author: LYONS, Justice.

text:
    LIGHTING FAIR, INC., et al. v. Michael L. ROSENBERG et al. Heidi M. Christie and Michael L. Rosenberg v. Regions Bank d/b/a Regions Mortgage, et al.
    1091077 and 1091105.
    Supreme Court of Alabama.
    Nov. 24, 2010.

      Nicholas Cole Hughes, Montgomery, for appellants Lighting Fair, Inc., and Cherry Marble Group, LLC; and Jackson Brett Harrison, Montgomery, for appellant Texture Crete, Inc.
    Jim L. DeBardelaben, Montgomery, for appellees/cross-appellants Heidi M. Christie and Michael L. Rosenberg.
    Jack Owen of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellees T.H. Taylor, Inc., and Terry H. Taylor.
    Dennis R. Bailey and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee Regions Bank d/b/a Regions Mortgage.
   LYONS, Justice.

The dispute in the action in the Montgomery Circuit Court underlying this appeal and cross-appeal involves the construction of a residence. In appeal no. 1091077, Lighting Fair, Inc. (“Lighting Fair”), Cherry Marble Group, LLC (“Cherry Marble”), and Texture Crete, Inc. (“Texture Crete”), the plaintiffs below, appeal from the summary judgment against them and in favor of Michael L. Rosenberg, Heidi M. Christie, and Regions Bank d/b/a Regions Mortgage (“Regions”). In appeal no. 1091105, Rosenberg and Christie cross-appeal from the trial court’s order compelling arbitration of their cross-claims asserted against Terry H. Taylor and T.H. Taylor, Inc., d/b/a T.H. Taylor Homes (“Taylor Homes”). Rosenberg and Christie also appeal from the summary judgment against them and in favor of Regions on their cross-claims against Regions.

Factual Baclcground

In December 2007, Rosenberg and Christie, who are married (hereinafter referred to as “the Rosenbergs”), executed an agreement with Taylor Homes (“the construction contract”). The construction contract provided that Taylor Homes would construct a house for the Rosen-bergs for approximately $756,000. Under the construction contract, Taylor Homes was to be paid “based on the value of work in place as defined by the percentage of completion of each work item on the disbursement schedule.” Specifically, Taylor Homes was to “present [the Rosen-bergs] with a pay request every Monday for payment on Thursday of the same week.” The construction contract also included an arbitration provision, which stated:

“[Taylor Homes] and [the Rosen-bergs] acknowledge and agree that this transaction substantially affects interstate commerce by virtue of the materials and components contained in the dwelling. Any controversy, claim, or dispute arising out of or relating to this agreement, or the breach thereof, or the transaction contemplated hereby, shall be settled by binding arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and shall be administered in accordance with the applicable rules of the Federal Arbitration Act. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.”

The Rosenbergs obtained a loan from Regions to finance the construction. On January 2, 2008, they executed an agreement with Regions (“the loan contract”) whereby they borrowed approximately $800,000 from Regions. Taylor Homes, by its president and sole shareholder, Terry H. Taylor, also executed the loan contract which, as discussed below, contained certain duties and guaranties with respect to Taylor Homes.

The loan contract provided that “construction advances” to Taylor Homes, which it also referred to as “disbursements,” would be “made in installments as the work on the construction progressed].” Rosenberg stated in an affidavit that Regions represented to him and Christie at the closing on the loan contract “that Regions would make all the construction advancements/disbursements pursuant to Regions’ standard disbursement schedule and procedures.” The loan contract in fact granted Regions authority to make advances: “(a) to [the Rosenbergs], (b) as authorized by [the Rosenbergs] in writing, or (c) as otherwise provided in the agreement.” The loan contract further stated that advancements would be made “in accordance with this agreement and [Regions’] standard disbursement schedule and procedures.”

Dottie Moore, the Regions employee who worked on the loan contract, stated in an affidavit that the Rosenbergs’ “entire transaction” with Regions “was handled on an arm’s-length basis.” Additionally, the loan contract stated that Regions was not acting as the Rosenbergs’ agent and that its relationship with the Rosenbergs was “solely that of borrower and lender.” In the loan contract, Regions also disclaimed responsibility for inspecting the Rosen-bergs’ property or informing the Rosen-bergs of the quality of Taylor Homes’ construction or of “the progress or course of construction and its conformance with the plans and specifications.”

At the time the loan contract was executed, Regions’ Consumer Loan Policy Manual stated: “Physical inspections are required to verify and document construction progress.” The loan contract provided:

“All inspection services, if any, rendered by [Regions] or [Regions’] officers, agents or employees, are or shall be rendered solely for the benefit of [Regions], and said inspections are not made for the benefit of, and shall not be construed to have been made for the benefit of, [the Rosenbergs], any subsequent purchasers, laborers, material-men, contracting parties, the general public, or any other person, firm or corporation, whether known or unknown. ...”

The loan contract also expressly limited Regions’ liability to materialmen and subcontractors and further stated that the loan contract “shall not be construed to be[ ] a third-party beneficiary contract in any respect or to any extent.” Finally, the loan contract contained the following guaranty by Taylor Homes: “[Taylor Homes] hereby guarantees completion of all improvements in full accordance with the plans and specifications ... and further agrees that all bills, invoices, and other charges incurred by [Taylor Homes] for labor and materials used in the construction of the improvements will be paid in full.”

Taylor Homes began work on the Rosenbergs’ house in January 2008 and promptly began requesting disbursements under the loan contract. Moore stated in her affidavit that Regions “received from [the Rosenbergs] requests for disbursement of loan proceeds which they had received from their contractor and which contained statements regarding the percentages of completion.” In response to discovery in this action, Regions stated that disbursements “were paid per the instructions of [the Rosenbergs]” and that “[e]ach request for advance on the construction loan was accompanied by a signed warranty that all subcontractors and other persons furnishing labor, material and equipment on the construction ... had been paid in full.”

In his affidavit, Rosenberg stated that Taylor periodically presented him with requests for disbursement that Taylor “was going to present to Regions” and that he “signed the request acknowledging [that he] had seen the request.” Rosenberg explained: “I was under the impression that Regions was following [its] standard disbursement schedule and procedures when advancing funds to [Taylor Homes;] otherwise, I would not have signed the document. It was my understanding that Regions controlled when and how the disbursement of funds would be made to [Taylor Homes].”

By October 15, 2008, approximately $728,000, or 90% of the principal of the loan, had been disbursed to Taylor Homes. However, according to Regions’ inspection reports, the Rosenbergs’ house was only 78.5% complete. No further disbursements were requested or made after October 15, 2008. Construction on the Rosen-bergs’ house, however, continued, and, in November and December 2008, Lighting Fair, Cherry Marble, and Texture Crete (hereinafter referred to collectively as “the materialmen”) provided materials used in the construction. Taylor Homes did not pay the materialmen for the materials they provided.

In January and February 2009, the ma-terialmen separately notified Taylor Homes, Regions, and the Rosenbergs of their intent to file liens on the Rosenbergs’ property. On January 20, 2009, Lighting Fair filed a lien with the Montgomery Probate Court against the Rosenbergs’ property in the amount of $8,565. On February 9, 2009, Texture Crete filed a lien against the Rosenbergs’ property in the amount of $19,850. And on March 6, 2009, Cherry Marble filed a lien against the Rosenbergs’ property in the amount of $3,113.

Procedural History

On March 13, 2009, Lighting Fair sued Taylor, Taylor Homes, the Rosenbergs, and Regions seeking a judgment on its lien and possession of the Rosenbergs’ property. Lighting Fair also asserted claims of breach of contract and account stated against Taylor and Taylor Homes; a civil-conspiracy claim against Taylor, Taylor Homes, and Regions; and, against all the defendants, claims alleging unjust enrichment and violations of § 8-29-1 et seq., Ala.Code 1975, (“the Prompt Pay Act”). Lighting Fair also stated claims seeking recovery of amounts it alleged it was owed for materials it had supplied to Taylor Homes on construction projects unrelated to the Rosenbergs’ residence. Lighting Fair named as defendants to those claims: Taylor; Taylor Homes; a homeowner, George Vogt; and two lenders, Compass Bank and Whitney National Bank.

The Rosenbergs answered Lighting Fair’s complaint and stated cross-claims against Taylor, Taylor Homes, and Regions. Specifically, the Rosenbergs stated claims of fraud and civil conspiracy against Taylor and Taylor Homes. They alleged that, in requesting disbursements, Taylor and Taylor Homes had misrepresented the amount of work done on the house and had conspired with Regions to obtain disbursements to which Taylor and Taylor Homes were not entitled. Against Regions, the Rosenbergs stated claims of suppression, civil conspiracy, and negligent, willful, or wanton failure to follow its procedures. The Rosenbergs alleged that Regions had suppressed information from them regarding its inspections, had conspired with Taylor and Taylor Homes to wrongfully disburse funds to Taylor Homes, and had wrongfully failed to follow internal procedures that would have protected the Rosenbergs.

