author: BOLIN, Justice. LYONS, Justice

text:
    Ex parte Donald McINISH (In re KGS Steel, Inc. v. Donald McInish).
    1060600.
    Supreme Court of Alabama.
    Sept. 5, 2008.
    Rehearing Denied Dec. 19, 2008.

      E.L. Brobston of Brobston & Brobston, P.C., Bessemer, for petitioner.

      Joseph H. Driver and Bennett L. Pugh of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for respondent.
   BOLIN, Justice.

In April 1999, Donald Mclnish sued his employer, KGS Steel, Inc., seeking worker’s compensation benefits for injuries he allegedly sustained during the course of his employment as a truck driver with KGS. Mclnish specifically alleged that, during the course of his employment as a truck driver, he had been subjected to “violent bouncing and jerking movement” that had caused him to suffer from carpal tunnel syndrome and that this movement, combined with “strain caused by strapping and binding cargo loads,” had caused him to suffer injury to his shoulders and neck. Mclnish further alleged that he had suffered both a temporary- and a permanent-partial disability as the result of his alleged respective injuries.

Following an ore tenus proceeding, the trial court entered an order finding that Mclnish was totally and permanently disabled as a result of his neck and shoulder injuries; that he had sustained a 100% loss of earning capacity; that he had proven both medical and legal causation; and that KGS was responsible for payment of certain medical expenses incurred by Mclnish as a result of treatment undertaken by a medical provider not authorized by KGS.

KGS appealed the trial court’s judgment to the Court of Civil Appeals. The Court of Civil Appeals, in a per curiam opinion with which one judge concurred (three judges concurred in the result), reversed the judgment of the trial court, on the basis that Mclnish had failed to prove causation by clear and convincing evidence. KGS Steel, Inc. v. McInish, 47 So.3d 749 (Ala.Civ.App.2006). We granted Mclnish’s petition for a writ of certiorari to determine: (1) whether the Court of Civil Appeals applied an improper standard of review; and (2) whether the Court of Civil Appeals improperly considered only the testimony of the medical experts in determining the issue of causation, in contravention of this Court’s decision in Ex parte Price, 555 So.2d 1060, 1063 (Ala.1989).

Facts

The Court of Civil Appeals set forth the following statement of the facts:

“Mclnish was a tractor-trailer truck driver for KGS, and there was evidence adduced at trial indicating that the suspension system of his assigned truck subjected him to violent vibrations. Mclnish testified that during the last year of his employment with KGS he had started to experience severe pain, numbness, and a tingling sensation in his hands and arms and that he had reported those symptoms to KGS.
“Mclnish was referred by KGS to Dr. Donald Autry for treatment. Dr. Autry determined that Mclnish had carpal tunnel syndrome and performed a surgical carpal-tunnel-release procedure on each of Mclnish’s wrists. In subsequent months, Mclnish reported further pain, including pain in his shoulder and upper arm. Mclnish was then referred to Dr. Richard Meyer, an orthopedic surgeon, for a second opinion; Dr. Meyer determined that Mclnish had problems in his neck and hand. Dr. Meyer suggested that Mclnish undergo a second carpal-tunnel-release procedure; however, because Mclnish was dissatisfied with the results of the carpal-tunnel-release procedures that had already been performed and because he did not want to go through another carpal-tunnel-release procedure if carpal tunnel syndrome was not his principal medical problem, Mclnish sought the opinion of his own personal physician without obtaining KGS’s approval. Mclnish’s personal physician then referred Mclnish to Dr. Cem Cezayirli, a neurosurgeon. Dr. Cezayirli, who was also not authorized by KGS to treat Mclnish, nonetheless admitted him into the hospital for cervical-disk surgery, during which significant ruptured-disk material and a herniated disk compressing the neuroforamen and the spinal cord were found. After his cervical-disk surgery, Mclnish was permitted by Dr. Cezayirli to return to work. However, Mclnish was reportedly unable to perform his job because of pain, and he has not worked since January 27,1999.
“Dr. Meyer, Mclnish’s authorized orthopedic surgeon, testified at his deposition that after a magnetic-resonance-imaging procedure had been performed in late 1998 and had revealed bulging cervical disks and neck-nerve pressure related to osteoarthritis, he had referred Mclnish to Dr. John S. Kirkpatrick, who had concluded that the arthritis in Mclnish’s neck ‘would probably not be work related.’ Dr. Meyer also opined that the majority of the pain Mclnish had experienced was related to that osteoarthritis and denied that Mclnish’s occupation could have caused or aggravated his osteoarthritis. Dr. Meyer further opined on cross-examination by Mclnish’s attorney that driving a truck subject to constant vibration and shaking would not adversely affect Mclnish’s condition as to his neck and shoulders.
“Dr. Edward Kelsey, a pain specialist whom Mclnish consulted without authorization from KGS, opined that Mclnish suffered from degenerative joint disease (essentially, a pronounced case of advanced osteoarthritis) and from ‘post laminectomy syndrome.’ After indicating that repeated trauma ‘can cause microscopic changes in the bone structure and in the joints’ so as to accelerate osteoarthritis, he opined that Mclnish’s occupation would be ‘consistent with’ this type of trauma and that the problems reported by Mclnish ‘could have been’ as a result of cumulative trauma. However, Dr. Kelsey also opined that Mclnish’s advanced osteoarthritis had set in over the course of an approximately ‘ten-year period of time,’ whereas Mclnish worked for KGS for less than one and a half years before filing a first report of injury in November 1997. Further, Dr. Kelsey, on cross-examination, admitted that he did not have any evidence to dispute Dr. Kirkpatrick’s and Dr. Meyer’s opinions that Mclnish’s neck and shoulder conditions were not work related, and in response to a question concerning whether he could state with any degree of medical certainty that Mclnish’s neck and shoulder problems were work related, he stated that he could not definitely say that those symptoms were work related.
“Dr. Laura B. Kezar, a physician who examined Mclnish in March 1999 upon the referral of Dr. Thomas, noted in her report of that examination her impression that Mclnish suffered from cervical spondylosis and degenerative disk disease; she noted in her report that Mclnish had not supplied a ‘history to suggest an acute disc herniation related to a traumatic event at work’ and that he had reported ‘no history of neck pain until after the surgery on his neck’ was performed by Dr. Cezayirli. Dr. Kezar opined that Mclnish’s neck pain ‘appear[ed] to be mainly myofascial in origin’ (ie., muscular) and averred that it *d[id] not seem likely1 that Mclnish’s work caused the problems in his neck ‘based on the history that he ha[d] given’ her.
“Certain records of Dr. Cezayirli, who performed the cervical-disk surgery on Mclnish, were also admitted into evidence. In a March 1999 letter to Dr. Reid S. Christopher, Dr. Cezayirli indicated that Mclnish had told him that ‘he thinks this is work-related.’ Dr. Cezay-irli opined that ‘it certainly could be work-related,’ but he stated that it was difficult for him to render such an opinion because, he said, Mclnish consulted him well after any on-the-job injury would have occurred. However, in a November 1999 letter to Mclnish’s counsel, he expressly deferred to the treating physician who had seen Mclnish at the time he had originally reported symptoms {e.g., Dr. Meyer).
“At trial, Mclnish himself testified that he had not experienced comparable levels of neck and shoulder pain before working for KGS, that he believed that that pain could be related to ‘throwing ... chains and binders and driving [his] truck,’ and that KGS was responsible for his having sustained what he termed ‘spinal cord damage’ because, he said, KGS ‘wouldn’t take care of the problem in my neck and kept pushing me off.’ However, on cross-examination, Mclnish admitted having executed an application for disability-income benefits in March 1999 on which appeared the response of ‘no’ to a question asking whether his claimed disability had resulted from his employment; he also admitted having received monthly benefit payments of over $500 after that application was submitted. Mclnish further testified to having unsuccessfully requested KGS personnel in April 1999 to amend his November 1997 written first notice of injury, which had indicated only “wrist pain and numbness,’ to include a shoulder injury.”

KGS Steel, 47 So.3d at 750-54.

Discussion

In reversing the trial court’s decision, the Court of Civil Appeals applied the following standard of review:

“It is well settled that when the preponderance-of-the-evidence standard applies to a particular workers’ compensation claim, such as one arising from an injury caused by a sudden trauma, an appellate court will not reverse a judgment based upon a particular finding of fact ‘if that finding is supported by substantial evidence — if that finding is supported by “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, 268-69 (Ala.1996) (quoting West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989)) (emphasis added). However, as the main opinion in Ex parte Russell Corp., 725 So.2d 264 (Ala.1998), indicates, a mere ‘substantial evidence’ standard of appellate review is not to be applied if the ‘clear-and-convincing-proof standard was applicable at trial. In other words, by incorporating a ‘clear and convincing’ evidentiary standard into the Act with respect to gradual-deterioration and cumulative-stress injuries, the legislature has ‘require[d] a comparison between the supporting evidence and any countervailing evidence’ on appellate review. See Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1128 (Ala.2003) (Johnstone, J., dissenting, joined by Woodall, J.). Thus, ‘there is necessarily a “reweighing” of the evidence at the appellate level[ ] for th[e] limited purpose’ of determining whether factual determinations are supported by the appropriate level of evidence (here, ‘clear and convincing proof). See id. at 1131 (Harwood, J., dissenting) (emphasis omitted).”

KGS Steel, 47 So.3d at 752. The per cu-riam opinion of the Court of Civil Appeals ultimately held that the expert medical evidence presented amounted to “nothing more than a showing of ‘possible’ causation” that was insufficient to establish that Mclnish’s injuries arose out of his employment. KGS Steel, 47 So.3d at 754.

