author: BRYAN, Judge. MOORE, Judge,

text:
    VINTAGE PHARMACEUTICALS, LLC v. Thomas HAYES.
    2060284.
    Court of Civil Appeals of Alabama.
    Sept. 14, 2007.
    Rehearing Denied Nov. 2, 2007.
    William L. Middleton of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellant.

      L. Thompson McMurtrie of Hess & McMurtrie, P.C., Huntsville, for appellee.
   BRYAN, Judge.

Vintage Pharmaceuticals, LLC, appeals from a judgment of the trial court awarding permanent-total-disability benefits to Thomas Hayes. Because we conclude that the trial court erred in compensating Hayes for an injury to the body as a whole rather than for an injury to a scheduled member under § 25 — 5—57(a)(3), Ala.Code 1975, we reverse and remand.

Hayes worked for Vintage as a custodian. On July 13, 2005, Hayes sustained an open fracture of his right calcaneus, or heel bone, in a forklift accident at work. In the accident, Hayes severed a portion of his calcaneus, which was surgically reattached by an orthopaedic surgeon. Soon after that surgery, Hayes developed an infection in his right foot that required multiple irrigation-and-debridement procedures. In August 2005, a plastic surgeon grafted muscle and tissue from Hayes’s back in a procedure to reconstruct Hayes’s right foot. ■

In September 2005, Hayes sued Vintage, seeking workers’ compensation benefits for his right-foot injury. Following a trial at which Hayes testified, the trial court entered an judgment finding that Hayes had sustained a nonscheduled injury to the body as a whole and that Hayes was permanently and totally disabled as a result of that injury. In its judgment, the trial court stated:

“Hayes’ work-related right foot injury has left his right foot with severe limitations, including range of motion, affecting his ability to walk. Hayes also experiences a lack of feeling in his right foot, particularly on the bottom of his foot, also affecting his ability to walk. Additionally, he has shooting pains on the front top of his right foot. [Hayes’s physician] ordered a boot for his right foot, and a brace for his left foot, both of which Hayes wore in open court. [Hayes’s physician] assigned ‘a 17% foot impairment [which equates to a] 12% lower extremity impairment and [a] 5% whole person impairment.’
“Hayes also has a congenital defect to his left foot. Surgery was performed on his left foot as a child, but it left him with a left foot which turned slightly inward at the toes and rolling to the outside. He walks with a limp, but his left foot never prevented him from working. Before this injury, Hayes had been able to accommodate his left foot defect with a normal right foot, which gave him the stability necessary for balance. The right foot injury, with resultant limited range of motion, and lack of feeling, has taken away Hayes’ stability and balance when on his feet. His lack of stability and balance has caused him to fall frequently, so he must use a cane or walker at all times when walking to avoid falling. He uses his right hand to hold a cane and is right-hand dominant.
“Hayes has an almost total lack of control of his right foot if he does not wear a shoe or special boot.... Hayes has difficulty being on his feet more than one hour per day. He finds it necessary to sit or lie frequently throughout the day with his foot elevated at waist level or above to prevent or alleviate pain and swelling.”

Section 25 — 5—81 (e), Ala.Code 1975, provides the standard of review in workers’ compensation cases:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). “This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.” Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).

On appeal, Vintage first argues that the trial court erred by treating Hayes’s right-foot injury as an unscheduled injury to the body as a whole. Vintage argues that Hayes’s injury should be compensated pursuant to § 25-5-57(a)(3), Ala.Code 1975, for the permanent partial loss of use of a scheduled member.

In Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), our supreme court restated the test for determining when an injury to a scheduled member should be treated as an unscheduled injury to the body as a whole. Our supreme court stated:

“[I]t was the intention of this Court in adopting in Bell [v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968),] the exception to the workers’ compensation schedule to address those instances where the injury to a scheduled member caused such impairment to the body as a whole that the benefits reflected on the schedule were not appropriate. Specifically, the Bell test permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member....
“We renew our commitment to the policy that underlay the Bell test and that is recognized in the current edition of 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001):
“ ‘The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’
“... [W]e today adopt the language recited above from Larson, Workers’ Compensation Law § 87.02, as the test for determining whether an injury to a scheduled member should be treated as unscheduled; therefore, we overrule Bell insofar as it established a different test....”

837 So.2d at 834-35 (footnotes omitted).

In its judgment, the trial court concluded that Hayes’s “right foot injury extends to the other parts of his body, and interferes with their efficiency, by affecting his balance and stability, requiring him to use a cane or walker when walking, and necessitating foot elevation throughout the day.” Essentially, the trial court awarded compensation to Hayes outside the schedule because, the court concluded, Hayes’s right-foot injury affected his body generally. However, to receive compensation outside the schedule, Hayes had to show that his injury to a scheduled member extended to a nonscheduled part of his body and interfered with its efficiency. 837 So.2d at 834. Hayes has not established that his right-foot injury caused an injury to any particular nonscheduled part of his body. See Boise Cascade Corp. v. Jackson, 997 So.2d 1026 (Ala.Civ.App.2007) (stating that an employee who sustained a foot injury may not recover nonscheduled disability benefits on the basis of complaints of back pain in the absence of a showing that the injury to his foot caused a permanent physical injury to his back). Accordingly, the trial court erred by treating Hayes’s injury as a nonscheduled injury to the body as a whole rather than as a scheduled injury pursuant to § 25-5-57(a)(3).

We note also that the trial court’s finding that Hayes must “sit or lie frequently throughout the day with his foot elevated ... to prevent or alleviate pain and swelling” does not support the trial court’s determination of a nonscheduled injury. In Ex parte Drummond Co., the employee stated that he had to elevate his injured knee at night to reduce the swelling. 837 So.2d at 836. The employee argued that “ ‘[t]he simple fact that he has to elevate his knee and take precautions for the swelling meets the criteria [for taking an injury off the schedule] set out in the caselaw of the State of Alabama.’ ” Id. (quoting the employee’s brief). However, the court in Ex parte Drummond Co. concluded that, despite the need to elevate the knee, the occasional swelling of the employee’s knee did not qualify as an injury that extended to other parts of the body and produced a greater incapacity than would otherwise result from the injury. 837 So.2d at 836.

In concluding that Hayes’s injury should be treated as a nonscheduled injury to the body as a whole, the trial court cited Dale Motels, Inc. v. Crittenden, 50 AlaApp. 251, 278 So.2d 370 (Civ.1973). In Dale Motels, the trial court treated the employee’s foot injury as an injury to the body as a whole rather than as a scheduled injury. The employee submitted evidence indicating that she experienced considerable pain, that she was unable to stand for more than 30 minutes without her foot swelling, that she needed a cane to walk, that she fell frequently when attempting to walk, and that she was nervous. 50 Ala.App. at 255, 278 So.2d at 373. In affirming the trial court’s judgment, this court concluded that “there is some evidence that the effects of the injury have produced a greater interference with the ability to work than would be expected from a simple and uncomplicated loss of the use of a foot.” 50 Ala.App. at 256, 278 So.2d at 373 (emphasis added)

In Ex parte Drummond Co., our supreme court overruled Dale Motels insofar as it expanded the Bell test to include vocational disabilities as an effect that will take the injury outside the schedule. 837 So.2d at 834 n. 8. In the present case, the trial court, although acknowledging that Dale Motels had been overruled for expanding the Bell test to include consideration of vocational disabilities, found that Ex parte Drummond Co. did not criticize the “other grounds” cited in Dale Motels for taking the injury off the schedule. According to the trial court, those additional grounds included effects “strikingly similar to those suffered by Hayes,” such as being unable to walk without a cane and falling while attempting to walk. However, as noted, this court’s decision in Dale Motels was ultimately based on a consideration of vocational disabilities, a consideration that impermissibly expanded the Bell test. Accordingly, we do not find Dale Motels persuasive authority for removing Hayes’s injury from the schedule.

The trial court also cited Unexcelled Manufacturing Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (Civ.1974), in support of the decision -to treat Hayes’s injury as one to the body as a whole. In Rag-land, this court affirmed the trial court’s judgment treating the employee’s ankle injury as one to the body as a whole. The employee in that case suffered pain and swelling in his ankle and leg, was unable to walk for more than 15 minutes at a time, experienced difficulty balancing and stabilizing himself, suffered pain in his head and back, and experienced involuntary head movements. 52 Ala.App. at 61, 289 So.2d at 629. The trial court in the present case noted that Hayes, like the employee in Ragland, has difficulty with his balance and stability. However, in Rag-land, unlike in this case, evidence indicated that the employee’s ankle injury may have caused injuries to nonscheduled parts of the body — the back and the head. Therefore, the court in Ragland found that there was some evidence indicating that the employee’s injury “extend[ed] to other parts of the body, and produce[d] a greater or more prolonged incapacity than that which naturally results from the specific injury.” 52 Ala.App. at 62, 289 So.2d at 630. However, in this case, there is no evidence, as there was in Ragland, indicating that Hayes’s foot injury extended to a nonscheduled body part.

