source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Randell L. DICKSON v. Emily Vandiver DICKSON.
    2090314.
    Court of Civil Appeals of Alabama.
    Aug. 13, 2010.
    Rehearing Denied Oct. 29, 2010.

      Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    Joan-Marie Dean, Huntsville, for appel-lee.
   THOMPSON, Presiding Judge.

Randell L. Dickson (“the husband”) appeals from a judgment of the Madison Circuit Court divorcing him from Emily Vandiver Dickson (“the wife”). For the reasons discussed herein, we affirm the judgment in part, reverse the judgment in part, and remand the cause for the entry of a new judgment.

This is the second time this cause has been before this court. In the first appeal, this court affirmed, without an opinion, the trial court’s divorce judgment. Our supreme court reversed this court’s disposition of the appeal. Ex parte Dickson, 29 So.3d 159, 164 (Ala.2009). Pursuant to the supreme court’s mandate, this court reversed the trial court’s judgment and remanded the cause for further proceedings consistent with the supreme court’s decision. Accordingly, the trial court entered a new judgment on November 2, 2009, and it is from that judgment that the husband presently appeals.

In Dickson, the supreme court set out the following procedural and factual history':

“The parties met in 2000 and were married in 2001; both parties were 52 years old at the time of the marriage. The parties separated approximately three years later, in 2004; they divorced in 2006. There were no children from this marriage, but each party has adult children from a previous marriage.
“When the parties met in 2000, the husband was struggling financially. He had a real-estate and construction business that was losing money because the houses he built were not selling. The husband had borrowed substantial sums from his business partner to cover the costs incurred in connection with the unsold houses. In February 2000, the husband signed a note to his business partner in the amount of $140,000, which was secured by an assignment of the husband’s interest in Dickson Realty, Inc., Security Boys Properties, L.L.C., and Monrovia Farms Development, Inc. By 2006, the husband owed his business partner an additional $113,036 in unsecured debt.
“In August 2000, the husband sold his residence because he could no longer afford the mortgage payments, and he moved in with the wife. At that time, the husband agreed to share expenses with the wife ‘fifty-fifty.’ In December 2000, the husband executed a line-of-credit promissory note in favor of the wife, which provided that the husband would repay the wife for his share of certain expenses plus interest. Attached to the note was a ledger on which the parties periodically entered debits (e.g., the husband’s share of household expenses and certain major purchases) and credits. The husband testified that he did not intend for the line-of-credit arrangement to continue after the parties married, but the wife continued to enter debits and credits on the ledger until the parties separated in 2004.
“The parties disagree on the amount owed on the line-of-credit note at the time of the trial. The wife testified that the husband owed her $137,775. The husband testified that he owed the wife approximately $22,000 after attributing to him a credit for substantial tax savings resulting from the parties’ joint use of the husband’s prior years’ tax losses. It appears that the trial court agreed with the wife’s contention as to the amount owed; there is evidence in the record to support the wife’s contention.
“By 2004, the parties were having disagreements over money and over the conduct of the wife’s adult son, who had moved into the marital residence and later moved out. In July 2004, the husband moved out of the marital residence after the wife told him that she would allow her adult son to move back into the marital residence. Shortly thereafter, the husband purchased a house without making any down payment.
“In October 2004, the husband filed the present action, seeking a divorce and an equitable distribution of the parties’ assets. The wife filed an answer and a counterclaim, seeking a divorce and an equitable distribution of assets. Neither party requested periodic alimony or support. In October 2005, the wife filed an amendment to her counterclaim, seeking enforcement of the line-of-credit note. Approximately one week later, the husband filed a petition for bankruptcy, listing as creditors the wife, his business partner, certain credit-card creditors, and others. The husband’s bankruptcy petition sought, among other things, the discharge of the debt arising out of the line-of-credit note. In the bankruptcy proceeding, the wife objected to the discharge of the husband’s debt to her. It appears that, at the time of trial in this case, the bankruptcy proceeding concerning the line-of-credit note had not been resolved.
“The evidence in the record discloses that the husband’s separate estate, at the time of the trial, was approximately $22,000, including (1) personal property worth approximately $12,000, which was subject to a demand by the husband’s bankruptcy trustee that the husband pay $10,000 in lieu of forfeiture of his nonexempt personal property (which the husband valued at $9,150); (2) the house the husband purchased after he moved out of the marital residence, in which he had an equity of approximately $300; (3) a savings account at AmSouth Bank, with an approximate value of $10,000; (4) AmSouth Bank stock valued at approximately $4,400; and (5) a 401 (k) retirement account at AmSouth Bank (see discussion below), with a value of approximately $16,000. The husband’s vehicles, furniture, and similar items were leased or financed, and he had little or no equity in them.
“The record does not contain any evidence of the value, if any, of the husband’s interest in his three businesses. The husband testified that he had assigned his interests in those businesses to secure the $140,000 note to his business partner and that he had no equity interest in those businesses.
“Following the parties’ separation and before trial in June 2006, the husband began working for AmSouth Bank, with a base salary of $67,000. The husband received an incentive bonus of approximately $12,000 for 2004 and an incentive bonus in excess of $30,000 for 2005. There is evidence in the record indicating that the husband’s base salary for 2006 was projected to be approximately the same as it was in 2004 and 2005.
“During the marriage, the wife had been employed as a civil-service engineer with the United States Army, earning approximately $138,000 in 2004. Shortly before the trial, the wife voluntarily retired from her employment; she gave no reason for retiring other than the fact that she ‘had the number of years and the age factor.’ There is evidence in the record that the wife was receiving a pension of more than $6,000 per month before taxes. There does not appear to be any impediment to the wife’s seeking employment in the private sector.
“In July 2006, after a trial at which ore tenus evidence was presented, the trial court rendered a judgment divorcing the parties and awarding the wife (1) all of her separate property, all the parties’ jointly owned property, and certain of the husband’s separate property (including but not limited to all the husband’s savings account at AmSouth Bank and half of the husband’s AmSouth Bank stock), (2) alimony in gross in the amount of $137,775, less the amount received by the wife from the husband’s savings account (approximately $10,000), payable in monthly installments of $1,000, and (3) the sum of $16,266.40, for her attorney fees.[] The divorce judgment did not award periodic alimony to either party.

Dickson, 29 So.3d at 159-61.

The supreme court agreed with the husband’s contention that the “amount of alimony in gross awarded the wife by the trial court greatly exceeded the value of the husband’s present estate, ie., the husband’s estate as it existed at the time of the judgment,” id. at 162, and reversed this court’s no-opinion affirmance, writing:

“In its order, the trial court found that the husband’s current income and other current circumstances give him the financial ability to pay alimony-in-gross installments of $1,000 per month, going forward. We do not discern, however, from the trial court’s judgment a finding that the amount of the husband’s estate, as it existed at the time the judgment of divorce was entered, was sufficiently large to justify the $137,775 alimony-in-gross award, as entered by the trial court. Consistent with the discussion of the evidence as set forth above, our review of the record leads us to conclude that the record does not contain substantial evidence supporting such a factual finding. To the contrary, it is clear that the alimony-in-gross award made by the trial court substantially exceeded any value that could be drawn from the evidence regarding the husband’s estate at the time of the divorce.
“In [Ex parte] Hager[, 293 Ala. 47, 299 So.2d 743 (1974) ], this Court defined alimony in gross and periodic alimony as follows:
“ ‘ “Alimony in gross” is the present value of the wife’s inchoate marital rights — dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce. Borton v. Borton, [230 Ala. 630, 162 So. 529 (1935).] On the other hand, “periodic alimony” is an allowance for the future support of the wife payable from the current earnings of the husband.’
293 Ala. at 55, 299 So.2d at 750 (emphasis added). The Hager Court also stated that the award at issue ‘was intended to be, as denominated, “alimony in gross,” a property settlement award, compensating the wife only for the loss of her rights in the husband’s estate.’ 293 Ala. at 55, 299 So.2d at 751 (emphasis added). See also Daniel v. Daniel, 841 So.2d 1246, 1250 (Ala.Civ.App.2002) (alimony in gross is a form of property settlement and must be payable out of the present estate of the payor at the time of the divorce).
“In Zinnerman [v. Zinnerman], 803 So.2d [569,] 574 [ (Ala.Civ.App.2001) ], the Court of Civil Appeals reversed a judgment awarding alimony in gross because, ‘at the time of the divorce [the husband’s] estate was insufficient to satisfy the award of alimony in gross.’ The court stated:
“ ““ “Alimony in gross” is the present value of the wife’s inchoate marital rights — dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce.’ Murphy v. Murphy, 624 So.2d 620, 622 (Ala.Civ.App.1993), quoting Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974) (emphasis added [in Zinnerman ]).’
“803 So.2d at 574. See also Johnson v. Johnson, 840 So.2d 909, 912 (Ala.Civ. App.2002) (alimony in gross ““is payable out of the husband’s present estate as it exists at the time of the divorce ....’”’ (quoting Hager, 293 Ala. at 55, 299 So.2d at 750) (emphasis added in Johnson)); Epps v. Epps, 218 Ala. 667, 669,120 So. 150,151 (1929) (allowance of $100 per month was considered to be periodic alimony because it was ‘equivalent to [the wife’s] share in quite a considerable estate. The husband had no such estate.’).
“Based on the facts before us, it appears that the trial court erred by awarding the wife alimony in gross in an amount far exceeding the value of the husband’s estate at the time of the divorce. Accordingly, we reverse the judgment and remand the cause for further proceedings consistent with this opinion.

