author: THOMAS, Judge.

text:
    Dorrian D. JOHNSON v. LOWE’S HOME CENTERS, INC.
    2100623.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2011.
    Certiorari Denied Feb. 10, 2012 Alabama Supreme Court 1110387.

      Tyrone C. Means and Gerald C. Brooks of Thomas, Means, Gillis & Seay, P.C., Montgomery, for appellant.
    Anthony N. Fox and Robert M. Ronn-lund of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for appellee.
   THOMAS, Judge.

Dorrian D. Johnson (“the employee”) appeals from the Autauga Circuit Court’s judgment in his workers’ compensation action against Lowe’s Home Centers, Inc. (“the employer”).

On December 10, 2010, the circuit court determined that the employee’s injury was not compensable under the Workers’ Compensation Act (“the Act”), codified at § 25-5-1 et seq., Ala.Code 1975. We reverse.

Facts and Procedural History

This is the second time this cause has been before this court. See Johnson v. Lowe’s Home Ctr., Inc., 59 So.3d 698 (Ala.Civ.App.2010). In that opinion, we recited the following facts pertinent to the present appeal:

“On July 1, 2008, [the employee] filed a workers’ compensation action against [the employer]. [The employee] alleged that he had sustained an injury on May 14, 2008, that arose out of and in the course of his employment with [the employer]. [The employer] answered [the employee]’s complaint on July 25, 2008, admitting that [the employee] was a part-time employee of [the employer] on May 14, 2008, and that the Act applied to [the employee]’s claims. [The employer] denied, however, that [the employee^ injury arose out of and in the course of his employment, that [the employee] had suffered any disability, and that it had received notice of [the employee^ injury occurring on May 14, 2008.
“On July 27, 2009, following a hearing at which the trial court heard ore tenus testimony concerning only the issue of the compensability of [employee]’s injury, the trial court entered the following judgment:
“ ‘This cause coming on before this Court upon the Petition for Worker’s Compensation Benefits as filed by [the employee] and the parties appearing on May 19, 2009 and by agreement presented only the issue of compensability or the issue of whether or not the alleged injury is compensa-ble. The testimony being taken ore tenus and certain stipulations being made as follows:
“ ‘A. [The employee] was an employee of [the employer] on May 14, 2008.
“‘B. The Alabama Worker’s Compensation Act covers all parties.
“ ‘Upon hearing the testimony at length on the issue of the alleged injury, this Court finds this not to be a compensable injury.’
“On August 26, 2009, [the employee] filed a motion to alter, amend, or vacate the trial court’s judgment or, in the alternative, to amend its judgment to include specific findings of fact. The trial court conducted a hearing on [the employee]’s postjudgment motion and subsequently denied it. [The employee] appealed.”

Johnson, 59 So.3d at 699.

The employee appealed, and this court concluded that the circuit court had failed to include findings of fact responsive to the issues presented, as required by Ala.Code 1975, § 25-5-88. We reversed the judgment and remanded the cause for the circuit court to enter a judgment that complied with the requirements of § 25-5-88. Id. at 700. On December 10, 2010, the circuit court entered a judgment in compliance with our mandate in Johnson; the judgment included the necessary findings to support its determination that the employee’s injury was not compensable under the Act. The employee filed a motion to alter, amend, or vacate the December 10, 2010, judgment, claiming that evidence existed that his injury was compensable and that certain deposition testimony had been improperly admitted. The circuit court denied his motion on February 28, 2011. The employee filed a timely notice of appeal to this court on April 1, 2011.

Standards of Review

“Section 25-5-81(e), Ala.Code 1975, provides this court’s standard of review:
“‘(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.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).
“ ‘Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81 (e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).’
“Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007) (opinion on original submission). 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).”

Equity Group-Alabama Div. v. Harris, 55 So.3d 299, 305-06 (Ala.Civ.App.2010).

This court has often repeated that

“ ‘[i]t is well established that the trial court is in the best position to observe the demeanor and credibility of the employee and other witnesses in a workers’ compensation case.’ Mayfield Trucking Co. [v. Napier], 724 So.2d [22] at 25 [(Ala.Civ.App.1998)]. ‘The resolution of conflicting evidence is within the exclusive province of the trial court, and this court is forbidden to invade that province upon review.’ Id.”

Clear Creek Transp., Inc. v. Peebles, 911 So.2d 1059, 1063 (Ala.Civ.App.2004).

Discussion

Initially, the employee contends, for the first time on this second appeal, that the circuit court should not have, admitted the deposition testimony of his supervisor, Michelle Jennings. The employer contends, and the employee does not refute, that the employee’s failure to raise the issue of the admission of Jennings’s deposition testimony in the prior appeal is a proper basis for the application of the law-of-the-case doctrine, which prevents our consideration of the issue in this subsequent appeal. Our supreme court has stated that

“[i]t is enough that the issue should have been raised in the first appeal. ‘Under the . law of the case doctrine, “[a] party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal.” ’ Kortum v. Johnson, 786 N.W.2d 702, 705 (N.D.2010) (quoting State ex rel. North Dakota Dep’t of Labor v. Riemers, 779 N.W.2d 649 (N.D.2010) (emphasis added)); see also Judy v. Martin, 381 S.C. 455, 458, 674 S.E.2d 151, 153 (2009) (‘Under the law-of-the-case doctrine, a party is precluded from relitigating, after an appeal, matters that were either not raised on appeal, but should have been, or raised on appeal, but expressly rejected by the appellate court. C.J.S. Appeal & Error § 991 (2008)....’).
“The doctrine is the same in Alabama. ‘[I]n a second appeal, ... a matter that had occurred before the first appeal, but that was not raised in the first appeal, [is] the law of the case.’ Life Ins. Co. of Georgia v. Smith, 719 So.2d 797, 801 (Ala.1998) (summarizing the holding in Sellers v. Dickert, 194 Ala. 661, 69 So. 604 (1915)). The doctrine in this form was applied in Bankruptcy Authorities, Inc. v. State, 620 So.2d 626 (Ala.1993), which was the second of two appeals in that case. There, this Court held that the failure of the appellant to raise an issue in its first appeal regarding the sufficiency of the evidence to support the judgment precluded review of that issue in the second appeal.”

Scrushy v. Tucker, 70 So.3d 289, 303-04 (Ala.2011) (footnotes omitted).

In this case, the admission of Jennings’s deposition testimony occurred before the first appeal. Although the employee objected to the admission of that deposition testimony, both before the trial and more than once during the trial, he failed to raise the issue of its admissibility in his first appeal. The employee’s failure to raise the issue of the alleged improper admission of Jennings’s deposition testimony in his first appeal precludes our review of that issue in this second appeal. Scrushy, 70 So.3d at 303-04.

Finally, the employee argues that the circuit court did not have sufficient evidence to support its determination that his injury is not compensable under the Act. As to “pure findings of fact,” it is the statutory responsibility of this court to examine the record and to determine whether there existed substantial evidence to support the trial court’s judgment. § 25-5-81(e).

We have strictly limited our examination of the evidence presented to the circuit court to the evidence that is necessary to review that court’s pure finding of fact— that the injury did not occur at work and is, therefore, not compensable. Section 25-5-81(e)(2) 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”; therefore, this court will reverse the circuit court’s determination that the employee’s injury did not occur at the employer’s store only if we determine that fair-minded persons in the exercise of impartial judgment could reasonably infer that the circuit court’s judgment is unsupported by the evidence.

The record contains transcripts of oral testimony from the employee and from Libby Russell, the employer’s corporate representative, who testified on behalf of the employer. It also contains documentary evidence in the forms of the deposition testimony of Manuel Granger, the employee’s co-employee, and Jennings, as well as medical records and other documents. From this evidence, the circuit court made, among others not pertinent to this appeal, the factual findings that the medical records contained information suggesting different sources of the injury and that the injury did not arise out of or in the course of the employee’s employment. The amended judgment reads, in pertinent part, as follows:

“Upon the evidence and testimony being received, ore tenus, this Court entered an Order dated July 27, 2009, and it is that previous Order that is amended and this Order herein substituted.
“7. That the medical records reflect different allegations concerning the source of the alleged injury, with the medical history coming from the [employee].
“9. The Court finds there to be creditability issue [sic] with the reporting of how the injury occurred and therefore evaluates this testimony so as to determine that this injury as reported did not arise out of or in the course of the [employee’s] employment with [the employer].”

We recognize that a careful review of the medical records reveals some conflict in the evidence as to what caused the employee’s injury — what the circuit court called “source[s] of the alleged injury”; however, we struggle to identify substantial evidence presented to the circuit court that would support its factual finding that there existed different allegations as to the cause of the injury. Our exhaustive review of the record reveals no testimony suggesting that the employee was injured as a result of some cause arising out of a non-work-related activity; therefore, we are entirely unable to find support for the circuit court’s affirmative finding that the employee’s injury did not arise out of or in the course of his employment with the employer.

The chronology of the events, based on notes on several medical records and other documents, tends to show that the employee lifted “something” on Monday, May 12, 2008. The employee’s time records show that he was not working at the employer’s store on that date. A multiple-paged, emergency-room record dated Friday, May 16, 2008, at 7:51 a.m. indicates that the employee “[l]ifted something on Monday which started the problemf.] [Increase] in pain after lifting on Thurs[day] ... [at] work.” It details the employee’s chief complaint as “picking up compressor refrigerators.” Another page of the same May 16, 2008, emergency-room report records the chief complaint as “lifting heavy object at work. Pain x 3 days.” The report also records the accident type is a “home accide[nt]” and the nature of the accident as “[l]ifting crate/back injfury]” and records the date of injury as Wednesday, “5/14/08” at “17:30P.”