Justice Murdock, a member of the Court of Civil Appeals when that court decided this case, explained, in a special writing concurring in the result, the import of the court’s application in this case of the particular standard of appellate review, stating:

“Were the lead opinion to be joined by a majority of the judges of this court, it would disturb what heretofore have been the most fundamental and settled of principles governing appellate review — principles that are firmly established in workers’ compensation cases, just as they are in civil eases generally. •• •
“The lead opinion reaches its result by proposing to unsettle two fundamental principles of appellate review. The first is that when a trial court makes findings based on evidence received ore tenus, those findings are to be upheld on appeal if supported by ‘substantial evidence.’ The second principle, which is a corollary to and informs the proper operation of the first, is that when evidence is received by a trial court ore tenus, it is uniquely the trial court’s responsibility to assess the quality of that evidence, including its credibility, and the weight to be assigned thereto, and that the appellate courts are not equipped, and it is not their role, to make their own assessment of the quality, credibility, or weight to be assigned to the evidence. In other words, appellate courts do not reweigh the evidence.”

KGS Steel, 47 So.Sd at 756 (Murdock, J., concurring in the result).

We initially point out that the authority relied on by the per curiam opinion of the Court of Civil Appeals in fashioning this standard of review is not binding authority and has no precedential value. This Court’s opinion in Ex parte Russell Corp., 725 So.2d 264 (Ala.1998), was joined by only four Justices serving on this Court at that time. Of course the dissenting opinions of Justice Johnstone and Justice Harwood in Ex parte Southern Energy Homes, Inc., 873 So.2d 1116 (Ala.2003), are not binding precedent.

Second, this Court has repeatedly held that “the [1992 Workers’ Compensation] Act ‘did not alter the rule that [the Court of Civil Appeals] does not weigh the evidence before the trial court.’ (Emphasis added.)” Ex parte Phenix Rental Ctr., 873 So.2d 226, 229 (Ala.2003) (quoting Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995)); see also Ex parte Kmart Corp., 812 So.2d 1205, 1207 (Ala.2001); Ex parte Golden Poultry Co., 772 So.2d 1175, 1176-77 (Ala.2000); and Ex parte Alabama Ins. Guar. Ass’n, 667 So.2d 97 (Ala.1995).

This Court’s holding that appellate courts do not reweigh the evidence on appeal in a workers’ compensation case is supported by the express language of the Workers’ Compensation Act itself. Section 25-5-81(c), Ala.Code 1975, sets forth two evidentiary standards and further designates the type of workers’ compensation claims to which each evidentiary standard is applicable. Section 25-5-81(c) provides:

“(c) Evidence. The decision of the court shall be based on a preponderance of the evidence as contained in the record of the hearing, except in cases involving injuries which have resulted from gradual deterioration or cumulative physical stress disorders, which shall be deemed compensable only upon a finding of clear and convincing proof that those injuries arose out of and in the course of the employee’s employment.
“For the purposes of this amendatory act, ‘clear and convincing’ shall mean evidence that, when weighted against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

(Emphasis added.)

The statutory definition of clear and convincing evidence found in § 25-5-81(c) reaffirms and embodies the well-established and fundamental principle of appellate review that the weighing of evidence presented ore tenus in a workers’ compensation case is to be performed by the trier of fact, not the appellate court. Indeed, the trial court is in the best position to weigh conflicting evidence and to judge the credibility of witnesses in determining such issues as causation. See Ex parte Alabama Ins. Guar. Ass’n, supra; Drummond Co. v. Green, 895 So.2d 977 (Ala.Civ.App.2004).

Section 25-5-81(e), Ala.Code 1975, sets forth the following standards that govern the appellate court’s review of a trial court’s findings of fact and rulings on issues of law in a workers’ compensation case, including standards of proof:

“(e) Review. From an order or judgment, any aggrieved party may, within 42 days thereafter, appeal to the Court of Civil Appeals and review shall be as in cases reviewed as follows:
“(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.”

(Emphasis added.)

Then Judge Murdock noted in his special writing in this case that § 25-5-81(e) does not “draw[ ] any distinction between [the] two trial-court evidentiary standards,” i.e., preponderance of the evidence versus clear and convincing proof, when setting forth the applicable appellate standard of review for workers’ compensation cases.

Although the statutorily prescribed substantial-evidence standard of appellate review found in § 25-5-81 (e) draws no distinction between the preponderanee-of-the-evidence standard of proof and the clear- and-convineing-evidence standard of proof, nevertheless, the two standards obviously differ as to the quantum of proof necessary to sustain a factual finding on appeal based on the two different standards. The quantum of proof necessary to sustain on appeal a finding of fact based on the heightened clear-and-convincing-evidence standard of proof is greater than the quantum of proof necessary to sustain on appeal a finding of fact based on the lesser preponderanee-of-the-evidence standard. Then Judge Murdock explained, in his special writing, the substantial-evidence standard of review in the context of the heightened clear-and-convincing evidentiary standard as follows:

“[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.’ E.g., West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989) (quoted with approval in Ex parte Southern Energy Homes, Inc., 873 So.2d [1116] at 1122 [ (Ala.2003) ]).
“Although ‘substantial evidence’ must be found by the appellate court in order to sustain the trial court’s findings in any workers’ compensation case, it is necessary to take into consideration the nature of the finding that must be made by the trial court in order to determine what qualifies as ‘substantial evidence’ to support that finding. In a case in which, in order to find for the plaintiff, the trial court is required to find that a given fact has been established by a ‘preponderance’ of the evidence, the evidence is not sufficient to allow appellate affirmance of a judgment based on that finding unless the record contains evidence from which the fact-finder reasonably could have determined that the fact was proven by a preponderance of the evidence. In a case in which, in order to find for the plaintiff, the trial court is required to find that a given fact has been established by ‘clear and convincing’ evidence, the evidence is not sufficient to allow appellate affirmance of a judgment based on that finding unless the record contains evidence from which the fact-finder reasonably could have determined that the fact was proven by clear and convincing evidence. Contrary to the suggestion in the lead opinion, the process of making this determination by an appellate court is, in its essence, no different in one case than in the other, and no more requires an appellate court to engage in the weighing or ‘reweighing’ of evidence in one case than in the other.
“In Ex parte Norwood Hodges Motor Co., 680 So.2d 245 (Ala.1996), our Supreme Court considered the quantum of evidence necessary to require submission of factual questions to the jury when the ultimate evidentiary standard is greater than a mere preponderance of the evidence. The Court began its analysis by taking note of § 12-21-12(a) and (c), Ala.Code 1975, which state:
““‘(a) In all civil actions brought in any court of the state of Alabama, proof by substantial evidence shall be required to submit an issue of fact to the trier of the facts. Proof by substantial evidence shall be required for purposes of testing the sufficiency of the evidence to support an issue of fact in rulings by the court, including without limitation, motions for summary judgment, motions for directed verdict, motions for judgment notwithstanding the verdict, and other such motions or pleadings respecting the sufficiency of evidence.”
“ ‘ “(c) With respect to any issue of fact for which a higher standard of proof is required, whether by statute, or by rule or decision of the courts of the state, substantial evidence shall not be sufficient to carry the burden of proof, and such higher standard of proof shall be required with respect to such issue of fact.” ’
“680 So.2d at 248 (emphasis added).
“Although Ex parte Norwood Hodges Motor Co. involved the question whether the trial court had erred in granting a directed verdict (now a judgment as a matter of law ...) to a defendant on the question of the plaintiffs entitlement to punitive damages, as noted in the above-quoted text of § 12-21-12(a), the statute contemplates the same treatment for any motion testing the sufficiency of the evidence. Logically, of course, the same treatment is proper for testing the sufficiency of the evidence by an appellate court. It therefore is instructive that, in considering the text of both subsection (a) and subsection (c) of § 12-21-12, the Supreme Court concluded in Ex parte Norwood Hodges Motor Co. that
“ ‘the trial court should have determined whether the evidence warranted submitting the issue of punitive damages to the jury, i.e., whether there was evidence of such quality and weight that a jury of reasonable and fair-minded persons could find by clear and convincing evidence that the defendant consciously or deliberately engaged in fraud.’
“Ex parte Norwood Hodges Motor Co., 680 So.2d at 249 (emphasis added). As our Supreme Court explained in Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So.2d 90 (Ala.1989),
“ ‘a plaintiff, in order to go to the jury on a claim [alleging intentional tor-tious conduct], must make a stronger showing than that required by the “substantial evidence rule” as it applies to the establishment of jury issues in regard to tort claims generally. See Code 1975, § 12-21-12. Therefore, ... the plaintiff must present evidence that, if accepted and believed by the jury, would qualify as clear and convincing proof of fraud.’
“547 So.2d at 95 (quoted with approval in Hobbs v. Alabama Power Co., 775 So.2d 783, 787 (Ala.2000), ITT Specialty Risk Servs., Inc. v. Barr, 842 So.2d 638, 646 (Ala.2002), and Soti v. Lowe’s Home Ctrs., Inc., 906 So.2d 916, 923 (Ala.2005)) (emphasis added). Cf. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3, 9 (Ala.1997) (quoting with approval the trial court’s order denying a postjudgment motion for relief in which the trial court explained that ‘“[t]here was evidence from which the jury could find, by a clear and convincing standard, that” ’ the requisite element of the plaintiffs claim had been proven).
“As I wrote in Gary v. Crouch, 923 So.2d 1130 (Ala.Civ.App.2005):
“ ‘The “clear-and-convincing-evidence” standard ... is the standard ultimately to be applied at trial by the fact-finder in this [defamation] case, just as the “preponderance-of-the-evidence” standard is applied in most civil cases by the fact-finder. The responsibility for making ultimate factual determinations resides with the fact-finder, in this case a jury, not with a trial judge in considering a summary-judgment motion. It is no more the responsibility of a trial judge in considering a motion for a summary judgment to make the ultimate determination of whether a plaintiff in a defamation suit has proven constitutional malice by clear and convincing evidence than it would be for a trial judge considering a summary-judgment motion in an ordinary lawsuit to determine whether a plaintiff has demonstrated the elements of his or her claim by a preponderance of the evidence.
“ ‘When the ultimate standard to be applied by the fact-finder in a civil case is a preponderance-of-the-evi-denee standard, it is for the trial judge ... to determine only whether there is a genuine issue of material fact. That determination, in turn, is a function of whether there is “substantial evidence” as to that material fact. In the context in which preponderance of the evidence is the ultimate standard of proof for the fact-finder, substantial evidence has been defined simply as that evidence from which the fact-finder could reasonably infer the existence of the fact sought to be proved.
“‘Similarly, substantial evidence in the context of a case in which the ultimate standard for a decision is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly establish [the existence of] the fact sought to be proved. Thus, even if a trial judge reaches his or her own conclusion that the evidence presented does not clearly and convincingly establish constitutional malice, it is not for him or her to act upon that factual determination, but to determine instead whether the actual fact-finder could reasonably make a different finding based upon the same evidence .... [T]he opinion of the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), ... verifies that any different conclusion would be inappropriate.’
923 So.2d at 1141-42 (Murdock, J., concurring in the result) ....
“Likewise, the evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly establish the fact sought to be proved. Even if an appellate court in considering the evidence of record would reach its own conclusion that the evidence presented does not clearly and convincingly establish the fact sought to be proved, it is not for that court to act upon its own factual determination but to determine instead whether the fact-finder below reasonably could have made a different finding based on the same evidence.
“Although it dealt with the issue of the sufficiency of the evidence in the context of summary-judgment and directed-verdict motions, the reasoning of the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), is persuasive:
‘[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at a trial on the merits ....
“ ‘... [In a defamation case], where the First Amendment mandates a “clear and convincing” standard, the trial judge in disposing of a directed verdict motion should consider whether a reasonable fact-finder could conclude, for example, that the plaintiff had shown actual malice with convincing clarity.
“1... [I]n United States v. Taylor, 464 F.2d 240 (2d Cir.1972), ... [the Court] pointed out that almost all the Circuits had adopted something like Judge Prettyman’s formulation in Curley v. United States, 160 F.2d 229, 232-233 (D.C.Cir.1947):
“ ‘ “The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt....”
“ ‘This view is equally applicable to a civil case to which the “clear and convincing” standard applies....
“ ‘Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive eviden-tiary burden ....
“ ‘Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes [v. S.H. Kress & Co.], 398 U.S. [144], at 158-159 [ (1970) ]. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. Kennedy v. Silas Mason Co., 334 U.S. 249 (1948).
“ ‘In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case .... Consequently, where the New York Times [Co. v. Sullivan, 376 U.S. 254 (1964),] “clear and convincing” evidence requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.’
477 U.S. at 252-56, 106 S.Ct. 2505 (emphasis added; footnote omitted).”