Regions likewise answered Lighting Fair’s complaint and stated cross-claims against Taylor Homes and against the Rosenbergs. Regions stated a claim of breach of contract against Taylor Homes, alleging that Taylor Homes had breached that provision of the loan contract guaranteeing completion of the Rosenberg’s house in accordance with the plans and specifications and guaranteeing payment of materialmen and subcontractors. Regions stated a claim of breach of contract against the Rosenbergs, alleging that the Rosenbergs had breached several provisions of the loan contract. Regions also sought a judgment against the Rosenbergs based on a promissory note the Rosen-bergs executed simultaneously with the loan contract, alleging that the Rosenbergs had defaulted on the note.

Lighting Fair subsequently amended its complaint to add Cherry Marble as a plaintiff; Cherry Marble joined all of Lighting Fair’s claims against Taylor, Taylor Homes, Regions, and the Rosenbergs. Subsequently, Lighting Fair and Cherry Marble amended their complaint again to add negligence claims against Regions and the Rosenbergs based on alleged duty on the part of those defendants to ascertain whether Taylor Homes was paying its ma-terialmen.

Ultimately, the action was consolidated 1) with a separate action by Whitney National Bank against Taylor and Taylor Homes unrelated to the Rosenbergs’ property and 2) with an action by Texture Crete against Taylor Homes and the Rosenbergs. In the Texture Crete action, Texture Crete sought enforcement of its lien related to the Rosenbergs’ property and stated claims against Taylor Homes seeking recovery on an open account and for “work and labor done” and against both Taylor Homes and the Rosenbergs, alleging breach of contract and account stated. After the actions were consolidated, Texture Crete amended its complaint to add Regions as a defendant and to state claims of negligence, unjust enrichment, and violations of the Prompt Pay Act against Regions.

Based on the arbitration provision in the construction contract, Taylor and Taylor Homes moved to compel arbitration of the fraud and civil-conspiracy cross-claims asserted against them by the Rosenbergs. The Rosenbergs opposed the motion, but on June 16, 2009, the trial court ordered the Rosenbergs’ cross-claims against Taylor and Taylor Homes to arbitration.

The parties thereafter engaged in extensive discovery. Ultimately, Regions moved for a summary judgment as to all the claims asserted against it by the mate-rialmen and as to the cross-claims asserted against it by the Rosenbergs. The Rosen-bergs moved for a summary judgment, arguing only that the materialmen were not entitled to enforce liens against them. Additionally, the materialmen filed an offensive motion for a summary judgment asking that the trial court enter a judgment in their favor against Regions and the Rosenbergs on the materialmen’s liens.

On March 22, 2010, the trial court entered an order stating:

“Defendants Rosenberg[s] ... Motion[ ] for Summary Judgment against [the ma-terialmen] is GRANTED. Defendant ] Regions ... Motion for Summary Judgment is GRANTED. The jury trial on remaining issues is set for the week of May 3, 2010.”

The Rosenbergs’ claims against Taylor and Taylor Homes remained pending in arbitration, and the following claims remained pending before the trial court: all of the materialmen’s claims against Taylor and Taylor Homes; the materialmen’s claims against the Rosenbergs unrelated to their liens; and Regions’ cross-claims against Taylor Homes and the Rosenbergs. On the materialmen’s motion, the trial court, on April 9, 2010, certified its March 22, 2010, order as final under Rule 54(b), Ala. R. Civ. P.

On April 29, 2010, the materialmen filed a notice of appeal from the trial court’s March 22, 2010, order (appeal no. 1091077). On May 4, 2010, the Rosen-bergs filed a notice of appeal from the trial court’s June 16, 2009, order granting Taylor and Taylor Homes’ motion to compel arbitration and from the trial court’s March 22, 2010, summary judgment on their cross-claims against Regions (appeal no. 1091105).

Analysis

I. Arbitration of the Rosenbergs’ Cross-Claims Against Taylor and Taylor Homes

We will first consider that portion of the Rosenbergs’ cross-appeal challenging the trial court’s June 16, 2009, order granting Taylor and Taylor Homes’ motion to compel arbitration (appeal no. 1091105). The Rosenbergs argue that the trial court erred in granting Taylor and Taylor Homes’ motion to compel arbitration of the Rosenbergs’ fraud and civil-conspiracy cross-claims. As to this issue, however, the appeal is untimely and must be dismissed.

Rule 4(d), Ala. R.App. P., provides:

“An order granting or denying a motion to compel arbitration is appealable as a matter of right, and any appeal from such an order must be taken within 4% days (6 weeks) of the date of the entry of the order, or within the time allowed by an extension pursuant to Rule 77(d), Alabama Rules of Civil Procedure.”

(Emphasis added.) Additionally, Rule 2(a)(1), Ala. R.App. P., provides: “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Cf. Jenks v. Harris, 990 So.2d 878, 883-84 (Ala.2008) (“ ‘A direct appeal is the proper procedure by which to seek review of a trial court’s order granting or denying a motion to compel arbitration.’ Conseco Fin. Corp.-Alabama v. Salter, 846 So.2d 1077, 1080 (Ala.2002).... ‘[Rule 4(d), Ala. R.App. P.,] now evenhandedly states that both an order granting and an order denying a motion to compel arbitration are “appealable as a matter of right” within 42 days from date of the entry of the order. The “finality” of the order is thus assured, because failure to take an appeal from it within the 4.2-day time period forecloses later appellate review.’ Bowater Inc. v. Zager, 901 So.2d 658, 664 (Ala.2004) (emphasis- added).... Harris’s failure to appeal the trial court’s decision within 42 days bars his attempt to challenge it once arbitration has been completed.”).

The trial court’s order granting Taylor and Taylor Homes’ motion to compel arbitration was entered on June 16, 2009. The Rosenbergs did not file a notice of appeal from the order until May 4, 2010, nearly 11 months after the order was entered and well outside the 42 days prescribed by Rule 4(d). Because the Rosenbergs’ appeal of the trial court’s order granting Taylor and Taylor Homes’ motion to compel arbitration is untimely, this Court is without jurisdiction to consider it. Accordingly, we must dismiss that portion of the Rosenbergs’ appeal. See Rule 2(a)(1); see also, e.g., Graves v. Golthy, 21 So.3d 720, 723 (Ala.2009) (“Graves’s appeal is untimely; therefore, this Court is without jurisdiction and must dismiss the appeal. See Buchanan v. Young, 534 So.2d 263, 264 (Ala.1988) (‘The failure to file a notice of appeal within the time provided in Rule 4, [Ala. R.App. P.], is a jurisdictional defect and will result in a dismissal of the appeal.’).”).

II. Certification Under Rule 54(b), Ala. R. Civ. P.

We must next consider whether the trial court’s certification of its March 22, 2010, order as final under Rule 54(b), Ala. R. Civ. P., was proper. Rule 54(b) provides, in part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

This Court recently explained the appropriate standard for reviewing Rule 54(b) certifications, stating:

“ ‘If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.’ Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007).
“Although the order made the basis of the Rule 54(b) certification disposes of the entire claim against [the defendant in this case], thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment, there remains the additional requirement that there be no just reason for delay. A trial court’s conclusion to that effect is subject to review by this Court to determine whether the trial court exceeded its discretion in so concluding.”

Centennial Assocs. v. Guthrie, 20 So.3d 1277, 1279 (Ala.2009). Reviewing the trial court’s finding in Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006), that there was no just reason for delay, this Court explained that certifications under Rule 54(b) are disfavored:

“This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘It bears repeating, here, that “ ‘[certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.’ ” State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). “ ‘ “Appellate review in a piecemeal fashion is not favored.” ’ ” Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003)] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190,192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis added).’
“Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004).”

In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether “the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’”” Schlarb, 955 So.2d at 419-20 (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A, 514 So.2d 1373, 1374 (Ala.1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs., 20 So.3d at 1281 (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required “resolution of the same issue” as issue pending on appeal); and Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008) (concluding that the judgments on the claims against certain of the defendants had been improperly certified as final under Rule 54(b) because the pending claims against the remaining defendants depended upon the resolution of common issues).