Because we conclude that Hayes’s injury should have been compensated as an injury to a scheduled member pursuant to § 25-5-57(a)(3), we reverse the judgment of the trial court awarding Hayes permanent-total-disability benefits, and we remand the case. Although this result may seem harsh or unfair, the application of the current workers’ compensation law to the facts of this case mandates our conclusion. This holding pretermits discussion of the other issue raised by Vintage.

REVERSED AND REMANDED.

PITTMAN, J., concurs.

MOORE, J., concurs specially.

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

MOORE, Judge,

concurring specially.

I concur in the main opinion’s decision to reverse the trial court’s judgment and to remand the cause for the trial court to enter a new judgment limiting the employee to permanent-partial-disability benefits as set out in “the schedule,” Ala.Code 1975, § 25-5-57(a)(3)a. I write specially to address the perceived harshness or unfairness of applying the schedule to this case.

Before the advent of workers’ compensation laws, employees injured in work-related accidents depended on the common law or the Employers’ Liability Act, Title 26, § 326 et seq., Ala.Code 1940, as their exclusive forms of redress. See Reed v. Brunson, 527 So.2d 102 (Ala.1988). In order to recover any compensation from an employer, an employee basically had to prove that the injury resulted from the employer’s direct, as opposed to vicarious, negligence. See Fireman’s Fund American Ins. Co. v. Coleman, 394 So.2d 334, 341 (Ala.1980) (Jones, J., concurring in the result). In addition, the employer could raise the affirmative defenses of contributory negligence, assumption of the risk, or the fellow-servant doctrine to defeat an employee’s claim. Id. As a result, the vast majority of employees injured in work-related accidents received no monetary compensation from their employers. See Samuel B. Horovitz, Injury and Death Under Workmen’s Compensation Laws (Wright & Potter Printing Co.1944) (estimating that close to 80% of all injured employees did not receive any compensation from their employers under the common law and Employers’ Liability Act).

In 1919, our legislature resolved this issue, and many other problems associated with work-related injuries, by enacting Alabama’s first workmen’s compensation law, Ala. Acts 1919, Act No. 245, a new method for compensating employees that eliminated fault as a basis for an employer’s liability. Id. (imposing liability on the employer for workmen’s compensation benefits “without regard to the question of negligence”). Under the new theory of workmen’s compensation, the employer’s liability is predicated solely on the relationship between the injury and the work so that an employee is entitled to compensation on account of a disabling injury caused by an accident arising out of and in the course of the employment. See Pound v. Gaulding, 237 Ala. 387, 187 So. 468 (1939).

In exchange for the elimination of the fault requirement and the removal of the main barrier to receiving any redress for a work-related injury, an employee surrenders his or her right to full indemnification for the damages sustained due to the work-related injury. See Reed v. Brun-son, supra. Instead, the extent of an employee’s monetary recovery from an employer is controlled exclusively by the “schedules,” see Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803 (1921), that are now set out in § 25-5-57, Ala. Code 1975.

The schedules generally premise the compensation due an employee on the duration (temporary or permanent) and extent (partial or total) of the loss of earning capacity caused by the work-related injury and the amount of the employee’s average weekly earnings. However, the subsection of our current Workers’ Compensation Act dealing with permanent partial disability is subdivided into two parts. See Ala.Code 1975, § 25-5-57(a)(3)a. & g. The first part, § 25-5-57(a)(3)a., lists a series of body parts or combinations of body parts and generally establishes that if an employee’s injury causes a loss or loss of use of the designated body part, the employee is entitled only to compensation based on two-thirds of his or her average weekly earnings for the corresponding number of weeks. See Exparte Drummond Co., 837 So.2d 831 (Ala.2002). This list is now known as “the schedule.” See id.

The schedule serves the basic purposes of the workers’ compensation laws by making certain the compensation payable to an injured employee who suffers an enumerated injury. See generally Leach Mfg. Co. v. Puckett, 284 Ala. 209, 224 So.2d 242 (1969). By establishing the compensation payable for certain injuries, the schedule eliminates the need for litigation to determine the amount of compensation owed, thus avoiding any delay in payment to the injured employee and further avoiding administrative expenses. Id.

The benefits established in the schedule have historically been less than those available outside the schedule. In cases of injury to only a single member, the original schedule provided an employee 50 percent of his or her average weekly earnings for as little as 11 weeks (for loss of a toe other than the great toe) or as much as 222 weeks (for the loss of an arm). Ala. Acts 1919, Act No. 245, p. 206. On the other hand, nonscheduled permanent-partial-disability benefits would provide an employee the same level of benefits for up to 300 weeks. Id. Even in disastrous cases in which an employee lost both arms or both legs, the schedule provided benefits based on 50 percent of the employee’s average weekly earnings for only 400 weeks. Id. On the other hand, nonscheduled permanent-total-disability benefits, also based on 50 percent of an employee’s average weekly earnings, could last for as long as 550 weeks. Id. The legislature evidently concluded either that the nature of the injuries covered by the schedule warranted lesser benefits or that the benefits an employee gained from immediate payment and avoidance of litigation costs warranted a reduction in the compensation payable.

When viewed historically, the schedule should be considered a fair exercise of legislative power. From the viewpoint of employees, the schedule replaces an uncertain and prolonged remedy with a method of certain and immediate relief. An employee may have been able to recover more damages under prior law, but only in 20% to 30% of the cases, a risk most employees would not take if given the choice. From the viewpoint of an employer, the schedule provides a predictable and easily determined method for figuring the extent of its liability so that it may readily and routinely absorb those costs. From the viewpoint of society, the schedule avoids litigation and administration expenses, thus reducing the overall cost of workers’ compensation, which, in turn, reduces the price of those products and services subject to the “workers’ compensation tax.” The elimination of extraneous litigation and administrative expenses also benefits society by increasing the funds available for raising wages and creating new job opportunities, both of which stimulate the growth of the economy.

At least two changes in the Alabama workers’ compensation laws have raised questions as to the fairness of the amount of scheduled compensation, however. First, in 1975, the legislature deleted any limitation on the number of weeks of compensation payable for a permanent total disability. See Ala. Acts 1975, Act No. 75-86, § 4. After this amendment, permanent-total-disability benefits became payable “during the permanent total disability,” Ala.Code 1975, § 25-5-57(a)(4)a., which may, and usually does, last well beyond 550 weeks. However, the basic weekly limits set out in the schedule have never changed. Thus, the Workers’ Compensation Act allows an employee receiving permanent-total-disability benefits to recover such benefits for a far greater number of weeks than an employee receiving benefits under the schedule.

Second, in 1985, the legislature limited the amount of weekly compensation benefits available to an employee for a permanent partial disability to the lesser of $220 or 100% of the employee’s average weekly earnings. Ala. Acts 1984, 2d Ex.Sess., Act No. 85-41, § 7, amending Ala.Code 1975, § 25-5-68(a). This limitation applies to scheduled injuries that fall under the permanent-partial-disability subsection. See USX Corp. v. Mabry, 607 So.2d 249 (Ala. Civ.App.1992). On the other hand, permanent-total-disability benefits are limited only by the state’s average weekly wage, see Ala.Code 1975, §§ 25-5-57(a)(4)a. and 25-5-68(a), which is currently $682.

After those changes, the difference between the amount of compensation available within and outside the schedule have changed markedly. For example, in this case, if the employee is limited to a 17% loss of use of the foot, he would be entitled to $220 per week for 24 weeks, or a total of $5,280 in permanent-partial-disability benefits. On the other hand, if the employee received permanent-total-disability benefits for his predicted lifetime, he would be entitled to benefits with a present value on the date of the judgment of $306,937.44.

The vast disparity between scheduled and nonscheduled benefits that exists today seems unfair. From the viewpoint of an injured employee, it is unfair that his or her compensation would be so much less for a scheduled injury than for a nonscheduled injury with similar wage-earning ramifications, with the amount hinging on such arbitrary factors as the location of the injury or the degree and constancy of pain. From the viewpoint of the employer, it is unfair that an employee with a nonscheduled injury receives so much more than an employee with a scheduled injury and that reserves and settlements must account for the possibility of a nonscheduled award. Most importantly, from the viewpoint of society, the disparity has undermined the supporting principles behind the schedule, resulting in exceptions to the exclusivity of the schedule. See Ex parte Drummond Co., 837 So.2d at 837-38 (Moore, C.J., concurring specially). See also Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136 (Ala.Civ.App.2005), aff'd, Ex parte Masterbrand Cabinets, Inc., 984 So.2d 1146 (Ala.2007). Those exceptions render the amount of compensation due uncertain and subject to prolonged and expensive litigation, see, e.g., Shoney’s Inc. v. Rigsby, 971 So.2d 722 (Ala.Civ.App.2007); Chadwick Timber Co. v. Philon, 10 So.3d 1014 (Ala. Civ.App.2007); Boise Cascade Corp. v. Jackson, 997 So.2d 1026 (Ala.Civ.App. 2007); and General Elec. Co. v. Baggett, 1 So.3d 1015 (Ala.Civ.App.2007), leading to escalating workers’ compensation costs and the diversion of funds to purely administrative expenses, leading to higher prices and less economic growth.