The employee contends that he injured himself at the employer’s store on Wednesday, May 14, 2008, at 7:30 p.m. and that he obtained permission from Jennings to leave work before his shift ended. He said he could not complete the workday due to the sudden pain he experienced when he lifted a boxed toilet onto a shelf. The employee’s time-clock records, introduced into evidence by the employee, confirm his testimony that he left work before his shift ended on May 14, 2008. On Monday, May 19, 2008, the employee filled out the workers’ compensation first report of injury, and in it he recorded the source of his injury as stocking toilets on a shelf on Wednesday, May 14, 2008. In that document, the employee indicated that Granger had witnessed his accident and that the employee had reported the injury to his supervisor. The employer referred the employee to Dr. Tai Q. Chung.

Dr. Chung unquestionably recorded a conflicting source of the injury on his May 21, 2008, report in which he wrote that the source of the injury was lifting a “heavy bucket of tools.” Will Luu, a workers’ compensation adjuster with Specialty Risk Services, LLC, denied the employee’s workers’ compensation claim on June 6, 2008. On June 9, 2008, the employee returned to the emergency room, saying his pain had increased. The emergency-room report for that visit lists his chief complaint as “low back pain [with] pain in both legs. The work injury May 16th”; on another page of that report is the following notation: “back pain ... continuing ... injury of 5/12. After the June 9, 2008, emergency-room visit, the employee to underwent a bilateral-lumbar-facet-block procedure and, later, two surgeries. The remaining medical documents in evidence before the circuit court are several post surgical, handwritten, physical-therapy reports, all of which list the injury as resulting from stocking toilets at the employer’s store.

I. Examination of the Medical Records

In its judgment, the circuit court, in finding that the employee’s injury is not compensable, stated that the medical records reflected different allegations concerning the source of the alleged injury, with the medical history coming from the employee, and that it found a credibility issue based on the reporting of how the injury occurred. It evaluated the evidence and testimony presented, and it determined that the employee’s injury did not arise out of and in the course of his employment. Recognizing that it is within the exclusive province of the circuit court to resolve conflicting evidence and to observe the demeanor and credibility of witnesses, and that we may not revisit its determinations or reweigh the evidence presented in this matter, we proceed cautiously. Clear Creek, 911 So.2d at 1068.

In Jackson Landscaping Inc. v. Hooks, 844 So.2d 1267 (Ala.Civ.App.2002), this court reversed a trial court’s judgment based on its determination that an employee had produced substantial evidence to support the trial court’s factual findings. See Hooks, 844 So.2d at 1271. In Hooks, the employee’s medical records “completely contradicted” the employee’s inconsistent testimony. Id. at 1272. The employee claimed that the medical records contained a “misprint”; however, the medical records were internally consistent in six notations and in three diagrams. Id. This court concluded that, in view of the totality of the evidence before the trial court, its judgment was not supported by substantial evidence because, we determined, the trial court had misinterpreted the evidence. Id. at 1273.

The totality of the evidence in this case reveals that the employee was perfectly consistent in his workers’ compensation first report of injury and in his oral testimony, always stating that his injury occurred at the employer’s store while lifting a boxed toilet. We recognize that the emergency-room reports are somewhat inconsistent with the employee’s version of events; however, they are also themselves internally inconsistent, sometimes confirming and sometimes contradicting the employee’s consistent account. We determine that fair-minded persons in the exercise of impartial judgment would consider the handwritten notes, jotted in shorthand by several different medical professionals, on the internally inconstant emergency-room reports less than reliable given the totality of the evidence presented. Furthermore, some initially perceived “incon-sistences” may be resolved — a boxed toilet may be properly described as a crate and as a heavy object. In light of the totality of the evidence that was before the circuit court, the record of the employee’s words jotted on a few of the many pages of emergency-room records, even assuming they were accurately transcribed by medical professionals, do not appear to us to conflict significantly with the employee’s reported source of his injury — lifting a boxed toilet at the employer’s store.

The sole source of unquestionably conflicting evidence presented to the circuit court is the document prepared by Dr. Chung indicating the employee was injured while lifting a heavy bucket of tools. Certainly, that evidence would tend to undermine the employee’s contention that he injured himself while lifting a boxed toilet; however, we discovered multiple flaws in the document that tend to undermine its veracity rather than the employee’s. Dr. Chung’s half-page report is incorrectly addressed to Mr. Will Lee rather than Mr. Will Luu, and Dr. Chung also wrote, in error, that the employee had actually worked at the employer’s Montgomery location when the employee had worked at the employer’s Prattville location. Dr. Chung’s brief, three-point, follow-up report dated May 28, 2008, is also highly inaccurate — e.g., misspelling the employee’s first name and sometimes referring to the employee as “her” or “herself.” The documents are so rife with errors that fair-minded persons in the exercise of impartial judgment could not reasonably infer that Dr. Chung’s reports provide substantial evidence indicating that the employee injured himself while lifting a bucket of tools.

Therefore, after a thorough review of the record, we determine that the circuit court’s factual finding that “the medical records reflect different allegations concerning the source of the alleged injury, with the medical history coming from [the employee],” is not supported by substantial evidence.

II. Examination of the Oral and the Deposition Testimony

In Ex parte Southern Energy Homes, Inc., 878 So.2d 1116 (Ala.2003), our supreme court reversed this court’s affir-mance of a judgment in favor of an employee in a workers’ compensation action when all the evidence presented, including the oral testimony, was not examined as a whole by this court when determining whether substantial evidence supported the trial court’s judgment. In Southern Energy Homes, the supreme court stated that it was possible that either the testimony of a single witness or the totality of the evidence may amount to substantial evidence in a workers’ compensation action, depending on the evidence as a whole. Southern Energy Homes, 873 So.2d at 1122. Although we recognize that we do not have the benefit of observing the demeanor of witnesses, we determine that fair-minded persons, exercising impartial judgment, would reasonably rely on the presentation of consistent evidence. In this case, each witness invariably testified that the employee had said that he was injured at the employer’s store. The testimony presented to the circuit court included the employee’s testimony and the testimony of Russell, the employer’s corporate representative testifying on its behalf. Additional consistent evidence was provided to the circuit court in the deposition transcripts of Granger and Jennings. Without exception, each witness recounts that the employee consistently said that the sole source of his injury was unloading, shelving, stocking, or lifting boxed toilets at the employer’s store. That testimony is as follows.

The employee told the court that he was at the employer’s store on May 14, 2008, stocking shelves when he felt a sudden burning sensation in his back, legs, and arms as he lifted the third or fourth boxed toilet. He said that Granger witnessed his injury. He stated that he left the employer’s store before his shift ended after he told Jennings that he had injured himself while stocking toilets. The employee testified that, during his first attempt to fill out his workers’ compensation forms, he told the employer’s zone manager, Chris Daniels, that he had been injured at the employer’s store. He testified that, in another attempt to fill out the proper forms, he telephoned Russell and told her that he had been injured at the employer’s store and that Russell had arranged for Tom Jones, the employer’s operations manager, to meet with him to fill out an “incident report.” That incident report was entered into evidence and is the employer’s workers’ compensation first report of injury. The employee’s handwritten statement on that document indicates that he was injured at work while “reaching down to unload one toilet.” When asked on cross-examination whether he told the emergency-room doctor that he was injured picking up a “compressor refrigerator,” he answered, “[tjhat is not what I said to them.”

Russell, testifying on behalf of the employer, confirmed the employee’s testimony that the employee had telephoned her on May 16, 2008, and had told her that “he had injured himself stocking toilets.” She also testified that she spoke to Jennings about the employee’s injury within a week of the injury and that any testimony by Jennings to the contrary was false.

Granger, who had recently been discharged by the employer, testified by deposition and confirmed that he remembered working with the employee at the employer’s store on May 14, 2008, and that he saw the employee drop a boxed toilet he had lifted and heard the employee say that he felt pain in his back. Granger said that the employee left the plumbing area of the store to report the injury to his supervisor.

Jennings, who was still employed by the employer at the time of her deposition, testified as to her recollection of May 14, 2008. She said she alone was responsible for supervising the employee. In her contradictory testimony, she first said that she did not recall whether the employee had stated that his back was hurting or whether he had asked to leave early, but later she recalled that she “definitely” did not talk to him about leaving early. She also explained that if any employee left early without her permission, the employer required her to write a reprimand to place in the employee’s personnel file. It is undisputed that the employee left early and that no written reprimand exists. She also testified that she never spoke to anyone within the employer’s management, including Russell, regarding the employee’s injury until after the employee returned to the employer’s store following his surgeries. As noted above, the employer’s witness, Russell, testified that she had spoken to Jennings within a week of the employee’s injury.