Additionally, in considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay, several United States Courts of Appeals have expressly considered whether the resolution of claims that remain pending in the trial court may moot claims presented on appeal. In MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849 (4th Cir.2010), the United States Court of Appeals for the Fourth Circuit explained:

“In determining whether there is no just reason for delay in the entry of judgment, factors the district court should consider, if applicable, include:
“ ‘(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district couH; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in a set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.’
“Braswell [Shipyards, Inc. v. Beazer E., Inc.], 2 F.3d [1331,] 1335-36 [ (4th Cir.1993) ] (footnote call number added) (quoting Allis-Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 364 (3d Cir.1975) [overruled on other grounds by Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1 (1980) ]).

610 F.3d at 855 (emphasis added). The United States Courts of Appeals for the Third and Sixth Circuits have also used the factors identified in MCI Constructors. See, e.g., Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 203 (3d Cir.2006); and Corrosioneering, Inc. v. Thyssen Envtl. Sys., Inc., 807 F.2d 1279, 1283 (6th Cir.1986).

Additionally, the United States Courts of Appeals for the Seventh and First Circuits have specifically considered mootness in determining whether there is no just reason for delay in the entry of a judgment under Rule 54(b), Fed.R.Civ.P. See, e.g., Lottie v. West American Ins. Co., 408 F.3d 935, 940 (7th Cir.2005) (“[W]e might never have to consider at all the bad faith and race discrimination claims if the contract claim is resolved in favor of West American. There would be no reason to consider whether the insurer’s breach was so egregious that it amounted to bad faith if there was no breach. Likewise, there would be no reason to consider whether West American breached the contract on account of race if West American did not in fact breach the contract.”); Horn v. Transcon Lines, Inc., 898 F.2d 589, 592 (7th Cir.1990) (“The possibility that developments in the litigation may moot a claim suggests that appellate resolution be deferred.”); Spiegel v. Trustees of Tufts College, 843 F.2d 38, 44-45 (1st Cir.1988) (“Should Spiegel prevail on Count IV — and we intimate no view of the matter — she might well have her tenure, her monetary balm, and payment for her litigation expenses. The first three statements of claim would be largely (if not entirely) mooted and the need for appellate review would vanish. Appellate courts, understandably, have treated such a possibility as a major negative in the Rule 54(b) equation.”).

In this case, the trial court’s March 22, 2010, order disposed of all the claims asserted by the materialmen against Regions and the Rosenbergs and all the Rosenbergs’ cross-claims against Regions, thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment. We must, however, determine whether the trial court exceeded its discretion in determining that there was no just reason for delay in the entry of the judgment. Specifically, we must determine whether the claims certified as final pursuant to Rule 54(b) and the claims that remain pending in the trial court “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987). We must also consider whether “the need for review might or might not be mooted by future developments in the [trial] court.” Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir.1975), overruled on other grounds by Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980).

A. Appeal No. 1091077

In appeal no. 1091077, the materialmen argue that the trial court erred in entering a summary judgment against them and in favor of Regions and the Rosenbergs on their lien claims and that the trial court erred in not granting their motion for a summary judgment. First, the material-men argue that they presented sufficient evidence showing that they are entitled to recover on alleged liens on the unpaid balance of funds held by Regions that the Rosenbergs owe Taylor and Taylor Homes; the materialmen contend that this evidence precludes a summary judgment against them and warrants a summary judgment in their favor. The materialmen base their lien claims on the premise that the Rosenbergs owe Taylor and Taylor Homes additional funds. The Rosenbergs, however, have ceased making payments to Taylor Homes and have filed cross-claims against Taylor and Taylor Homes, asserting claims of fraud and civil conspiracy, alleging that Taylor and Taylor Homes wrongfully obtained more of the proceeds of the loan contract than they were entitled to receive. The Rosenbergs have been ordered to arbitrate their cross-claims against Taylor and Taylor Homes. For all that appears, the arbitrator could determine that Taylor and Taylor Homes in fact engaged in wrongful conduct and that the Rosenbergs owe them nothing. The materialmen’s lien claim could, therefore, be rendered moot becausé it is dependent on the liability of the Rosenbergs to Taylor and Taylor Homes. As a result, the trial court exceeded its discretion in determining that there was no just reason for delay and in certifying its judgment on the materialmen’s lien claims as final under Rule 54(b). See, e.g., MCI Construe- tors, 610 F.3d at 855; Horn, 898 F.2d at 592; and Allis-Chalmers Corp., 521 F.2d at 364.

Second, the materialmen argue that they presented sufficient evidence showing that they are entitled to an equitable lien against the undisbursed loan proceeds held by Regions; they contend that this evidence precludes a summary judgment against them and indeed warrants a summary judgment in their favor. The mate-rialmen base their argument that they are entitled to an equitable lien against the undisbursed proceeds on the premise that Regions has unclean hands in that it wrongfully disbursed funds to Taylor and Taylor Homes for work not yet done. However, the question of Taylor and Taylor Homes’ wrongdoing — and consequently the question whether the loan proceeds were wrongfully disbursed — is squarely at issue in the Rosenbergs’ pending cross-claims against those defendants. As with the materialmen’s lien claims, should the arbitrator determine that Taylor and Taylor Homes did not receive any funds to which they were not entitled, the material-men’s equitable-lien claims against Regions on the undisbursed loan proceeds would be moot. Because the material-men’s claims of an equitable lien involves the Court in the adjudication of potentially moot claims, the trial court exceeded its discretion in concluding that there was no just reason for delay in entering the judgment and, therefore, in certifying its judgment on that claim as final under Rule 54(b). See, e.g., MCI Constructors, 610 F.3d at 855; Horn, 898 F.2d at 592; and Allis-Chalmers Corp., 521 F.2d at 364.

Next, the materialmen argue that the trial court erred in entering a summary judgment against them on their claim of unjust enrichment against Regions. Regarding that claim, the material-men state the following argument in their principal brief on appeal:

“In order to make the ruling it made, the only conclusion the trial court could have made was that there is no unpaid balance owed by [the Rosenbergs] to [Taylor Homes]. Such a conclusion, however, is not supported by the record .... Additionally, none of the claims brought by [the Rosenbergs] against [Taylor Homes] have even been adjudicated as the trial court ordered arbitration of such.... As such, the trial court could not have and should not have made the conclusion that there was no unpaid balance.”

(Materialmen’s brief, at 30-31 (citations to the record omitted).) The materialmen, therefore, admit that the trial court’s determination on their unjust-enrichment claim is intertwined with the Rosenbergs’ claims against Taylor and Taylor Homes. Indeed, resolution of the claim requires consideration of the same issue: whether the Rosenbergs owe additional funds to Taylor and Taylor Homes. The material-men argue that “the trial court could not have and should not have” reached a decision regarding that question. Likewise, this Court should not consider the question because, as the materialmen effectively concede, their unjust-enrichment claim and the Rosenbergs’ claims against Taylor and Taylor Homes “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch, 514 So.2d at 1374; see also Centennial Assocs., 20 So.3d at 1281.

Finally, the materialmen argue that the trial court erred in entering a summary judgment for Regions on them negligence claim. Like the materialmen’s claim under an alleged equitable lien, their negligence claim is based on the premise that Regions wrongfully disbursed funds to Taylor and Taylor Homes for work not yet done. As discussed above, the arbitrator’s decision on the Rosenbergs’ claims against Taylor and Taylor Homes could render that question moot. Accordingly, the trial court exceeded its discretion in concluding that there was no just reason for delay in entering the judgment and in certifying its judgment on the materialmen’s negligence claim as final under Rule 54(b). See, e.g., MCI Constructors, 610 F.3d at 855; Horn, 898 F.2d at 592; and Allis-Chalmers Corp., 521 F.2d at 364.

We, therefore, conclude that, as to each of the materialmen’s claims against Regions and as to their lien claims against the Rosenbergs, the trial court exceeded its discretion in finding that there was no just reason for delay in the entry of the judgment and in certifying its March 22, 2010, order as final under Rule 54(b). Appeal no. 1091077, therefore, must be dismissed as being from a nonfinal judgment.

B. Appeal No. 1091105

We held in Part I of the Analysis section of this opinion that that portion of the Rosenbergs’ appeal challenging the trial court’s order compelling arbitration is due to be dismissed as untimely filed. In appeal no. 1091105, the Rosenbergs also argue that the trial court erred in entering a summary judgment against them on their cross-claims against Regions alleging suppression, civil conspiracy, and negligence. On close inspection, these claims are closely intertwined with the Rosen-bergs’ claims against Taylor and Taylor Homes and may be rendered moot by the arbitrator’s resolution of those claims.