KGS Steel, 47 So.3d at 758-62 (Murdock, J., concurring in the result) (footnote omitted; some emphasis omitted; some emphasis added).

Subsections (a) and (c) of § 12-21-12, Ala.Code 1975, referred to above, were enacted by the legislature as part of tort-reform legislation in 1987. Section 25-5-81(e), Ala.Code 1975, was enacted by the legislature in 1992 as part of the amendments to the Workers’ Compensation Act. Subsections 12-21-12(a) and (c) address the amount of proof necessary for the “establishment of jury issues in regard to tort claims generally.” Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90, 95 (Ala.1989). On the other hand, the subsequently enacted § 25-5-81 (e) addresses specifically the standard of review applicable to factual findings made by the trial court in the less general and more specific area of workers’ compensation law. It was well within the purview of the legislature, in enacting § 25-5-81 (e), to fashion a substantial-evidence standard of reviewing factual findings of the trial court that is applicable to both the preponderance-of-the-evidence and clear-and-convincing-evidence standards of proof.

In sum, the statutorily prescribed substantial-evidence standard of appellate review in workers’ compensation cases makes no distinction between the preponderance-of-the-evidence level of proof and the clear-and-convincing-evidence level of proof and is applicable to findings of fact made pursuant to each, albeit in necessarily different degrees because of the heightened level of evidence necessary to satisfy the latter. Put another way, the quantum of proof necessary to sustain on appeal, as supported by substantial evidence in the record, a finding of fact based on a clear- and-convincing-evidence standard is greater than the quantum of proof necessary to sustain on appeal, as supported by substantial evidence in the record, a finding of fact based on the lesser standard of a preponderance of the evidence.

Stated specifically in the context of a substantial-evidence standard of review required in a proceeding like the one before us, a cumulative-physical-stress/gradual-deterioration worker’s compensation case, the burden that an employee must bear was accurately stated by then Judge Mur-dock in his special concurrence:

“[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly [as clear and convincing is defined by § 25-5-81 (c) ] establish the fact sought to be proved.”

KGS Steel, 47 So.3d at 761.

To analogize the test set out above by Judge Prettyman for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, “the judge must view the evidence presented through the prism of the substantive evidentiary burden”; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would “produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.” § 25 — 5—81(c).

In reviewing a decision of the trial court, an appellate court is not permitted to reweigh the evidence, because weighing the evidence is solely a function of the trier of fact. However, it is the function of the appellate court to ascertain that the trial court’s findings of fact are supported by substantial evidence with due regard to, and respect for, the appropriate level of evidentiary proof required, which in this case is clear and convincing. Based on the foregoing, we conclude that the Court of Civil Appeals erred in applying a standard of review in this cumulative-physical-stress case that permitted the reweighing on appeal of the evidence presented to the trier of fact, i.e., the trial court.

We next address the issue whether the Court of Civil Appeals improperly considered only the testimony of the medical experts in determining the issue of causation in contravention to this Court’s decision in Ex parte Price, 555 So.2d 1060, 1063 (Ala.1989). The main opinion of the Court of Civil Appeals states:

“As our recent opinion in Madix, Inc. v. Champion, 927 So.2d 833 (Ala.Civ.App.2005), holds, a judgment awarding workers’ compensation benefits based upon a cumulative-stress disorder or a gradual deterioration cannot properly be affirmed when the testimony of the pertinent medical experts establishes ‘no more than a “possibility that [an employee’s] employment contributed to [the employee’s] injuries’ so as to simply ““guess’ the employer into liability.”’ 927 So.2d at 838 (quoting Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989)).”

KGS Steel, 47 So.3d at 754. Although we agree that the evidence establishing causation must be such as not to “guess” an employer into liability, to the extent that the main opinion suggests that proof of causation is solely dependent upon the presence of expert medical testimony, we reverse the judgment of the Court of Civil Appeals.

This Court held in Ex parte Price that a trial court may find medical causation without the benefit of testimony from medical experts. Additionally, lay testimony may combine with medical testimony to provide proof of causation because “[i]t is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test finds its application.” Ex parte Price, 555 So.2d at 1063. This “totality-of-the-evidence” standard is well established by caselaw and has become a bedrock principle of law in the area of workers’ compensation law. This principle was reaffirmed in this Court’s decision in Ex parte Southern Energy Homes, supra. Although Ex parte Southern Energy Homes, in which this Court reversed a finding of compensa-bility, involved a traumatic-event injury, as opposed to a cumulative-physical-stress injury, this Court nevertheless rejected a per se rule that would require expert medical testimony to prove causation in a workers’ compensation case. 873 So.2d at 1123-24.

Accordingly, we conclude that the Court of Civil Appeals erred to the extent that its per curiam opinion suggests that the presence or lack of expert medical testimony is solely determinative of the issue of causation in a workers’ compensation case. We reverse the judgment of the Court of Civil Appeals and remand the case to that court for its further consideration consistent with this opinion.

REVERSED AND REMANDED.

SEE, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

COBB, C.J., and LYONS, J., concur in part in the rationale and dissent from the judgment.

MURDOCK, J., recuses himself.

LYONS, Justice

(concurring in part in the rationale and dissenting from the judgment).

I agree with the main opinion’s discussion of the standard of review and its embrace of then Judge Murdock’s persuasive analysis of that issue in his opinion concurring in the result. However, I differ as to the appropriate relief.

The main opinion, as I understand it, returns the case to the Court of Civil Appeals for further consideration without the availability of reliance upon Madix, Inc. v. Champion, 927 So.2d 833 (Ala.Civ.App.2005), to the extent that the one-judge opinion below correctly concluded that it stands for the proposition that a judgment awarding benefits for a cumulative-stress disorder or a gradual deterioration cannot properly be affirmed when the testimony of the pertinent medical experts establishes no more than a possibility that the employee’s employment contributed to the employee’s injuries. I would reverse the judgment of the Court of Civil Appeals and remand the case with instructions to that court to affirm the judgment of the trial court. I agree with Judge Crawley’s dissenting opinion:

“In this case, although Dr. Meyer, KGS’s authorized physician, determined that Mclnish’s condition was not related to his employment, Dr. Kelsey stated that Mclnish’s neck problems were ‘consistent with’ the cumulative trauma described by Mclnish. In addition, Mclnish’s physique had drastically changed from when he started working for KGS to the time of trial, and testimony indicated that the onset of Mclnish’s symptoms of his condition occurred during his employment with KGS, where he was subjected to violent vibrations. The resolution of conflicting evidence as to medical causation is the province of the trial court, not the appellate courts, and based on the totality of the evidence the trial court could have reasonably found that Mclnish presented clear and convincing evidence indicating that his disability arose out of his employment.”