Conclusion

After a careful consideration, we determine that substantial evidence does not exist to support the circuit court’s factual finding that the employee’s injury did not arise out of or in the course of the employee’s employment with the employer. The employer presented some evidence to the circuit court indicating that the employee may have recounted different causes of the injury; however, that evidence does not amount to substantial evidence supporting the circuit court’s factual finding. We reach this conclusion in light of the relatively consistent accounts of the source of the injury in multiple medical documents from the emergency room, the workers’ compensation first report of injury, physical-therapy providers’ notations, and the consistent oral testimony, which includes the testimony of the employer’s witness, its corporate representative. In this case, we determine that the employee’s version of events is substantially supported by the oral testimony and the documentary evidence. Thus, the circuit court’s findings of fact, based on what it considered to be conflicting evidence, are not conclusive on this court; its findings are not supported by substantial evidence. Edwards v. Jesse Stutts, 655 So.2d 1012, 1013-14 (Ala.Civ.App.1995) (finding that substantial evidence supported the circuit court’s findings when the employee’s version of events were not supported by any other testimony).

The evidence presented to the circuit court, examined as a whole, leads us to conclude that there was not substantial evidence before the circuit court from which it could have determined that the employee’s injury did not arise out of and in the course of his employment and that his injury was not, therefore, compensable under the Act. Accordingly, we reverse the circuit court’s judgment, which denied the employee’s claim for workers’ compensation benefits, and we remand the cause to the circuit court for it to determine the benefits to which the employee is entitled and to enter a judgment awarding those benefits.

REVERSED AND REMANDED

BRYAN, J., concurs.

THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur in the result, without writings.

      . The employee’s time-clock records indicate that the employee was at work at 5:30 p.m. on May 14, 2008.

      . We note the employee’s time-clock records for two reasons. First, because the employer admitted in its September 8, 2008, answer that the employee had worked part time for the employer for 12 weeks and asserted that he had never missed any days or hours for which he was scheduled to work. Second, because Jennings testified that if an employee left early without her permission, she would have completed a disciplinary form; no such form exists in the employee's personnel file.


source: Caselaw Access Project

license: Public Domain

text:
    A.C. v. In the matter of E.C.N.
    2110065.
    Court of Civil Appeals of Alabama.
    Feb. 3, 2012.

      Joshua D. Jones of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

A.C. appeals from a judgment of the Franklin Juvenile Court adjudicating E.C.N. dependent, insofar as the juvenile court, in its judgment, failed to make certain findings of fact requested by A.C. We dismiss the appeal for want of subject-matter jurisdiction.

E.C.N. was born in Mexico on February 8, 1993. In 2009, his mother, who had been E.C.N.’s primary caregiver, died. E.C.N.’s father, S.C.N., abandoned E.C.N. and his siblings, leaving them with no means of support. E.C.N. lived with an aunt for a short time; however, she could not provide for E.C.N. E.C.N. then left his small, impoverished village in Mexico and crossed the border into the United States. He was detained by the United States Citizenship and Immigration Services (“USCIS”) and then released into the custody of his brother, A.C., while awaiting further action by the USCIS. A.C. is an adult, legal, permanent resident of the United States who lives in Russellville.

On January 21, 2011, A.C. petitioned the juvenile court to declare E.C.N. dependent and to award A.C. custody of E.C.N. In his brief in support of his dependency petition, A.C. requested that the juvenile court make certain findings of fact that would allow E.C.N. to apply to the USCIS for “special immigrant” status, as defined in 8 U.S.C. § 1101 (a)(27)(J)- The juvenile court held hearings on A.C.’s dependency petition on February 7, 2011, and on June 20, 2011. On September 19, 2011, the juvenile court entered a judgment adjudicating E.C.N. dependent and awarding custody of E.C.N. to A.C.; however, the judgment did not contain the detailed findings of fact that were required for E.C.N. to apply for special immigrant status with the USCIS. A.C. filed a postjudgment motion requesting that the juvenile court amend its judgment to include the requested findings of fact; A.C.’s postjudgment motion was denied by operation of law. A.C. subsequently appealed to this court.

Before we can address the merits of A.C.’s argument on appeal — whether the juvenile court erred by not including the requested findings of fact in its judgment — we must first address the question whether the juvenile court had subject-matter jurisdiction to enter its judgment. This is so because jurisdictional matters are of such magnitude that this court is permitted to notice a lack of jurisdiction ex mero motu. See Reeves v. State, 882 So.2d 872, 874 (Ala.Civ.App.2003).

Juvenile courts “exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged ... to be dependent ....”§ 12-15-114(a), Ala.Code 1975. A “dependent child” is defined by the Alabama Code as:

“A child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301 or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
“6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
“7. Who has been placed for care or adoption in violation of the law.
“8. Who, for any other cause, is in need of the care and protection of the state.”

§ 12-15-102(8)a., Ala.Code 1975. In order for a child to be adjudicated a dependent child, he or she must meet the definition of the term “child,” as defined in connection with juvenile-court dependency proceedings. The term “child” is defined by § 12-15-102(3) thusly: “An individual under the age of 18 years, or under 21 years of age and before the juvenile court for a delinquency matter arising before that individual’s 18th birthday....” Thus, according to the definition of “child,” a person can be adjudicated a dependent child only if that person is under the age of 18.

In this case, E.C.N. was 17 years old at the time A.C. filed his dependency petition; however, E.C.N. turned 18 years old on February 8, 2011, approximately 7 months before the juvenile court entered its judgment adjudicating him dependent. Once E.C.N. attained the age of 18 without having been adjudicated a dependent child, he was no longer a child as that term is defined by § 12-15-102(3); therefore, he was also no longer capable of being a dependent child as that term is defined in § 12-15-102(8)a. Because juvenile courts have subject-matter jurisdiction in dependency cases only in cases in which a child is alleged to be dependent, see § 12-15-114, and because E.C.N. was no longer a child as of February 8, 2011, the juvenile court lost jurisdiction to adjudicate E.C.N. dependent on that date.

Because the juvenile court lacked subject-matter jurisdiction over A.C.’s dependency petition at the time it entered its judgment, its judgment is void. Riley v. Pate, 3 So.3d 835, 838 (Ala.2008). “A void judgment will not support an appeal, and ‘an appellate court must dismiss an attempted appeal from such a void judgment.’ ” Colburn v. Colburn, 14 So.3d 176, 179 (Ala.Civ.App.2009) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008)). Thus, we dismiss A.C.’s appeal, and we instruct the juvenile court to vacate its September 19, 2011, judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . 8 U.S.C. § 1101(a)(27)(J) provides, in pertinent part, that the term “special immigrant" includes
      "an immigrant who is present in the United States—
      "(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law."

      . We note that once a juvenile court has adjudicated a child a dependent child, it has continuing jurisdiction over the dependent child until he or she attains the age of 21 unless the juvenile court has terminated its jurisdiction over the case. See § 12-17-117, Ala.Code 1975.


author: THOMPSON, Presiding Judge.

text:
    MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES v. C.S.
    2101152.
    Court of Civil Appeals of Alabama.
    Feb. 3, 2012.

      Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellant.
    Pamela Millsaps, Mobile, for appellee.
   THOMPSON, Presiding Judge.

The Mobile County Department of Human Resources (“DHR”) appeals from a summary judgment entered in favor of C.S. (“the mother”) by the Mobile Juvenile Court in DHR’s action to terminate the. mother’s parental rights to A.L.C. (“the child”).

This is the second time these parties have been before this court on DHR’s attempts to terminate the mother’s parental rights to the child. In C.S.B. v. State Department of Human Resources, 26 So.3d 426 (Ala.Civ.App.2009), this court reversed a judgment terminating the mother’s parental rights because, we held, that judgment was not supported by clear and convincing evidence. In reaching our conclusion, we noted the mother’s apparent limited mental capacity; however, we pointed out in C.S.B. that “ ‘[pjoverty and limited mentality of a mother, in the absence of abuse or lack of caring, should not be the criteria for taking away a wanted child from the parents.’ In re Hickman, 489 So.2d 601, 602-03 (Ala.Civ.App.1986).” C.S.B., 26 So.3d at 433.

Moreover, during the trial in C.S.B. to determine whether the mother’s parental rights should be terminated,

“no doctor who ha[d] evaluated the mother was allowed to testify about or submit reports regarding those evaluations, there [was] no evidence as to the extent of the mother’s limited mental capacity, whether the mother’s mental limitations prevented] her from being able to fulfill her parental responsibilities to the child, and whether the mother’s condition [was] likely to change.”

Id. at 432. On appeal, DHR failed to challenge

“the juvenile court’s refusal to admit expert testimony regarding the mother’s mental capacity,and whether she suffered from any .mental illness. DHR also failed to present evidence showing the extent of the child’s cerebral palsy or how the child is affected.by the condition. The juvenile court sustained the mother’s objection to the testimony of DHR workers who appeared to be ready to testify as to whether, because of the cerebral palsy, the child was in need of special attention beyond what the mother is capable of providing. DHR did not appeal from the juvenile court’s ruling.”

Id.

Our opinion in C.S.B. was issued in April 2009. The record in this case indicates that on May 5, 2010, DHR filed a second petition to terminate the mother’s parental rights, which was based on the same facts that DHR had alleged in support of its original petition. The litigation in the second case proceeded, and, on March 28, 2011, the mother filed a motion for a summary judgment. In support of her motion, the mother included, among other things, DHR’s response to an interrogatory the mother had propounded in which she asked DHR to state “each and every change in circumstance” that had occurred since the trial on the first petition to terminate the mother’s parental rights. DHR’s response to the interrogatory, in its entirety, was: “There is no change. The mother was not able to parent then and is still not able to parent.”