As discussed above, the Rosenbergs have stated claims of fraud and civil conspiracy against Taylor and Taylor Homes, and these claims have not yet been resolved in arbitration. The Rosenbergs expressly allege in their civil-conspiracy claim against Regions, Taylor, and Taylor Homes that

“Taylor, [Taylor Homes], and Regions conspired together, each with the other, to unlawfully scheme, plan, design and intentionally commit all acts all acts alleged, specifically, Regions disbursing funds to [Taylor] and/or [Taylor Homes], with [the Rosenbergs] receiving no value therefor[], in order to wrongfully deprive [the Rosenbergs] of property in order for [Taylor,] [Taylor Homes], and Regions [to] financially gain from the same.”

This claim, asserted against Regions in the appeal before us and against Taylor and Taylor Homes in arbitration, rests on a single issue: whether those defendants conspired together to wrongfully deprive the Rosenbergs of their property. The arbitrator and this Court could certainly reach different conclusions regarding the sufficiency of the evidence as to this question. Accordingly, the Rosenbergs’ civil-conspiracy claim against Regions and their civil-conspiracy claim against Taylor and Taylor Homes “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch, 514 So.2d at 1374; see also Centennial Assocs., 20 So.3d at 1281.

Finally, the Rosenbergs’ claims alleging that Regions suppressed evidence from them and otherwise acted negligently toward them are premised on the proposition that Regions knew of or should have known of the allegedly wrongful conduct of Taylor and Taylor Homes. As stated above, however, the question of Taylor and Taylor Homes’ wrongdoing is squarely at issue in the Rosenbergs’ claims pending against those defendants and, therefore, any issue related to their alleged wrongdoing may be rendered moot by a resolution of those claims in arbitration. See, e.g., MCI Constructors, 610 F.3d at 855; Horn, 898 F.2d at 592; and Allis-Chalmers Corp., 521 F.2d at 364.

As a result, as to each of the Rosen-bergs’ cross-claims against Regions, the trial court exceeded its discretion in concluding that there was no just reason for delay in the entry of its judgment and in certifying its March 22, 2010, order as final under Rule 54(b). We must, therefore, dismiss appeal no. 1091105.

Conclusion

Based on the foregoing, we dismiss appeal no. 1091077 and appeal no. 1091105 in their entireties.

1091077 — APPEAL DISMISSED.

1091105 — APPEAL DISMISSED.

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

      . The disbursement schedule was not made a part of the record on appeal.

      . The record on appeal does not include a copy of Whitney Bank’s complaint against Taylor and Taylor Homes. Accordingly, we cannot determine precisely what claims were asserted in that action.

      . Vogt and Whitney National Bank also moved for a summary judgment on the claims asserted against them by the materialmen in the action unrelated to the construction of the residence in this proceeding. The trial court granted their summary-judgment motions.

      . The supplemental record on appeal shows that, after the notices of appeal were filed, the materialmen settled their claims against Taylor and Taylor Homes. The trial court entered consent judgments against Taylor and Taylor Homes and in favor of the material-men in the total amount of $53,000 in May 2010.

      . "Federal cases are authoritative in construing the Alabama Rules of Civil Procedure because the Alabama rules were patterned after the Federal Rules of Civil Procedure. Cutler v. Orkin Exterminating Co., 770 So.2d 67, 70 n. 2 (Ala.2000).” Borders v. City of Huntsville, 875 So.2d 1168, 1176 n. 2 (Ala.2003). Rule 54(b), Ala. R. Civ. P., is nearly identical to its federal counterpart, Rule 54(b), Fed.R.Civ.P.

      " 3 On this factor, the [United States] Supreme Court has explained 'that counterclaims, whether compulsory or permissive, present no special problems for Rule 54(b) determinations; counterclaims are not to be evaluated differently from other claims.’ Curtiss-Wright Corp., 446 U.S. at 9, 100 S.Ct. 1460. Like other claims, the Court has explained, 'their significance for Rule 54(b) purposes turns on their interrelationship with the claims on which certification is sought.' Id."


source: Caselaw Access Project

license: Public Domain

text:
    BALDWIN MUTUAL INSURANCE COMPANY, INC. v. Dean EDWARDS.
    1090957.
    Supreme Court of Alabama.
    Nov. 24, 2010.
    Warren C. Herlong, J. Casey Pipes, and Christopher T. Conte of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellant.
    Donald W. Stewart of Donald W. Stewart, P.C., Anniston; Benjamin T. Larkin of Donald W. Stewart, P.C., Bessemer; and John L. Lawler, Mobile, for appellee.
   LYONS, Justice.

Baldwin Mutual Insurance Company, Inc. (“Baldwin Mutual”), appeals from the Mobile Circuit Court’s certification of a class action against it. We reverse and remand.

Factual Background and Procedural History

Dean Edwards sued Baldwin Mutual on July 12, 2007, asserting a breaeh-of-eon-tract claim. Specifically, Edwards stated that, in August 2005, his house was damaged by Hurricane Katrina and that Baldwin Mutual was his homeowner’s insurer at the time. Edwards alleged that, under his homeowner’s policy with Baldwin Mutual, he was entitled to recover the “actual cash value” of his loss, which the policy defined, in relevant part, as “the amount it would cost to repair or replace [the] covered property.” Edwards " maintained that, as part of “actual cash value” he says was due under his policy as a result of his loss, he was entitled to receive an additional 20% of the costs of material and labor, a sum, Edwards alleged, typically charged by contractors for overhead and profit. Edwards alleged that Baldwin Mutual breached its policy by failing to include that 20% for contractor overhead and profit in calculating the “actual cash value” of his loss.

Edwards also sought to represent a proposed class of plaintiffs under Rule 32(b)(3), Ala. R. Civ. P. In his complaint, Edwards defined the class as including:

“1) All current and former Baldwin Mutual ... insureds ...;
“2) who are citizens of the State of Alabama;
“3) who in the six years preceding the date of filing of this complaint suffered a covered loss to property situated within the State of Alabama;
“4) whose loss estimate or property loss worksheet prepared by the defendant or its agents indicates the repair of damage by three or more trades;
“5) whose loss was settled on an actual cash value basis; and
“6) whose actual cash value payment did not include an amount for general contractor overhead and profit equal to 20% of the underlying cost of repair.”

(Emphasis added.) On July 30, 2009, Edwards moved the trial court to certify the class. On August 19, 2009, Edwards and Baldwin Mutual jointly moved the trial court for a hearing regarding the certification of the class defined above.

The trial court held an evidentiary hearing on the class-certification question on October 15, 2009. At that hearing, Edwards presented evidence as to the damage to his house caused both by Hurricane Katrina in August 2005 and by Hurricane Ivan in September 2004. Edwards represented that the class definition was broad enough to include claims based on damage caused by Hurricane Ivan and that he intended to amend his complaint to state a breach-of-contract claim against Baldwin Mutual arising from its payment of a loss for damage to Edwards’s house sustained during Hurricane Ivan.

Counsel for Baldwin Mutual presented evidence at the hearing indicating that Baldwin Mutual had not, in fact, paid Edwards’s loss resulting from Hurricane Katrina on an “actual cash value” basis, but, instead, pursuant to Edwards’s policy, had paid his claim based on the “replacement cost” of the damaged property. Accordingly, Baldwin Mutual argued that Edwards was not a part of the class he sought to certify. Baldwin Mutual also argued that the class definition should be limited because, it says, as written, the definition included claims by putative class members who had already litigated or settled their claims with Baldwin Mutual. Edwards’s counsel acknowledged at the hearing that he needed to “tinker with the class definition.” The trial court instructed Edwards’s counsel to settle on a class definition and present it to the court in a brief supporting his motion for class certification. The trial court allowed Baldwin Mutual time to file a response brief opposing class certification and Edwards time to reply with a subsequent filing.

On November 6, 2009, Edwards filed a brief in support of his motion for class certification in which he asked the trial court to certify the following class:

“1) All current and former Baldwin Mutual ... insureds;
“2) who are citizens of the State of Alabama;
“3) who in the six years preceding July 12, 2007 suffered a covered loss to property situated within the State of Alabama;
“4) where the damage estimate for such loss prepared by Baldwin Mutual ... indicated repairs by three or more trades;
“5) where the loss payment did not include any amount for the cost of hiring a general contractor (i.e., ‘general contractor overhead and profit’).
“Insureds whose claims are based on the following losses are excluded from the class:
“1) Any loss which is currently in litigation or been the subject of a final judgment, or for which Baldwin Mutual[’s] ... liability has been otherwise previously released or adjudicated;
“2) Any loss for which Baldwin Mutual made payment directly to R & R Mobile Home Services or another third party for the repair of a loss.”

