 2010, after the employer filed its notice of appeal, the trial court entered an order granting Conner’s motion to tax costs in the amount of $5,551.56. Conner filed a postjudgment motion, requesting that the trial court add an additional $2,085 in costs to its award. The trial court granted Conner’s postjudgment motion on June 14, 2010. The employer subsequently filed a second notice of appeal to this court (case no. 2091020). This court consolidated the two appeals.

The employer advances several arguments on appeal. The employer first argues that the trial court’s judgment does not contain findings of fact and conclusions of law as required by § 25-5-88, Ala. Code 1975, with respect to the issues of notice and the applicability of the statute of limitations with regard to Conner’s claimed shoulder and lower-back injuries.

“ ‘The purpose of Ala.Code 1975, § 25-5-88, is to “ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts.” ’ Farris v. St Vincent's Hosp., 624 So.2d 183, 185 (Ala.Civ.App.1993) (quoting Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So.2d 1049, 1052 (Ala.Civ.App.1985)). ‘[T]he trial court has a duty to make a finding on each issue presented and litigated before it. In instances where the trial court fails to make a finding responsive to the issue presented, the case must be reversed.’ Thomas v. Gold Kist, Inc., 628 So.2d 864, 867 (Ala.Civ.App.1993); see also Harbin v. United States Steel Corp., 356 So .2d 179 (Ala.Civ.App.1978); and Dun & Bradstreet Corp. v. Jones, 678 So.2d 181 (Ala.Civ.App.1996). In Harbin v. United States Steel Corp., this court reversed the trial court’s judgment and remanded the case because the trial court had failed to address or to make findings regarding the issue of notice of injury to the employer, despite the issue being presented and litigated. In Harbin, this court stated:
‘“In the present case the question of whether Harbin notified his employer of his injury was pleaded, contested and submitted to the trial court for its determination. Despite this fact there was no finding made on this issue in the court’s original judgment. Nonetheless, Harbin maintains that the absence of a finding of notice of injury does not require reversal since a number of Alabama cases have held that when a finding of the trial court is merely meager or omissive, the reviewing court may examine the evidence in order to decide if the trial court’s judgment can be sustained. E.g., West Point Mfg. Co. v. Bennett, 263 Ala. 571, 83 So.2d 303 (1955); Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955). However, such is not the rule when, as here, there was no finding made on the issue in question.’
356 So.2d at 181-82.”

Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129-30 (Ala.Civ.App.2008).

We will first address the question whether the trial court included sufficient findings of fact and conclusions of law regarding the notice issue. With respect to Conner’s alleged shoulder injury, the trial court clearly stated in its judgment that “[the employer] received appropriate notice of the shoulder injury.” Therefore, the trial court complied with the requirements of § 25-5-88. With respect to Conner’s alleged lower-back injury, the trial court did not make any specific findings of fact or conclusions of law that explicitly address notice. The trial court did conclude, however, that Conner’s “chronic back pain is a natural consequence flowing from the initial injury to [Conner’s] ankle because of the change in [Conner’s] gait.” In Ragland Brick Co. v. Campbell, 409 So.2d 443 (Ala.Civ.App.1982), we noted:

“[T]his court’s opinion in Beatrice Food[s] Co. v. Clemons, [54 Ala.App. 150, 306 So.2d 18 (1975) ], wherein we indicated that once the employer has actual knowledge of an accident and injury, the statute does not require that the claimant provide further notice or continuing information except upon request. In light of Beatrice Foods, we are not convinced that it was absolutely necessary that the employer be informed of the back injury as long as there was a reasonable medical connection between the injury the employer was specifically informed of and the resulting injury. In this case, the medical testimony indicated that the circumstances surrounding employee’s knee injury were not incompatible with his subsequent back problems. Thus, here there was a reasonable medical connection between the knee injury and the back problem.”