DHR filed an opposition to the mother’s motion for a summary judgment, asserting that the 2010 petition seeking to terminate the mother’s parental rights was based on evidence gathered since C.S.B. was issued in 2009. DHR stated:

“[T]he social worker responded to the mother’s interrogatories that there was no change in circumstance with the mother. That is correct. The mother still has a mental deficiency. However, since the Court of Civil Appeals rendered its decision in April 2009, the mother has had another psychological [examination] from a different psychologist and the mother executed a release of this psychological [examination]. Also DHR has offered the mother services since 2009 that presents new evidence for the court to consider for the termination of parental rights.”

Despite its assertions that it had obtained new evidence since the issuance of the 2009 opinion of this court in C.S.B., DHR did not submit any evidence in opposition to the mother’s motion for a summary judgment.

On July 22, 2011, the juvenile court entered a summary judgment in favor of the mother, stating that it found that there were no genuine issues of material fact and that the circumstances of the mother were the same as when the original termination petition had been filed. The juvenile court ordered DHR to “institute a plan of return to parent” and stated that it would continue to review the mother’s progress toward reunification with the child. DHR filed a motion pursuant to Rule 59, Ala. R. Civ. P., seeking to alter, amend, or vacate the judgment. In the Rule 59 motion, DHR claimed that there were genuine issues of material fact and attached affidavits of the child’s foster parents, a DHR caseworker, and a psychologist who had examined the mother. The mother moved to strike the affidavits. The postjudgment motion was denied by operation of law on August 19, 2011, and the juvenile court did not rule on the motion to strike. DHR filed a petition for a writ of mandamus in this court. We determined that the matter should be treated as an appeal, and the parties filed their appellate briefs accordingly.

DHR contends that the juvenile court erred in entering the summary judgment in favor of the mother. Because of that judgment, DHR says, the court has “inhibited” its attempt to terminate the mother’s parental rights.

The standard by which this court reviews a summary judgment is well settled:

“ ‘ “To grant ... a [summary-judgment] motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d)[,] Ala. Code 1975. Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life As- sur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘ “In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the non-movant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).” ’
“Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).”

Maciasz v. Fireman’s Fund Ins. Co., 988 So.2d 991, 994-95 (Ala.2008).

In this case, the mother based her motion for a summary judgment on DHR’s statement in its interrogatory response that there had been no change in the mother’s circumstances since the time of the trial on DHR’s previous petition to terminate the mother’s parental rights. She argued that DHR was precluded from relitigating the same issue, i.e., whether the mother’s parental rights were due to be terminated, based on the same set of facts that had previously been found insufficient to merit the termination of her parental rights. In support of her argument, the mother submitted, among other things, DHR’s unequivocal interrogatory response that there had been no change in circumstance since the trial on DHR’s first petition. DHR reinforced that statement by failing to submit even one piece of evidence in opposition to the mother’s motion for a summary judgment.

In its brief on appeal, DHR repeatedly states that, in its opposition to the mother’s motion for a summary judgment, it asserted that it had new evidence regarding the mother’s mental health and her inability to parent the child and that it had “intended” to present that new evidence at trial. Because the juvenile court granted the mother’s summary-judgment motion, DHR says, it was not provided with the opportunity to present that evidence. DHR further argues that if this court does not reverse the summary judgment, DHR will be “estopped” from presenting that evidence.

DHR’s argument ignores its utter failure to meet the well settled requirements for opposing a properly supported motion for a summary judgment. Once the mother made her prima facie showing that there was no genuine issue of material fact and that she was entitled to a judgment as a matter of law, the burden shifted to DHR to submit substantial evidence creating a genuine issue of material fact. Maciasz v. Fireman’s Fund Ins. Co., 988 So.2d at 994-95, and Rule 56(e), Ala. R. Civ. P. However, DHR failed to submit any evidence, let alone substantial evidence, that would have created a genuine issue of material fact.

The basis for this court’s reversal in 2009 of the judgment terminating the mother’s parental rights was DHR’s failure to demonstrate by clear and convincing evidence that the “circumstances in this case [were] so egregious as to warrant the irrevocable termination of the mother’s parental rights as to the child.” C.S.B., 26 So.3d at 433. In the appeal of this case, DHR asserts that, since April 2009, it has offered the mother further services and that the mother has submitted to further psychological testing. DHR says that it is now prepared to present sufficient evidence demonstrating that the mother is incapable or unwilling to properly parent the child. If in response to the mother’s query as to whether there had been a change in circumstance since the trial on DHR’s first petition, DHR had given a thoughtful response that included that new evidence rather than dismissing the question by replying that there were no changes, then perhaps the mother would not have had a basis to seek a summary judgment. If DHR had submitted even some of the purported new evidence in opposition to the mother’s motion for a summary judgment, then there would have been a basis for the juvenile court to deny the motion. As matters stand, however, when the juvenile court considered the motion for a summary judgment, it had no evidence before it that would indicate that there had, in fact, been a change in circumstance since the trial on DHR’s first petition. Based on the evidence the mother submitted, i.e., DHR’s own interrogatory response, the juvenile court had no option but to grant the motion, and we must conclude that the juvenile court did not err in entering the summary judgment.

DHR also contends that the juvenile court erred by failing to conduct a hearing on its motion to alter, amend, or vacate the summary judgment. Generally, when a party requests a hearing on a postjudgment motion, the court must grant that request.

“Rule 59(g), Ala. R. Civ. P., provides: “ ‘Presentation of any post-trial motion to a judge is not required in order to perfect its making, nor is it required that an order continuing any such motions to a date certain be entered. All such motions remain pending until ruled upon by the court (subject to the provisions of Rule 59.1), but shall not be ruled upon until the parties have had opportunity to be heard thereon.’
“(Emphasis added.) Describing the effect of the emphasized part of that rule, our supreme court has held that when a party requests a hearing on its post-judgment motion, ‘the court must grant the request.’ Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000). However, although a trial court errs when it fails to hold a requested hearing on a Rule 59 postjudgment motion, the supreme court has explained that such error does not always require reversal:
“ ‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’
“Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989).”

Isbell v. Rogers Auto Sales, 72 So.3d 1258, 1260-61 (Ala.Civ.App.2011) (second emphasis added).

We must determine, therefore, whether the juvenile court’s failure to hold a hearing on DHR’s postjudgment motion constituted harmless error. Our supreme court has discussed the propriety of a motion to alter, amend, or vacate a summary judgment in circumstances such as those in the instant case, explaining:

“This Court in Moore v. Glover, 501 So.2d 1187 (Ala.1986), provided a basis for determining whether a motion to reconsider [a judgment] is proper.
“ ‘A motion for reconsideration made after the entry of an order granting a summary judgment is not proper where the motion is not directed to a reconsideration of the evidence upon which summary judgment was based or does not seek a reargument of the legal considerations underlying the initial judgment, but is instead simply used by plaintiff to submit evidence, belatedly, in opposition to the defendant’s motion for summary judgment.’
501 So.2d at 1189. This Court held that the motion to reconsider in Moore had been properly denied because it was ‘not intended to have the 'trial court reconsider the evidence on which it had based its order granting summary judgment,’ but to reconsider the summary-judgment order in light of new evidence. 501 So.2d at 1188-89. 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.” ’ 501 So.2d at 1189-90 (quoting Willis v. Ideal Basic Indus., Inc., 484 So.2d 444, 445 (Ala.1986)).
“In Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988), this Court discussed the holding in Moore:
‘[Tjhis Court recently decided a case analogous to the instant case involving the introduction of new evidence in a post-judgment motion. Moore v. Glover, 501 So.2d 1187 (Ala.1986). In that case the Court held that when new — as opposed to newly discovered — evidence was first introduced in a post-judgment motion and no reason or justification was given for failing to present the evidence while the summary judgment motion was pending, the trial judge could not consider the new evidence. Moore, 501 So.2d at 1189. Nevertheless, if the plaintiff had “offered a proper explanation for his failure to offer that additional evidence in response to defendant’s motion for summary judgment, the trial court could have considered it in deciding whether to amend or vacate its entry of summary judgment.” Id. (emphasis supplied). Furthermore, “[a]ny reasonable explanation of the party’s failure to offer evidence in response to a motion for summary judgment [would] suffice, but this does not mean that under the guise of a Rule 59(e) motion a party [could] belatedly submit available evidence in opposition to a motion for summary judgment.” Moore, 501 So.2d at 1191 (Torbert, C.J., concurring specially).’
“The language in these cases from this Court indicates that, if a party offers a reasonable explanation for its failure to offer evidence in response to a motion for a summary judgment, then a court can consider the evidence in a Rule 59(e) motion.”

McCollough v. Regions Bank, 955 So.2d 405, 408-09 (Ala.2006).

In this case, there is no doubt that, when it responded to the mother’s motion for a summary judgment, DHR was aware of evidence that could have been submitted to create a genuine issue of material fact. In its opposition to the summary-judgment motion, DHR flatly stated that it had gathered new evidence since the issuance of this court’s opinion in C.S.B. in April 2009. DHR went on to say that it had offered the mother new services and that a second psychologist had examined the mother. However, DHR did not submit any of this “new evidence” to the juvenile court in support of its opposition to the motion for a summary judgment. When DHR finally did submit the evidence in support of its postjudgment motion, it did not provide any explanation — reasonable or otherwise — as to why it did not timely provide that available evidence. DHR could not properly use a Rule 59 postjudgment motion to belatedly submit the evidence it should have provided to. the juvenile court in opposition to the motion for a summary judgment; therefore, the juvenile court could not consider the evidence when determining whether a genuine issue of material fact existed. Id.