47 So.3d at 767.

I must therefore respectfully dissent from the judgment.

COBB, C.J., concurs.

      . See International Paper Co. v. Melton, 866 So.2d 1158 (Ala.Civ.App.2003), for a thorough discussion by then Judge Murdock of the nature of the evidence routinely found in cases involving cumulative-physical-stress injuries.


source: Caselaw Access Project

author: PER CURIAM. PITTMAN, Judge,

license: Public Domain

text:
    KGS STEEL, INC. v. Donald McINISH.
    2040526.
    Court of Civil Appeals of Alabama.
    June 26, 2009.
    Rehearing Denied Feb. 5, 2010.
    Joseph H. Driver and Bennett L. Pugh of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.

      E.L. Brobston of Brobston & Brobston, P.C., Bessemer, for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The prior judgment of this court reversing the judgment of the trial court as to its causation determination, a result in which four judges of this court concurred, see KGS Steel, Inc. v. McInish, 47 So.3d 749 (Ala.Civ.App.2006), has been reversed by the Alabama Supreme Court. Ex parte McInish, 47 So.3d 767 (Ala.2008). The majority opinion of that court remanded the cause to this court for our “further consideration consistent with” Ex parte McInish, 47 So.3d at 767, whereas Justice Lyons, joined by Chief Justice Cobb, dissented from that instruction, indicating that he would have remanded “with instructions to [this] court to affirm the judgment of the trial court” based on the rationale set forth in the dissenting opinion of former Presiding Judge Crawley in KGS Steel, 47 So.3d at 767.

Under § 12-3-16, Ala.Code 1975, “[t]he decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals.” “[T]he ‘decisions of the [S]upreme [C]ourt’ referred to ... can only mean the ‘decisions of the majority ’ of the Supreme Court.” Willis v. Buchman, 30 Ala.App. 33, 40, 199 So. 886, 892 (1940) (opinion after remand). We thus proceed to review the evidence according to the appropriate standard set out in Ex parte Melnish to determine whether it is sufficient to support the factual findings made by the trial court regarding medical causation.

As set out in Ex parte Melnish:

“Stated specifically in the context of a substantial-evidence standard of review required in a proceeding like the one before us, a cumulative-physical-stress/gradual-deterioration worker’s compensation case, the burden that an employee must bear was accurately stated by then Judge Murdock in his special concurrence [in KGS Steel ]:
“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly [as clear and convincing is defined by § 25-5-81 (c) ] establish the fact sought to be proved.’
“KGS Steel, 47 So.3d at 761.
“To analogize the test set out above by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C.Cir.1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, ‘the judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ § 25-5-81(c)[, Ala.Code 1975].”

Ex parte McInish, 47 So.3d at 778.

Based on the appropriate standard of appellate review, and keeping in mind that we must consider the totality of the evidence, not just the expert medical testimony, Ex parte McInish, 47 So.3d at 779, we conclude that the trial court erred in finding medical causation. In doing so, we adopt the view espoused in the special opinion of then Judge Murdock in KGS Steel that the circumstantial evidence, lay-testimony, and expert testimony in this case — evidence and testimony that was thoroughly and accurately summarized in the main opinion in KGS Steel — could not reasonably have produced in the mind of the trial court a firm conviction that the duties of Donald Mclnish’s employment caused or contributed to the neck and shoulder condition that ultimately disabled the employee from working. KGS Steel, 47 So.3d at 750-55 (Murdock, J., concurring in the result).

The trial court’s judgment is reversed in its entirety, and the cause is remanded for the entry of a judgment or for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

PITTMAN, J., dissents, with writing.

PITTMAN, Judge,

dissenting.

In my view, “further consideration” of whether the trial court’s judgment determining that Donald Mclnish was totally and permanently disabled as a consequence of his neck and shoulder conditions was correctly entered is essentially foreclosed by the Alabama Supreme Court’s judgment of reversal in Ex parte McInish, 47 So.3d 767 (Ala.2008). Had the Supreme Court been of the opinion that this court’s reversal of the trial court’s judgment as to causation in KGS Steel v. McInish, 47 So.3d 749 (Ala. Civ.App. 2006), was proper, notwithstanding any misstatements of law contained in the main opinion in KGS Steel, based upon the evidence appearing in the record — evidence that was of course before the Supreme Court following the transmission of the appellate record to the Supreme Court upon its grant of Mclnish’s certiorari petition — that court would have either affirmed the judgment of this court on another rationale, such as that stated in then Judge Murdock’s special writing, or would have quashed the writ as improvidently granted. I believe that “further consideration” of the evidence may not properly admit the possibility that this court acted correctly in reversing the trial court’s judgment as to the issue considered in KGS Steel — namely, causation. Because I would affirm the trial court’s judgment as to its causation determination, I respectfully dissent.


text:
    Ex parte Donald McINISH. (In re KGS Steel, Inc. v. Donald McInish).
    1090644.
    Supreme Court of Alabama.
    May 21, 2010.
    E.L. Brobston of Brobston & Brobston, P.C., Bessemer, for petitioner.
   BOLIN, Justice.

WRIT DENIED. NO OPINION.

WOODALL, STUART, SMITH, PARKER, and SHAW', JJ., concur.

COBB, C.J., and LYONS, J., dissent.

MURDOCK, J., recuses himself.

LYONS, Justice

(dissenting).

I adhere to the views I expressed in Ex parte McInish, 47 So.3d 767, 779 (Ala.2008) (Lyons, J., concurring in part in the rationale and dissenting from the judgment):

“I would reverse the judgment of the Court of Civil Appeals and remand the case with instructions to that court to affirm the judgment of the trial court. I agree with Judge Crawley’s dissenting opinion:
“ ‘In this case, although Dr. Meyer, KGS’s authorized physician, determined that Mclnish’s condition was not related to his employment, Dr. Kelsey stated that Mclnish’s neck problems were “consistent with” the cumulative trauma described by Mclnish. In addition, Mclnish’s physique had drastically changed from when he started working for KGS to the time of trial, and testimony indicated that the onset of Mclnish’s symptoms of his condition occurred during his employment with KGS, where he was subjected to violent vibrations. The resolution of conflicting evidence as to medical causation is the province of the trial court, not the appellate courts, and based on the totality of the evidence the trial court could have reasonably found that Mclnish presented clear and convincing evidence indicating that his disability arose out of his employment.’
47 So.3d at 767.
“I must therefore respectfully dissent from the judgment.”

COBB, C.J., concurs.


author: BRYAN, Judge.

text:
    Jerry T. BYROM, Jr., as administrator of the estate of Jerry Thomas Byrom v. Judy D. BYROM.
    2050820 and 2050855.
    Court of Civil Appeals of Alabama.
    March 30, 2007.
    Rehearing Denied Sept. 7, 2007.

      William B. Tatum and Edward E. Wilson, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
    George M. Beason, Jr., Douglas C. Mar-tinson II, and Terry R. Bynum II of Mar-tinson & Beason, P.C., Huntsville, for ap-pellee.
   BRYAN, Judge.

In case number 2050820, Jerry T. By-rom, Jr., as administrator of the estate of Jerry Thomas Byrom (“the administrator”), appeals a judgment insofar as it (1) declared that the beneficial interest of Jerry Thomas Byrom (“Jerry”) in Desoto Star Holdings (“Desoto”), a revocable land trust, passed to his widow, Judy D. Byrom (“Judy”), upon his death; and (2) declared that certain conveyances of trust property from Desoto to Jerry and Judy in February 2001 were not fraudulent. We reverse the trial court’s judgment insofar as it declared that Jerry’s beneficial interest in Desoto passed to Judy upon his death, affirm the trial court’s judgment in all other respects, and remand the case to the trial court for further proceedings consistent with this opinion.

In case number 2050855, the administrator appeals a postjudgment order in which the trial court conditioned the granting of a stay of its judgment upon the administrator’s posting a supersedeas bond in the amount of $1,000,000. We affirm that order.

Jerry and Judy married in 1982. On June 25, 1997, Jerry executed a guaranty agreement in favor of B.P. Exploration and Oil (“BP”). In the guaranty agreement, Jerry agreed that, upon the occurrence of an event of default, he would personally pay any debt Byrom Oil Company, Inc. (“Byrom Oil”), owed BP. The guaranty agreement provided that Byrom Oil’s filing a petition for bankruptcy would constitute an event of default.

On February 24, 1999, Jerry and Judy executed a trust indenture creating Deso-to. The Desoto trust indenture provided that Jerry and Judy each owned a 50% beneficial interest in Desoto. The Desoto trust indenture did not purport to address the disposition of Jerry’s and Judy’s beneficial interests in Desoto upon their deaths. Subsequent to the execution of the Desoto trust indenture, Jerry and Judy conveyed to Desoto a condominium unit in Orange Beach (“the condominium”), a lot on Lake Guntersville (“the lake lot”), and two other parcels of real property.

Also on February 24, 1999, Jerry and Judy assigned certain personal property to Willow Cove Holdings (“Willow Cove”), an unincorporated association, to be held in trust for their benefit. To evidence Jerry’s and Judy’s beneficial interests, Willow Cove conveyed all 100 of its capital units to them. The indenture governing the operation of Willow Cove provided that, upon the death of Jerry or Judy, his or her capital units would pass to the survivor.