The class defined by Edwards in his November 6, 2009, brief adds certain exclusions as discussed at the hearing; it also omits from the class definition the requirement that class members’ losses have been paid “on an actual cash value basis.”

In its response brief, Baldwin Mutual argued that, in deleting the requirement that the losses of putative class members have been paid based on actual cash value, the revised class definition impermissibly expanded the class beyond that as to which the trial court had received evidence at the class-certification hearing. Specifically, Baldwin Mutual argued that certification of the new class would violate the procedural requirements of § 6-5-641, Ala.Code 1975; that Baldwin Mutual would be substantially prejudiced by the post-hearing expansion of the class; that the evidence presented at the October 15, 2009, hearing did not address loss payments other than those based, on actual cash value; and that certification of the new class “would deny Baldwin Mutual the opportunity for a meaningful hearing on class certification and prevent [the trial court] from conducting the requisite ‘rigorous analysis’ on [Edwards’s] requested class. Ala.Code [1975], § 6-5-641.”

Edwards responded, arguing that the revised class definition was substantively appropriate for class certification. Edwards subsequently moved to amend his complaint to include an individual claim against Baldwin Mutual arising from the loss Edwards suffered as a result of Hurricane Ivan and to include the class definition as revised in Edwards’s November 6, 2009, brief. Baldwin Mutual objected to Edwards’s motion to amend, arguing again that the revised class definition impermis-sibly expanded the class, that it was prejudiced by the expansion, that it was denied a meaningful opportunity to challenge the revised class, and that certification of the revised class would not satisfy the requirements of § 6-5-641. Edwards replied, arguing primarily that Baldwin Mutual did not show that it would have presented its case differently at the hearing had it known of the revised class definition.

On March 1, 2010, the trial court granted Edwards’s motion to amend the complaint and entered an order certifying the revised class. Baldwin Mutual appealed.

Analysis

This Court has stated the standard of review applicable to a class-certification order as follows:

“This Court reviews a trial court’s class-certification order to determine whether the court exceeded its discretion in entering the order, but we review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class. Compass Bank v. Snow, 828 So.2d 667 (Ala.2001). We will not disturb a trial court’s class-certification order without a showing that in entering the order the court exceeded the permissible limits of its discretion. General Motors Acceptance Corp. v. Dubose, 834 So.2d 67, 70 (Ala.2002).”

U-Haul Co. of Alabama, Inc. v. Johnson, 893 So.2d 307, 310-11 (Ala.2004).

Section 6-5-641, Ala.Code 1975, provides, in relevant part:

“(a) No class of civil litigants shall be certified or recognized by any court of the State of Alabama unless there shall have been compliance with the procedures for certification of the class set forth in this article.
“(d) The court shall, on motion of any party, hold a full evidentiary hearing on class certification. The hearing shall be recorded, and all named parties to the action shall be given notice of the date, time, and place of the hearing by written notification given to the party’s attorney (or if appearing pro se, to the party) no later than 60 days prior to the date set for the hearing. At the hearing, the parties shall be allowed to present, in the same manner as at trial, any admissible evidence in support of or in opposition to the certification of the class.
“(e) When deciding whether a requested class is to be certified, the court shall determine, by employing a rigorous analysis, if the party or parties requesting class certification have proved its or their entitlement to class certification under Ala. R. Civ. P. 23. The burden of coming forward with such proof shall at all times be on the party or parties seeking certification, and if such proof shall not have been adduced, the court shall not order certification of the class. In making this determination, the court shall analyze all factors required by Ala. R. Civ. P. 23 for certification of a class and shall not order certification unless all such factors shall have been established. ...”

This Court has stated: “Section 6-5-641 (d) requires the trial court to conduct an evi-dentiary hearing on class-certification issues and to record that hearing, if any ‘party’ requests such a hearing by motion.” Disch v. Hicks, 900 So.2d 399, 406 (Ala.2004) (reversing a trial court’s certification of a settlement class, in part, because the trial court did not hold a hearing on certification upon the request of a putative class member).

Baldwin Mutual argues on appeal that the trial court erred in certifying the revised class defined in Edwards’s November 6, 2009, brief. Specifically, Baldwin Mutual argues that Edwards impermissi-bly expanded the original class definition and that, in certifying the revised class, the trial court failed to comply with the requirements of § 6-5-641 in that it did not hold a hearing on the class it certified and it could not have conducted a rigorous analysis of that class. We agree.

Edwards’s proposed redefinition of the class in his November 6, 2009, brief materially changed the class in a manner not contemplated at the October 15, 2009, hearing. Baldwin Mutual objected to that change and argued that, if the trial court accepted the change, Baldwin Mutual would be denied a meaningful hearing on the redefined class as required by § 6-5-641(d). As stated above, § 6-5-641(d) requires the trial court to “conduct an evi-dentiary hearing on class-certification issues” at the request of any party. Disch, 900 So.2d at 406. Because the definition of the class materially changed in a manner not contemplated at the October 15, 2009,- hearing, the trial court exceeded its discretion in certifying the newly defined class without conducting a new hearing. See § 6 — 5—641(d). Moreover, because it did not conduct such a hearing, the trial court could not have conducted a rigorous analysis of evidence regarding the newly defined class as required by § 6-5-641(e). See Ex parte Caremark RX, Inc., 956 So.2d 1117 (Ala.2006), citing with approval the plurality opinion in Bill Heard Chevrolet Co. v. Thomas, 819 So.2d 34, 41 (Ala.2001) (“[W]e conclude that the trial court could not have conducted a ‘rigorous analysis’ of the evidence to determine whether the Rule 23 prerequisites were met, because it did not allow the defendants an adequate opportunity to oppose the plaintiffs’ proposed certification order.”).

Based on the foregoing, we conclude that the trial court exceeded its discretion in certifying the class as redefined in Edwards’s November 6, 2009, brief. This finding precludes our consideration of the other issues presented by the parties on appeal.

Conclusion

We reverse the trial court’s March 1, 2010, order certifying the class defined in Edwards’s November 6, 2009, brief, and we remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: THOMPSON, Presiding Judge.

text:
    Samantha Kirsten GIBSON, as the personal representative of the estate of Christopher Wade Gibson v. STAFFCO, L.L.C., d/b/a Ribs & Reds Restaurant.
    2090902.
    Court of Civil Appeals of Alabama.
    Nov. 19, 2010.

      Michael P. Windom, Mobile, for appellant.
    Braxton Blake Lowe of Alabama Attorneys, L.L.C., Gulf Shores, for appellee.
   THOMPSON, Presiding Judge.

Samantha Kirsten Gibson, as the personal representative of the estate of Christopher Wade Gibson, appeals from the judgment of the Baldwin Circuit Court dismissing the estate’s claim of retaliatory discharge in violation of § 25-5-11.1, Ala. Code 1975, against Staffco, L.L.C., d/b/a Ribs & Reds Restaurant (“Staffco”). For the reasons set forth herein, we reverse the trial court’s judgment.

Christopher Wade Gibson was an employee of Staffco. On October 7, 2008, after his employment with Staffco had been terminated, he filed an action against Staffco in which he alleged that he had sustained injuries to his right hand and his left knee during his employment with Staffco for which, he asserted, he was enti-tied to benefits under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). He also alleged that Staffco had terminated his employment in violation of § 25-5-11.1 (which prohibits an employer from terminating a worker’s employment in retaliation for demanding benefits under the Act), and he sought damages for that termination.

On July 6, 2009, Mr. Gibson died from causes not related to his alleged work-related injuries. On December 1, 2009, Staffco filed a motion to dismiss Mr. Gibson’s claim for benefits under the Act on the basis of § 25-5-57(a)(5), Ala.Code 1975, which provides that when a worker dies from causes not related to his or her claim for benefits under the Act, his or her claim for benefits survives only if the degree of disability resulting from the injury has been determined by a court or agreed upon by the parties. On December 3, 2009, Staffco filed a suggestion of death and a motion to dismiss Mr. Gibson’s retaliatory-discharge claim on the basis that that claim did not survive his death.

On January 5, 2010, counsel for Mr. Gibson filed a document that he styled an “amended complaint,” which added as a plaintiff Samantha Kirsten Gibson in her capacity as the personal representative of Mr. Gibson’s estate. Although the amended complaint continued to refer to Mr. Gibson as a plaintiff, the allegations contained in the amended complaint acknowledged that Mr. Gibson had died. Thus, we treat the amended complaint as a substitution of Ms. Gibson, as the personal representative of Mr. Gibson’s estate, for Mr. Gibson. Cf. King Mines Resort, Inc. v. Malachi Min. & Minerals, Inc., 518 So.2d 714, 718 (Ala.1987) (“This Court is committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance”). Staffco filed an answer to the amended complaint; it did not object to the addition of Ms. Gibson as a plaintiff.