409 So.2d at 445-46.

In this case, the trial court found that Conner had provided the employer with actual notice of the accident and of Conner’s ankle injury. The trial court further found that Conner’s lower-back injury was the result of an altered gait, which was caused by Conner’s ankle injury. Because the trial court’s findings indicate that there was a reasonable medical connection between Conner’s lower-back injury and his ankle injury, Conner was not required to specifically notify the employer of his lower-back injury. Therefore, any failure of the trial court to make an express finding of fact or conclusion of law with respect to whether the employer received notice of Conner’s lower-back injury merely caused the trial court’s findings and conclusions to be meager and omissive and does not require reversal. See, e.g., Werner Co. v. Williams, 871 So.2d 845, 853 (Ala.Civ.App.2003) (“To the extent some of the findings of the trial court may be meager or omissive, we note that a reversal is not required. Instead, we merely conduct the same review as we would of more specific factual findings to determine whether the ultimate finding made by the trial court is supported by substantial evidence.”).

We now turn to the employer’s argument that the trial court failed to make any findings of fact or conclusions of law on the statute-of-limitations issue. A review of the trial court’s judgment shows that the judgment does not contain any findings of fact or conclusions of law with regard to the statute-of-limitations issue, which was raised by the employer.

“ ‘This court has recognized that substantial compliance with the statute is sufficient. Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.1980); however, the trial court has a duty to make a finding on each issue presented and litigated before it. In instances where the trial court fails to make a finding responsive to the issue presented, the case must be reversed.’ ”

Labinal, Inc/Globe Motors v. Alphord, 767 So.2d 362, 365 (Ala.Civ.App.2000) (quoting Thomas v. Gold Kist, Inc., 628 So.2d 864, 867 (Ala.Civ.App.1993)). The issue whether Conner’s claims for compensation for his alleged injuries to his shoulder and his lower back were barred by the statute of limitations was presented to the trial court. Because the trial court failed to make any findings or conclusions with regard to the statute-of-limitations issue, we must reverse the trial court’s judgment and remand the cause to that court for it to make the appropriate findings of fact and conclusions of law with respect to that issue. See Labinal, 767 So.2d at 365.

Because the trial court’s judgment awarding costs to Conner may be affected by the trial court’s determination as to the applicability of the statute of limitations, we reverse that judgment as well.

2090800 — APPLICATION OVERRULED; OPINION OF APRIL 29, 2011, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ„ concur.

THOMPSON, P.J., concurs in part and dissents in part, with writing.

MOORE, J., dissents, without writing.

2091020 — APPLICATION OVERRULED; OPINION OF APRIL 29, 2011, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

MOORE, J., dissents, without writing.

THOMPSON,

Presiding Judge, concurring in part and dissenting in part.

In its judgment, the trial court found that Albert Conner’s chronic lower-back pain was a natural consequence flowing from the initial injury to Conner’s ankle. Metals USA Plates and Shapes Southeast, Inc., did not allege that compensation for Conner’s ankle was barred by the applicable statute of limitations. When the trial court considered Conner’s back pain as part of its determination of the extent of Conner’s disability and the amount of workers’ compensation benefits he was entitled to for his work-related injuries, it implicitly found that compensation for Conner’s back injury was not barred by the statute of limitations. Because legal evidence supports this finding, it is due to be affirmed. See Reynolds Metals Co. v. Stults, 582 So.2d 1035, 1038 (Ala.Civ.App.1988). Accordingly, I dissent from that portion of the main opinion reversing the judgment of the trial court in case no. 2090800 on the basis that it failed to make findings of fact with regard to the statute-of-limitations issue concerning Conner’s claim for compensation for his lower-back injury.

I concur with the remainder of the main opinion.

      . Dr. Conrad explained that a bimalleolar fracture means that the patient has a fracture to the lateral malleolus, which is on the outside of the ankle, and to the medial malleolus, which is on the inside of the ankle. Dr. Conrad further explained that the syndesmo-sis is the ligament that lies between the tibia and fibula.

      . Section 25-5-80, Ala.Code 1975, provides, in pertinent part:
      “In case of a personal injury not involving cumulative physical stress, all claims for compensation under this article shall be forever barred unless within two years after the accident the parties shall have agreed upon the compensation payable under this article or unless within two years after the accident one of the parties shall have filed a verified complaint as provided in Section 25-5-88.”

      . Because we reverse the trial court’s judgment based on our conclusion that the judgment does not contain findings of fact and conclusions of law as required by § 25-5-88 with respect to the applicability of the statute of limitations to Conner’s shoulder-injury and lower-back injury claims, we pretermit discussion of the remaining arguments raised by the employer in its appeal.