With that said, it is not the function of this court to pass on the fairness of a statute. Ivey v. State, 821 So.2d 937 (Ala. 2001). Any complaints regarding the harshness or the unfairness of the schedule should be directed to the legislature, which is the body that created this remedy and which is the only body that can address its perceived deficiencies. Until the legislature amends the law, it is our duty to apply the statute as written. Id.

In this case, the employee asserts that the judgment of the trial court should be affirmed because, he says, the injury to his right foot extends to and impairs other parts of his body, satisfying the Drum-mond exception to the exclusivity of the schedule. However, the employee presented no evidence indicating that any nonscheduled portion of his body has been impaired because of his right-foot injury. The employee’s assertion that his right-foot injury affects his preexisting left-foot condition is totally refuted by the testimony of his physician to the contrary. Although it is true that the right-foot injury is more problematic for this employee because of his prior left-foot impairment, the record is devoid of any evidence indicating that the right-foot injury has aggravated or otherwise affected the left-foot problem. Even if it did, the injury would still be within the schedule for the loss of use of two feet. See Ala.Code 1975, § 25-5-57(a)(3)a.27.

The employee also argues that his right hand is impaired because he has to use it to grip a cane while walking. The record contains no evidence indicating that the right-foot injury has injuriously affected the employee’s right hand. Again, even if it did, the injury would remain within the schedule. See Ala.Code 1975, § 25-5-57(a)(3)a.29. Accordingly, there is no substantial evidence to support a finding that the employee’s right-foot injury extends to any other nonscheduled part of the employee’s body and interferes with its efficiency. The trial court’s judgment awarding benefits outside the schedule is therefore due to be reversed.

      . This court reviewed the workers' compensation judgment in Dale Motels by a writ of certiorari. Under the certiorari standard of review, the trial court’s judgment would not be disturbed if there was any legal evidence supporting the factual findings of the trial court. See 50 Ala.App. at 255, 278 So.2d at 372.

      . Ragland, like Dale Motels, was decided using the certiorari standard of review. See note 2.

      . Because Hayes injured his right foot, we have referred to Hayes's injury as a "right-foot injury.” However, we do not imply that, upon remand, the trial court is precluded from finding that Hayes has in fact lost the use of an entire leg, a scheduled member pursuant to § 25-5-57(a)(3)a.l6, Ala.Code 1975, as opposed to the loss of the use of a foot, a scheduled member pursuant to § 25-5-57(a)(3)a.l4, Ala.Code 1975.

      . On the date this opinion was released, this information could be accessed on-line at: http://dir.alabama.gov/docs/guides/wcJ1007 weeklywage.pdf. A copy of this information is also available in the case file of the clerk of the Alabama Court of Civil Appeals.

      . These figures are used as an example and are not intended to indicate any limitation on the employee's compensation on remand. However, I do not agree that the record indicates that the employee could be entitled to benefits for the loss of use of a leg because the evidence indicates that his loss is limited to the right foot, which entitles him to, at most, 139 weeks of benefits. See Ala.Code 1975, § 25-5-5 7(a)(3)a. 14.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Ex parte Thomas HAYES. (In re Vintage Pharmaceuticals, LLC v. Thomas Hayes).
    1070315.
    Supreme Court of Alabama.
    March 18, 2011.

      L. Thompson McMurtrie of Hess and McMurtrie, P.C., Huntsville, for petitioner.
    William L. Middleton and Heather N. Hudson of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for respondent.
    Gina Coggin of Rhea, Boyd, Rhea & Coggin, Gadsden; Leila H. Watson of Cory, Watson, Crowder & DeGaris, Birmingham; William Powell and Gregory T. Denny of Powell & Denny PC, Birmingham; and Patrick J. Ballard of Ballard Law Office, Birmingham, for amicus curiae Alabama Association for Justice, in support of the petitioner.
   MURDOCK, Justice.

Thomas Hayes sued his employer, Vintage Pharmaceuticals, LLC (“Vintage”), seeking workers’ compensation benefits after he suffered an injury to his foot. Following a trial at which evidence was presented ore tenus, the court found that Hayes had suffered a nonscheduled injury to the body as a whole and awarded Hayes permanent total-disability benefits for a nonscheduled injury. On appeal, the Court of Civil Appeals reversed the judgment, based on that court’s holding that Hayes’s injury should be compensated under Ala.Code 1975, § 25-5-57(a)(3)a., as an injury to a scheduled member.

This Court issued the writ of certiorari to review whether the decision of the Court of Civil Appeals conflicts with this Court’s prior decisions in Exparte Drummond Co., 837 So.2d 831 (Ala.2002), and Ex parte Jackson, 997 So.2d 1038 (Ala.2008), among other cases.

I. Facts and Decisions Below

Hayes worked for Vintage as a custodian. In July 2005, Hayes sustained an open fracture of his right calcaneus, or heel bone, in a forklift accident at work. The accident severed a portion of Hayes’s calcaneus, which was surgically reattached by an orthopaedic surgeon. Soon after the surgery to reattach the calcaneus, Hayes developed an infection in his right foot that required multiple irrigation and debridement procedures and additional surgeries to reconstruct the foot. Among other things, the injury to Hayes’s right foot left him unable to accommodate for his left foot, which suffers from congenital defects and the effects of surgery he underwent as a child.

The trial court held a bench trial, at which it heard testimony from Hayes and Hayes’s vocational evaluator. The trial court also received documentary evidence, including the deposition testimony of Hayes’s treating physician, medical records, and the written report of Hayes’s vocational evaluation.

In its judgment, the trial court noted that it had observed the various witnesses, including Hayes, as well as considered all the testimony and other evidence at trial, and it concluded that the effect of Hayes’s physical injury to his right foot extended beyond that scheduled member. Based on its review of this Court’s decision in Drummond, the trial court concluded that Hayes was entitled to compensation outside the schedule set out at § 25-5-57(a)(3)a., Ala.Code 1975 (“the schedule”).

Having determined that Hayes’s injury was compensable outside the schedule, the trial court turned its attention to the vocational-disability evidence in an effort to determine whether Hayes’s injury entitled him to a finding of permanent total disability, or something less. Among other things, the trial court noted that Hayes was limited to standing and walking a maximum of one hour during each eight-hour workday and that he had been advised to use a walker during this one-hour period. The trial court also noted that a functional-capacity evaluator had stated that Hayes’s “left lower extremity weakness and deformity are congenital^] however, because of these deficits, the loss of the right lower extremity function has a greater impact upon this patient’s ability to stand, walk and perform functional activities.” The trial court observed that Hayes had been able to perform all aspects of his custodial work with Vintage before his injury but has been unable to return to work since that time. The trial court found that Hayes suffered from permanent total disability based in part upon the vocational expert’s testimony, which the trial court described, in part, as follows:

“Upon consideration of these factors, along with his age, ‘severely altered gait/ use of an assistive device for ambulation/obvious appearance of having a substantial physical disability,’ and other negative employability factors, vocational expert [John] McKinney opined that Mr. Hayes is 100% vocationally disabled. McKinney also testified that the necessity of elevating one’s feet at waist level or above precluded all work activity. Further, the necessity of holding a cane while walking or standing is a significant vocational restriction.”

Vintage appealed to the Court of Civil Appeals. On appeal, the Court of Civil Appeals addressed the issue whether Hayes’s injury should be compensated outside the schedule. Vintage Pharmaceuticals, LLC v. Hayes, 70 So.3d 1203 (Ala.Civ.App.2007). The Court of Civil Appeals determined that the trial court’s conclusion that Hayes was entitled to compensation outside the schedule was in conflict with this Court’s holding in Drummond and its own decision in Boise Cascade Corp. v. Jackson, 997 So.2d 1026 (Ala.Civ.App. 2007), interpreting the decision in Drum-mond. The Court of Civil Appeals reasoned as follows:

“In its judgment, the trial court concluded that Hayes’s ‘right foot injury extends to the other parts of his body, and interferes with their efficiency, by affecting his balance and stability, requiring him to use a cane or walker when walking, and necessitating foot elevation throughout the day.’ Essentially, the trial court awarded compensation to Hayes outside the schedule because, the court concluded, Hayes’s right-foot injury affected his body generally. However, to receive compensation outside the schedule, Hayes had to show that his injury to a scheduled member extended to a nonscheduled part of his body and interfered with its efficiency. [Ex parte Drummond Co.,] 837 So.2d [831,] at 834 [ (Ala.2002) ]. Hayes has not established that his right-foot injury caused an injury to any particular nonscheduled part of his body. See Boise Cascade Corp. v. Jackson, 997 So.2d 1026 (Ala.Civ.App.2007) (stating that an employee who sustained a foot injury may not recover nonscheduled disability benefits on the basis of complaints of back pain in the absence of a showing that the injury to his foot caused a permanent physical injury to his back). Accordingly, the trial court erred by treating Hayes’s injury as a nonscheduled injury to the body as a whole rather than as a scheduled injury pursuant to § 25-5-57(a)(3).
“We note also that the trial court’s finding that Hayes must ‘sit or lie frequently throughout the day with his foot elevated ... to prevent or alleviate pain and swelling’ does not support the trial court’s determination of a nonscheduled injury. In Ex parte Drummond Co., the employee stated that he had to elevate his injured knee at night to reduce the swelling. 837 So.2d at 836. The employee argued that ‘ “[t]he simple fact that he has to elevate his knee and take precautions for the swelling meets the criteria [for taking an injury off the schedule] set out in the caselaw of the State of Alabama.” ’ Id. (quoting the employee’s brief). However, the court in Ex parte Drummond Co. concluded that, despite the need to elevate the knee, the occasional swelling of the employee’s knee did not qualify as an injury that extended to other parts of the body and produced a greater incapacity than would otherwise result from the injury. 837 So.2d at 836.”