On March 3, 1999, Jerry and Judy assigned certain personal property to Alliance Management, Ltd. (“Alliance”), an unincorporated organization, to be held in trust for their benefit. To evidence Jerry’s and Judy’s beneficial interests, Alliance conveyed all 100 of its capital units to them. The indenture governing the operation of Alliance provided that, upon the death of Jerry or Judy, his or her capital units would pass to the survivor.

On February 9, 2001, Byrom Oil filed a petition for bankruptcy. On February 19, 2001, Desoto conveyed the condominium to Judy and Jerry as joint tenants with the right of survivorship. On February 20, 2001, Desoto conveyed the lake lot to Jerry and Judy as joint tenants with the right of survivorship.

Jerry died on June 23, 2001, and Judy survived him. Following Jerry’s death, Judy conveyed the condominium and the lake lot back to Desoto. Jerry’s will was filed for probate with the probate court; however, the administration of his estate was later removed to the circuit court. Upon the opening of the estate, BP sued the estate in the United States District Court for the Northern District of Alabama, seeking, on the basis of the personal guaranty signed by Jerry, to recover the debt that Byrom Oil owed BP. Ultimately, BP obtained a judgment against the estate in the amount of $519,828.88 plus post-judgment interest.

On September 30, 2003, the administrator filed, in the estate proceeding, a complaint naming Judy, among others, as a defendant and seeking, among other things, a judgment declaring (1) whether Desoto is a valid trust; (2) whether, in the event Desoto is a valid trust, the estate owns the 50% beneficial interest in Desoto that Jerry owned when he died; and (3) whether the conveyances of the condominium and the lake lot from Desoto to Jerry and Judy as tenants in common with the right of survivorship were fraudulent transfers.

Answering the administrator’s complaint, Judy, among other things, asserted that Desoto is a valid trust, asserted that she became the owner of Jerry’s 50% beneficial interest in Desoto upon his death, and denied that the conveyances of the condominium and the lake lot from Desoto to Jerry and Judy were fraudulent. Subsequently, she amended her answer to add a counterclaim. Judy’s counterclaim alleged that, when she conveyed the condominium and the lake lot back to Desoto following Jerry’s death, she believed that she was the sole beneficiary of Desoto and, therefore, that she was placing those properties in a trust that was for her sole benefit. As relief, Judy’s counterclaim sought a judgment reforming those conveyances to place the condominium and the lake lot in a trust that was for her sole benefit if the trial court found that Judy was mistaken in her belief that she was the sole beneficiary of Desoto.

Judy moved the trial court for a partial summary judgment declaring that Desoto is a valid trust, and the trial court granted that motion. Subsequently, the trial court received ore tenus evidence regarding the remaining issues at a bench trial on April 3, 2006. On May 9, 2006, the trial court entered a judgment stating, in pertinent part:

“The Court finds that Jerry made no transfer of his interest[s] in ... Desoto, Willow Cove, or Alliance prior to his death. Both Willow Cove and Alliance clearly provide that the surviving [c]api-tal[-u]nit holder is entitled to receive all interest the deceased [c]apital[-u]nit holder held in the trusts at the time of [his or her] death. Accordingly, as she is the sole surviving [c]apital[-u]nit holder of both Willow Cove and Alliance, Judy is entitled to receive all of Jerry’s interest in both Willow Cove and Alliance. Desoto, however, does not provide for what happens to the beneficial interest of the deceased upon [his or her] death. Therefore, this Court must look to Alabama law to decide this issue. Accordingly, pursuant to the ‘residue of the residue rule’ of Alabama Code (1975) Section 43-8-225(b), as well as the intent of Jerry and Judy as Settlors of Desoto, Jerry’s interest in Desoto passed to Judy upon the death of Jerry.
“Desoto, Willow Cove, and Alliance were established by Jerry and Judy in 1999 for legitimate estate planning purposes, and there was no fraudulent intent on the part of either Jerry or Judy. Further, the Court is unpersuaded by the [administrator’s] claims that transfers out of Desoto were done to avoid creditors, and accordingly this Court finds those transfers to be valid and not fraudulent as to the creditors of Jerry.
“Finally, as Judy is the sole owner of all one hundred percent (100%) beneficial interest in Desoto, the question of whether her conveyance of the [condominium] and the [l]ake [l]ot to Desoto after Jerry’s death was a mistake due to be reformed is moot, and as such this Court is not ruling on [Judy’s] Counterclaim.”

The administrator appealed the trial court’s judgment to the supreme court and moved the trial court to stay its judgment pending the resolution of the appeal. The supreme court, pursuant to § 12-2-7(6), Ala.Code 1975, transferred to this court the administrator’s appeal from the trial court’s judgment. The trial court, on June 27, 2006, entered an order (“the June 27 order”) conditioning the granting of the stay upon the administrator’s posting a supersedeas bond in the amount of $1,000,000. The administrator then timely appealed to this court from the June 27 order. This court transferred to the supreme court the administrator’s appeal from the June 27 order because this court lacked jurisdiction. Subsequently, the supreme court, pursuant to § 12-2-7(6), transferred to this court the administrator’s appeal from the June 27 order. This court then consolidated the administrator’s appeals.

Because the trial court received evidence ore tenus in a bench trial, the following principles govern our review of the trial court’s judgment:

“‘When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987).... “[U]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” Transamerica [Commercial Fin. Corp. v. AmSouth Bank], 608 So.2d [375] at 378 [(Ala.1992)]. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). “Questions of law are not subject to the ore tenus standard of review.” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 798 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (“[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’ ”

Farmers Ins. Co. v. Price-Williams Assocs., Inc., 873 So.2d 252, 254-55 (Ala.Civ.App.2003) (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)).

The administrator first argues that the trial court erred in concluding that Jerry’s beneficial interest in Desoto passed to Judy upon his death by virtue of § 43-8-225(b), Ala.Code 1975. Specifically, the administrator argues that § 43-8-225(b), by its terms, applies only to dispositions of property by wills and, therefore, does not apply to the Desoto trust indenture because it is not a will. The trial court’s conclusion regarding § 43-8-225(b) is a conclusion of law; therefore, we review it de novo. See Farmers Ins. Co., supra.

Section 43-8-225(b) provides:

“(b) Except as provided in section 43-8-224 if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devi-sees in proportion to their interests in the residue.”

(Emphasis added.) Chapter 8 of Title 43 is the Probate Code. In pertinent part, § 43-8-1, Ala.Code 1975, provides:

“Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or divisions, and unless the context otherwise requires, in this chapter, the following word shall have the following meanings:
“(5) Devise. When used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will.”

(Emphasis added.) A will is “[a] document by which a person directs his or her estate to be distributed upon death....” Black’s Law Dictionary 1628 (8th ed.2004). The Desoto trust indenture does not purport to direct the distribution of any of Jerry’s property upon his death; therefore, it is not a will. Because the Desoto trust indenture is not a will, § 43-8-225(b) does not apply to it. Accordingly, the trial court erred insofar as it concluded that § 43-8-225(b) effected the transfer of Jerry’s beneficial interest in Desoto to Judy upon his death.

The administrator next argues that the trial court erred in finding that Jerry and Judy intended Jerry’s beneficial interest in Desoto to pass to Judy upon his death. Specifically, the administrator argues that the absence of a provision purporting to dispose of a beneficiary’s interest in Deso-to upon his or her death does not create an ambiguity that would allow the trial court to consider extrinsic evidence of Jerry and Judy’s intent; rather, the administrator argues, the absence of such a provision clearly and unambiguously indicates that Jerry and Judy intended that the death of a beneficiary would not effect a transfer of his or her beneficial interest to the surviving beneficiary.

Judy, on the other hand, argues that the absence of a provision purporting to dispose of a beneficiary’s interest in Desoto upon his or her death does create an ambiguity that would allow the trial court to consider extrinsic evidence of Jerry and Judy’s intent and that such extrinsic evidence indicates that Jerry and Judy intended that the death of a beneficiary would effect the transfer of his or her beneficial interest in Desoto to the surviving beneficiary.

Although the trial court did not state its rationale for concluding that Jerry and Judy intended that the death of a beneficiary would effect the transfer of the deceased beneficiary’s interest to the survivor, it could not have based that conclusion on language in the Desoto trust indenture because the Desoto trust indenture contains no such language. Thus, the trial court necessarily reached that conclusion on the basis of extrinsic evidence, which the trial court could have considered only if it first determined that the Desoto trust indenture contained a latent ambiguity. See Gafford v. Kirby, 512 So.2d 1356, 1363 (Ala.1987).

The issue whether a written instrument is ambiguous is a question of law, and the trial court’s ruling on that question carries no presumption of correctness on appeal. BõWing Office Sys. v. Johnson, 744 So.2d 915, 918 (Ala.Civ.App.1999). Accordingly, we review de novo the trial court’s implicit determination that the De-soto trust indenture contains a latent ambiguity regarding whether Jerry and Judy intended the death of a beneficiary to effect the transfer of the deceased beneficiary’s interest to the survivor. See Farmers Ins. Co., supra. A written instrument is ambiguous if it is capable of more than one meaning. See BõWing Office Sys. v. Johnson, supra. In the case now before us, the absence from the Desoto trust indenture of a provision disposing of a beneficiary’s interest in Desoto upon his or her death does not make any provision of the trust indenture capable of more than one meaning. Rather, the absence of a provision disposing of a beneficiary’s interest upon his or her death simply indicates that the trust indenture does not purport to dispose of a beneficiary’s interest in Desoto upon his or her death; that is not an ambiguity. When a written instrument is free from ambiguity, it must be enforced as written. Id. Therefore, because the unambiguous Desoto trust indenture does not provide for the disposition of Jerry’s beneficial interest upon his death, the trial court erred in construing the Desoto trust to pass Jerry’s beneficial interest to Judy upon his death on the basis of extrinsic evidence.