Dickson, 29 So.3d at 162-64.

On remand, the trial court amended its original divorce judgment by reducing the amount the husband was to pay the wife as alimony in gross from $137,775 to $67,000. The trial court’s order amending the divorce judgment also provided:

“Paragraph 9 of the Judgment of Divorce entered by this Court on the 21st day of July, 2006, references a judgment in favor of the [wife] and against the [husband] in the amount of Sixteen Thousand Two Hundred Sixty-Six and 40/100 Dollars ($16,266.40) representing attorney’s fees and expenses incurred by her in this cause. Said paragraph erroneously characterized this award as ‘alimony in gross.’ Under the facts of the case as it was originally presented, and as supported by applicable law, this Court finds that an award of attorney’s fees in favor of the [wife] and against the [husband] is warranted. Accordingly, any reference to ‘alimony in gross’ made in Paragraph 9 of the Judgment of Divorce is due to be deleted. The [wife] is, however, entitled to entry of a judgment for attorney’s fees in the amount of Sixteen Thousand Two Hundred Sixty-Six and 40/100 Dollars ($16,266.40) for which execution may issue as provided by law.”

The trial court’s order provided that all other provisions of the original divorce judgment would remain in full force and effect. The husband filed a postjudgment motion, which the trial court denied. The husband appeals.

The husband contends that the trial court erred in making an award to the wife of alimony in gross. He argues that the division of property contained in the original divorce judgment so favored the wife that any additional award of alimony in gross, over and above the property division, exceeded the trial court’s discretion. In making this argument, he discusses at length the evidence in the record indicating that the wife was in a better financial situation than he was, that both parties had made poor financial decisions during their marriage, and that neither party was at fault for the failure of the marriage.

Discussing the standard by which this court reviews property divisions and alimony awards in divorce cases, this court has stated:

“The law is clear that matters such as alimony and property division pursuant to divorce rest soundly within the discretion of the trial court and will not be disturbed on appeal except where such discretion was palpably abused. Montgomery [v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987) ]. The issues concerning alimony and the division of property are interrelated, and in determining whether the trial court abused its discretion as to either of those issues, the entire judgment must be considered. Montgomery, supra. Many factors, including the conduct of the parties regarding the cause of the divorce, are proper to consider in making an equitable division. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). The award is not required to be equal, but must be equitable in light of the evidence, and what is equitable rests within the sound discretion of the trial court. Ross [v. Ross, 447 So.2d 812 (Ala.Civ.App.1984) ]. An award that favors one party over the other is not in and of itself an abuse of discretion. Jordan v. Jordan, 547 So.2d 574 (Ala.Civ.App.1989).”

Boykin v. Boykin, 628 So.2d 949, 952 (Ala.Civ.App.1993).

In the original divorce judgment, the trial court awarded the husband his personal property; the house in which he was residing; his bank accounts, less a savings account that the trial court awarded to the wife; a specific vehicle and all other vehicles titled in his name; certain furniture, furnishings, and household goods; half the AmSouth Bank stock he had acquired during the course of the parties’ marriage; his retirement accounts; and any interest he possessed in Dickson Realty, Inc., and Security Boys, LLC. The trial court awarded the wife her personal property; the house in which she was residing (which she owned before the parties’ marriage); her bank accounts; the husband’s savings account, which was to be applied to the alimony-in-gross award; a specific vehicle and all other vehicles titled in her name; certain furniture, furnishings, and household goods; half the AmSouth Bank stock the husband had acquired over the course of the parties’ marriage; her retirement accounts; three time-share properties, along with the debt on each time share; and the sum of $3,500, which represented half the tax refunds the parties would have received from joint tax filings for the 2004 tax year. The original divorce judgment provided that each party was to be responsible for the debts he or she had incurred.

As noted, the trial court has broad discretion in fashioning an equitable division of the parties’ property in a divorce judgment. See Boykin, supra. Although the division of the parties’ property favored the wife, the trial court’s original award of $137,775 as alimony in gross was plainly based on the trial court’s agreement with the wife’s contention that the husband owed her $137,775. Given this debt, which, as the supreme court found in Dickson, was supported by the evidence, and which demonstrated that the wife contributed far more economically to the marriage than did the husband, we cannot say that the trial court exceeded its discretion when, in addition to favoring the wife in the division of the parties’ assets, it made an award to the wife of some amount of alimony in gross that would compensate her, at least to some extent, for the financial burden the husband had caused her.

This is not to say, however, that the trial court did not err as to the amount of alimony in gross it awarded the wife on remand, as the husband contends. The husband argues that the supreme court, in reaching its conclusion that his estate was not sufficient to cover the trial court’s award of alimony in gross in the original divorce judgment, concluded that the evidence of record demonstrated that the husband’s estate had a value of approximately $22,000 at the time of the divorce. The husband contends that, because, as the supreme court held in Dickson, an award of alimony in gross cannot exceed the value at the time of the divorce of the estate of the party against whom the. award is made, the trial court erred as a matter of law in awarding the wife $67,000 as alimony in gross following remand. We agree.

In arriving at the conclusion that the husband’s estate at the time of the divorce had a value of approximately $22,000, the supreme court stated that the husband’s estate was comprised of the following items:

“(1) personal property worth approximately $12,000, which was subject to a demand by the husband’s bankruptcy trustee that the husband pay $10,000 in lieu of forfeiture of his nonexempt personal property (which the husband valued at $9,150); (2) the house the husband purchased after he moved out of the marital residence, in which he had an equity of approximately $300; (3) a savings account at AmSouth Bank, with an approximate value of $10,000; (4) AmSouth Bank stock valued at approximately $4,400; and (5) a 401 (k) retirement account at AmSouth Bank ..., with a value of approximately $16,000.”

Dickson, 29 So.3d at 161 (footnote omitted). How the supreme court arrived at an approximation of $22,000 as the value of the husband’s estate is unclear, based on the foregoing list of assets. What is clear, however, is that, even if the supreme court’s approximation of the value of the husband’s estate appears to be low, the amount of alimony in gross the trial court awarded on remand is still greatly in excess of the value of the husband’s estate. Because an award of alimony in gross cannot exceed the value of the payor’s estate at the time of the divorce, and because the trial court’s award on remand of alimony in gross in the amount of $67,000 exceeds the value of the husband’s estate at the time of the divorce, the trial court’s award was in error and is due to be reversed.

The husband next contends that the trial court erred in awarding an attorney’s fee to the wife. “This court reviews an award of an attorney fee on an abuse-of-discretion standard.” Mahaffey v. Mahaffey, 806 So.2d 1286, 1292 (Ala.Civ.App.2001). The husband argues that the wife was not in need of an award of an attorney’s fee, and, as the husband points out, although not dispositive, a party’s need for an attorney’s fee is a factor the trial court should consider in determining whether to enter such an award. Scott v. Scott, 401 So.2d 92, 96 (Ala.Civ.App.1981).

In the present case, the trial court could have concluded that the wife was in need of an attorney’s fee. To begin with, evidence presented at trial indicated that the wife had provided a substantial amount of unreciprocated support for the husband during their short marriage and that the husband owed $137,775 to the wife, a debt for which he had filed for bankruptcy protection to avoid. The wife testified that she had recently retired from her job as a civil servant making a substantial salary and that, as a result of the retirement, her income was reduced. She also testified that she was in a worse financial situation than before the parties had married. Based on the circumstances of this case, we cannot say that the trial court erred in awarding the wife an attorney’s fee.