In other words, because there was no merit to DHR’s postjudgment motion, any error that may have occurred when the juvenile court failed to hold a hearing on that motion was harmless. See Isbell, 72 So.3d at 1260-61.

DHR has failed to demonstrate that the juvenile court erred in entering the summary judgment in favor of the mother. Accordingly, the judgment of the juvenile court is affirmed.

AFFIRMED.

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

      . We note that the mother, who formerly was known as C.S.B., is now known as C.S.


author: PER CURIAM. MOORE, Judge,

text:
    Susan M. ALFRED v. Michael A. ALFRED.
    2101035.
    Court of Civil Appeals of Alabama.
    Feb. 3, 2012.

      William L. Pfeifer, Jr., Birmingham, for appellant.
    Shannon L. Millican, Gadsden, for appel-lee.
   PER CURIAM.

Susan M. Alfred (“the wife”) and Michael A. Alfred (“the husband”) were married in 1991. They have two children. In July 2009, the parties separated and the husband sued for a divorce. After a trial, the trial court divorced the parties and, among other things, ordered the husband to pay $1,350 per month in child support for the parties’ younger child, 100% of the postminority educational expenses of the parties’ older child, $10,000 in alimony in gross to the wife, and $500 per month in periodic, rehabilitative alimony for 60 months to the wife. The husband was also made responsible for the cost of the wife’s dental work and ordered to provide the wife with COBRA insurance benefits for 36 months. The wife appeals, arguing that the $500 per month alimony award is inequitable and that the trial court erred by failing to reserve jurisdiction to award her permanent periodic alimony after the expiration of the rehabilitative-alimony award.

The husband is a State Farm insurance agent. He also owns Alfred Properties, which leases the property on which his office sits and which owns the building that houses his office and another building that it rents to two business tenants. In the year the parties separated, 2009, the husband reported on his tax returns a total of $395,316 in income from his insurance agency and Alfred Properties. The business expenses of those businesses, as reported on his tax returns, were $202,555. The husband’s adjusted gross income for 2009 was therefore $192,761, before any taxes were paid. His adjusted gross income in 2008 was $218,703, while in 2007 it was $175,648.

Because the husband is self-employed, he must pay estimated income tax on at least a quarterly basis. The husband failed to pay any income tax to the state or the federal governments in 2007, resulting in a tax liability of $130,000, including penalties and interest. He also owed a portion of his 2008 state and federal taxes at the time of trial, which he estimated to be approximately $70,000, including penalties and interest.

The parties had owned a house in Rainbow City that they purchased in 2000 (“the Rainbow City house”). The Rainbow City house had been subject to two mortgages: one with an outstanding balance of $170,000 and one with an outstanding balance of between $60,000 and $65,000. The parties lived in the Rainbow City house until 2008.

In May 2005, the parties purchased a house “on the water” for $445,000 (“the Southside house”). At the time of trial, the Southside house was subject to three mortgages with outstanding balances of $380,000, $60,000 to $65,000, and $40,000, respectively. The parties had paid $5,400 per month in mortgage payments on both houses for approximately 3 years, until they sold the Rainbow City house in 2008. However, they financed the sale of the Rainbow City house, and the purchaser’s monthly payment of $1,437 was less than the $1,800 monthly payment that the parties owed on the outstanding mortgage on the Rainbow City house. See supra note 1. The purchaser of the Rainbow City house defaulted on his payments, the payments on the mortgage on the Rainbow City house increased to $2,375 per month, the payments on the mortgages on the Southside house increased to $4,100, and the parties lacked the funds to pay the combined mortgage payments.

The husband declared bankruptcy in 2008. His tax liability was included in his reorganization plan, but both houses were foreclosed upon by their respective mortgagees. The husband was originally required to pay $4,933 per month under his bankruptcy plan over a 5-year period; his monthly payment was increased to $5,032 in late 2010.

The wife is unemployed. She suffers from sarcoidosis, which is an autoimmune-deficiency disorder that causes the body to attack itself as it would an infection. The disease often attacks muscular organs, causing inflammation that results in scar tissue, thus reducing the elasticity of the organ tissue. The wife’s sarcoidosis affects her lungs and her joints. She takes several medications, including a prescribed steroid and methadone for pain, to treat the symptoms of the disease. She also takes an antidepressant and medication to help her sleep.

Although the husband admitted that the wife’s disease is at least partly disabling, he said that the wife used the disease as a crutch. He said that the wife left much of the care of the children and the arranging of their schedules to him; the husband said that he would take other children to school in the mornings in exchange for other mothers’ picking his children up from school and taking them home or to after-school activities. He said he also did the majority of the shopping for the family-

The husband said that he had decided that he wanted a divorce because he was “tired of being in a marriage by himself.” He said that he already felt like a single parent. He described the wife as selfish, stating that “she would do what she wanted to do when she wanted to do it” and stating that she showed complete disregard of the wishes or needs of her family. The husband denied having engaged in an affair with any woman, although he said that the wife had accused him on more than one occasion of having had an affair. The husband specifically denied the allegation that he had engaged in an affair with a neighbor who was the mother of a close friend of the parties’ younger child around the time of the parties’ separation. He admitted that he did speak to the neighbor on the telephone often, stating that they would discuss them children. He admitted that a note written in his handwriting included the neighbor’s first name; however, he stated that he did not recall writing the note and that he did not know to what the note referred.

The husband testified and provided an exhibit that indicated that in 2010 his average monthly income, after his business expenses were deducted, was $14,514.53. From that amount, the husband paid his monthly bankruptcy-plan payment of $5,032; monthly estimated federal income taxes of $4,100; monthly estimated state income taxes of $450; and $1,350 in child support for one child, $1,000 per month in temporary alimony to the wife, and $1,400 in postminority educational expenses for the parties’ older child, obligations that he had voluntarily assumed while the divorce action was pending. The husband had $1,182.53 left after those expenses were deducted with which to pay for his rent, utilities, groceries, and other expenses. Deducting his $595 in monthly rent from his remaining income leaves the husband $587.58 per month for utilities, groceries, and other expenses. The husband testified at trial that COBRA insurance benefits for the wife would cost $571 per month.

The wife presented both documentary and testimonial evidence of her monthly expenses. She presented an exhibit in which she listed her monthly expenses, including an estimated house payment of $2,000, as being $6,135 per month. Although the wife testified that the power bill was $325, her exhibit lists the amount spent each month on the power bill as $500. She lists on her exhibit a DirecTV bill of $150 per month; the husband, however, stated that the DirecTV bill was around $100 per month. The wife also claimed to spend $1,000 per month for groceries, toiletries, and household products, an amount that she tacitly admitted might be somewhat exorbitant when she testified that the husband had always preferred to do the shopping because he thought that she spent too much money. She also testified that the cellular-telephone bill for her and the two children was $240 per month.

The wife testified that she had significant dental problems that had apparently resulted either from her illness or from the medications that she takes for that illness. She testified at a hearing held in June 2010 that she needed five root-canal procedures. She explained that the cost of the root canals, posts, and crowns, would total over $10,000. As noted above, the husband was ordered to pay for the costs associated with the wife’s dental procedures.

The wife’s father, William E. Murphy, testified about the husband’s business expenses. Murphy is also a State Farm insurance agent. He said that, in his opinion, the business expenses the husband reported on his income-tax returns were inflated. Murphy testified that certain expenses that the husband claimed were not actually business expenses and that the husband had not properly calculated his office rent payments, resulting in a $600 overstatement of his monthly office rent payments. Murphy did not provide an estimate of the husband’s actual income considering the allegedly inflated expenses.

The wife first argues that the trial court erred in failing to award her more than $500 per month in alimony. Generally, an award of alimony is entrusted to the sound discretion of the trial court, and that award will not be set aside absent an abuse of that discretion. O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996). In making the decision to award alimony, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). “[T]he purpose of periodic alimony is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.” O’Neal, 678 So.2d at 164.

The wife insists that the husband earns significant income and should pay considerably more alimony to support her. She places the sole blame for the husband’s tax liability and resulting bankruptcy upon his shoulders, despite the fact that she was his wife at the time he failed to pay taxes and most assuredly reaped the benefit of the additional income the parties enjoyed while failing to pay income taxes. She appears to absolve herself of any liability for the parties’ unsound financial decisions, and she insists that the husband’s substantial bankruptcy payments, should not be considered in determining the appropriate award of alimony to her.

Although the parties enjoyed a high standard of living, it appears clear in hindsight that they overextended themselves by living above their actual means, resulting in financial ruin. The trial court had before it abundant evidence indicating that the husband’s monthly income was nearly exhausted by the payments he was making each month for his bankruptcy, his current income-tax liability, alimony, child support, and the postminority educational expenses of the parties’ older child. The husband was ordered to pay only $500 per month in alimony, which is less than the $1,000 he paid voluntarily pendente lite; however, the husband is also paying $571 per month for COBRA benefits for the wife, which results in his paying more for alimony and health insurance for the wife after the divorce than he was paying during the pendency of the litigation. Because the evidence indicates that the husband is financially unable to pay more than he has been ordered to pay, we affirm the $500 alimony award to the wife.