Accordingly, because neither § 43-8-225(b) nor the unambiguous trust indenture effected a transfer of Jerry’s beneficial interest in Desoto to Judy upon his death, we must reverse the trial court’s judgment insofar as it declared that Jerry’s beneficial interest in Desoto passed to Judy upon his death.

The administrator next argues that the trial court erred in concluding that the conveyances of the condominium and the lake lot from Desoto to Jerry and Judy were not fraudulent because, the administrator says, the trial court’s finding that Jerry and Judy did not have a fraudulent intent with regard to those conveyances was contrary to the great weight of the evidence. However, the issue of Jerry and Judy’s intent is moot because the record establishes that the conveyances challenged by the administrator were not made by a debtor or the alter ego of a debtor. One of the essential elements of a claim under the Alabama Uniform Fraudulent Transfer Act, §§ 8-9A-1 to -12, Ala. Code 1975, is a conveyance by the debtor or the alter ego of the debtor. See S.J. Holding Co. v. Kadco, Inc., 874 So.2d 1036, 1041-46 (Ala.2003); Thompson Props. v. Birmingham Hide & Tallow Co., 839 So.2d 629, 632-34 (Ala.2002); Folmar & Assocs. LLP v. Holberg, 776 So.2d 112, 117-18 (Ala.2000); and Woodard v. Funderburk, 846 So.2d 363, 366-67 (Ala.Civ.App.2002). In the case now before us, Jerry was the debtor before his death, and his estate became the debtor upon his death. The conveyances at issue, however, are conveyances by Desoto. Desoto is not the debtor. Moreover, the trial court entered a partial summary judgment declaring that Desoto is a valid trust, a judgment that negates any contention that Desoto is the alter ego of Jerry or the estate, and the administrator has not challenged that partial summary judgment on appeal — indeed, all of the administrator’s arguments on appeal presuppose that Desoto is a valid trust. Consequently, the administrator has waived any argument he may have been able to assert regarding whether De-soto is the alter ego of Jerry or the estate. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).”). Accordingly, we must affirm the judgment of the trial court insofar as it ruled in favor of Judy with respect to the administrator’s fraudulent-conveyance claim because the record establishes that the conveyances of the condominium and the lake lot to Jerry and Judy were not made by the debtor or the debtor’s alter ego. See, e.g., S.J. Holding Co. v. Kadco, Inc., 874 So.2d at 1041-46. Although our rationale for affirming this portion of the trial court’s judgment differs from the trial court’s rationale for entering it, an appellate court “may affirm a trial court’s judgment on ‘any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.’ ” General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala.2003) (quoting Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala.2003)). Accord Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (“[TJhis Court ‘will affirm the judgment appealed from if supported on any valid legal ground.’” (quoting Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala.1983))).

Finally, the administrator argues that the June 27 order was erroneous. However, the administrator has not cited any legal authority in support of this argument.

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ ... [I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments. Ex parte Showers, 812 So.2d 277, 281 (Ala.2001).”

State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005). Therefore, we affirm the June 27 order.

In case number 2050820, we reverse the trial court’s judgment insofar as it declared that Jerry’s beneficial interest in Desoto passed to Judy upon Jerry’s death, affirm the trial court’s judgment in all other respects, and remand the case to the trial court for further proceedings consistent with this opinion. In case number 2050855, we affirm the June 27 order.

2050820 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

2050855 — AFFIRMED.

THOMAS, J., concurs.

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

      . Upon Judy’s motion, the trial court amended its judgment; however, that amendment is not material to the issues in this appeal.


author: MURDOCK, Justice.

text:
    Ex parte Judy D. BYROM. (In re Jerry T. Byrom, Jr., as administrator of the estate of Jerry Thomas Byrom v. Judy D. Byrom).
    1061806.
    Supreme Court of Alabama.
    April 9, 2010.
    George M. Beason, Jr., and Terry L. Bynum II of Martinson & Beason, P.C., Huntsville, for petitioner.

      William B. Tatum, Edward E. Wilson, Jr., and Scott W. Faulkner of Lanier Ford Shaver & Payne, PC, Huntsville, for respondent.
   MURDOCK, Justice.

Judy D. Byrom (“Judy”) petitioned this Court for a writ of certiorari to review the Court of Civil Appeals’ decision in a plurality opinion in Byrom v. Byrom, 47 So.3d 783 (Ala.Civ.App.2007). We granted the writ; we now affirm.

Judy and Jerry Thomas Byrom (“Jerry”) married in October 1982. In 1999, Judy and Jerry executed a trust agreement creating a revocable trust known as the Desoto Star Holdings trust (“the Deso-to trust”), and they conveyed certain real property into the Desoto trust. Richard G. Pridmore served as the initial trustee of the Desoto trust.

The trust agreement provided that Judy and Jerry were the “beneficiaries” of the trust. As “beneficiaries,” Judy and Jerry were “entitled to all of the earnings, avails and proceeds of the Trust Property according to their interests set opposite their respective names” on Exhibit “B” to the trust agreement. Exhibit “B” stated that Judy and Jerry each held a 50% interest in the trust. The trust agreement continued:

“4. INTERESTS. The interests of the Beneficiaries shall consist solely of the following rights respecting the Trust Property:
“a. The right to direct the Trustee to convey or otherwise deal with the title to a Trust Property as hereinafter set out.
“b. The right to manage and control the Trust Property.
“c. The right to receive the proceeds and avails from the rental, sale, mortgage, or other disposition of the Trust Property.
“The foregoing rights shall be deemed to be personal property and may be assigned and otherwise transferred as such. No Beneficiary shall have any legal or equitable right, title or interest, as realty, in or to any real estate held in trust under this Agreement, nor the right to require partition of that real estate, but shall have only the rights, as personalty, set out above, and the death of a Beneficiary shall not teminate this Trust or in any manner affect the powers of the Trustee.”

(Emphasis added.)

Also, the trust agreement states that “[t]he terms and conditions of this Agreement shall inure to the benefit of and be binding ... upon the executors, administrators, heirs, assigns and all other successors in interest of the Beneficiaries.” (Emphasis added.)

Jerry died in June 2001. He was survived by Judy, and by his three children: Jerry T. Byrom, Jr., Lisa B. Ratcliff, and Julee B. Couch. Jerry’s will was admitted to probate in the Madison Probate Court. Jerry’s children and Judy are beneficiaries under Jerry’s will.

In April 2002, the administration of Jerry’s estate was removed to the Madison Circuit Court (“the trial court”).

After Jerry’s death, certain creditors obtained judgments against his estate. Thereafter, in September 2003, Paul Frederick, as personal representative of Jerry’s estate, filed a complaint in the trial court seeking, among other things, a declaration that Jerry’s interest in the Desoto trust became the property of Jerry’s estate upon his death. In May 2005, Frederick filed a report of insolvency in the trial court concerning the estate. The report described approximately $2,373,735 in “potential unpaid debts,” including in part the creditors’ claims described above, and substantially less in assets belonging to the estate, though the value of certain assets was allegedly unknown. In July 2005, after conducting a hearing on Frederick’s petition, the trial court entered an order declaring Jerry’s estate insolvent. Thereafter, Frederick resigned as personal representative, and the trial court appointed Jerry T. Byrom, Jr., as personal representative of the estate (“the personal representative”).

Judy opposed the personal representative’s claim that Jerry’s beneficial interest in the Desoto trust passed to his estate at his death. She argued that Jerry’s beneficial interest in the Desoto trust passed to her upon Jerry’s death.

After conducting a proceeding at which evidence was presented ore tenus, the trial court entered a judgment on the personal representative’s claims. The judgment stated that the Desoto trust agreement

“d[id] not provide for what happens to the beneficial interest of the deceased upon ... death. Therefore, this Court must look to Alabama law to decide this issue. Accordingly, pursuant to the ‘residue of the residue rule’ of Alabama Code (1975) Section 43-8-225(b), as well as the intent of Jerry and Judy as Set-tlors of [the Desoto trust], Jerry’s interest in [the Desoto trust] passed to Judy upon the death of Jerry.”

The personal representative appealed to the Court of Civil Appeals. He argued, in part, that the trial court had wrongly applied Ala.Code 1975, § 43-8-225(b), to the Desoto trust. In a plurality decision, the Court of Civil Appeals “reverse[d] the trial court’s judgment insofar as it declared that Jerry’s beneficial interest in [the Desoto trust] passed to Judy upon Jerry’s death.” Byrom, 47 So.3d at 790. Judy filed an application, for rehearing, which the Court of Civil Appeals denied. Judy then filed a petition for a writ of certiorari with this Court on the ground that the case presented a material question of first impression. See Rule 39(a)(1)(C), Ala. R.App. P. We granted the writ to consider her argument that Ala.Code 1975, § 43-8-225(b), was applicable to the Desoto trust and that, under § 43-8-225(b), Jerry’s beneficial interest in the Desoto trust passed to her at Jerry’s death and not to Jerry’s estate.

Standard of Review

The trial court’s judgment and the decision of the Court of Civil Appeals turned on the interpretation and application of § 43-8-225(b). Because the issue before us presents a pure question of law, we review the matter de novo, without any presumption of correctness. Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001).