The husband also argues that the trial court erred as to the amount of the attorney’s fee it awarded the wife. He acknowledges that the wife submitted evidence indicating that she had incurred approximately $12,000 in attorney’s fees before trial, but he states that she did not prove that she had incurred at trial the approximately $4,000 in additional attorney’s fees the trial court awarded to her in the original divorce judgment. However,

“[t]he supreme court has held in divorce cases ‘that an award of an attorney fee will not be reversed merely because the record contains no evidence to prove the reasonableness of the amount awarded.’ Ex parte James, 764 So.2d [557,] 560 [ (Ala.1999) (plurality opinion) ] (citing Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637 (1964)). ‘ “There is a presumption that the ‘trial court has the knowledge from which it may determine the amount of a reasonable fee for an attorney, even though no evidence is presented as to its reasonableness.’ ” ’ Ex parte James, 764 So.2d at 560 (quoting Boykin v. Boykin, 628 So.2d 949, 952 (Ala.Civ.App.1993)).”

Benton v. King, 934 So.2d 1062, 1069 (Ala.Civ.App.2005). Based on the foregoing, we find no merit in the husband’s contention regarding the amount of the attorney’s fee awarded to the wife.

Finally, the husband contends that, even if the trial court did not err in awarding an attorney’s fee to the wife, the trial court erred when, on remand, it amended its original divorce judgment, in which it had indicated that the attorney’s fee constituted an additional award of alimony in gross, by deleting the reference to alimony in gross in the award of the attorney’s fee. This amendment of the original divorce judgment was improper, the husband argues, because it constituted a substantive change of the original judgment rather than the mere correction of a clerical error. We agree.

“ ‘The reversal of a judgment, or a paH thereof, wholly annuls it, or the part of it, as if it never existed.’ ” Raybon v. Hall, 17 So.3d 673, 676 (Ala.Civ.App.2009) (quoting Shirley v. Shirley, 361 So.2d 590, 591 (Ala.Civ.App.1978)) (emphasis added). Cf. 14A Stephen M. Flanagan, Cyclopedia of Federal Procedure § 69.30 (3d ed. 1984) (“A decision of an appellate court, although in terms a ‘reversal’ of the judgment, is to be construed as a reversal in fact only with respect to so much of the lower court’s judgment as the reviewing court disapproves of, and as an affirmance in other respects ....” (footnote omitted)). No party appealed the original divorce judgment’s characterization of the award of attorney’s fees to the wife as an award of alimony in gross, and, as a result, on remand, that characterization remained valid and binding. See Woolwine v. Woolwine, 549 So.2d 512, 514 (Ala.Civ.App.1989), wherein this court stated:

“The husband contends that the wife is not entitled to an award of attorney’s fees because the original decree wherein attorney’s fees were awarded was annulled in its entirety on appeal and the trial court’s order rendered upon remand did not reinstate said award. This argument is based upon case law which holds that a judgment reversed on appeal is annulled in its entirety. Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 119, 47 So.2d 449 (1950); Price v. Simmons, Adm’r, 21 Ala. 387 (1852). We would note, however, that the rule of law contained in the cases proffered by the husband was qualified in Shirley v. Shirley, 361 So.2d 590, 591 (Ala.Civ.App.1978), as follows: ‘The reversal of a judgment, or a part thereof, wholly annuls it, or the part of it, as if it never existed.’ (Emphasis added.)
“This court, on the parties’ prior appeal, only addressed and reversed the trial court’s findings with regard to the antenuptial agreement. Consequently, only those portions of the decree which were contrary to the antenuptial agreement were affected. AGM Drug Co. of Alabama v. Dobbs, 277 Ala. 493, 172 So.2d 379 (1965). Since this court did not address the trial court’s power to award attorney’s fees, we find that the husband is still legally obligated under the original decree to pay the wife the attorney’s fees awarded therein.”

(Final emphasis added.)

Because, on remand, the trial court’s characterization of the award of an attorney’s fee as an award of alimony in gross remained a valid portion of the trial court’s original divorce judgment, the trial court was not free simply to rewrite that portion of its judgment in an effort to avoid the limitation on the award of alimony in gross identified by the supreme court in Dickson. We recognize that it very well could be that the payment of a spouse’s legal fees is not an appropriate basis for an award of alimony in gross. However, in the prior appeal, neither party argued that the trial court’s characterization of the attorney’s fee as an award of alimony in gross was error, and, as a result, that characterization was not affected by the appeal.

We note the wife’s argument that a trial court is always free to interpret, implement, and enforce its own judgments and to clarify its judgments so as to effectuate their original intent. Wife’s brief at 44 (citing Hallman v. Hallman, 802 So.2d 1095, 1098 (Ala.Civ.App.2001), and Garris v. Garris, 643 So.2d 993, 994 (Ala.Civ.App.1994)). However, the plain language of the original judgment with regard to attorney’s fees, even if it is not legally sound, clearly indicates that the trial court considered the award of the attorney’s fee to the wife to be part of its alimony-in-gross award, Dickson, 29 So.3d at 162 n. 3, and no amount of interpretation, implementation, and enforcement justifies the trial court’s subsequent amendment of the original judgment to consider the attorney’s fee award as something other than an award of alimony in gross. The wife also argues that the trial court, in amending its original judgment to change the nature of the attorney’s fee award, was merely resolving an ambiguity in the original judgment. However, even if we were to agree with the wife that the original judgment was ambiguous in its treatment of the attorney’s fee award, the language it employed in the original judgment does not permit an interpretation of that provision that treats the attorney’s fee award as something other than an award of alimony in gross.

We conclude that the trial court, in re-characterizing its attorney’s fee award to the wife in its order on remand, was not engaged in interpreting, implementing, enforcing, or clarifying its original divorce judgment but, instead, that its new judgment constitutes an alteration of the fundamental nature of the attorney’s fee award. In this respect, the trial court erred to reversal.

Based on the foregoing, we affirm the trial court’s decision to award the wife alimony in gross and an attorney’s fee, we reverse the amount of alimony in gross the trial court awarded the wife, in its judgment on remand, we reverse the trial court’s recharacterization of the award of an attorney’s fee to the wife as something other than alimony in gross, and we remand the cause to the trial court for the entry of a judgment consistent with this opinion.

The appellee’s request for an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . The portion for the divorce judgment awarding the wife an attorney’s fee provided:
      "9. The [husband] shall pay as additional alimony in gross to the [wife] the sum of Sixteen Thousand Two Hundred Sixty Six and 40/100 ($16,266.40) Dollars representing attorney's fees and expenses incurred by her in this cause. Judgment is entered in favor of the [wife] and against the [husband] for said amount all for which execution may issue as provided by law.”

      "1The trial court did not make an express finding as to the amount owed under the line-of-credit note, but it awarded the wife alimony in gross in the exact amount she claimed the husband owed her, and it referred to the note in the paragraph explaining its reasons for the award of alimony in gross.

      "2The record does not disclose the resolution of the negotiation concerning payment for tire husband's nonexempt property.”

      "3 A fortiori, if the additional $16,266.40 awarded the wife by the trial court for attorney fees is considered part of the alimony-in-gross award (which is the way the trial court considered it), the resulting total of $154,041.40 would exceed by that much more the value of the husband’s estate as it existed at that time.

      “4 In general, an award of alimony in gross ‘must satisfy two [other] requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’ Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). Those two requirements do not appear to be at issue in this case.”

      . We note the wife's argument that this court is not bound by the supreme court's determination of the value of the husband's estate because, she asserts, that finding was dicta. We disagree that the supreme court's determination constituted dicta. For the supreme court to determine that the trial court's original award of alimony in gross exceeded the value of the husband’s estate, it was necessary for the supreme court to determine, based on the evidence of record, the value of the husband’s estate. It did so, and we will not deviate from the supreme court's conclusion in this regard.


author: BRYAN, Judge.

text:
    Ex parte MOBILE COUNTY BOARD OF SCHOOL COMMISSIONERS. (In re Mobile County Board of School Commissioners v. Barry Long).
    2090759.
    Court of Civil Appeals of Alabama.
    Aug. 13, 2010.
    Certiorari Denied Oct. 8, 2010 Alabama Supreme Court 1091643.

      Edgar P. Walsh of The Atchison Firm, P.C., Mobile, for petitioner.
    Daniel L. McCleave of McCleave Den-son Shields, L.L.C., Mobile; and Henry H. Caddell of Thiry & Caddell, Mobile, for respondent.
   BRYAN, Judge.