On May 19, 2010, the trial court granted both of Staffco’s motions to dismiss. Ms. Gibson filed a timely appeal regarding the dismissal of the retaliatory-discharge claim to this court. She does not appeal from the dismissal of the claim for benefits under the Act. This court transferred the appeal to the supreme court for lack of jurisdiction. The supreme court then transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

As stated, the basis of Staffco’s motion to dismiss the claim of retaliatory discharge was that the claim did not survive Mr. Gibson’s death. As a general rule, a tort claim that has been filed before the death of the plaintiff survives in favor of his or her estate. See § 6-5-462, Ala. Code 1975. However, with regard to claims filed pursuant to the Act, § 25-5-57(a)(5) provides, in pertinent part:

“If an employee who sustains a permanent partial or permanent total disability, the degree of which has been agreed upon by the parties or has been ascertained by the court, and death results not proximately therefrom, the employee’s surviving spouse or dependent children or both shall be entitled to the balance of the payments which would have been due and payable to the worker.... ”

Thus a claim for benefits under the Act does not survive the death of a worker if, as in this case, the degree of the worker’s disability is not ascertained by a court or agreed to between the parties before the worker’s death. The question before this court is whether the retaliatory-discharge claim should be treated, for purposes of survival, as a tort claim or as a claim for benefits under the Act.

Although our research does not reveal any binding precedent directly addressing this issue, cases from both this court and our supreme court indicate generally that a retaliatory-discharge claim constitutes a tort claim rather than a claim for benefits under the Act. For example, our supreme court has held that, although a claim for benefits under the Act is not subject to a jury trial, a claim of retaliatory discharge in violation of § 25-5-11.1 is a tort claim and should be tried to a jury. See Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1864, 1370 (Ala.1988) (opinion on application for rehearing) (“Twil-le/s cause of action under the wrongful termination statute is a tort action. See Caraway v. Franklin Ferguson Mfg. Co., 507 So.2d 925 (Ala.1987). Thus, an action for wrongful termination is ‘of a sort’ that has traditionally been tried to a jury, even though it may have arisen out of a workman’s compensation factual setting.”). Recently, this court held that, in the context of the arbitrability of claims, a claim of retaliatory discharge does not fit within a contractual exclusion from arbitration for workers’ compensation claims. Dillard’s, Inc. v. Gallups, 58 So.3d 196, 202 (Ala.Civ.App.2010). In so holding, this court wrote: “As our supreme court determined in Jackson County Hospital [v. Alabama Hospital Ass’n Trust, 619 So.2d 1369, 1371 (Ala.1993),] under Alabama law, a retaliatory-discharge case is not a workers’ compensation action and is instead a traditional tort action.” Id. at 202. See also Morgan v. Northeast Alabama Reg’l Med. Ctr., 624 So.2d 560, 561 (Ala.1993) (“In [Caraway ] v. Franklin Ferguson Manufacturing Co., 507 So.2d 925 (Ala.1987), the Court held that § 25-5-11.1 establishes a cause of action in tort for violation of its provisions and reversed a dismissal of the action.”); 2 Terry A. Moore, Alabama Workers’ Compensation § 20:47 (1998) (“Since Caraway, the courts have routinely decided that, although the retaliatory discharge statute is found in the workers’ compensation statute, a cause of action for retaliatory discharge sounds in tort and is governed by the general rules of tort law, not worker’s compensation law.”); id. at § 20:48 (“[I]t has been settled that the retaliatory discharge statute creates a tort action.... ”); id. at § 20:52 (“[T]he courts have construed the antire-taliation statute as creating a cause of action arising under general tort law....”).

Furthermore, the plain language of § 25-5-57(a)(5) likewise indicates that that section relates only to the proceeds resulting from a claim for benefits under the Act rather than the proceeds of an action alleging retaliatory discharge under § 25-5-11.1. The pertinent sentence of § 25-5-57(a)(5), quoted above, refers to the entitlement of the deceased worker’s spouse and dependents to “payments which would have been due and payable to the worker” for the worker’s “permanent partial or permanent total disability.” There is no indication in that statute that the term “payments” is intended to refer to damages awarded a worker for having been discharged in retaliation for having sought workers’ compensation benefits.

Staffco argues that § 25-5-57(a)(5) should be construed so as to apply to the question whether an action for damages for retaliatory discharge in violation of § 25-5-11.1 survives the death of the discharged worker. As discussed, however, the plain language of that section does not permit such an interpretation, and the voluminous legal precedents addressing a claim under § 25-5-11.1 indicate that a retaliatory-discharge claim is not the kind of claim addressed by § 25-5-57(a)(5).

Based on the foregoing, we conclude that a claim of retaliatory discharge in violation of § 25-5-11.1 should be treated as any other tort claim with regard to whether the claim survives the death of the worker. Because, in the present case, Mr. Gibson filed his retaliatory-discharge claim before he died, that claim survives in favor of his estate pursuant to § 6-5^462. Thus, the trial court erred when it dismissed that claim, and the trial court’s judgment, in this regard, is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

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

      . Staffco was represented by separate counsel as to the retaliatory-discharge claim.

      . Although Mr. Gibson’s name is listed on the notice of appeal, we have concluded that Ms. Gibson, in a representative capacity, was substituted for Mr. Gibson in the trial court. We have amended the style of the appeal to reflect the appropriate name of the appellant. See Ex parte Singleton, 475 So.2d 186 (Ala.1985); Committee Comments to Rule 1, Ala. R.App. P. ("As is the case with the [Alabama Rules of Civil Procedure], it is the policy of these rules to disregard technicality and form in order that a just, speedy and inexpensive determination of every appellate proceeding on its merits may be obtained.").


author: PER CURIAM. MAIN, Judge,

text:
    Edsel WELCH v. STATE of Alabama.
    CR-09-0770.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.

      Leonard F. Mikul, Bay Minette, for appellant.
    Troy King, atty. gen., and John A. Ther-kelsen, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Edsel Welch, was convicted of assault in the second degree, a violation of § 13A-6-21, Ala.Code 1975 and was sentenced to 18 months’ in prison. Welch appeals his conviction.

The State’s evidence tended to show that Welch and Belinda Hamilton, the victim’s mother, and the victim, J.G., lived together for several years in a house off Lottie Road in Baldwin County. On August 30, 2008, Hamilton and Welch had a disagreement, and Hamilton asked Welch to move out. Welch returned the next day, and the two argued. Hamilton’s daughter and the victim’s sister was present and also fought with Welch. Welch left the house after the arguments and, because his vehicle would not start, started walking down Lottie Road. As he was walking, a white pick-up truck approached him. J.G. jumped out of the passenger side and a fight ensued between Welch and J.G. Roy Henderson, who was driving the white truck, backed the vehicle up and saw Welch and J.G. fighting in a ditch. According to Henderson, Welch was on top of J.G. and had what looked like a broken bottle in his hand. Welch struck J.G. with a glass vase he had taken from Hamilton’s house. Forensic test showed Welch’s fingerprints on the pieces of broken glass discovered at the scene. Both Welch and J.G. sustained injuries as a result of the fight. J.G. was treated at a local hospital and received numerous stitches and staples for multiple cuts to his head. Law-enforcement officials located Welch that same day and took Welch to a local hospital, where he was treated for his injuries.

Welch, who is African-American, raises only one issue on appeal. He asserts that the circuit court erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion because, he argues, he made a prima facie case of racial discrimination which the State failed to rebut. Specifically, Welch asserts that the State’s grounds for striking several black prospective jurors were merely pretextual because a white prospective juror sharing the same characteristic was not removed; therefore, the State exercised disparate treatment when striking black prospective jurors and white prospective jurors.

The circuit court did not specifically rule that Welch had established a prima facie case of racial discrimination; however, it required the State to explain its reasons for its strikes. “ ‘When a trial court calls upon the prosecutor for an explanation, without expressly finding a prima facie case, we will proceed directly to evaluate the sufficiency of the ensuing explanation.’ Williams v. State, 548 So.2d 501, 504 (Ala.Cr.App.1988).” Fletcher v. State, 703 So.2d 432, 435 (Ala.Crim.App.1997).