The wife next argues that the trial court erred in failing to reserve the right to award her periodic alimony in the future after the five-year period expires and her alimony payments cease. The wife is correct that, in the past, “this court has reversed judgments when trial courts have failed to reserve the right to award permanent periodic alimony in light of the length of the parties’ marriage, the disparity between the earning abilities of the parties, the parties’ future prospects, and other factors.” Edwards v. Edwards, 26 So.3d 1254, 1261 (Ala.Civ.App.2009) (citing Giardina v. Giardina, 987 So.2d 606, 620 (Ala.Civ.App.2008)). This court, however, has since overruled Edwards on that point, holding, instead, that an award of limited or rehabilitative alimony is an award of periodic alimony and that a trial court need not reserve the right to award something it has already awarded. Enzor v. Enzor, [Ms. 2100105, December 30, 2011] — So.3d -, - (Ala.Civ.App.2011).

“Upon reevaluation of the essential nature and purpose of rehabilitative alimony, which this court has correctly described as being a mere subclass of periodic alimony that allows a spouse time to begin (or to resume) supporting himself or herself, see Giardina v. Giardina, 987 So.2d 606, 620 (Ala.Civ.App.2008), a majority of this court is now convinced that we should not reverse a judgment when the trial court has failed to reserve the right to award something it has already awarded. When a trial court awards limited or ‘rehabilitative’ alimony, that court has in fact exercised its power to award alimony and may modify that award at any time, on petition of either party, before the award expires. See, e.g., Treusdell v. Treusdell, 671 So.2d 699, 704 (Ala.Civ.App.1995) (three-year award of periodic alimony described as rehabilitative in nature and ‘subject to future modification, including extension and increase, upon changed circumstances’). In this case, the wife’s rehabilitative-alimony award extends into mid-2013, and the wife may seek a modification of her rehabilitative-alimony award at any time before its expiration. Our adoption of this view warrants affirmance of the trial court’s judgment notwithstanding its failure to expressly state that the wife has a right to seek such a modification. Cf Rule 52(a), Ala. R. Civ. P. (noting that the inclusion of factual findings and statements of conclusions of law in a judgment is not mandatory except when required by statute). To the extent that the main opinions in Edwards, Giardi-na, and similar cases hold to the contrary, they are overruled.”

Enzor, — So.3d at -. Because the wife’s rehabilitative-alimony award will not expire until April 2016 and because she may seek a modification of that award or its extension at any time before its expiration, see Treusdell v. Treusdell, 671 So.2d 699, 704 (Ala.Civ.App.1995), the application of the rule announced in Enzor will not prejudice her. We therefore affirm the trial court’s judgment in its entirety.

AFFIRMED.

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

MOORE, J., concurs in part and concurs in the result, with writing.

MOORE, Judge,

concurring in part and concurring in the result.

I concur fully in the majority opinion insofar as it affirms the amount of monthly periodic alimony the trial court ordered Michael A. Alfred (“the husband”) to pay to Susan M. Alfred (“the wife”). Insofar as the majority opinion affirms the trial court’s decision to not reserve the right to award periodic alimony in the future, I concur in the result.

With regard to alimony, the divorce judgment in this case states:

“[The husband] is ordered to pay [the wife] the sum of $500.00 per month as alimony, with the first such payment due on or May 1, 2011, said payments to continue for sixty (60) months or until the [wife] re-marries or cohabits with a member of the opposite sex, whichever shall first occur.”

There is no indication that the trial court awarded rehabilitative alimony; instead, the trial court simply awarded periodic alimony limited to a period of 60 months. As I set forth in my special writings in Enzor v. Enzor, [Ms. 2100105, December 30, 2011] — So.3d -, - (Ala.Civ.App.2011) (Moore, J., concurring in part and dissenting in part), and Stanford v. Stanford, 34 So.3d 677 (Ala.Civ.App.2009) (Moore, J., dissenting), rehabilitative alimony is distinct from periodic alimony.

“[Rehabilitative alimony] is designed to provide temporary support for a dependent spouse until that spouse can become self-supporting through vocational rehabilitation or otherwise. [Periodic alimony] is designed to provide more long-term support for a dependent spouse who cannot otherwise achieve the economic level necessary to maintain the former marital lifestyle.”

Enzor v. Enzor, — So.3d at - (Moore, J., concurring in part and dissenting in part). Because, in this case, the trial court awarded the wife periodic alimony, there was no need for the trial court to reserve the right to award the wife periodic alimony in the future. I would therefore affirm the trial court’s judgment to the extent that it declined to reserve the right to award periodic alimony in the future on that basis. Accordingly, I concur in the result at to this issue.

      . The parties had "transferred” one of the mortgages on the Rainbow City house to the Southside house.

      . We note that the wife was questioned as to why she needed both root canals, which tend to preserve the tooth, and what her testimony appeared to establish to be dental implants, which replace one's teeth; she did not explain her dental procedures further.

      . Although the trial court could have determined that the husband's income might be more than he stated in light of Murphy’s testimony, no other evidence in the record gives a clear picture of what the husband’s actual monthly income should be if Murphy's testimony that certain business expenses were inflated was accepted by the trial court. Accordingly, we will assume that the trial court accepted the husband’s reported income as his true income.

      . As I stated in my special writing in Enzor, - So.3d at - (Moore, J. concurring in part and dissenting in part), "the law recognizes a distinction between rehabilitative alimony and periodic alimony” and "our prior caselaw correctly decided that a trial court does not automatically reserve jurisdiction to award periodic alimony when ordering rehabilitative alimony.”


author: BRYAN, Judge.

text:
    E.E.R. v. MARION COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100827.
    Court of Civil Appeals of Alabama.
    Feb. 3, 2012.
    Michelle D. Mauldin, Haleyville, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief gen. counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources, for appellee.
   BRYAN, Judge.

E.E.R. (“the father”) appeals from a judgment of the Marion Juvenile Court (“the juvenile court”) that relieved the Marion County Department of Human Resources (“DHR”) from making reasonable efforts to reunite the father with his daughters, L.B.R., who was born in October 2007, and S.R., who was born in May 2006 (L.B.R. and S.R. are hereinafter referred to collectively as “the children”).

The record indicates that DHR filed petitions in the juvenile court alleging that the children were dependent on April 13, 2011. At a shelter-care hearing on April 15, 2011, the juvenile court heard ore tenus evidence in support of DHR’s petitions. On April 21, 2011, the juvenile court entered a judgment finding that the children were dependent and that reasonable efforts to reunite the family were not required because the father and C.R., the mother of the children (“the mother”), had “subjected the children to an aggravated circumstance and the risk of child abuse or neglect [wa]s too high for the children to remain at home safely or to be returned home.” The juvenile court awarded custody of the children to DHR, and it subsequently scheduled a permanency hearing to be conducted on May 27, 2011.

The father filed a timely postjudgment motion on May 5, 2011, pursuant to Rule 59, Ala. R. Civ. P., challenging certain aspects of the juvenile court’s April 21, 2011, judgment. The father also requested that the juvenile-court judge who had presided over the shelter-care hearing re-cuse himself. The father’s postjudgment motion was denied by operation of law on May 19, 2011, see Rule 1(B), Ala. R. Juv. P., and the father filed a notice of appeal on May 20, 2011.

On May 27, 2011, after the father had filed his notice of appeal, the juvenile court entered an order that stated:

“This cause came before the court this date for permanency hearing. In an effort to avoid inconsistent positions and the appearance of impropriety relating to the parents, the court has decided to recuse itself from this matter. Therefore the permanency hearing is continued.
“It is the court’s opinion that return to the parents is contrary to the welfare of the children and. that they shall remain in the custody of [DHR].”

On appeal, the father argues that there was insufficient evidence to support the juvenile court’s order relieving DHR of its obligation to make reasonable efforts to reunite him with the children and that the April 21, 2011, judgment should be reversed because the juvenile-court judge was biased against the father. Because we find the father’s second issue determinative of this appeal, we will address it first.

The record indicates that, during the shelter-care hearing, the juvenile-court judge made certain comments that indicated that he had unfavorable knowledge of the father’s extended family beyond the evidence that had been presented. The transcript from the shelter-care hearing also reveals an exchange between the juvenile-court judge and the father’s adult daughter, who was testifying on the father’s behalf, wherein the juvenile-court judge asked her if any member of her family worked, if any member of her family had ever worked, if any of her siblings or first cousins had finished high school, if she could name anyone in her family who was doing anything “to help themselves out,” and if the members of her family “just try to draw a check.”

The father argued in his postjudgment motion that, based on those comments, it was evident that the juvenile-court judge was biased against the father and his family and that the juvenile-court judge was unable to impartially adjudicate the dependency petitions. On appeal, the father argues again that the comments made by the juvenile-court judge indicated bias against the father and that the father has a right to a hearing before a neutral judge. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) (“The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.... The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law.”).

In Crowell v. May, 676 So.2d 941, 944 (Ala.Civ.App.1996), this court discussed the circumstances in which it would be appropriate for a trial-court judge to re-cuse himself or herself from a case:

“Canon 3(C)(1) of the Alabama Canons of Judicial Ethics clearly states that ‘[a] judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned.’ (Emphasis added.) Therefore, it appears that actual bias is not necessary for a judge to recuse — only a reasonable appearance of bias or impropriety. The strictest application of this rule may ‘sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” ’ In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (citations omitted).”

(Final emphasis added.)