The Mobile County Board of School Commissioners (“the Board”) terminated the employment of Barry Long, a nonpro-bationary employee under the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“the FDA”). Pursuant to provisions in the FDA, Long contested his dismissal, and a hearing officer was selected to conduct a de novo hearing. See Ala.Code 1975, §§ 36-26-103(b) and -104(a). Following the hearing, the hearing officer issued a decision determining that the Board, in dismissing Long, had failed to comply with its reduction-in-force policy (“the RIF policy”) and its reduction-in-force protocol (“the RIF protocol”). Accordingly, the hearing officer overturned the Board’s dismissal of Long. The Board appealed the hearing officer’s decision to this court, and this court reversed the decision and remanded the case to the hearing officer “for further proceedings consistent with” our opinion. Mobile County Bd. of School Comm’rs v. Long, 46 So.3d 6, 14 (Ala.Civ.App.2010) (“Long”).

On remand to the hearing officer, the Board and Long disagreed as to whether the hearing officer may hold another evidentiary hearing to determine whether the Board erred in dismissing Long. The hearing officer determined that this court, by remanding the case “for further proceedings,” intended for there to be an evidentiary hearing on remand. The Board then petitioned this court for a writ of mandamus directing the hearing officer to issue a decision in the Board’s favor without holding an evidentiary hearing. We grant the petition and issue the writ.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

The issue in this case is whether the hearing officer may hold an evidentia-ry hearing on remand following this court’s decision in Long. Initially, we address Long’s argument that the FDA requires this court, in reviewing a hearing officer’s decision on appeal, either to affirm the decision or to remand the case for another evidentiary hearing. Section 36-26-104(b), Ala.Code 1975, provides, in pertinent part: “The decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of [the FDA].” (Emphasis added.) Ordinarily, the use of the word “may” indicates a discretionary or permissive act, rather than a mandatory act. American Bankers Life Assurance Co. v. Rice Acceptance Co., 739 So.2d 1082, 1084 (Ala.1999). See also Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098-99 (Ala.2003) (stating that our supreme court has long recognized that the word “may” denotes a permissive alternative rather than a mandatory restriction). The plain language of § 36-26-104(b) indicates that this court has the discretion to remand a case to a hearing officer to conduct another evidentiary hearing if this court finds that hearing officer’s decision to be arbitrary and capricious. Contrary to Long’s assertion, § 36-26-104(b) does not require this court to remand the case for another evidentiary hearing if we find that a hearing officer’s decision is arbitrary and capricious.

In Ex parte Queen, 959 So.2d 620 (Ala.2006), our supreme court addressed the circumstances under which a trial court may conduct a new trial or an evidentiary hearing on remand. Although Ex parte Queen involved a remand to a circuit court and not to a hearing officer, the principles discussed in that case are applicable to this case. Our supreme court stated:

“In Ex parte Edwards, [727 So.2d 792, 794-95 (Ala.1998) ], this Court held that when an appellate court remands a case, the trial court does not have the discretion to conduct a new trial or an eviden-tiary hearing.... Instead, after a case is remanded, the trial court may enter ‘ “ ‘[n]o judgment other than that directed or permitted by the reviewing court.... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence.’ ” ’ Id. at 794 (quoting Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983), quoting in turn 5 Am.Jur.2d Appeal & Error § 991 (1962)).
“.... [I]n Ex parte Alabama Power Co., [431 So.2d 151, 155 (Ala.1983) ], ... [t]he [Alabama Supreme] Court ... stated the rule of law regarding a trial court’s authority to order a new trial on remand:
“ ‘ “ ‘Where ... the cause is remanded with directions as to the judgment to be entered, such judgment should be entered without a new trial.’ 13 Ency. Plead. & Pract. p. 854. ‘Where a particular judgment is directed by the appellate court, the lower court is not acting of its own motion, but in obedience to the order of its superior.... Public interests require that an end shall be put to litigation, and when a given cause has received the consideration of a reviewing court, has had its merit is determined, and has been remanded with specific directions, the court to which such mandate is directed has no power to do anything but obey, othenuise, litigation would never be ended.’ 2 R.C.L. p. 289.” ’
431 So.2d at 155 (quoting Kinney v. White, 215 Ala. 247, 248-49, 110 So. 394, 394 (1926)) ([first] emphasis added). In other words, a trial court does not have the authority to reopen for additional testimony a case that has been remanded to it, except where expressly directed to do so.”

959 So.2d at 621-22 (second emphasis added).

We now address whether this court actually ordered the hearing officer to conduct an evidentiary hearing when we remanded the case in Long. In Long, we stated, in pertinent part:

“The hearing officer determined that the Board failed to comply with the RIF policy and the RIF protocol by dismissing Long[, who was employed as a nonprobationary ‘programmer,’] while retaining Patrick Byrne, who was employed as a probationary ‘programmer/analyst’ .... Pursuant to the RIF policy and the RIF protocol, whether the hearing officer’s determination is correct depends on whether Long is qualified to hold Byrne’s position of programmer/analyst. ...
“... Long failed to rebut the Board’s evidence indicating that he is not qualified to hold the position of programmer/analyst. Long did not present evidence establishing that he meets each qualification to perform Byrne’s job. Therefore, we must conclude that the record does not support the hearing officer’s finding that Long is qualified to be a programmer/analyst. Accordingly, contrary to the hearing officer’s determination, the Board, acting pursuant to the RIF policy and the RIF protocol, was not obligated to retain Long, a non-probationary programmer, in place of Byrne, a probationary programmer/analyst.
“... [Contrary to the hearing officer’s determination, the record indicates that the Board complied with the RIF policy and the RIF protocol in dismissing Long. Therefore, we reverse the decision of the hearing officer overturning the Board’s dismissal of Long, and we remand the case to the hearing officer for further proceedings consistent with this opinion.”

46 So.3d at 12-14 (footnotes omitted).

In reversing the hearing officer’s decision in Long, this court did not expressly direct the hearing officer to conduct an evidentiary hearing on remand. Instead, we determined that “the record indicates that the Board complied with the RIF policy and RIF protocol in dismissing Long,” and we “remand[ed] the case to the hearing officer for further proceedings consistent with” our opinion. 46 So.3d at 14. By using the term “further proceedings,” this court directed, albeit somewhat imprecisely, the hearing officer to issue a decision in favor of the Board. See, e.g., Ex parte Edwards, 727 So.2d 792, 794-95 (Ala.1998) (stating that this court’s remanding a particular case for “‘further proceedings consistent with’ ” its opinion contemplated the entry of a judgment without holding a new trial or an evidentia-ry hearing and that such remand language was commonly used by appellate courts); and Murphree v. Murphree, 600 So.2d 301, 303 (Ala.Civ.App.1992) (stating that, “given the facts and the language of the opinion, ‘further proceedings’ meant a reduction in the amount of child support awarded”). Accordingly, we grant the petition for a writ of mandamus, issue the writ, and direct the hearing officer to issue a decision in favor of the Board upholding Long’s dismissal.

PETITION GRANTED; WRIT ISSUED.

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


author: MOORE, Judge.

text:
    CITY OF GADSDEN v. Lawrence SCOTT.
    2090567.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.

      Howard B. Warren of Turnbach, Warren, Roberts & Lloyd, P.C., Gadsden, for appellant.
    Daniel B. King of King & King Attorneys, P.C., Gadsden, for appellee.
   MOORE, Judge.

The City of Gadsden (“the City”) appeals from a judgment of the Etowah Circuit Court (“the trial court”) awarding worker’s compensation benefits to Lawrence Scott. We reverse.

Relevant Facts

Scott was born on March 25, 1950, and was 59 years old at the time of the trial. According to Scott, he began working as a police officer for the City in November 1976. On or about August 21, 2001, Scott participated in an in-service training exercise involving restraint maneuvers. When a maneuver was performed on Scott by Barry Thomas, Scott’s right wrist made a popping sound. Scott testified that he had joked with Thomas that Thomas had broken Scott’s hand but that Scott had not really thought it was broken, although it did hurt. Scott did not report the injury to the City at that time. Scott stated that he had had some discomfort and swelling from the injury around the time the incident had occurred but that he “got over” that injury and continued to perform his normal work duties for the City.