70 So.3d at 1205-06 (emphasis added).

II. Standard of Review

The standard of appellate review in workers’ compensation eases is governed by § 25-5-81(e), Ala.Code 1975, which provides that, “[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” “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.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989)).

When evidence is presented ore tenus, it is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented. Blackman v. Gray Rider Truck Lines, Inc., 716 So.2d 698, 700 (Ala. Civ.App.1998). The role of the appellate court is not to reweigh the evidence but to affirm the judgment of the trial court if its findings are reasonably supported by the evidence and the correct legal conclusions have been drawn therefrom. Ex parte Trinity Indus., 680 So.2d at 268-69; Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255 (Ala.Civ.App.1998), aff'd, 742 So.2d 1258 (Ala.1999). The “appellate court must view the facts in the light most favorable to the findings of the trial court.” Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003). “The legal conclusions of the trial court in a workers’ compensation case are reviewed de novo on appeal.” Ex parte Morris, 999 So.2d 932, 936 (Ala.2008); see also Ex parte American Color Graphics, Inc., 838 So.2d 385, 387-88 (Ala.2002).

III. Analysis

Section 25-5-57, Ala.Code 1975, governs compensation for injuries compensable under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Section 25-5-57(a)(3)a. provides, in part:

“In cases included in the following schedule, the compensation shall be 66 2/3 percent of the average weekly earnings, during the number of weeks set out in the following schedule:
“14. For the loss of a foot, 139 weeks.
“16. For the loss of a leg, 200 weeks.
“26. For the loss of two legs, 400 weeks.
“27. For the loss of two feet, 400 weeks.

Section 25-5-57(a)(3)d., Ala.Code 1975, states:

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

In Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), this Court established an exception that removes certain injuries from the schedule. In Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), this Court reexamined the test for determining when an injury to a scheduled member should be treated as an unscheduled injury to the body as a whole:

“[I]t was the intention of this Court in adopting in Bell the exception to the workers’ compensation schedule to address those instances where the injury to a scheduled member caused such impairment to the body as a whole that the benefits reflected on the schedule were not appropriate. Specifically, the Bell test permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member.”

Drummond, 837 So.2d at 834 (emphasis on “and” original; other emphasis added). This Court then expressly “renew[ed] [its] commitment to the policy that underlay the Bell test,” choosing to express that policy in the language used in 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001):

“ ‘The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’
“(Footnote omitted.) This language remains unchanged from the edition of the Larson treatise on which this Court relied in Bell. Because of the confusion that has developed surrounding the Bell test, we today adopt the language recited above from Larson, Workers’ Compensation Law § 87.02, as the test for determining whether an injury to a scheduled member should be treated as unscheduled; therefore, we overrule Bell insofar as it established a different test....”

Drummond, 837 So.2d at 834-35 (emphasis added; footnote omitted).

The first of the two grounds given by the Court of Civil Appeals for reversing the judgment of the trial court is that “Hayes has not established that his right-foot injury caused an injury to any particular nonscheduled part of his body.” 70 So.3d at 1206. In support of this rationale, the court cites its decision in Boise Cascade Corp. v. Jackson, 997 So.2d 1026, 1036 (Ala.Civ.App.2007), which it describes as holding that “an employee who sustained a foot injury may not recover nonscheduled disability benefits on the basis of complaints of back pain in the absence of a showing that the injury to his foot caused a permanent physical injury to his back.” 70 So.3d at 1206. Citing Ex parte Jackson, 997 So.2d 1038 (Ala.2007), this Court’s decision reversing the Court of Civil Appeals’ judgment in Boise Cascade Corp. v. Jackson, Hayes argues that the Court of Civil Appeals erred in requiring him to prove a physical injury to a particular nonscheduled part of his body. We agree.

This Court explained in Jackson:

“In Drummond, this Court adopted the following test: ‘ “[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’” 837 So.2d at 834 (quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001)). This test clearly does not require damage to the physical structure of other parts of the body in order to take an injury out of the schedule.”

997 So.2d at 1039. As the Court of Civil Appeals recognized in its opinion on remand from this Court’s decision in Jackson:

“Based on the holding in Ex parte Jackson, supra, in order to prove that the effects of the injury to the scheduled member ‘extend to other parts of the body and interfere with their efficiency,’ the employee does not have to prove that the effects actually cause a permanent physical injury to nonscheduled parts of the body. Rather, the employee must prove that the injury to the scheduled member causes pain or other symptoms that render the nonscheduled parts of the body less efficient.”

Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1044 (Ala.Civ.App.2008). We also note with approval the subsequent explanation by the Court of Civil Appeals in Child Day Care Ass’n v. Christesen, 47 So.3d 249 (Ala.Civ.App.2008):

“In Ex parte Drummond Co., 837 So.2d 831, 834 (Ala.2002), our supreme court restated the test for determining when an injury to a scheduled member may be treated as a nonscheduled injury to the body as a whole: ‘ “[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.” ’ (Quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001).) ‘To “interfere” means “to interpose in a way that hinders or impedes.” See Merriam-Webster’s Collegiate Dictionary 652 (11th ed. 2003). “Efficiency” refers to effective functioning. Id. at 397.’ Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1045 (Ala.Civ.App.2008).”

47 So.3d at 251.

We leave until later in this opinion a more detailed description of the injury suffered by Hayes and the manner in which it impedes the effective functioning of the remainder of his body. Insofar as the first ground relied upon by the Court of Civil Appeals, it is sufficient at this juncture to note that that court erred in requiring a showing of physical injury to a particular nonscheduled part of the body.

As a second basis for its decision, the Court of Civil Appeals relied upon a comparison of the facts in this case with those in Drummond. The Court of Civil Appeals specifically noted that the fact that the employee in Drummond “had to elevate his injured knee at night” made that ease comparable to this one:

“We note also that the trial court’s finding that Hayes must ‘sit or lie frequently throughout the day with his foot elevated ... to prevent or alleviate pain and swelling’ does not support the trial court’s determination of a nonscheduled injury. In Ex parte Drummond Co., the employee stated that had to elevate his injured knee at night to reduce the swelling. 837 So.2d at 836. The employee argued that ‘ “[t]he simple fact that he has to elevate his knee and take precautions for the swelling meets the criteria [for taking an injury off the schedule] set out in the caselaw of the State of Alabama.” ’ Id. (quoting the employee’s brief). However, the court in Ex parte Drummond Co. concluded that, despite the need to elevate the knee, the occasional swelling of the employee’s knee did not qualify as an injury that extended to other parts of the body and produced a greater incapacity than would otherwise result from the injury. 837 So.2d at 836.”

70 So.3d at 1206. The Court of Civil Appeals reasoned that, because this Court determined in Drummond that the effects of the employee’s injury did not warrant an award of compensation outside the schedule, the same should be true in the present case.

As this Court explained in Drummond, however, that was a case in which the plaintiff testified “that his knee occasionally swelled, but that the swelling did not occur on a daily basis.” 837 So.2d at 836. As this Court further noted, the plaintiff in Drummond testified that “he took ibuprofen or naprosyn when his knee swelled, but that he did not take anything stronger for the pain.” Id. We also noted that the treating physician had assigned the plaintiff “an impairment rating of 1% to the whole body, based on the fact that [the plaintiff] had no loss of range of motion in his knee.” Id. Also of significance was the fact that, following surgery on his knee, the plaintiff in Drummond “returned to work as a belt patrolman, and he continued to work at that position until he was laid off’ almost a year later. Id. Insofar as the pain experienced by the plaintiff, we observed that

“[t]his case does not present a situation in which the pain, although isolated to the scheduled member, causes a disability to the body as a whole. We recognize that pain can be totally, or virtually totally, debilitating, but this case does not present such a situation....”

Drummond, 837 So.2d at 836 n. 11. Although the plaintiff in Drummond testified that he is “unable to participate in normal activities,” 837 So.2d at 836, this Court noted that the fact that he sometimes had to elevate his knee at night to reduce the swelling and take related precautions did not constitute an interference with the efficiency of other parts of the body so as to warrant compensation outside the schedule for the partial or full loss of use of a leg. See Ala.Code 1975, § 25-5-57(a)(3)a.l6 and § 25-5-57(a)(3)d.