In the present case, the juvenile-court judge granted the father’s motion to re-cuse before conducting the permanency hearing and after acknowledging that there was at least an appearance of impropriety. However, the juvenile court did not vacate any part of its judgment entered on April 21, 2011, after the shelter-care hearing. In light of the fact that the juvenile-court judge decided to recuse himself from the proceeding because there was an appearance of impropriety, we agree with the father that the juvenile court’s determination relieving DHR of its obligation to use reasonable efforts to reunite the father and the children should be reversed and that that determination should be reconsidered by the juvenile-court judge who was assigned to the case after the juvenile-court judge who conducted the shelter-care hearing recused himself. See Acromag-Viking v. Blalock, 420 So.2d 60, 62 (Ala.1982) (after concluding that the trial-court judge should have re-cused himself, our supreme court reversed the trial court’s judgment and remanded the case for a new trial). Accordingly, we reverse the juvenile court’s April 21, 2011, judgment insofar as it relieved DHR of its duty to use reasonable efforts to reunite the father and the children, and we remand the cause to the juvenile court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MOORE, J., concurs in the result, without "writing.

      . In D.P. v. Limestone County Department of Human Resources, 28 So.3d 759, 764 (Ala.Civ.App.2009), this court discussed a parent’s ability to appeal certain juvenile-court orders that had been entered in a dependency proceeding, despite the fact that future review of the case was envisioned. We held that, ‘‘[i]n determining whether any juvenile-court order that is subject to revision is appealable, we consider that the focus should be on whether the order addresses crucial issues that, if not objected to by the aggrieved party, are thereafter precluded from appellate review.” Id. In D.P., the juvenile court entered a permanency order that relieved the Limestone County Department of Human Resources of its obligation to provide rehabilitative and reunification services to the father in that case. We concluded that, because such an order addressed crucial issues that deprived the father of his "fundamental right to the care and custody of his ... child,” such an order was appealable. Id. Similarly, in the present case, the juvenile court relieved DHR of its obligation to provide reunification services to the father. Accordingly, as we did in D.P., we conclude that the juvenile court’s order was appealable. See also M.H. v. Jefferson Cnty. Dep’t of Human Res., 42 So.3d 1291, 1293 (Ala.Civ.App.2010) ("[A]ny error the juvenile court may have committed in this case by relieving DHR of the duty to use reasonable efforts should have been appealed at that point and cannot now be raised following the judgment terminating the mother’s parental rights.”).

      . We note that, on appeal, the father challenges only that part of the April 21, 2011, judgment that relieves DHR of its duty to use reasonable efforts to reunite him with the children.

      . In light of our decision reversing the juvenile court’s April 21, 2011, judgment insofar as it relieved DHR of its duty to use reasonable efforts to reunite the father and the children, we pretermit discussion of the father's argument that such a determination was unsupported by the evidence. Furthermore, we note that the mother did not file an appeal challenging the juvenile court’s determination that DHR was not obligated to use reasonable efforts to reunite her with the children; accordingly, the juvenile court should not vacate any part of the April 21, 2011, judgment pertaining to the mother.


author: MOORE, Judge.

text:
    Mary TUCKER v. WAL-MART STORES, INC.
    2100655.
    Court of Civil Appeals of Alabama.
    Feb. 10, 2012.

      Edward P. Rowan of Taylor Martino, P.C., Mobile, for appellant.
    W. Pemble DeLashmet, Chad C. Mar-chand, and D. Kirby Howard, Jr., of De-Lashmet & Marchand, P.C., Mobile, for appellee.
   MOORE, Judge.

Mary Tucker appeals from a judgment of the Mobile Circuit Court (“the trial court”) entered in favor of Wal-Mart Stores, Inc., on her claim of negligence resulting from a slip and fall that occurred in Wal-Mart’s Tillman’s Corner store.

Facts

On January 4, 2009, Tucker and her mother-in-law visited the Wal-Mart at Tillman’s Corner in Mobile to purchase groceries. According to Tucker, she had returned to the over-the-counter pharmacy department to retrieve a different product for her mother-in-law when, at approximately 1:00 p.m., she fell. Tucker stated that, at the time she fell, she did not know what had caused her to fall. Tucker testified that a female Wal-Mart employee approached her and pointed out that she had slipped on some grapes. Tucker testified that the floor was dirty from where she had slid and mashed the grapes, which, she stated, looked dirty and old. Tucker testified that she had passed through the aisle where she fell on four different occasions during her visit before she fell and that she had not seen grapes on the floor on any of those occasions.

Don Wiggins, the store’s manager, testified that, at the time Tucker fell, Wal-Mart had in effect a “safety sweep” policy, the purpose of which was to make sure that there were no hazards on the floor and to make sure that the counters were clean and neat so that customers could find what they were looking for. Wiggins testified that the policy entailed Wal-Mart personnel making a radio announcement every three hours calling for a safety sweep, at which time Wal-Mart employees would do a safety sweep, which included looking in their areas for any debris on the floor and making sure that there was nothing on the counters that was falling off or that needed to be straightened or “zoned,” and a maintenance employee starting at one end of the store, going through the store with a large broom to help keep debris off the floor and to keep the floors clean from dirt and dust. Wiggins also stated that Wal-Mart’s safety-sweep policy also included all employees in the store continuously conducting a safety sweep at all times as they were moving throughout the store.

After viewing a surveillance video of the area around the over-the-counter pharmacy, which lasted from 11:53 a.m. until 1:53 p.m. on the date of Tucker’s slip and fall, Wiggins identified one employee in the area as “Cindy”; Wiggins testified that “Cindy” did not appear to be doing a safety sweep in the video but, rather, appeared to be in line for a prescription while on her break. Wiggins also identified another employee, Maria Padilla, in the video and testified that it appeared that she was leaving the department and was looking down as she walked; thus, he concluded, it appeared that Padilla was conducting a safety sweep. Wiggins testified that another employee in the surveillance video appeared to be stocking counters and not conducting a safety sweep. Wiggins also identified two more employees in the video, one of which he stated appeared to be observing the floor as she walked through the area and the other of which he stated appeared to be looking at the counters and floors as she walked. Wiggins testified that if an employee was walking throughout the store and not conducting a safety sweep, then that employee would be in breach of Wal-Mart’s policy.

Wiggins testified that the over-the-counter pharmacy is on the other side of the store from where the grapes are kept. He stated that he had viewed the entire surveillance video and that he had not seen grapes on the floor or dropped onto the floor. Wiggins testified that Wal-Mart did not know when the grapes fell to the floor.

Maria Padilla testified that she was the only employee working in the over-the-counter pharmacy on the date of Tucker’s fall but that she had been at lunch at the time of the fall and had not known that the fall had occurred until she returned from lunch. Padilla testified at trial that, in the video, she was walking toward the back of the department and could have been conducting a safety sweep; she testified in her deposition, however, that she was not conducting a safety sweep at that moment in the video. Padilla testified that there had never been a time when she was working in the over-the-counter pharmacy department when three hours would have passed without her conducting a safety sweep. She testified that if she sees something on the floor, she picks it up and cleans it or, if it is a major spill, she guards it until she can contact maintenance to clean it. Padilla testified that she had not seen anything on the floor throughout the day on January 4, 2009, that she could remember.

Procedural History

Tucker filed in the trial court a complaint against Wal-Mart on January 25, 2010, alleging claims of negligence and wantonness. Wal-Mart filed an answer on February 26, 2010. A jury trial was held on February 14 and February 15, 2011. The trial court dismissed Tucker’s wantonness claim at the close of Tucker’s case, submitting only Tucker’s claim of negligence to the jury.

At the close of the evidence, the trial court conducted a “charge conference” outside the presence of the jury. At that conference, Tucker requested that the trial court give the jury “Plaintiffs Jury Charge Number 8,” which read:

“Under Alabama law, a store is ‘under a duty to exercise reasonable care to provide and maintain reasonably safe premises’ for the use of its customers. ‘A store is not an insurer of a customer’s safety and is liable only if it negligently fails to keep the premises in a reasonably safe condition.’ In the context of this case, a plaintiff must prove one of three things: (1) that the defendant had actual notice that the grape or grapes were on the floor; (2) that the grape or grapes had been on the floor for a sufficiently long period of time so that the store had constructive notice of the hazard; or (3) that the store was otherwise delinquent in failing to discover and remove the defective condition.”

(Citations omitted.) Tucker also requested that the trial court give the jury “Plaintiffs Jury Charge Number 6,” which stated, in pertinent part:

“2. A store is delinquent in not discovering the substance if its procedure ‘was inadequate or that it was performed inadequately on the day of plaintiffs fall.’ Hale v. Kroger Limited Partnership I, 28 So.3d 772, 783 (Ala.Civ.App.2009).”

Wal-Mart requested that the trial court give the jury “Defendant’s Requested Jury Charge Number 24,” which stated:

“Storekeepers have a duty to exercise reasonable care in providing and maintaining reasonably safe premises for the use of their customers. The store is not an insurer of the customer’s safety but is liable for injury only in the event it negligently fails to use reasonable care in the maintaining the premises in a reasonably safe condition. The burden rests upon [Tucker] to reasonably satisfy you from the evidence that the injury was proximately caused by the negligence of the store or one of its employees. Actual or constructive notice of the presence of the offending substance or condition must be proven before the store can be held responsible for the injury.”