According to Scott, he began having some pain and discomfort in his right wrist in 2004, and he visited his doctor, Dr. Kenny Smith, regarding the problems he was having with his wrist around that time. Dr. Smith testified in his deposition that, based on his notes, Scott had complained about his right wrist in April 2004. Dr. Smith stated that, at the April 2004 visit, he had x-rayed Scott’s wrist and had diagnosed Scott with arthritis. Dr. Smith stated that, according to his notes from June 21, 2004, Scott was unable to identify an injury that would account for the pain in his right wrist and that an X-ray revealed that Scott had a space between two bones in his wrist, or a “widening of the scaphoid lunate disk.” Scott testified that, after his wrist became more painful in June 2004, Dr. Smith referred Scott to Dr. William Stewart, an orthopedic surgeon. Scott stated that Dr. Smith had scheduled more than one appointment for him with Dr. Stewart before he actually visited Dr. Stewart for the first time because, Scott stated, he “didn’t want to get cut or anything.”

Dr. Stewart’s notes, dated October 1, 2004, reveal that Scott described the incident that had occurred on August 21, 2001, to Dr. Stewart; that Scott stated to Dr. Stewart that he had “felt something pop and hurt real violently on the dorsal aspect of his right wrist” at that time; that his wrist had “swelled up and bothered him a pretty good bit at the time but it seemed like it calmed down at a later point”; and that “[a]fter that it continued to act up and it has continued to bother him now to a worsening degree.” Dr. Stewart further stated in his October 1, 2004, notes that Scott has “probably got a proximal row carpal instability from an old ligament injury and is no[w] beginning to produce some arthritic changes.” Dr. Stewart’s notes, dated October 15, 2004, reveal that Dr. Stewart determined that Scott had “radial carpal joint proximal row disruption,” “widening of the scaphoid lunate gap on the dorsal view” of his right wrist, and “narrowing of the articular cartilage at the proximal carpal row.” Dr. Stewart’s notes further stated that Scott “has so much swelling on the under surface of the wrist that he is developing a carpal tunnel syndrome .... This would clearly be secondary to the trauma of the original injury.” Dr. Stewart’s notes, dated November 1, 2004, state that Scott “does have a carpal tunnel syndrome which is probably secondary to his pathology of the wrist.”

According to Scott, Dr. Stewart performed an MRI on Scott and informed Scott that he had bones separated in his wrist. Dr. Stewart performed surgery, or a “proximal row fusion with a carpal tunnel release,” on Scott’s right hand/wrist on November 17, 2004; Scott testified that his regular health insurance paid for that surgery. According to Scott, Dr. Stewart operated on the top and the bottom of his hand and put a “spider plate” in his hand. Dr. Stewart performed a second surgery, i.e., a “radial styloidectomy,” on Scott’s right wrist on March 14, 2005. Scott also testified that the spider plate Dr. Stewart had placed in Scott’s hand became loose and that Dr. Victoria Masear, a hand specialist, had performed surgery on his wrist on March 30, 2006, and had removed the screws from that spider plate. Scott testified that he had not been back to visit Dr. Stewart or Dr. Masear in two or three years at the time of trial.

Scott submitted his first report of injury to the City on December 13, 2004. In that report, Scott stated that the injury had occurred on or about August 21, 2001, that his disability began on November 17, 2004, and that he had notified the City on November 24, 2004. Scott testified that, once his claim was reported to the City, someone had telephoned him to investigate the circumstances of the incident and, Scott said, his statement had been recorded. The City submitted a transcription of that statement at trial. Scott began receiving retirement benefits beginning August 1, 2005. Janice Crim, the director of risk management for the City, testified that Scott had received disability retirement. Scott testified, however, that he was eligible for regular retirement because he had worked for the City for over 25 years.

Scott testified that he had not missed a day of work because of his right-hand and wrist problems until November 16, 2004. Scott testified that, by the time of his last day of work in November 2004, he was a Field Sergeant. According to Scott, his duties at that position included arriving to a shift early and assigning beats and completing all the payroll and overtime slips for everybody on that shift. He stated that his job required him to use his right hand repetitively on a daily basis.

An office note dated June 1, 2005, of Dr. Michael K. Morris, a doctor of osteopathic medicine, which was submitted into evidence, stated that Scott had sustained an injury to his wrist; Dr. Morris opined at that time that he was concerned that Scott’s physical limitations cquld place him and his fellow officers in potential danger. Dr. Moms noted further that, in his opinion, Scott could not “perform all the essential job duties expected of him as a police officer.”

Procedural History

Scott filed a complaint against the City and a number of fictitiously named defendants on November 16, 2006, requesting worker’s compensation benefits from the City. The City filed an answer on December 8, 2006, asserting a number of affirmative defenses; specifically, the City asserted, among other things, that the applicable statute of limitations had run; that Scott had failed to comply with the notice requirements of the Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975; and that the City was claiming a setoff pursuant to § 25-5-57(c), Ala.Code 1975. The City filed a motion for a summary judgment on August 21, 2008; that motion was denied on April 1, 2009.

A trial was held on November 10, 2009. On November 17, 2009, the trial court entered an order finding that Scott had “suffered a compensable injury to a scheduled member — his right hand,” overruling the City’s objections based on the statute of limitations and the lack of notice, denying Scott’s claim that he is permanently disabled under the Act, and ordering both parties to submit proposed final judgments within 20 days of the entry of the order. On December 29, 2009, the trial court entered a judgment denying the City’s defense that the statute of limitations had run; denying Scott’s claim that he has a 100% impairment to his right hand; denying Scott’s claim that he was “temporarily totally disabled”; finding that Scott had suffered a cumulative-stress injury to his right hand that had resulted in a 75% impairment to his right hand; ordering that court costs be paid by the City; finding the City responsible for all Scott’s medical, surgical, prescription, vocational, and other expenses in regard to his injury as set out in § 25-5-58, Ala.Code 1975; ordering that Scott’s attorney’s fees amounting to 15% of his recovery be paid in a lump-sum amount; and ordering the City’s attorney to prepare an amended judgment setting out the moneys due Scott and Scott’s attorney.

The trial court entered an amended judgment on January 11, 2010, which awarded Scott $28,050 in lump-sum disability benefits; awarded an attorney’s fee of $4,207.50, payable from Scott’s award; allowed Scott’s attorney to deduct from Scott’s award the reasonable cost of case preparation; and taxed costs as paid. The City filed a motion to alter, amend, or vacate the judgment on January 21, 2010, reasserting its arguments regarding the statute of limitations, notice, and its entitlement to a setoff and asserting that there were no facts recited in the trial court’s judgment supporting the conclusions therein. On February 1, 2010, the trial court entered a second amended judgment that included findings of fact and conclusions of law. In that second amended judgment, the trial court determined, among other things, that

“there is in fact clear and convincing evidence that as a direct and proximate result and consequence of the work that [Scott] performed for the [City] as a police officer, involving the repetitive use of his right hand, [Scott] suffered severe permanent cumulative stress right carpal tunnel injuries, with the last date [Scott] suffered same was on November 16, 2004, that caused him such constant and severe pain that in fact he suffered a 75% loss of the use of his right hand.”

The trial court further determined that Scott should be compensated under § 25-5-57(a)(3)a.l2., Ala.Code 1975, for the total loss of use of his right hand, that Scott was entitled to regular retirement, and, thus, that the City was not entitled to any setoff against Scott’s workers’ compensation benefits. The City filed a postjudgment motion on February 9, 2010; that motion was denied on February 11, 2010. The City filed its notice of appeal to this court on March 10, 2010.

Standard of Review
“Section 25 — 5—81(e), Ala.Code 1975, provides the standard of review in a workers’ compensation case:
“ ‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).’
“Landers v. Lowe’s Home Ctrs., Inc., [14] So.3d [144, 151] (Ala.Civ.App.2007). ‘This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.’ Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).”

MasterBrand Cabinets, Inc. v. Ruggs, 10 So.3d 13, 16-17 (Ala.Civ.App.2008).

Discussion

The City identifies six issues on appeal: (1) whether Scott’s worker’s compensation claim was barred by the statute of limitations; (2) whether Scott timely notified the City of his injury pursuant to § 25-5-78, Ala.Code 1975; (3) whether the City is entitled to a setoff of the workers’ compensation benefits due Scott in accordance with § 25-5-57(c)(l), Ala.Code 1975; (4) whether the evidence supports a finding of a cumulative-stress injury; (5) whether the evidence supports the trial court’s finding that Scott suffered a 75% loss of use of his right hand; and (6) whether the trial court’s findings of fact are supported by the evidence presented to the trial court.