Analysis

Section 43-8-225(b), Ala.Code 1975, is an “antilapse” statute contained in the article of the Probate Code addressing the construction of wills. See Ala.Code 1975, Title 43, Article 8 (“Construction of Wills”). Section 43-8-225(b) states:

“Except as provided in section 43-8-224 if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.”

The Court of Civil Appeals concluded that because the Desoto trust was not a will, § 43-8-225(b) was inapplicable. Byrom, 47 So.3d at 788.

In Baldwin v. Branch, 888 So.2d 482 (Ala.2004), this Court considered the issue whether another antilapse statute, Ala. Code 1975, § 43-8-224, which is referenced in § 43-8-225 and which is also included within Article 8 of the Probate Code, should apply to a revocable trust. As this Court described it, § 43-8-224 “operates, in the case of a will, to prevent a lapse when a devisee dies before the testator.” 888 So.2d at 484. This Court held that § 43-8-224 did not apply to trusts. We explained that “there is no similar statutory provision to prevent a lapse of a gift made in a revocable trust,” that § 43-8-224 “mentions only wills, not trusts,” and that, “[t]herefore[,] the plain language of § 43-8-224 indicates that it does not apply to trusts.” 888 So.2d at 484. We further rejected the argument that we should follow some other “jurisdictions in which courts have found that an antilapse statute, on its face applicable only to wills, reaches trusts as well.” 888 So.2d at 485.

“This Court has previously expressed a reluctance to rewrite the Alabama Probate Code to accommodate the use of a revocable trust as a substitute for a will. In Russell v. Russell, 758 So.2d 533, 538 (Ala.1999), this Court refused to read into the Alabama Probate Code the ‘augmented estate concept’ rejected by the Legislature in 1982 when it reenacted the Probate Code. To hold that Alabama’s antilapse statute applies to trusts, this Court would have to invade the Legislature’s power to amend statutes. We are not willing to do so; therefore, Branches] ... argument that Alabama’s antilapse statute applies to trusts fails.”

Baldwin, 888 So.2d at 485.

The reasoning of Baldwin applies with equal force in the present case. By its terms, § 48-8-225 is applicable to wills, not trusts, and is thus inapplicable, absent a legislative act that directs its application to trusts.

Judy does not argue that Baldwin was erroneously decided. Instead, she notes that § 19-3B-112, Ala.Code 1975, which is part of the Alabama Uniform Trust Code, states:

“Except as otherwise provided in this chapter, the rules of construction under Title 43, Chapter 8, Article 8, and the miscellaneous provisions of Article 9 that apply in this state to the interpretation of and disposition of property by will also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.”

Judy’s argument as to the application of § 19-3B-112 in the present case is incorrect. The Alabama Uniform Trust Code, Ala.Code 1975, § 19-3B-101 et seq., including § 19-3B-112, was adopted in March 2006 but did not become effective until January 1, 2007, several months after the trial court entered the judgment at issue in this case. See Ala. Acts 2006, Act No. 2006-216, § 6 (“This act shall become effective January 1, 2007, following its passage and approval by the Governor, or its otherwise becoming law.”). Although the Uniform Trust Code contains a retroactivity provision that makes it applicable to, among other things, “judicial proceedings concerning trusts commenced before January 1, 2007,” under certain circumstances, see Ala.Code 1975, § 19-3B-1204(a)(3), neither § 19-3B-1204 nor § 19-3B-112 were in effect when the trial court entered its judgment. Thus, those provisions were not effective law at the time the trial court entered its judgment and therefore could not have provided the basis for an application by the trial court of § 43-8-225(b) to the Desoto trust.

Also, we must presume that the legislature was aware of this Court’s decision in Baldwin. For all that appears, its enactment of § 19-3B-112 was in response to this Court’s conclusion in Baldwin that “to hold that Alabama’s antilapse statute applies to trusts, this Court would have to invade the Legislature’s power to amend statutes.” 888 So.2d at 485. For whatever reason, the legislature chose to postpone the effective date of the Uniform Trust Code until January 1, 2007. Unless our unwillingness “to invade the Legislature’s power to amend statutes” has subsided since Baldwin, which it has not, we must respect the choice of the legislature in this regard.

In light of the fact that the above-referenced provisions of the Uniform Trust Code had not taken effect as of the date the trial court entered its judgment, the rationale of Baldwin provides the answer to the issue whether statutory antilapse provisions such as §§ 43-8-224 and 43-8-225, which by their terms are applicable only to wills, might apply to trusts. Thus, the Court of Civil Appeals’ decision as to the inapplicability of § 43-8-225(b) to the Desoto trust is correct.

Based on the foregoing, we affirm the judgment of the Court of Civil Appeals.

AFFIRMED.

COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.

      . The person who was nominated in Jerry’s will to serve as executor did not seek appointment as such. Paul Frederick was appointed by the court as administrator cum testamento annexo (administrator with the will annexed). Frederick was actually the second administrator cum testamento annexo; the first resigned because the ”[e]state appear[ed] ... to be unusually complex and requiring knowledge ... of trust and tax matters which is beyond the expertise of [the first administrator].”

      . Jerry had what appears to be a complex estate plan involving certain testamentary trusts, several inter vivos trusts (including the Desoto trust), and other planning devices or entities. The record reflects a variety of disputes between Jerry’s children and Judy, among others. We have recited only those facts necessary to resolve the issue before us.

      . One of the creditors of Jerry’s estate nominated Jerry T. Byrom, Jr., to serve as the successor to Frederick.

      . In addition to his argument concerning the application of § 43-8-225(b), the personal representative also challenged the trial court’s reliance on extrinsic evidence to determine that " 'the intent of Jerry and Judy as Settlors of [the] Desoto [trust], [was that] Jerry’s interest in [the] Desoto [trust] passed to Judy upon the death of Jerry.' ” Byrom, 47 So.3d at 787. The personal representative argued that the Desoto trust agreement reflected no such intent and that the agreement was not ambiguous so as to allow the admission of extrinsic evidence to prove such intent. Judge Bryan, who authored the main opinion in Byrom, and Judge Thomas agreed with the personal representative’s argument; the remaining judges concurred in the result. Id. at 788-91.
      Judy did not argue in her petition to this Court that she should have prevailed in the Court of Civil Appeals based on the alleged evidence of her and Jerry’s intent. Thus, we do not address that issue. The only issue we address concerns the applicability of § 43-8-225(b).

      . Section 43-8-224 provides in part that "[i]f a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by five days take in place of the deceased devi-see...." Like § 43-8-224, § 43-8-225 is intended to prevent the failure of a devise in a manner that would result in intestacy. See Commentary to § 43-8-225 (noting that before the enactment of § 43-8-224 the share of a deceased residuary devisee "went to the testator's next of kin according to the statute of distribution”).

      . The personal representative notes that Judy did not argue that § 19-3B-112 was applicable until she filed her application for rehearing in the Court of Civil Appeals. Thus, it is not clear whether the trial court was presented with the issue whether that section, along with § 19-3B-1204, might form a basis for applying § 43-8-225 to the Desoto trust.

      . Judy’s sole argument concerns the application of § 43-8-225(b); she does not argue that under common-law principles the rules of construction applicable to wills should also apply to trusts. Thus, we do not address that issue.

      . Even if § 19-3B-112 had been in effect as of the date the trial court entered its judgment, that section specifically states that the rules of construction applicable to wills only “apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.” Given the absence of a residuary clause in the Desoto trust itself, the application of § 43-8-225(b) arguably would not be "appropriate.”


author: MOORE, Judge.

text:
    Mark DAVIS v. Tonya BLACKSTOCK.
    2060017.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      Heath F. Trousdale, Florence, for appellant.
    Melinda Morgan Austin of Holt, Mussle-man, Holt & Morgan, Florence, for appel-lee.
   MOORE, Judge.

Mark Davis (“the father”) appeals from a judgment of the Lauderdale Circuit Court awarding Tonya Blackstock (“the mother”) primary custody of the parties’ child and modifying the father’s child-support obligation. We reverse and remand.

Facts and Procedural History

The father and the mother married on November 11, 2000. Four months later, while they were residing in Tennessee, the father and the mother separated. The mother was pregnant with the child at the time of the separation. Subsequently, a petition for divorce was filed in the Chancery Court for Lawrence County, Tennessee (“the Tennessee trial court”). Before the Tennessee trial court ruled on the divorce petition filed with that court, the father and the mother moved to Alabama, where the mother gave birth to the child on December 27, 2001.

On February 15, 2002, the Tennessee trial court entered a judgment divorcing the father and the mother. In essence, the Tennessee judgment granted the father and the mother joint custody, with the mother receiving primary physical custody and child support. In June 2002, while the father, the mother, and the child continued to reside in Alabama, the father petitioned the Tennessee trial court for a modification of its February 15, 2002, judgment with regard to custody. On September 3, 2003, the Tennessee trial court modified its divorce judgment by granting the father equal physical custody on a four-day rotating basis and terminating the father’s child-support obligation.

The mother appealed the September 3, 2003, judgment to the Tennessee Court of Appeals. On October 12, 2004, the Tennessee Court of Appeals issued an opinion and an order affirming that portion of the September 3, 2003, judgment that modified custody and vacating that portion of the judgment that modified the father’s child-support obligation. The Tennessee Court of Appeals remanded the case for a hearing to determine which parent should be the “primary residential parent” and whether child support should be awarded. See Davis v. Davis, (No. M2003-02312-COA-R3-CV) (Tenn.Ct.App.2004) (not reported in S.W.3d). The Tennessee trial court never acted on this mandate.