In charging the jury, the trial court stated, in pertinent part:

“In the context of this case, [Tucker] must prove one of three things. One, that [Wal-Mart] had actual notice of the grape or grapes that were on the floor. Two, that the grape or grapes had been on the floor for a sufficiently long period of time so that the store had constructive notice of the hazard; or three, that the store was otherwise delinquent in failing to discover and remove the defective condition.
“The burden rests upon [Tucker] to reasonably satisfy you from the evidence that the injury was caused by the negligence of the store or one of its employees. Actual or constructive notice of the presence of the offending substance or condition must be proven before a store can be held responsible for the injury but [it] is not always necessary for the plaintiff to offer direct evidence as to the length of time a foreign object or substance has remained on the floor. It is permissible to infer the length of time an object or substance has remained on the floor from the nature and condition of the foreign object or substance.”

The trial court refused to give “Plaintiffs Jury Charge Number 6,” over Tucker’s objection. After the jury was released to begin its deliberations, the jury returned to the courtroom and “asked to be instructed on the law pertaining to a shopkeeper’s duty and liability.” The trial court then repeated the instructions quoted above, again over Tucker’s objection.

The jury subsequently returned a verdict in favor of Wal-Mart, and the trial court entered a judgment on that verdict. Tucker filed a motion for a new trial on March 3, 2011. The trial court entered an order denying Tucker’s motion for a new trial on March 3, 2011. Tucker filed her notice of appeal to this court on April 13, 2011.

Discussion

Tucker argues on appeal that the trial court erred in its jury instructions on the issue of a storekeeper’s duty. Specifically, she argues that the trial court gave confusing and misleading jury instructions on a storekeeper’s duty by first giving an instruction similar to “Plaintiffs Jury Charge Number 8,” which included three prongs of liability, and then giving an instruction similar to “Defendant’s Requested Jury Charge Number 24,” which included only the first two prongs and indicated that Tucker was required to prove either actual or constructive notice for liability to ensue. Tucker also argues that the trial court erred by failing to give part two of “Plaintiffs Jury Charge Number 6,” which, she maintains, “was essential for the jury to understand the third prong of liability of a storekeeper’s duty,” as referenced in “Plaintiffs Jury Charge Number 8.”

“ ‘A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case.’ Pressley v. State, 770 So.2d 115, 139 (Ala.Crim.App.1999). Thus, ‘generally speaking, the standard of review for jury instructions is abuse of discretion.’ Pollock v. CCC Invs. I, LLC, 933 So.2d 572, 574 (Fla.Dist.Ct.App.2006).”

Arthur v. Bolen, 41 So.3d 745, 749 (Ala.2010).

“ ‘ “In a jury case, a party is entitled to have its case tried to a jury that is given the appropriate standard by which to reach its decision, and a wrongful refusal of a requested jury charge constitutes a ground for a new trial. See, C.I.T. Financial Services, Inc. v. Bowler, 537 So.2d 4 (Ala.1988). An incorrect, misleading, erroneous, or prejudicial charge may form the basis for granting a new trial. See, Nunn v. Whitworth, 545 So.2d 766 (Ala.1989). However, the refusal of a requested, written instruction, although a correct statement of the law, is not cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the trial court’s oral charge. See, Rule 51, Ala. R. Civ. P. When examining a charge asserted to be erroneous, this Court looks to the entirety of the charge to see if there is reversible error. See, Grayco Resources, Inc. v. Poole, 500 So.2d 1030 (Ala.1986).” ’
“Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319, 327 (Ala.2000) (quoting Shoals Ford, Inc. v. Clardy, 588 So.2d 879, 883 (Ala.1991)). Additionally, ‘[a]ny error or defect which does not affect the substantial rights of the parties may be disregarded.’ Bishop v. State Auto. Mut. Ins. Co., 600 So.2d 262, 265 (Ala.Civ.App.1991) (citing Rule 61, Ala. R. Civ.App.). As a result, the jury instruction must be erroneous as well as prejudicial, and this Court cannot presume prejudice. Brabner v. Canton, 611 So.2d 1016, 1018 (Ala.1992). Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala.1991). The appellant has the burden of demonstrating that an erroneous jury instruction was prejudicial. See Ryan, 589 So.2d at 167 (citing Dinmark v. Farrier, 510 So.2d 819 (Ala.1987)).”

Southeast Envtl. Infrastructures, L.L.C. v. Rivers, 12 So.3d 82, 43-44 (Ala.2008).

In S.H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171 (1957), a slip-and-fall case involving a storekeeper and a customer, our supreme court stated:

“[T]o prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it.”

267 Ala. at 569, 103 So.2d at 174. In Winn-Dixie Store No. 1501 v. Brown, 394 So.2d 49 (Ala.Civ.App.1981), this court summarized the holding in Thompson as follows:

“As the burden of showing negligence rests with the plaintiff, it is necessary to prove: (a) that the foreign substance slipped upon was on the floor a sufficient length of time to impute constructive notice to the defendant, or (b) that the defendant had actual notice of the substance’s presence on the floor, or (c) that the defendant was delinquent in not discovering and removing the foreign substance. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors.”

394 So.2d at 50. Numerous cases have since quoted or cited this summary of the law from Brown. See, e.g., Owens v. Food World, Inc., 668 So.2d 841, 842 (Ala.Civ.App.1995); Cox v. Western Supermarkets, Inc., 557 So.2d 831, 832 (Ala.1989); and Western Supermarkets, Inc. v. Keith, 528 So.2d 317, 320 (Ala.1988).

In discussing the delinquent-inspection theory, this court stated in Brown:

“[The plaintiff] offered no evidence from which it might reasonably be inferred that the store was delinquent in not discovering and removing the offending substance. (No evidence was produced as to any failure to sweep, clean or observe the floors at regular intervals. See, Delchamps, Inc. v. Stewart, [47 Ala.App. 406, 255 So.2d 586 (Civ.App.1971)].)”

394 So.2d at 50. More recently, in Hale v. Kroger Limited Partnership I, 28 So.3d 772 (Ala.Civ.App.2009), this court affirmed a summary judgment in favor of a storekeeper in a slip-and-fall case. After quoting Brown, 28 So.3d at 779, this court divided its analysis into three sections, one labeled “Constructive Knowledge,” 28 So.3d at 779, one labeled “Actual Knowledge,” 28 So.3d at 782, and one labeled “Delinquent Inspection,” 28 So.3d at 783. In the last section, this court stated:

“Hale has not presented any evidence to indicate that Kroger’s sweep/spot mop inspection procedure was inadequate or that it was performed inadequately on the day of his fall. Without such evidence, he has failed to present a genuine issue of material fact regarding Kroger’s alleged delinquency in failing to discover and remove the baby-food spill.”

28 So.3d at 783.

Tucker reads Broum and Hale as establishing that the negligence of a storekeeper may be proven solely by evidence indicating that the storekeeper failed to establish an adequate inspection procedure or by evidence indicating that the employees of the storekeeper failed to perform an adequate inspection of the premises in accordance with the policies of the storekeeper. That is not a correct interpretation of the holdings of those cases. In both cases, this court noted that the appellant had failed to produce any evidence of an inadequate inspection procedure or an inadequate performance of an inspection procedure, which, obviously, would defeat any claim of delinquent inspection, but in neither case did the court hold that proof of an inadequate inspection procedure or of inadequate performance of an inspection procedure, alone, would have defeated the motion for a summary judgment.

In Thompson, the storekeeper maintained a porter to continuously inspect and sweep its floors. 267 Ala. at 570, 103 So.2d at 174. The supreme court’s decision indicates that the supervisors and other employees also continuously inspected the floors. 267 Ala. at 570, 103 So.2d at 175. A customer was injured when she slipped and fell on what the storekeeper described as “ ‘spit-out candy ” in one of the main aisles of the store. 267 Ala. at 568, 103 So.2d at 173. The customer argued that the storekeeper was obviously negligent because “a proper inspection of the floor was bound to reveal the existence of the foreign substance.” 267 Ala. at 570, 103 So.2d at 174. The supreme court rejected that theory, stating:

“In order to prove that there was a negligent inspection, it is still incumbent upon [the customer] to prove, or to offer evidence from which it can reasonably be said, that the foreign substance was on the floor at the time of the inspection.”

267 Ala. at 570, 103 So.2d at 175.

The law has not changed since Thompson was decided, and it remains that a customer asserting delinquent inspection on the part of a storekeeper must still prove that the foreign substance was on the floor for a sufficient period such that an adequate inspection would have discovered it. Nothing in Brown or Hale alters that rule of law.

The trial court did not err in failing to give “Plaintiffs Jury Charge Number 6” because it incorrectly summarized the law as to delinquent inspection. The trial court also did not err in charging the jury that it could find for Tucker if it determined that Wal-Mart was “delinquent in failing to discover and remove the defective condition” and in charging the jury that the burden remained on Tucker to prove “actual or constructive notice of the offending substance or condition.” That jury instruction, coupled with a proper explanation of constructive notice, accurately encapsulated the holding in Thompson.

Because Tucker has failed to present any arguments on appeal that merit reversal, the trial court’s judgment is affirmed.

AFFIRMED.

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

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

      . The first part of “Plaintiff’s Jury Charge Number 6” stated:
      “1. To establish the negligence of Wal-Mart in the present case, [Tucker] must prove that Wal-Mart ‘was delinquent in not discovering and removing the substance.’ Brooks v. Winn-Dixie of Montgomery, Inc., 716 So.2d 1203, 1207 (Ala.Civ.App.1997).”
      (Some citations omitted.) That portion of the charge was included as the third prong of "Plaintiff's Jury Charge Number 8" and is not at issue on appeal.