Because these issues are potentially dispositive of the entire appeal, we will first address the City’s arguments regarding the statute of limitations and notice. In workers’ compensation cases, an injured employee generally has two years from the date of the accident, i.e., the work-related event causing the injury, see, e.g., Jackson v. Delphi Auto. Sys., 42 So.3d 1264, 1265 (Ala.Civ.App.2010), to file a verified complaint seeking compensation. See § 25-5-80, Ala.Code 1975. However, in the case of cumulative-physical-stress injuries, the two-year statutory period commences on the “date of the injury,” id., which has been defined as the “date of the employee’s last exposure to the injurious job stimulation.” Dun & Bradstreet Corp. v. Jones, 678 So.2d 181, 185 (Ala.Civ.App.1996). In this case, the trial court found that Scott had sustained a repetitive-use injury to his hand, with the last on-the-job injurious exposure occurring on November 16, 2004, which would bring the complaint, filed on November 16, 2006, within the statute of limitations for cumulative-stress injuries. The City argues, however, that Scott did not present sufficient evidence to support a claim that his hand injuries resulted from cumulative physical stress. The City further argues that the evidence indicated that the injuries resulted from the training-exercise incident occurring in 2001, making the November 16, 2006, complaint untimely by over three years.

In order to prove that an injury arose from work-related cumulative trauma, an employee must present clear and convincing evidence of legal and medical causation. Valtex, Inc. v. Brown, 897 So.2d 332, 334 (Ala.Civ.App.2004); Safeco Ins. Co. v. Blackmon, 851 So.2d 532, 537 (Ala.Civ.App.2002); and § 25-5-81(c), Ala. Code 1975. “Clear and convincing” evidence is

“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.”

§ 25-5-81(c), Ala.Code 1975.

“To establish legal causation, the employee must prove that ‘the performance of his or her duties as an employee exposed him or her to a danger or lisk materially in excess of that to which people are normally exposed in their everyday lives.’ Ex parte Trinity Indus.,. Inc., 680 So.2d 262, 267 (Ala.1996). To establish medical causation, the employee must prove that the danger or risk to which the employee was exposed ‘ “was in fact [a] contributing cause of the injury” ’ for which benefits are sought. Id. at 269 (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729, 782 (Civ.1975)).”

Madix, Inc. v. Champion, 927 So.2d 833, 837 (Ala.Civ.App.2005). On appeal, when an employer challenges a finding that an employee has proven a work-related cumulative-trauma injury, this court reviews the record to determine whether the trial court, based on its weighing of the competing evidence, reasonably could have been clearly convinced that cumulative trauma in the employment legally and medically caused the injury. Ex parte McInish, 47 So.3d 767, 770 (Ala.2008).

After thoroughly reviewing the record, we find that Scott presented insufficient evidence to support a claim that his hand injuries resulted from cumulative trauma on the job. To find legal causation, the trial court would have had to have been clearly convinced from the evidence that the office duties performed by Scott exposed Scott to a danger of incurring the hand injuries he sustained, i.e., a scaphoid lunate injury and carpal tunnel syndrome, which was greater than the risk of such injuries experienced by persons in their everyday lives. Scott testified that his duties as a sergeant in the City of Gadsden Police Department included coming in to a shift early and making all of the assignments and preparing all of the payroll and overtime slips for everybody on that shift. He further testified that his job required him to use his right hand repetitively on a daily basis. However, the record contains no evidence indicating that Scott, by using his hand in the frequency and manner in which he did while working, increased his likelihood of acquiring the injuries for which he sought compensation. To find legal causation, the trial court would have had to surmise that Scott’s job duties legally caused his hand injuries. However, a finding of legal causation cannot be based on mere speculation, conjecture, or surmise. Wal-Mart Stores, Inc. v. Chamless, 737 So.2d 467, 469 (Ala.Civ.App.1999).

Perhaps recognizing the lack of evidence of legal causation, Scott argues that, as a matter of law, carpal tunnel syndrome should be treated as a cumulative-trauma injury. The legislature does characterize carpal tunnel syndrome as a form of cumulative-physical-stress disorder that can result from on-the-job exposure. See 1992 Ala. Acts, Act No. 92-537, § 1. However, in Ex parte USX Corp., 881 So.2d 437, 441-43 (Ala.2003), our supreme court noted that carpal tunnel syndrome can also result from a one-time accident. See Millry Mill Co. v. Manuel, 999 So.2d 508, 512 n. 3 (Ala.Civ.App.2008) (“Carpal tunnel syndrome may also be caused by a onetime acute trauma or accident.”). Our supreme court has held that the particular factual evidence in the record, not any abstract law, dictates whether carpal tunnel syndrome should be classified as an accidental personal injury or a cumulative-physical-stress disorder. Ex parte USX Corp., 881 So.2d at 441-43. Hence, the legislative reference to carpal tunnel syndrome as a type of cumulative-physical-stress disorder did not relieve Scott, in this case, of the burden of proving legal causation.

Because we find no evidence of legal causation, we find no need to discuss medical causation at length. Suffice it to say that Scott presented no evidence indicating that his scaphoid lunate injury resulted from cumulative work-related trauma and that the evidence could not have clearly convinced the trial court that the office duties Scott performed while working for the City caused or contributed to his carpal tunnel syndrome. As the City argues, the evidence indicates that Scott injured his scaphoid lunate in the 2001 training exercise and that that injury caused the constriction of Scott’s carpal tunnel. Scott presented no medical or other evidence to explain how his job duties, in fact, also contributed to the carpal tunnel syndrome.

We also need not delve into any possible ground for finding that Scott timely filed a claim based on the 2001 accident. See American Cyanamid v. Shepherd, 668 So.2d 26, 28 (Ala.Civ.App.1995) (holding that statute of limitations begins to run in latent injury cases when the “ ‘claimant, as a reasonable person, should recognize the nature, seriousness, and compensable character of his injury or disease’ ” (quoting 2B A. Larson, The Law of Workmen’s Compensation § 78.41(a) (1989))). The evidence is undisputed that Scott did not notify the City of his 2001 accident within 90 days of that accident. The last sentence of § 25-5-78, Ala.Code 1975, provides:

“Notwithstanding any other provision of this section, no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident or, if death results, within 90 days after the death.”

The language used in that sentence is mandatory, and, thus, a failure to provide notice within 90 days extinguishes all claims for compensation, regardless of the reason given by the injured worker for the failure to provide timely notice. See Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 909 (Ala.Civ.App.1994). It is undisputed that Scott did not provide the City notice of the 2001 accident within 90 days of its occurrence. Hence, Scott could not maintain any claim for compensation based on the 2001 accident, even if the claim was not barred by the statute of limitations.

Based on the foregoing, we conclude that the trial court erred in awarding Scott any compensation. Accordingly, we reverse the judgment insofar as it awards Scott permanent-partial-disability benefits, and we remand the case for the trial court to enter a new judgment consistent with this opinion.

REVERSED AND REMANDED.

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

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

      . Although some caselaw has treated injuries to the wrists as causing a loss of, or a loss of use of, an arm, see Carter v. Southern Aluminum Castings, 626 So.2d 636 (Ala.Civ.App.1993), in the present case the trial court ruled that Scott’s wrist injury had caused a 75% loss of use of Scott’s hand. Scott did not appeal that ruling, so we are not asked to determine whether the trial court properly classified the wrist injury as a hand injury. Therefore, throughout this opinion, we refer to the wrist injury as a hand injury.

      . Based on our disposition, we pretermit any discussion of the remaining issues raised by the City.


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

text:
    S.J. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2090515.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.

      Douglas L. Patterson, Athens, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   PITTMAN, Judge.

S.J. (“the mother”) appeals from a judgment of the Limestone Juvenile Court terminating her parental rights as to a minor child, P.J. (“the child”), born to the mother in 1999.

In April 2009, the Limestone County Department of Human Resources (“DHR”) filed a petition in the juvenile court seeking the termination of the parental rights of the mother as to the child. DHR averred, in pertinent part, that the child had been adjudicated dependent in May 2008 and had been in foster care since that time; that the mother had “a criminal history that include[d] multiple theft charges, multiple [possession-of-forged-instrument] charges, domestic violence, public intoxication, and criminal trespass”; that the mother was “in the Madison County jail on a bond revocation” proceeding; that the mother had “failed to comply with the steps set forth in [an individualized service] plan for the family”; that the mother had “willfully neglected the needs of [the] child”; that the mother had failed to provide support for, or provide for the material needs of, the child; that the mother had failed to “maintain consistent contact or communication” with the child and had failed to make efforts to adjust her circumstances to meet the needs of the child pursuant to agreements reached with DHR; that no relative resources existed for the child; and that the mother was not, and was likely to never be, able to “provide a fit and suitable home” for the child. The juvenile court directed both the mother and A.M., the child’s father, to appear in the action, and it appointed a guardian ad litem for the child and counsel for the mother.