“ ‘The party alleging racially discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination.’” Rogers v. State, 819 So.2d 643, 648-49 (Ala.Crim.App.2001), quoting Burgess v. State, 811 So.2d 557, 572 (Ala.Crim.App.1998). “A defendant makes out a prima facie case of discriminatory jury selection by ‘the totality of the relevant facts’ surrounding a prosecutor’s conduct during the defendant’s trial. Batson, 476 U.S. at 94, 106 S.Ct. 1712.” Lewis v. State, 24 So.3d 480, 489 (Ala.Crim.App.2006). “After the appellant makes a timely Batson motion and establishes a prima facie showing of discrimination, the burden shifts to the State to provide a race-neutral reason for each strike.... See, e.g., Ex parte Bird, 594 So.2d 676 (Ala.1991).” Cooper v. State, 611 So.2d 460, 463 (Ala.Crim.App.1992).

“Within the context of Batson, a ‘race-neutral’ explanation ‘means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). ‘In evaluating the race-neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.’ Id. ‘[Evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within the trial judges’s province.” ’ Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869.”

Allen v. State, 659 So.2d 135, 147 (Ala.Crim.App.1994). “While there may be ‘ “any number of bases” on which a prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause ..., the prosecutor must give a “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ 476 U.S. at 98 n. 20, 106 S.Ct. 1712.” Lewis, 24 So.3d at 489-90. Once the prosecutor has articulated race-neutral reasons for the strike, the moving party can then offer evidence showing that those reasons are merely a sham or pretext. Ex parte Branch, 526 So.2d 609, 624 (Ala.1987).

“ ‘When reviewing a trial court’s ruling on a Batson motion, this court gives deference to the trial court and will reverse a trial court’s decision only if the ruling is clearly erroneous.’ Yancey v. State, 813 So.2d 1, 3 (Ala.Crim.App.2001). ‘A trial court is in a far better position than a reviewing court to rule on issues of credibility.’ Woods v. State, 789 So.2d 896, 915 (Ala.Crim.App.1999). ‘Great confidence is placed in our trial judges in the selection of juries. Because they deal on a daily basis with the attorneys in their respective counties, they are better able to determine whether discriminatory patterns exist in the selection of juries.’ Parker v. State, 571 So.2d 381, 384 (Ala.Crim.App.1990).
“‘Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will “largely turn on evaluation of credibility” 476 U.S., at 98, n. 21. In the typical challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lie “peculiarly within a trial judge’s province.” Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), citing Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).’
“Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).”

Doster v. State, [Ms. CR-06-0323, July 30, 2010] — So.3d—,—(Ala.Crim.App.2010).

First, we note that it is impossible to review the validity of Welch’s argument because he failed to ensure that there was a complete record for this Court to review on appeal. Although the court reporter and the attorneys used the names of the veniremembers during voir dire proceedings, the attorneys struck based on the numbers assigned to the venire-members, not their names. The record does not include a strike list or any other document that shows the names, race, and numbers of the veniremembers in this case.

“The jury strike list is not in the record, nor is the striking of the jury included in the trial transcript. ... Other than defense counsel’s assertions in support of the Batson motion, there is simply no evidence in the record of the race of prospective jurors on the venire, of which prospective jurors were struck by the State and which were struck by the defense, or even of the identity or race of the jurors who ultimately sat on Johnson’s jury. ‘It is the appellant’s duty to provide this Court with a complete record on appeal.’ Knight v. State, 621 So.2d 394, 395 (Ala.Crim.App.1993). ‘ “Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done.’” Owens v. State, 597 So.2d 734, 736 (Ala.Crim.App.1992), quoting Jolly v. State, 405 So.2d 76, 77 (Ala.Crim.App.1981). ‘This court will not presume error from a silent record.’ Frazier v. State, 758 So.2d 577, 600 (Ala.CrimApp.), aff'd, 758 So.2d 611 (Ala.1999), cert. denied, 531 U.S. 843, 121 S.Ct. 109, 148 L.Ed.2d 66 (2000). See also Roberts v. State, 627 So.2d 1114, 1116 (Ala.Crim.App.1993).”

Johnson v. State, 823 So.2d 1, 18-19 (Ala.Crim.App.2001). See also Baker v. State, 683 So.2d 1 (Ala.Crim.App.1995); Roberts v. State, 627 So.2d 1114, 1116 (Ala.Crim.App.1993). This Court can not find reversible error from a silent record. See Frazier v. State, 758 So.2d 577 (Ala.Crim.App.1999).

Moreover, assuming defense counsel’s assertions — that the State did strike black prospective jurors who had been on an arson case the week before but who failed to remove a white prospective juror for the same reason — are true, we would find no Batson violation.

The following occurred when defense counsel made a Batson objection:

“[Defense counsel]: In accordance with Batson v. Kentucky, 476 U.S. 79, the State has used its peremptory strikes in a manner to which all black members from the venire were struck, which were two black females; one being [E.A.], the second being [R.B.]. My client is an African-American male. This is not a jury that would be a set of his peers since the State chose to strike every single one of the African-Americans that were seated on this jury pool.
“The Court: [Prosecutor], can you articulate a race-neutral reason?
“[Prosecutor]: Yes, sir, I can. Your Honor, there were six members of the venire that said they were on an arson case last week. That was a case that they found guilty of a lesser included misdemeanor. And I struck every single one of those persons from the jury, the venire, some being white, some being black.
“The Court: What was the number of black jurors?
“[Prosecutor]: There were six total, and the two black members of the venire were on that jury.
“The Court: Both of them?
“[Prosecutor]: Yes, sir.
“The Court: Batson challenge denied. Let’s bring the jury in.
“[Defense counsel]: Judge, may I set the record straight? That’s an incorrect statement, because number 20 is a white male [sic] who also indicated, [D.K.], that she was on that jury and that person was left on this jury venire.
“Third, I would make the objection again. [E.A.] did not state that she was on the arson, and she is a black female, also. So, Judge, I’m making that objection. Those are incorrect statements.
“[Prosecutor]: Judge, from my notes I did not have number 20, but I had — I can tell you the numbers that I have that said they were on the arson case.
“The Court: Challenge denied. Bring the jury in.”

(R. 28-30.)

The Alabama Supreme Court in Ex parte Brown, 686 So.2d 409 (Ala.1996), held that the State’s failure to remove a white prospective juror similarly situated to a removed black prospective juror based on a mistaken belief that the white prospective juror was an engineer did not violate Batson. As this Court stated in Lewis v. State, 24 So.3d 480 (Ala.Crim.App.2006):

“The prosecutor stated that juror number 57 was struck because he had a prior misdemeanor conviction for writing a bad check. However, the prosecutor did not strike juror number 16 — a white female — despite the fact that she also had a prior misdemeanor conviction for writing a bad check. Thus, we must consider whether the prosecutor engaged in disparate treatment of these two veniremembers. As previously noted, striking a prospective juror based upon a prior conviction or previous criminal history is a race-neutral reason. However, this Court has made it clear that the failure to strike both white and African-American veniremembers because of prior criminal records constitutes evidence of disparate treatment. See Yancey v. State, 813 So.2d at 7; Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989).
“Here, the prosecutor explained that he failed to strike juror number 16 because he was unaware of her previous misdemeanor conviction. Had he known of juror number 16’s criminal record, the prosecutor stated, he would have stricken her as well. The Alabama Supreme Court discussed a similar situation in Ex parte Brown, 686 So.2d 409, 420 (Ala.1996), cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). The court noted:
‘A prosecutor can strike based on a mistaken belief, see Taylor v. State, 666 So.2d 36, 42 (Ala.Cr.App.1994); therefore, it is logical that a prosecutor may also decide, based on a mistaken belief, not to strike a venire-member. Because the discrepancy in the way these two jurors were treated was adequately explained, we conclude that the strike of Juror 19 was race-neutral.’
“Accord Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim.App.1997); cf. McNair v. Campbell, 416 F.3d 1291, 1311 (11th Cir.2005), cert. denied sub nom., McNair v. Allen, 547 U.S. 1073, 126 S.Ct. 1828, 164 L.Ed.2d 522 (2006) (‘Although the prosecutor’s reason for striking McAllister was based on a belief that ultimately proved incorrect, this does not establish by clear and convincing evidence that the state court’s finding of fact was erroneous.’).
“The trial court found credible the prosecutor’s assertion that he had relied on a jury-information sheet that did not reflect juror number 16’s bad-check conviction. (State’s Exhibit 3, Supp. C. 31.) In light of the fact that a number of convictions from Houston County have been reversed as a result of Batson violations, the trial court was certainly aware of the potential for abuse and, further, was in the best position to weigh the credibility of the prosecutor’s assertion that he was unaware of juror number 16’s bad-check conviction. State’s Exhibit 3 certainly lends credence to the trial court’s finding. Additionally, the State argues, and the record indicates, that the prosecutor also struck prospective juror W.C., a white female, who, like juror number 57, had a bad-check conviction. This also suggests that the prosecutor struck prospective white jurors based on misdemeanor bad-check convictions and that he failed to strike juror number 16 because he was unaware of the full extent of her criminal history.”