On February 6, 2006, the mother filed a petition for modification of custody and child support in the Lauderdale Circuit Court (“the Alabama trial court”). In response, on February 23, 2006, the father filed a petition for a custody hearing in the Tennessee trial court. Both parties filed motions to dismiss the other’s petition on the ground of lack of subject-matter jurisdiction. The mother argued that the Tennessee trial court no longer had jurisdiction over the custody issue because the father, the mother, and the child had resided in Alabama for the preceding four years. The father argued that the Alabama trial court could not exercise jurisdiction because the Tennessee court was continuing to exercise its jurisdiction. The Alabama trial court granted the father’s motion to dismiss, but it set aside its dismissal order after the mother alleged that the Tennessee trial court had yielded jurisdiction to Alabama as a more convenient forum and had dismissed the father’s custody-hearing petition.

The parties proceeded to a custody hearing in the Alabama trial court. At the hearing, the father requested that the mother be held in contempt for failing to abide by the Tennessee trial court’s September 3, 2003, judgment; he also requested that he be awarded primary physical custody of the child. The mother denied that she was in contempt and requested that she be awarded primary physical custody of the child. Following ore tenus proceedings, the Alabama trial court entered a judgment on September 1, 2006. The Alabama trial court’s judgment maintained joint legal custody, but it awarded the mother primary physical custody of the child and awarded the father visitation. The Alabama trial court further ordered the father to pay child support and to pay one-half of the uninsured-medical expenses of the child. The judgment also provided the father a credit of $1,338.93 to be applied to his share of the child’s uninsured-medical expenses.

Discussion

A. Whether the Alabama Trial Court Had Subject-Matter Jurisdiction Over the Custody Issue

The father first argues that the Alabama trial court did not have jurisdiction to modify the custody order entered on September 3, 2003, by the Tennessee trial court. The father bases his argument on two different grounds: 1) that the Tennessee trial court still had jurisdiction over the custody dispute because it had not yet acted on the mandate from the Tennessee Court of Appeals and 2) that under Tennessee’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“the Tennessee UCCJEA”), the Tennessee trial court had continuing exclusive jurisdiction over the custody issue.

As to the first argument, the father is correct that the Tennessee trial court had not yet acted on the mandate of the Tennessee Court of Appeals; however, the father fails to recognize that the mandate did not concern the custody dispute. The Tennessee Court of Appeals affirmed the modification of the custody arrangement and remanded the case solely for the purpose of having the Tennessee trial court determine which parent should be designated the primary residential parent for the purpose of determining child support. Thus, the issue of custody had been finally determined and was not before the Tennessee trial court on remand.

At the time the mother filed her custody-modification petition in the Alabama trial court, there was no simultaneous custody proceeding pending in the Tennessee trial court that could have had any effect on the subject-matter jurisdiction of the Alabama trial court. See Ala.Code 1975, § 30-3B-206. Hence, and considering further the father’s failure to cite any legal authority to support this position, see Rule 28(a)(10), Ala. R.App. P., we reject the father’s argument that the Alabama trial court did not have subject-matter jurisdiction because the Tennessee trial court had yet to act on the mandate of the Tennessee Court of Appeals.

The father next asserts that the Tennessee trial court had exclusive, continuing jurisdiction over the custody issue pursuant to Tenn.Code Ann. § 36-6-217, a part of the Tennessee UCCJEA. That statute provides, in pertinent part:

“(a) ... [A] court of this state which has made a child-custody determination consistent with this part has exclusive, continuing jurisdiction over the determination until:
“(1) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
“(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”

The father argues that because the Tennessee trial court did not make a determination under subsection (a)(1), it retained exclusive, continuing jurisdiction over the matter. However, the father overlooks the fact that the Tennessee statute (and the corresponding Alabama statute) provide alternative bases for terminating a court’s exclusive, continuing jurisdiction. Under subsection (a)(2), the Tennessee trial court loses continuing, exclusive jurisdiction once a court of another state determines that the child, the child’s parents, and any person acting as a parent no longer “presently” reside in Tennessee. The father concedes that all relevant parties resided in Alabama at the time the mother filed her petition in the Alabama trial court. See Peterson v. Peterson, 965 So.2d 1096, 1099 (Ala.Civ.App.2007) (“Continuing, exclusive jurisdiction under § 30-3B-202(a) is determined on the basis of the circumstances existing on the date a petition seeking a modification of a[ ] ... prior custody determination is filed.”); see also § 30-3B-202, Ala.Code 1975, Official Comment (“Jurisdiction attaches at the commencement of a proceeding.”).

Although the Alabama trial court did not make an express finding that the father, the mother, and the child all resided in Alabama, it denied the father’s motion to dismiss for lack of subject-matter jurisdiction based, in part, on the mother’s factual assertion that all relevant parties had resided in Alabama since 2001. Hence, the Alabama trial court at least impliedly determined that none of the relevant parties resided in Tennessee. That finding is supported by substantial evidence contained in the record. Consequently, the Tennessee trial court no longer retained exclusive, continuing jurisdiction over the custody issue at the time the mother filed her custody-modification petition in the Alabama trial court.

Having rejected both of the father’s arguments, we find that the Alabama trial court did not err by exercising jurisdiction over the mother’s petition to modify custody-

B. Whether There Was a Material Change Affecting the Child’s Welfare

“In cases in which a parent seeks a modification of a joint-custody arrangement, the parent must prove ‘ “a material change of circumstances of the parties since the prior [judgment] which change of circumstances is such as to affect the welfare and best interest of the child or children involved.” ’ ” Morgan v. Morgan, 964 So.2d 24, 34 (Ala.Civ.App.2007) (quoting Watters v. Watters, 918 So.2d 913, 916 (Ala.Civ.App.2005), quoting in turn Ponder v. Ponder, 50 Ala.App. 27, 30, 276 So.2d 613, 615 (Civ.1973)).

The evidence showed that at the time the 2003 custody judgment was entered, when the child was not yet two years old, the father resided in Decatur, Alabama, and the mother resided in Florence, Alabama. The child attended day care in Florence at First Day Childcare & Development Center (“First Day”). The father had testified in the 2003 hearing that he planned to move to Florence when the child got older.

Since the entry of the 2003 judgment, the father has remained a resident of Decatur, although he testified that he still plans to move to Florence before the child starts kindergarten. The mother and the father have alternated physical custody of the child every four days. The child cried at some early custody exchanges, but she has not regularly cried during exchanges since August 2004. The father arranged with the First Day staff to send him the child’s materials so that he could work with her on her projects, such as coloring, on the days she could not attend day care while in his custody.

The child participated in gymnastics in Decatur and attended church in both Decatur and Florence depending on which parent had custody. However, due to the custody arrangement, the child could not participate in tee ball and cheerleading. The child had also missed some day-care ceremonies, field trips, birthday parties, and church activities while in the father’s custody. The child complained to her mother about missing those events and the constant change of environment. Nevertheless, the child thrived in this arrangement. Witnesses testified that the child is a loving, caring, and smart child who is very progressed for her age. Both parties also agree that the other party enjoys a loving relationship with the child.

The child was to commence pre-kinder-garten school in the fall of 2006. The mother originally planned for the child to attend a different school, but ultimately she decided that the child would remain at First Day. Although the pre-kindergarten program is more structured than the daycare program the child had previously attended, the teacher who would be teaching the child’s class testified that there is a part-time program and that sometimes they are flexible with the days of attendance. The teacher further testified that she would not have a problem sending the father the child’s workbooks for him and the child to work on when she is in his custody.

Based on the totality of the evidence, we conclude that the mother failed to meet her burden of showing that a material change of circumstances had occurred that affected the child’s welfare since the last custody order. See, e.g., Watters v. Watters, 918 So.2d 913, 916-17 (Ala.Civ.App.2005). The evidence shows that the only change that has occurred has been the natural progression of the child to prekindergarten school. However, the mother has not demonstrated how this change, in the context of the joint-custody arrangement, has affected the child’s welfare or best interest. The evidence shows that the child could attend pre-kindergarten part-time and that the father could instruct the child on the days she did not attend. The child thrived in a similar arrangement in day care. The mother presented no evidence to indicate that the child would not continue to thrive while in pre-kindergarten under the same arrangement. The only other relevant evidence the mother presented showed that the child expressed anxiety at exchanges and that she would miss school, church, and extracurricular activities if the current custody arrangement was maintained. However, as the father points out, even under the physical-custody arrangement approved by the Alabama trial court, the child would still experience exchanges and would still miss activities.

Accordingly, we reverse the Alabama trial court’s modification of the 2003 custody judgment.

C. Child Support

Our reversal of the trial court’s judgment with regard to custody will necessarily impact the child-support award. Therefore, we remand this case for the Alabama trial court to reconsider its child-support award in light of this opinion.

REVERSED AND REMANDED.

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

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

      . The alleged order of the Tennessee trial court dismissing the father's petition and yielding jurisdiction to the Alabama trial court was not reduced to writing at the time the father brought this appeal. Hence, the record does not contain the alleged order, and we cannot consider this allegation as proven for purposes of this appeal.

      . The father does not argue that the Alabama trial court lacked subject-matter jurisdiction to modify his child-support obligation; hence, we will not address that point.

      . Section 30-3B-202, Ala.Code 1975, the corresponding section of Alabama’s UCCJEA, provides, in pertinent part:
      "(a) ... [A] court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203 has continuing, exclusive jurisdiction over the determination until:
      "(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships: or
      "(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”