During the pendency of the action, the mother was incarcerated on criminal charges; despite that incarceration, she sought, and was granted, leave from the juvenile court to be transported to a preliminary hearing in the case on September 25, 2009. On November 3, 2009, the case was set for a final hearing on DHR’s petition on January 14, 2010. Just before that scheduled hearing, the mother filed a written motion to continue the trial, averring that she was attending a residential drug-treatment facility for between six months and one year; that motion was denied on January 12, 2010. At the start of trial, the juvenile court noted that that motion had been filed and that it had been denied, whereupon counsel for the mother again moved for a continuance. The juvenile court denied the mother’s renewed request. Immediately thereafter, counsel for the mother moved to withdraw from his representation, and the juvenile court granted that motion.

After hearing testimony from witnesses called by DHR, the juvenile court entered a judgment on January 19, 2010, terminating the parental rights of the mother and the father. The mother thereafter sent several handwritten letters to court officials in early February 2010, after the 14-day period for appealing had run, prompting the appointment of new counsel; the mother, acting through that new counsel, then successfully moved for relief under Rule 77(d), Ala. R. Civ. P., permitting the taking of an appeal out of time because of excusable neglect, and the mother timely appealed after that relief had been granted. The juvenile-court judge has certified the record as adequate for appellate review pursuant to Rule 28(A), Ala. R. Juv. P., and we thus have appellate jurisdiction.

The mother raises two issues, neither of which pertains to the substantive correctness of the juvenile court’s conclusion, drawn from the evidence presented during the ore tenus proceeding, that the termination petition was due to be granted. The mother’s first contention is that she was denied due process because the juvenile court held its hearing on DHR’s termination petition in her absence and after having allowed her appointed attorney to withdraw from his representation at the start of trial. She analogizes her situation to that of an incarcerated pro se civil litigant, in which context we have held that an opportunity to present evidence by deposition satisfies due-process minima if a party cannot attend a trial because of his or her incarceration. See, e.g., Eastman v. Eastman, 429 So.2d 1058, 1058-59 (Ala.Civ.App.1983).

However, the mother’s first contention fails, both substantively and procedurally. First, although the mother strenuously argues that she was not given the opportunity to testify by deposition, DHR correctly notes that the mother was not “confined in prison” within the scope of Rules 30(a) and 31(a), Ala. R. Civ. P., dealing with the necessity of leave of court for deposing prisoners; thus, for all that appears in the record, we must agree with DHR’s contention that the mother (and her attorney during pretrial representation) had at all times the unilateral right to notice her own deposition and to present a transcript of that testimony in lieu of her own attendance at trial. Second, the mother made no contention in the juvenile court, either at trial through her attorney before his withdrawal or at the post-judgment stage, that that court’s proceeding to decide whether to grant the termination petition amounted to a due-process deprivation. “It has long been the law in this state that constitutional questions not raised in the court below will not be considered for the first time on appeal.” Smith v. State Dep’t of Pensions & See., 340 So.2d 34, 37 (Ala.Civ.App.1976); accord J.K. v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995) (declining to reach ineffective-assistance-of-counsel issue because that issue had not been presented to the juvenile court).

The dissenting opinion, citing our decision in J.A.H. v. Calhoun County Department of Human Resources, 846 So.2d 1093 (Ala.Civ.App.2002), suggests that the mother’s right to counsel was sufficiently “fundamental” that we should not, in this case, adhere to the principle that an issue must be properly preserved and presented for appellate review. The appealing parent in J.A.H. asserted a right to replacement appointed counsel after his initial appointed attorney had been permitted to withdraw; in that case, the juvenile court squarely denied such a request as being “untimely” when it was made on the day of trial. Here, all that has been presented to the juvenile court, and ruled upon adversely to the mother, is a continuance request — one based upon the purported unavailability either of the mother’s personal attendance (which was not required) or of alternative means of presenting evidence (which were clearly available to her but were not utilized).

Under similar circumstances involving a trial-day withdrawal of appointed counsel, we held three years ago in D.A. v. Calhoun County Department of Human Resources, 976 So.2d 502 (Ala.Civ.App.2007), that direct appellate review was foreclosed:

“The father ... attempts to assert substantive arguments that the juvenile court erred (1) in dismissing his appointed attorney before conducting the termination-of-parental-rights hearing and (2) in terminating his parental rights when, he claims, DHR failed to present clear and convincing evidence that termination of his parental rights as to the children was necessary. Because the father neither attended the parental-rights-termination hearing nor filed a postjudgment motion, neither of those contentions were presented to the juvenile court; therefore, the record does not reflect any adverse ruling made by that court that is preserved for appellate review. The oft-quoted and long-standing rule is that an appellate court may not consider an issue raised for the first time on appeal. ‘ “[A juvenile] court should not be placed in error [by an appellate court] on matters which the record reveals it neither ruled upon nor was presented the opportunity to rule upon” ’ at trial or in a postjudgment motion.
“Although we conclude that the father has not preserved any issue for appellate review beyond the issue of the juvenile court’s denial of the father’s continuance request, the father is not without legal remedy. The father’s assertion regarding the juvenile court’s removal of his appointed attorney from further representation would more properly be raised as an ineffective-assistance-of-counsel argument in a Rule 60(b), Ala. R. Civ. P., motion. Our Supreme Court has noted that in termination-of-parental-rights cases, ‘a parent has a right to appointed counsel.’ Inherent in that right to legal representation is the right to effective assistance of counsel.
“The only possible result of the father’s direct appeals from the juvenile court’s judgments based upon allegations of error not preserved for appellate review is summary affirmance. However, our Supreme Court has explicitly endorsed the use of a Rule 60(b) motion as a valid method of challenging a termination judgment based upon claimed ineffective assistance of counsel. We conclude that although the father has not brought a valid substantive challenge to the termination of his parental rights to this court at this time, he is not precluded from presenting a deprivation-of-counsel argument to the juvenile court so as to establish a record on which to base a possible future appeal.”

976 So.2d at 504-05 (citations omitted). Although we in no way wish to condone the behavior of the mother’s trial counsel in simply “throwing up his hands” and seeking immediate withdrawal in the face of an adverse ruling or to express agreement with the juvenile court’s decision to grant that withdrawal request, we are constrained by principles of appellate review to affirm the judgment as to the mother’s due-process argument.

The mother’s second contention is that the juvenile court erred in denying the written and renewed oral motions seeking a continuance of the trial based upon her absence from trial. “ ‘Whether to grant or to deny a motion to continue in a termination-of-parental-rights case is within the discretion of the court and its decision will not be reversed absent a showing that the court has abused its discretion.’ ” D.A., 976 So.2d at 503 (quoting S.C.D. v. Etowah County Dep’t of Human Res., 841 So.2d 277, 278 (Ala.Civ.App.2002)). We further noted in D.A. that, “[a]s a general rule, continuances are not favored under Alabama law.” 976 So.2d at 504.

Here, the juvenile court opined, upon its review of the mother’s written motion to continue and a letter attached as an exhibit to that motion (which documents do not appear in the record), that the necessity of the mother’s remaining on the premises of the provider of her inpatient-drug-treatment program was required so as to prevent her from attending trial, even in the custody of agents of the program’s provider, had not been demonstrated. The juvenile court noted that there had been “nothing in the letter to indicate that she couldn’t come,” and it observed that the letter had “just said that [she had been] a client” without also stating that officials would “drop her from the program” if she attended trial. From that evidence, and based on the juvenile court’s own previous experience involving agents of treatment centers that had “accompanied] people for important court hearings,” that court concluded that the mother’s absence was voluntary and that a continuance was not warranted. We note that, by the time of trial in January 2010, the juvenile court had already allowed the mother, on her counsel’s motion, to be transported from jail to attend an earlier hearing, yet the record contains no indication that the mother sought a similar transport order from the juvenile court in the days before trial.

In D.A., we upheld a juvenile court’s determination that a parent’s absence from a termination trial was an insufficient basis for granting a continuance when the record indicated a previous continuance and contained evidence tending to show that the parent’s absence was a product of vol-untariness. Similarly, in this case, we agree with DHR that the mother has failed to show that the juvenile court acted outside the limits of its discretion in proceeding with a scheduled trial notwithstanding the mother’s claim that her absence from trial was excusable. We thus conclude that the juvenile court did not err to reversal in denying the written and oral motions to continue.