The facts of the present case contrast markedly with those in Drummond. The trial court made the following findings of fact, which, from our review of the record, appear to be supported by substantial evidence:

“The court observed Hayes in the open courtroom, walking to and from, and while on the witness stand. The court observed firsthand Hayes’s injured right foot, and the calf-height soft boot Hayes testified that he wears when he will be on his feet for any length of time. The court also observed the hard left foot brace worn by Hayes to support his congenitally defective left foot. The court further observed Hayes’s demean- or.
“The court has considered all the evidence. Based on its consideration of the evidence, and observation of the witnesses, the court finds as follows:
“Plaintiff Thomas Hayes is age 52, born January 18, 1954, and is a former employee of Defendant Vintage Pharmaceuticals, LLC. He was employed as a custodian. His duties included overall cleaning, including cleaning, buffing and mopping the floors and other janitorial work. His job required him to be able to use both hands. On July 13, 2005, Hayes was exiting a janitor’s closet when the door was struck from the opposite side by a forklift, suddenly and without warning. As a result, Hayes suffered a crush injury to his right rear foot from either the door or the forklift. He was taken to Huntsville Hospital by ambulance where he was seen and treated.
“The accident fractured and sheared off the calcaneal tuberosity on the plantar aspect of the right foot. The calca-neal fracture was pinned on July 13, 2005, at Huntsville Hospital by orthopedic surgeon Mark Leberte, M.D. Subsequently, Hayes developed infection with skin loss, and was admitted for irrigation and debridement of the right heel on July 29, 2005. On August 12, 2005, a repeat debridement of necrotic tissue was performed by Dr. Leberte. Infectious disease specialist Dr. Leroy Harris consulted, as did plastic surgeon Michael Yates, M.D. Dr. Yates later performed a reconstruction procedure grafting muscle and tissue from Mr. Hayes’s back to form a new right heel and back of foot. After a period of healing, Hayes was referred to physical therapy to help with his difficulties with gait.
“Hayes’s work-related right foot injury has left his right foot with severe limitations, including range of motion, affecting his ability to walk. Hayes also experiences a lack of feeling in his right foot, particularly on the bottom of his foot, also affecting his ability to walk. Additionally, he has shooting pains on the front top of his right foot. [Hayes’s physician] ordered a boot for his right foot, and a brace for his left foot, both of which Hayes wore in open court. [Hayes’s physician] assigned ‘a 17% foot impairment [which equates to a] 12% lower extremity impairment and [a] 5% whole person impairment.’
“Hayes also has a congenital defect to his left foot. Surgery was performed on his left foot as a child, but it left him with a left foot which turned slightly inward at the toes and rolling to the outside. He walks with a limp, but his left foot never prevented him from working. Before this injury, Hayes had been able to accommodate his left foot defect with a normal right foot, which gave him the stability necessary for balance. The right foot injury, with resultant limited range of motion, and lack of feeling, has taken away Hayes’s stability and balance when on his feet. His lack of stability and balance has caused him to fall frequently, so he must use a cane or walker at all times when walking to avoid falling. He uses his right hand to hold a cane and is right-hand dominant.
“Hayes has an almost total lack of control of his right foot if he does not wear a shoe or special boot. Because of this, if he awakens during the night to go the bathroom, he simply crawls on all fours rather than putting on a shoe or boot. Hayes has difficulty being on his feet more than one hour per day. He finds it necessary to sit or lie frequently throughout the day with his foot elevated at waist level or above to prevent or alleviate pain and swelling.”

(Emphasis added.)

The trial court thereafter concluded as follows:

“Hayes’s right foot injury extends to the other parts of his body, and interferes with their efficiency, by affecting his balance and stability, requiring him to use a cane or walker when walking, and necessitating foot elevation throughout the day. Pursuant to the language reaffirmed in Ex Parte Drummond Company, Inc., 837 So.2d 831 (Ala.2002), this court concludes that Hayes’s injury is not limited to the schedule.”

(Emphasis added.)

Based on the foregoing, we conclude that the Court of Civil Appeals erred in reversing the judgment of the trial court based on its holding that Hayes was not entitled to compensation outside the schedule. The record in this case contains substantial evidence to support the trial court’s finding and conclusion that the effects of the injury to Hayes’s right foot extend to and interfere with the effective functioning of the remainder of his body in a manner that satisfies the rule announced in Drummond.

Based on the foregoing, we pretermit the other arguments made by Hayes in his brief to this Court.

IV. Conclusion

The judgment of the Court of Civil Appeals is due to be reversed and this cause remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

      . The trial court also noted that Hayes had been found disabled by the Social Security Administration for purposes of Social Security disability-insurance benefits.

      . On appeal to the Court of Civil Appeals, Vintage challenged the trial court’s conclusions that Hayes was entitled to compensation outside the schedule and that his compensation should be based upon a finding of permanent total disability. Because the Court of Civil Appeals disposed of the case by holding that Hayes was not entitled to compensation outside the schedule, that court did not address the issue whether Hayes should be compensated for permanent total disability if he is not to be compensated under the schedule, nor did it address the vocational evidence relied upon by the trial court as it pertains to that issue.

      . When the Court of Civil Appeals issued its opinion in this case on September 24, 2007, this Court had not yet issued its opinion reversing the Court of Civil Appeals' decision in Boise Cascade. Ex parte Jackson was released on November 16, 2007.

      . Presumably, Hayes could accommodate this difficulty in standing and "being on his feet more than one hour per day” by simply not standing. If so, then arguably he would be no worse off than if he had lost entirely the use of both of his legs, a loss that generally would be compensable under the schedule. See generally Shoney's, Inc. v. Rigsby, 971 So.2d 722, 725-27 (Ala.Civ.App.2007) (noting that § 25-5-57(a)(3)d. makes the complete loss of use of a member equivalent for compensation purposes to the outright loss of the member and stating, in light of that provision, that "[t]he question becomes whether the pain associated with the lost member, or with a permanently injured member even when the worker avoids the use of that member to the extent that he or she reasonably can do so, ... extends to other parts of the body and interferes with their efficiency”). We need not address this possibility, however, in light of the fact that it is necessary for Hayes to "sit or lie frequently throughout the day with his foot elevated at waist level or above," a fact that interferes with the efficient functioning of the remainder or his body in a manner that goes beyond the interference that generally would be true simply from the loss of use of his legs.

      . The facts of the present case are more akin to those of Bell than of Drummond. In Bell, this Court upheld an award of compensation for a 90% permanent disability based on the following findings by the trial court:
      " 'At [the time of the hearing, four years after the injury, the worker] was still suffering from the injury. When he worked his knee would swell, particularly at night, and would be so painful that he could not sleep. His wife would be up much of the night massaging his leg and keeping a hot pad on it. His nervous system was affected, as evidenced by his emotional breakdown during the hearing; he carried a bottle of aspirin tablets with him at all times, which sometimes relieved his pain and sometimes did not; he would suffer pain at times from periods extending from two hours to a day or two; [a] 15 pound brace absorbed plaintiff’s energy, but the energy loss was of less importance than the pain he would suffer without the brace; when he was not working he kept his leg elevated to prevent swelling; he had lost his stability.' "
      282 Ala. at 644, 213 So.2d at 809.


author: BRYAN, Judge.

text:
    LVNV FUNDING, LLC v. Tammie Lynn (Moncries) BOYLES.
    2080442.
    Court of Civil Appeals of Alabama.
    Oct. 23, 2009.

      David R. Pruet III and Wesley B. Gilchrist of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant.
    Jerry 0. Lorant of Lorant & Associates, PC, Birmingham, for appellee.
   BRYAN, Judge.

LVNV Funding, LLC (“LVNV”), appeals from a judgment denying its motion to vacate a default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P. We reverse and remand.

On April 18, 2006, Tammie Lynn (Mon-cries) Boyles sued LVNV in the Jefferson Circuit Court (“the circuit court”). In pertinent part, Boyles’s complaint alleged that LVNV was “one and the same as Resurgent Capital Services, L.P.[,] a corporation, of Houston, Texas, and one and the same as Resurgent Services Capital, a corporation[,] of Greenville, South Carolina”; that LVNV was “doing business as Sherman Acquisition, Inc.”; that LVNV had committed the tort of invasion of privacy by intentionally, willfully, and maliciously harassing Boyles with communications seeking to collect a debt that Boyles did not owe; and that LVNV had committed the torts of fraud and deceit by suing Boyles to recover a debt that LVNV knew Boyles did not owe. As relief, Boyles prayed for an award of damages in the amount of $50,000. Boyles’s complaint instructed the circuit court clerk to serve LVNV with process by certified mail and to address it as follows:

“Kathy James
LVNV Funding, LLC
15 South NE St. Ste. 600
Greenville, SC 29601”

The circuit court clerk complied with Boyles’s instructions and received a return receipt signed by Brandi Taylor.