Based upon the foregoing facts and authorities, we conclude that the juvenile court’s judgment is due to be affirmed.

AFFIRMED.

THOMAS, J., concurs.

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

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

THOMPSON, P.J., dissents, with writing.

MOORE, Judge,

concurring in part and concurring in the result.

I concur in the main opinion insofar as it concludes that the mother failed to preserve for appellate review the issue of the mother’s right to counsel and insofar as it concludes that the juvenile court did not exceed its discretion in denying the mother’s request for a continuance.

The main opinion quotes D.A. v. Calhoun County Department of Human Resources, 976 So.2d 502 (Ala.Civ.App.2007), which indicates that the mother could file a Rule 60(b), Ala.R.Civ.P., motion based on ineffective assistance of counsel. Because I believe that the mother can file a Rule 60(b)(4), Ala.R.Civ.P., motion to set aside the judgment as void, I do not join the main opinion.

A parent in a termination-of-parental-rights proceeding has a due-process right to appointed counsel. See W.C. v. State Dep’t of Human Res., 887 So.2d 251, 256 (Ala.Civ.App.2003). The mother in the present case had requested appointed counsel; she was not required by law to repeat that request. See J.A.H. v. Calhoun County Dep’t of Human Res., 846 So.2d 1093, 1095 (Ala.Civ.App.2002). Because the mother was not represented by an attorney, her due-process rights were violated. See W.C., supra. A judgment is void if the court rendering that judgment acted in a manner inconsistent with due process. See Bowen v. Bowen, 28 So.3d 9, 14 (Ala.Civ.App.2009). Because a motion for relief from a void judgment filed pursuant to Rule 60(b)(4) may be filed at any time after the rendition of a judgment, see E.S.R. v. Madison County Dep’t of Human Res., 11 So.3d 227, 231-32 (Ala.Civ.App.2008), I conclude that the mother has the same relief available to her. Thus, I concur in the result to affirm the trial court’s judgment.

THOMPSON, Presiding Judge,

dissenting.

I respectfully dissent. The mother’s attorney moved to continue the termination hearing based, in part, on the mother’s failure to appear at the termination hearing because she was attending a drug-treatment program. The juvenile court denied that motion; it explained that ruling in its termination judgment as follows:

“[The mother’s] attorney had previously filed a motion to continue the hearing as [the mother] is presently in a court-ordered rehabilitation program, which is New Life for Women in Gadsden, Alabama. The Court denied the Motion as this case has been pending since April 2008. The attorney for [the mother] then made an oral motion to continue, again due to [the mother’s] being in New Life for Women, and not being able to be transported for today’s hearing. The Court denied the motion.”

After the juvenile court denied the mother’s motions to continue, the mother’s court-appointed attorney moved to withdraw from representing her at the beginning of the hearing on DHR’s petition to terminate her parental rights. The juvenile court granted that motion to withdraw and did not appoint another attorney to represent the mother during the termination hearing. The juvenile court then entered a judgment terminating the mother’s parental rights.

An indigent parent defending an action seeking to terminate his or her parental rights is entitled to appointed legal counsel. Ex parte Shuttleworth, 410 So.2d 896, 899 (Ala.1981); K.P.B. v. D.C.A., 685 So.2d 750, 752 (Ala.Civ.App.1996); see also § 12-15-305(b), Ala.Code 1975 (“In dependency and' termination of parental rights cases, the respondent parent, legal guardian, or legal custodian shall be informed of his or her right to be represented by counsel and, if the juvenile court determines that he or she is indigent, counsel shall be appointed where the respondent parent, legal guardian, or legal custodian is unable for financial reasons to retain his or her own counsel.”).

This court has held that a parent facing the termination of parental rights does not have to again request representation after his or her original appointed counsel is allowed to withdraw. J.A.H. v. Calhoun County Dep’t of Human Res., 846 So.2d 1093 (Ala.Civ.App.2002). In J.A.H. v. Calhoun County Department of Human Resources, supra, an action seeking the termination of a father’s parental rights, the juvenile court had earlier appointed counsel for the mother and the father but had allowed the attorney to withdraw from representing the father when the mother and the father separated and a potential conflict of interest arose. At some point before the termination hearing, the Calhoun County DHR moved to have new counsel appointed for the father, but the juvenile court denied that motion because the father had not requested the appointment of new counsel. At the termination hearing, the attorney for the mother, the father’s original appointed attorney, brought to the juvenile court’s attention a letter from the father indicating that the father claimed to have been informed at the time the original attorney withdrew that new counsel would be appointed to represent him and inquiring why he had not heard from that counsel. The juvenile court determined that the father’s request for an attorney was not timely, and the termination hearing proceeded without the father’s being present and without his having legal representation. This court held that the juvenile court’s failure to appoint new counsel to represent the father at the termination hearing was error, and it reversed the termination judgment. In reaching that holding, this court explained:

“[W]e find it unduly burdensome and overly technical to require a parent to repeatedly request the appointment of counsel when he or she has previously requested counsel and has already proven his or her entitlement to such counsel. We do not conclude that the trial court in the present case erred by failing to inform the father of his right to counsel; instead, we conclude that the trial court erred by requiring the father to repeat his request for counsel.”

J.A.H., 846 So.2d at 1095.

In this case, as in supra, the mother’s appointed counsel was allowed to withdraw, and the juvenile court failed to appoint new counsel to represent the mother at the hearing in which the termination of her parental rights was at issue. In this case, however, the mother did not know before the termination hearing that her attorney would withdraw; she did not have any advance knowledge that her interests would not be defended during the termination hearing. According to the allegation in the Rule 77(d), Ala. R. Civ. P., motion discussed in the main opinion, the mother “was unaware that she was proceeding without representation.” The mother had requested appointed counsel. The mother had not elected, or anticipated being forced by the juvenile court, to proceed pro se. The juvenile court did not appoint new counsel for the mother until February 10, 2010, well after the 14-day period for appealing, or filing a post-judgment motion from, the January 19, 2010, termination judgment.

The main opinion addresses this issue by quoting an excerpt from D.A. v. Calhoun County Department of Human Resources, 976 So.2d 502 (Ala.Civ.App.2007), indicating that the mother could have filed a Rule 60(b), Ala. R. Civ. P., motion for relief from the termination judgment and by holding that the mother is improperly raising this argument for the first time on appeal. Unlike the father in D.A, supra, who had an attorney appointed in a timely manner, the mother in this case did not have new counsel appointed for her until after the issue might have been timely raised before the juvenile court.

Regardless, I do not agree that the mother is confined to review of the termination judgment by way of a Rule 60(b) motion; I believe the issue is properly before this court on appeal. The juvenile court created the error in this case by depriving the mother of her appointed counsel at the termination hearing. The record indicates that the mother was unaware for some time that she was no longer represented by counsel and that the juvenile court had not appointed counsel for the mother until after the time for properly raising that error had passed.

A parent’s right to the custody of his or her child is a fundamental right. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). An indigent parent has a right to appointed representation when that fundamental right is at issue. § 12-15-305, Ala.Code 1975; Ex parte Shuttleworth, supra; K.P.B. v. D.C.A., supra.

The mother argues on appeal that the juvenile court erred in terminating her parental rights after allowing her appointed attorney to withdraw at the termination hearing. That argument might have been more artfully drawn. However, given the fundamental nature of the issue involved, the mother’s argument before this court, and the applicable statutory and caselaw precedent, I would reverse the termination judgment and remand the cause for the juvenile court to conduct a termination hearing at which the mother is represented by appointed counsel. Accordingly, I respectfully dissent.

      . The father has not appealed.

      . Because no objection to the juvenile court's grant of leave has been asserted in the juvenile court or in this court so as to warrant examination of the validity of that ruling, and because the mother's notice of appeal was filed within 30 days after the original appeal deadline, we treat the appeal as timely. See generally F.G. v. State Dep't of Human Res., 988 So.2d 555, 558-60 (Ala.Civ.App.2007) (main opinion and special concurrence).

      . In D.A., we also cited Ala.Code 1975, § 12-15-68, as additional authority warranting af-firmance. That statute, which provided that continuances in juvenile proceedings were properly to be granted "only upon a showing of good cause,” was repealed by the Alabama Juvenile Justice Act, Act No. 2008-277, Ala. Acts 2008, which became effective January 1, 2009. The repeal of § 12-15-68 does not, however, affect those portions of D.A. discussing other legal principles pertaining to continuances and appellate review of decisions on continuance requests.