After more than 30 days had elapsed from the date Taylor had signed the return receipt, the circuit court clerk notified Boyles that LVNV had not answered or otherwise defended against Boyles’s complaint. Boyles requested that the circuit court clerk enter a default against LVNV; however, the circuit court clerk did not do so. Thereafter, Boyles moved the circuit court to enter a default judgment against LVNV with leave for Boyles to prove the amount of her damages. - On August 19, 2006, the circuit court entered an order stating that “a Judgment is rendered against LVNV Funding, LLC, one and the same as Resurgent Capital Services, and one and the same as Sherman Financial Group, doing business under the name of LVNV Funding, Inc.[,] the same being in default, with leave to prove damages.” On December 14, 2006, the circuit court, without giving LVNV notice, held an evidentia-ry hearing for Boyles to prove the amount of her damages. On December 18, 2006, the circuit court entered a judgment stating:

“This cause was set before the undersigned [on December 14, 2006,] for the purposes of taking testimony to prove damages, default judgment having been previously entered herein in favor of [Boyles] and against the defendant, LVNV Funding, LLC, one and the same as Resurgent Capital Service, LP, a corporation in Houston, Texas; and one and the same, as Resurgent Capital, a corporation in Greenville, South Carolina, which is also doing business as Sherman Acquisition, Inc. (see paragraphs 3 and 4, of the Complaint), on Count One for intentionally, willfully, and maliciously invading [Boyles’s] privacy and Count Three, for Fraud and Deceit. The Court heard the sworn testimony of [Boyles], reviewed certain documents presented and heard the arguments of counsel and, therefore, enters Judgment herein in the amount of Fifty Thousand and No/100 Dollars ($50,-000.00) in favor of [Boyles] and against the defendants, separately and severally, as hereinabove set forth.”

On January 16, 2008, Boyles’s attorney sent LVNVs attorney a copy of the default judgment by facsimile transmission. On February 15, 2008, LVNV filed a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking relief from the judgment entered against it on the ground that the judgment was void because LVNV had not been properly served with process in accordance with Rule 4, Ala. R. Civ. P. Specifically, LVNV asserted that it had not been properly served with process because, it said, Rule 4 required that the process be addressed to an officer of LVNV, a partner (other than a limited partner) in LVNV, a managing or general agent of LVNV, or an agent authorized by appointment or by law to receive service of process on behalf of LVNV and Kathy James, the person to whom the process had been addressed, was not such an officer, partner, or agent. In support of its motion, LVNV submitted an affidavit signed by Tammy Garrett, which stated, in pertinent part:

“2. I am a supervisor for Resurgent Capital Services LP (‘Resurgent’). Resurgent is the Master Servicing Agent and Attorney-in-Fact for [LVNV]. My duties with Resurgent include supervision of a staff that included Kathy James during her tenure of employment with Resurgent in 2006. I have general knowledge about the relationship between Resurgent and LVNV and specific knowledge about the job responsibilities of Kathy James in relationship to both Resurgent and LVNV.
“3. Kathy James was employed by Resurgent in 2006. Kathy James was never employed by LVNV.
“4. Ms. James’s duties with Resurgent included authorization to review consumer account records and verify those facts upon request.
“5. While employed by Resurgent in 2006, Kathy James was never authorized by appointment or by law to receive service of process on behalf of any entity, including LVNV.
“6. Kathy James was not, nor has she ever been, an officer, partner, managing or general agent of LVNV.”

In opposition to LVNVs motion, Boyles asserted that James was a proper person to receive service of process on behalf of LVNV because James had submitted an affidavit that she had signed as attorney-in-fact for LVNV in the action that LVNV had filed against Boyles. Boyles introduced that affidavit, which stated:

“The undersigned LVNV Funding LLC Representative, upon being duly sworn, deposes and says:
“1. I am an Attorney in Fact for LVNV Funding LLC (‘Plaintiff), as purchaser and assignee of Sears, which is a corporation organized and existing under the laws of the State of AL.
“2. I have knowledge of the facts herein set forth and am duly authorized to make this Affidavit; that the claim against Tammie L. Moncries is within my knowledge and is just, true and correct and that all just and lawful offsets, payments and credits have been allowed.
“8. There is now due from said debt- or the principal sum of $3,070.36 as of the date of this statement.
“4. To the best of my knowledge the Defendant(s) is not now in the military service, as defined in the Soldier’s and Sailor’s Civil Relief Act of 1940 with amendments, nor has been in such service within thirty days hereof.
“LVNV Funding LLC,
as assignee of
Sears
“BY: /s/ Kathy James
“Print Name: Kathy James Title: Attorney in Fact”

LVNV subsequently submitted two affidavits signed by Jean Paul Torres and an affidavit signed by Gail Conway. The first affidavit signed by Torres stated, in pertinent part:

“2. I am a Legal Administrator for Resurgent Capital Services L.P. As a result of my position with the company, I am familiar with the relationship between LVNV Funding LLC, Alegis Group, LLC (‘Alegis’), and Resurgent Capital Services, L.P. (‘Resurgent’).
“3. In this regard, Alegis is the managing agent of Resurgent, which provides support services in connection with LVNVs consumer debt portfolios. Those support services include reviewing and researching consumer records and verifying that research by affidavit if necessary. Alegis and Resurgent are not and have never been authorized by appointment or by law to receive service of process on behalf of LVNV, and neither Alegis nor Resurgent are, or ever have been an officer, partner, managing or general agent of LVNV.
“4. As a part of its support services to LVNV, Resurgent authorizes certain of its employees to execute affidavits on behalf of LVNV. Specifically, in the attached “Written Consent Action of the Board of Managers in Lieu of a Meeting,’ Resurgent’s managing agent Alegis gives Kathy James limited authority to execute such affidavits. The attached document was in effect in April of 2006 and states the full extent of James’s authority to act on behalf of LVNV during that time period.
“5. The attached document was kept and maintained by Resurgent in the ordinary course of its regularly conducted business activity, and it was the regular practice of Resurgent’s business activity to create that document. The document is a true and accurate copy of the original with the exception that it is an unex-ecuted copy of the original. The original executed copy of the original is not readily available, I have attempted to locate the original executed version of the attached document, but have been unable to locate it at this time.”

In pertinent part, the document attached to the first affidavit signed by Torres stated:

“ALEGIS GROUP LLC WRITTEN CONSENT ACTION OF THE BOARD OF MANAGERS IN LIEU OF A MEETING
“The undersigned being all the Managers of Alegis Group, LLC, a Delaware limited liability company (the ‘Company5), in accordance with and pursuant to Section 18-404(d) of the Delaware Limited Liability Company Act, do hereby consent to, adopt and approve the following resolutions on behalf of the Company and on behalf of Resurgent Capital Services L.P., in its capacity as general manager of Resurgent Capital Services L.P.
“RESOLVED, that this consent action (‘Consent Action’) shall have the same force and effect as though adopted at a meeting of the Company’s Board of Managers duly called and held.
“APPOINTMENT OF AUTHORIZED REPRESENTATIVES OF THE COMPANY
“RESOLVED, that the following persons be, and hereby are, appointed Authorized Representatives of the Company for the limited purpose of signing, under authority granted in the accordance with general Company corporate authority, affidavits as attorney in fact of LVNV Funding LLC (‘LVNV’), attesting to balance, interest rate and other matters as necessary in connection with litigation brought to effect the liquidation of assets owned by LVNV and serviced by Resurgent Capital Services L.P.:
“... Kathy James....”

(Capitalization original; emphasis added.)

The affidavit signed by Gail Conway stated, in pertinent part:

“2. I am employed by Resurgent Capital Services LP (‘Resurgent’) as Human Capital Management Site Manager at Resurgent’s offices located at 15 South Main Street, Suite 700, Greenville, South Carolina. I have been employed by Resurgent since 2004.
“3. Brandi Taylor has not ever been employed by LVNV Funding, LLC (‘LVNV’).
“4. Brandi Taylor was previously employed by Resurgent Capital Services L.P. as a Receptionist.
“5. Brandi Taylor has not ever been authorized to receive service of process on behalf of Resurgent or LVNV.
“6. Brandi Taylor has not ever been an officer, partner, managing or general agent of Resurgent or LVNV.”

The second affidavit signed by Torres stated, in pertinent part:

“3. Resurgent Capital Services, L.P.’s address in Greenville, South Carolina is 15 S. Main Street, Suite 700, Greenville, SC 29601.
“4. LVNV Funding, LLC’s address in South Carolina is 200 Meeting Street, Suite 206, Charleston, SC 29401.
“5. LVNV Funding, LLC’s registered agent in South Carolina is CT Corporation System, 75 Beattie Place, Greenville, SC 29601.”

Boyles moved to strike the corporate document attached to the first affidavit signed by Torres on the ground that it contained hearsay; LVNV, on the other hand, asserted that the document was an exception to the hearsay rule because it constituted a business record. The circuit court did not rule on the motion to strike.

In response to the second affidavit signed by Torres, Boyles submitted evidence indicating (1) that lawsuits filed on behalf of LVNV in Alabama had listed its address as 15 South Main Street, Suite 700, Greenville, South Carolina 29601, and (2) that LVNV had not appointed CT Corporation System as its registered agent in South Carolina until September 12, 2006.

Thereafter, LVNV submitted evidence indicating that LVNV had been formed as a limited liability company in Delaware on April 13, 2005, and that its registered agent in Delaware was The Corporation Trust Company.

Following several hearings on LVNV’s Rule 60(b)(4) motion, the circuit court, on January 7, 2009, entered a judgment denying the motion. LVNV timely appeals to this court, contending that the circuit court erred in denying its Rule 60(b)(4) motion to vacate the default judgment because, it says, it was not properly served with process and, therefore, the default judgment entered against it is void.

In reviewing the ruling of a trial court on a motion to vacate a default judgment on the ground that the judgment was void, this court applies a de novo standard of review. Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 51 (Ala.2003). Discretion plays no part in determining whether a default judgment is void. Id. “ ‘ “ ‘if the judgment is valid, it must stand; if it is void, it must be set aside.’ ” ’ ” Id (quoting Russell Coal Co. v. Smith, 845 So.2d 781, 788 (Ala.2002), quoting in turn Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)). “ ‘ “ ‘Failure of proper service under Rule 4 deprives a court of jurisdiction and renders its judgment void.’ ” ’ ” Kingvision, 886 So.2d at 52 (quoting Russell Coal, 845 So.2d at 783, quoting in turn Northbrook Indem., 769 So.2d at 893, quoting in turn Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995)). “““When the service of process on a defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.’ ” ’ ” Dennis v. Still Waters Residential Ass’n, 18 So.3d 959 (Ala.Civ.App.2009) (emphasis added) (quoting Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003), quoting in turn Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993), quoting in turn Ex parte Volkswagenwerk Aktiengesells-chaft, 443 So.2d 880, 884 (Ala.1983)).

Rule 4(c)(6), Ala. R. Civ. P., provides that a limited liability company may be served “by serving an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.” Rule 4(i)(2)(B)(i), Ala. R. Civ. P., provides, in pertinent part:

“In the event of service by certified mail by the clerk, the clerk shall place a copy of the process and complaint ... in an envelope and shall address the envelope to the person to be served with instructions to forward. In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision....”

(Emphasis added.)

The evidence before the circuit court established that LVNV was a limited liability company. Because Kathy James was the person to whom the process was addressed, LVNV was properly served under Rule 4 of the Alabama Rules of Civil Procedure only if James was “an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.” Rule 4(c)(6); see Rule 4(i)(2)(B)(i) (“In the case of an entity within the scope of one of the subdivisions of Rule 4(c), the addressee shall be a person described in the appropriate subdivision.”). The undisputed evidence established that James was not an officer, a partner, or an agent authorized by appointment to receive service of process on behalf of LVNV.

LVNV argues that James was also not an agent authorized by law to receive service of process on behalf of LVNV because, LVNV says, it did not exercise a high degree of control over James. In Kingvision, supra, the Alabama Supreme Court stated that “[t]o establish proper service on a corporation by service on an alleged agent not authorized by appointment of the corporation, a plaintiff must prove that the corporation exercised a ‘high degree of control’ over the alleged agent.” 886 So.2d at 51 (quoting Horizons 2000, 620 So.2d at 607). Boyles, on the other hand, argues that she proved that James was an agent authorized by law to receive service of process on behalf of LVNV because, she says, she proved that James had apparent authority to receive service of process on behalf of LVNV.

In arguing that she proved that James had apparent authority to receive service of process on behalf of LVNV, Boyles relies on the affidavit signed by James, which LVNV filed in its action against Boyles. In pertinent part, that affidavit stated:

“1. I am an Attorney in Fact for LVNV Funding LLC (‘Plaintiff), as purchaser and assignee of Sears, which is a corporation organized and existing under the laws of the State of AL.
“2. I have knowledge of the facts herein set forth and am duly authorized to make this Affidavit; that the claim against Tammie L. Moncries is within my knowledge and is just, true and correct and that all just and lawful offsets, payments and credits have been allowed.
“3. There is now due from said debt- or the principal sum of $3,070.36 as of the date of this statement.”

(Emphasis added.) Although James’s affidavit indicates that she was an attorney-in-fact for LVNV, that she was knowledgeable regarding LVNVs claim against Boyles, that she was authorized to make the affidavit, and that the amount Boyles owed LVNV was $8,070.86, nothing in the affidavit indicates that James had authority to receive service of process on behalf of LVNV.

Boyles bore the burden of proving that LVNV was properly served. See Dennis, 18 So.3d at 961. Boyles did not prove that LVNV exercised a high degree of control over James. See Kingvision. Moreover, because nothing in James’s affidavit indicates that James had authority to receive service of process on behalf of LVNV, Boyles likewise failed to prove that James had apparent authority to receive service of process on behalf of LVNV. Therefore, we conclude that Boyles failed to prove that James was an agent authorized by law to receive service of process on LVNV.

LVNV also argues that James was not a “managing or general agent” of LVNV for purposes of Rule 4(c)(6). Boyles, on the other hand, argues that James was a managing or general agent of LVNV because, Boyles says, James was authorized by a power of attorney to act as the attorney-in-fact for LVNV in signing affidavits and verifying information regarding debts owed to LVNV. In pertinent part, the Committee Comments to the Amendment to Rule 4 Effective August 1, 2004, state:

“Subdivision (c). Former subdivisions (6)-(9) are combined into a new subdivision (6). The former provision allowing corporations and other business entities to be served by certified mail at any of their usual places of business has been eliminated. Now, personal or certified mail service must be directed to the registered or appointed agent or to a specific person such as an ‘officer.’ Subdivision (6) is patterned on Rule 4(d)(5), Ark. R. Civ. P., and Fed.R.Civ.P. 4(h)(1). The phrase ‘managing or general agent’ is used in a majority of the states and has been interpreted in many federal cases. The intent is to adopt the majority rule of federal caselaw in interpreting the phrase ‘managing or general agent.’ ”

In Villafana v. Auto-Owners Insurance, (Civil Action No. 06-0684-WS-B, Dec. 29, 2006) (S.D.Ala.2006) (not published in F.Supp.2d), the United States District Court for the Southern District of Alabama stated:

“Rule 4(c)(6)[, Ala. R. Civ. P.,] was amended to allow service on a managing agent only recently, and Alabama courts have yet to address the scope of the term. However, the committee comments accompanying the 2004 amendment state that ‘[t]he intent is to adopt the majority rule of federal caselaw in interpreting the phrase “managing or general agent.” ’ The Court thus turns to that body of jurisprudence.
“ ‘A managing agent is one authorized to transact all business of a particular kind at a particular place and must be vested with powers of discretion rather than being under direct superior control.’ Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 624 (6th Cir.2004); accord Grammenos v. hemos, 457 F.2d 1067, 1073 (2nd Cir.1972); 1 James Vm. Moore et al., Moore’s Federal Practice ¶ 4.53[2][b] (3d ed. 2006); cf. Jim Fox Enterprises, Inc. v. Air France, 664 F.2d 63, 64 (5th Cir.1981) (a managing agent is one ‘invested with general powers involving the exercise of independent judgment and discretion’). Thus, a sales agent who could not set prices or terms and whose contracts were subject to company approval could not be a managing agent. Dodco, Inc. v. American Bonding Co., 7 F.3d 1387, 1388 (8th Cir.1993).”

(Footnote omitted.)

In the case now before us, Boyles, who bore the burden of proving that service was proper, see Dennis, supra, failed to prove that James was “ ‘one authorized to transact all business of a particular kind at a particular place’ ” and that she was “ ‘vested with powers of discretion rather than being under direct superior control.’ ” Villafana (quoting Bridgeport Music, 376 F.3d at 624). Boyles argues that, because James had been authorized to act on behalf of LVNV by a power of attorney, she was ipso facto a managing or general agent of LVNV. However, this argument has no merit. In Dodco, Inc. v. American Bonding Co., 7 F.3d 1387 (8th cir.1993), the United States Court of Appeals for the Eighth Circuit held that a sales agent for a bonding company was not rendered a “managing or general agent” of the bonding company by virtue of a power of attorney granting the agent the authority “to ‘issue and deliver bonds, undertakings, recognizances or other written obligations’ for [the bonding company]” because “[the power of attorney] was not a general power of attorney; it did not authorize [the sales agent] to accept service of pro-cess_” Id. at 1389. In the case now before us, James’s power of attorney limited James’s authority to signing affidavits as an attorney-in-fact of LVNV that attested to balance, interest rate, and other matters in connection with litigation brought to effect the liquidation of assets owned by LVNV and serviced by Resurgent Capital Services, L.P. (“Resurgent”). Thus, James’s power of attorney, like the power of attorney at issue in Dodco, was a limited power of attorney rather than a general power of attorney; it did not authorize James to receive service of process on behalf of LVNV. Accordingly, we conclude that James was not a “managing or general agent” of LVNV for purposes of Rule 4(e)(6). See Dodco.

Citing Alfa Corporation v. Alfagres, S.A., 385 F.Supp.2d 1230 (M.D.Ala.2005), Boyles argues that, even if James was not an officer, a partner, a managing or general agent, or an agent authorized by appointment or by law to receive service of process on LVNV, she nonetheless effected proper service of process upon LVNV because, Boyles says, Brandi Taylor, as Resurgent’s receptionist, was authorized to receive mail on behalf of Resurgent and to deliver it to Resurgent; Resurgent was “one and the same as” LVNV; and LVNV received actual notice of Boyles’s action in time to avoid a default. In Alfagres, the process was addressed to “Alfagres, S.A.,” and sent by certified mail to an address listed as the “Miami office” of Alfagres in its marketing and promotional material. 385 F.Supp.2d at 1238. A woman named Alba Montalla-na, who had previously identified herself to an investigator of Alfa Corporation, the plaintiff in Alfagres, as an employee of Alfagres, signed the return receipt on February 11, 2005. Id. Alfagres filed a motion to quash the service of process on March 14, 2005, before a default was entered against it. 385 F.Supp.2d at 1238-39. The United States District Court for the Middle District of Alabama held that the service of process “was in substantial compliance with the Federal and Alabama Rules of Civil Procedure and that any defects in service of process have not prejudiced Alfagres and are therefore harmless error.” 385 F.Supp.2d at 1239. The district court explained:

“Although the summons and complaint were addressed to the corporation itself, rather than to a specified person (i.e. an officer, partner, or authorized agent of the corporation described in Ala. R. Civ. P. 4(c)(6)), as required by Ala. R. Civ. P. 4(i)(2)(B), service of the summons and complaint clearly complied with all other aspects of Rule 4(i)(2) and reached the appropriate persons within Alfagres, as evidenced by the fact that Alfagres filed its motion to quash on March 14-, 2005. See United Food & Commercial Workers Union [v. Alpha Beta Co.], 736 F.2d [1371] at 1382 [ (9th Cir.1984) ] (‘[A] defendant’s ... appearance in an action should be enough to prevent any technical error in form from invalidating the process’) (internal citations and quotations omitted).
“Alfagres’s argument that Montallana is not an agent authorized to receive service of process on its behalf is also to no avail. According to Ala. R. Civ. P. 4(i)(2)(C), the ‘person or entity who signs the return receipt need only be an ‘agent’ authorized to receive and deliver mail to the addressee and need not be the actual person authorized to receive process under Rule 4(c)(6). Throughout its briefs and pleadings, Alfagres has repeatedly insisted that the Miami address to which the summons and complaint was sent is actually the address of OPA International Corporation, Al-fagres’s American distributor, and is for all practical purposes simply a mail drop ‘from which mail is forwarded to Al-fagres at its Bogota, Colombia office.’ Given Alfagres’s clear admission that mail sent to the Miami address is forwarded to Alfagres, the court finds that Montallana’s signature was sufficient to comply with the requirements of Ala. R. Civ. P. 4(i)(2)(C); regardless of whether Montallana was in fact an employee of Alfagres or of OPA International, her presence at the office and receipt of the mail indicates that she was clearly part of the entity authorized to forward mail to Alfagres at its Colombian headquarters.
“Moreover, while it is unclear exactly when Alfagres received the summons and complaint in Colombia, nowhere in the record does it dispute eventually receiving the summons and complaint. In fact, the record indicates that Al-fagres received actual notice of Alfa’s claim against it no later than March 11, 2005, the date on which Dallos signed the affidavit attached to Alfagres’s mo tion to quash. Given that ‘the modern conception of service of process is primarily as a notice giving device,’ Andrews v. Coffee County Bd. of Educ., [ (Civil Action No. 87-D-1095-S, Jan. 15, 1988) ] (M.D.Ala.1988) (Dubina, J.) [ (not published in F.Supp.) ] (quoting Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, Civil 2d § 1083), ‘to quash service at this juncture would simply serve to increase the costs of service and delay the proceedings.’ Coca-Cola Co. v. Empresa Comercial Int’l de Frutas S.A., [ (No. 96-358-CIV-T-17C, July 1, 1996) ] (M.D.Fla.1996) (Kovachevich, J.) [(not published in F.Supp.) ].
“However, the court is mindful that it is possible there was some delay in the forwarding of the summons and complaint from the Miami address to Al-fagres’s Colombian headquarters. Therefore, to ensure there is no prejudice to Alfagres, the court will allow it 20 days from the date of the issuance of this order to file another response to the complaint.”

385 F.Supp.2d at 1239-40 (emphasis omitted; emphasis added) (footnote omitted).

First, we note that the United States District Court for the Southern District of Alabama has stated:

“In Alfagres, the plaintiff addressed process to the corporate defendant itself rather than to any of its officers or agents. An individual holding herself out as an employee of the defendant received the process by certified mail and forwarded it to the corporation, which then appeared in the suit. Id. at 1234 & n. 2, 1238. The Court did not address the plaintiff’s apparent failure to serve a managing agent or other individual specified in Rule Me) (6); instead, it concluded only that the plaintiff substantially complied with Rule Mi)(®)(C), which governs the procedure for service by certified mail. [385 F.Supp.2d] at 1239. Thus, its statement that ‘service was in substantial compliance with the Federal and Alabama Rules of Civil Procedure,’ id., extends only to the latter rule. Even could Alfagres be construed as blessing a failure to serve anyone described in Rule Me) (6), it does not represent the majority federal view as discussed in text, and it is that view this Court is bound to apply.”

Villafana, n. 7 (emphasis added).

Second, Alfagres is distinguishable from the case now before us because in Alfagres it was undisputed that Alfagres had received actual notice of Alfa’s action against it and had filed a motion to quash the service before a default was entered against it whereas, in the case now before us, Boyles, who bore the burden of proving proper service, see Dennis, supra, failed to prove that LVNV received actual notice of Boyles’s action before the entry of the default judgment against LVNV. Accordingly, we find no merit in Boyles’s argument based on Alfagres.

Boyles also argues that she properly served LVNV because, she says, Resurgent is “one and the same as” LVNV. However, even if Resurgent is “one and the same” as LVNV, Boyles did not introduce any evidence establishing that James was an officer, a partner, or a managing or general agent of either LVNV or Resurgent or that she was an agent authorized by appointment or by law to receive service of process on behalf of either LVNV or Resurgent. See Rule 4(c)(6). Therefore, even if Resurgent is “one and the same as” LVNV, Boyles failed to prove that LVNV was properly served with process in accordance with Rule 4(c)(6).

Boyles also argues that LVNV is es-topped from denying that 15 South Main Street, Suite 700, Greenville, South Carolina 29601, is its address. However, because Boyles failed to address the process to an officer, a partner, a managing or general agent, or an agent authorized by appointment or by law to receive service of process as required by Rule 4(c)(6), the issue whether LVNV was estopped from denying that 15 South Main Street, Suite 700, Greenville, South Carolina 29601, is its address is legally irrelevant.

Finally, Boyles argues that, even if LVNV was not served in accordance with Rule 4, Ala. R. Civ. P., the circuit court’s judgment should nonetheless be upheld because, she says, LVNV failed to register to do business in Alabama and, therefore, pursuant to § 10-12-52(c), Ala.Code 1975, it should be deemed to have consented to service of process at 15 South Main Street, Suite 700, Greenville, South Carolina 29601. Section 10-12-52(c) provides:

“(c) A foreign limited liability company, by transacting business in this state without registration, shall be deemed to consent to service of process with respect to causes of action arising out of business transacted in this state by registered mail addressed to the foreign limited liability company at the office required to be maintained in the state or other jurisdiction where it is organized, or, if not so required, at the principal office of the limited liability company.”

However, § 10-12-52(c) does not purport to relieve Boyles from the requirement of Rule 4(c)(6) that she address the process to an officer, a partner, or a managing or general agent of LVNV or to an agent authorized by appointment or by law to receive service of process on behalf of LVNV. Therefore, even if LVNV was required to register to do business in this state and failed to do so, Boyles nonetheless failed to properly serve LVNV in accordance with Rule 4.

Because Boyles failed to properly serve LVNV with process in accordance with Rule 4, the default judgment entered against LVNV is void. See Kingvision, supra. Therefore, the circuit court erred in denying LVNV’s Rule 60(b)(4) motion. Accordingly, we reverse the circuit court’s judgment denying LVNV’s Rule 60(b)(4) motion and remand the action to the circuit court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

      . Rule 60(b) provides, in pertinent part:
      "On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void....”

      . Boyles argues that she did prove that LVNV received actual notice of Boyles’s action before the entry of the default judgment; however, the only "evidence" Boyles cites as proof of LVNV’s having received actual notice of Boyles's action before the entry of the default judgment is a statement made by LVNV’s attorney at one of the hearings on LVNV's Rule 60(b)(4) motion to the effect that “[LVNV] didn’t answer the complaint again because the complaint was directed to someone else." That statement is, at best, ambiguous. One interpretation of that statement is that LVNV did not answer the complaint because LVNV did not know of its existence because it had been directed to someone other than LVNV. Moreover, an unsworn statement made by one of the parties’ attorneys is not evidence. See Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005) ("The unsworn statements, factual assertions, and arguments of counsel are not evidence.”). Accordingly, Boyles did not prove that LVNV received actual notice of Boyles's action before the entry of the default judgment.