24 So.3d at 501-02.

In this ease, the circuit court believed that the prosecutor’s failure to remove the white prospective juror was based on a mistaken belief. We afford that ruling great deference because the circuit court knew the prosecutor and was able to directly access the prosecutor’s demeanor when responding to Welch’s assertions of bias. See Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). There is no reason to go behind the circuit court’s ruling in this case. Welch is due no relief on this claim.

For the foregoing reasons, Welch’s conviction for assault in the second degree is due to be, and is hereby, affirmed.

AFFIRMED.

WISE, P.J., and WINDOM and KELLUM, JJ., concur. MAIN, J., dissents, with opinion, which WELCH, J., joins.

MAIN, Judge,

dissenting.

I respectfully dissent from the per cu-riam opinion affirming Edsel Welch’s conviction and sentence. Rather than affirm, I would remand the case for the trial court to conduct further proceedings on Welch’s Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claim.

Initially, I agree with the majority that Welch failed to provide a complete record on appeal. Although the voir dire examination of the potential jurors and the actual striking of the jury was transcribed and included in the record on appeal, the record does not contain the master jury list, and the strikes were articulated by number, rather than by the juror’s names. As the majority correctly notes, this Court will not presume or find reversible error from a silent record. See Frazier v. State, 758 So.2d 577 (Ala.Crim.App.1999).

However, based on my review of the record, I do not agree with the majority’s characterization of the record before this Court as “silent” so as to apply the above doctrine to the Batson issue before us. Yes, Welch failed to provide a complete record on appeal. Even so, I believe that the record before this Court is sufficient to allow this Court to rule on the issue. The transcript of the voir dire proceedings indicates the individual names of the 30 prospective jurors and indicates that 1 individual was absent. Thus, 29 prospective jurors were present for voir dire examination. The State had nine strikes, with the last strike serving as the alternate, and Welch had eight strikes. The State used two of its strikes to strike the only two African-American veniremembers, who were both female, leaving no African-Americans on Welch’s jury. During jury selection, Welch’s counsel made its Batson motion and the following exchange occurred:

“[DEFENSE COUNSEL]: In accordance with Batson v. Kentucky, 476 U.S. 79 [ (1986) ], the State has used its peremptory strikes in a manner to which all black members from the venire were struck, which were two black females; one being [E.A.], the second being [R.BJ. My client is an African-American male. This is not a jury that would be a set of his peers since the State choose to strike every single one of the African-Americans that were seated on this jury pool.
“THE COURT: [Prosecutor], can you articulate a race-neutral reason?
“[PROSECUTOR]: Yes, sir, I can. Your Honor, there were six members of the venire that said they were on an arson case last week. That was a case that they found guilty of a lesser included misdemeanor. And I struck every single one of those persons from the jury, the venire, some being white, some being black.
“THE COURT: What was the number of black jurors?
“[PROSECUTOR]: There were six total, and the two black members of the venire were on that jury.
“THE COURT: Both of them?
“[PROSECUTOR]: Yes, sir.
“THE COURT: Batson challenge denied. Let’s bring the jury in.
“[DEFENSE COUNSEL]: Judge, may I set the record straight? That’s an incorrect statement, because number 20 is a white male [sic] who also indicated, [D.K.], that she was on that jury and that person was left on this jury venire.
“Third, I would make the objection again. [E.A.] did not state that she was on the arson, and she is a black female, also. So, Judge, I’m making that objection. Those are incorrect statements.
“[PROSECUTOR]: Judge, from my notes I did not have number 20, but I had — I can tell you the numbers that I have that said they were on the arson case.
“THE COURT: Challenge denied. Bring the jury in.
“[DEFENSE COUNSEL]: Judge, we preserve our objections.”

(R. 28-30.)

Based on the record before this Court, it is undisputed by the State, and seems clear from the face of the record, that there were only two African-American veniremembers and that the State struck both of those veniremembers. It also seems clear from the face of the record, and is undisputed by the State, that a white veniremember served on the jury who fit the criteria offered by the State as the basis for striking the two African-American veniremembers. Therefore, I believe that the record before this Court is sufficient to warrant further review of the issue.

The majority further provides, as an alternative holding:

“The Alabama Supreme Court in Ex parte Brown, 686 So.2d 409 (Ala.1996), recognized that the State’s failure to remove a white prospective juror similarly situated to a removed black prospective juror based on the prosecutor’s mistaken belief that the white prospective juror was an engineer does not violate Batson. As this Court stated in Lewis v. State, 24 So.3d 480 (Ala.Crim.App.2006):
“ ‘The prosecutor stated that juror number 57 was struck because he had a prior misdemeanor conviction for writing a bad check. However, the prosecutor did not strike juror number 16 — a white female — despite the fact that she also had a prior misdemeanor conviction for writing a bad check. Thus, we must consider whether the prosecutor engaged in disparate treatment of these two veniremembers. As previously noted, striking a prospective juror based upon a prior conviction or previous criminal history is a race-neutral reason. However, this Court has made it clear that the failure to strike both white and African-American venire-members because of prior criminal records constitutes evidence of disparate treatment. See Yancey v. State, 813 So.2d at 7; Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989).’
“Here, the prosecutor explained that he failed to strike juror number 16 because he was unaware of her previous misdemeanor conviction. Had he known of juror number 16’s criminal record, the prosecutor stated, he would have stricken her as well. The Alabama Supreme Court discussed a similar situation in Ex parte Brown, 686 So.2d 409, 420 (Ala.1996), cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). The court noted:
“ ‘A prosecutor can strike based on a mistaken belief, see Taylor v. State, 666 So.2d 36, 42 (Ala.Cr.App.1994); therefore, it is logical that a prosecutor may also decide, based on a mistaken belief, not to strike a venire-member. Because the discrepancy in the way these two jurors were treated was adequately explained, we conclude that the strike of Juror 19 was race-neutral.’
“Accord Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim.App.1997); cf. McNair v. Campbell, 416 F.3d 1291, 1311 (11th Cir.2005), cert. denied sub nom., McNair v. Allen, 547 U.S. 1073, 126 S.Ct. 1828, 164 L.Ed.2d 522 (2006) (‘Although the prosecutor’s reason for striking McAllister was based on a belief that ultimately proved incorrect, this does not establish by clear and convincing evidence that the state court’s finding of fact was erroneous.’).
“The trial court found credible the prosecutor’s assertion that he had relied on a jury-information sheet that did not reflect juror number 16’s bad-check conviction. (State’s Exhibit 3, Supp. C. 31.) In light of the fact that a number of convictions from Houston County have been reversed as a result of Batson violations, the trial court was certainly aware of the potential for abuse and, further, was in the best position to weigh the credibility of the prosecutor’s assertion that he was unaware of juror number 16’s bad-check conviction. State’s Exhibit 3 certainly lends credence to the trial court’s finding. Additionally, the State argues, and the record indicates, that the prosecutor also struck prospective juror W.C., a white female, who, like juror number 57, had a bad-check conviction. This also suggests that the prosecutor struck prospective white jurors based on misdemeanor bad-check convictions and that he failed to strike juror number 16 because he was unaware of the full extent of her criminal history.
24 So.3d at 501-02.
“In this case, the circuit court believed that the State’s failure to remove the white prospective juror was based on the prosecutor’s mistaken belief. We afford that ruling great deference because the circuit court knew the prosecutor and was able to directly access the prosecutor’s demeanor when responding to Welch’s assertions of bias. See Hernandez v. New York, 500 U.S. 352, 365 (1991). There is no reason to go behind the circuit court’s ruling in this case. Accordingly, Welch is due no relief on this claim.”

Welch v. State, 63 So.3d 1275, 1280-81 (Ala.Crim.App.2010).

I agree that, for the reasons explained in Ex parte Brown, 686 So.2d 409 (Ala.1996), and Lewis v. State, 24 So.3d 480 (Ala.Crim.App.2006), the State’s failure to remove a prospective juror based on the prosecutor’s mistaken belief does not violate Bat-son. However, I do not agree with the majority that, based on the record before this Court, this Court can make a determination as to the propriety of affirming the circuit court’s ruling on this basis.

Here, as the above-quoted excerpt from the record indicates, the prosecutor offered race-neutral reasons for the strike, 1.e., that the prosecution had struck all prospective jurors who had served on a jury the previous week, including both of the black veniremembers. Defense counsel argued that the prosecutor’s stated reason was factually incorrect. The prosecutor then began to offer a response to defense counsel’s assertions, stating: “Judge, from my notes I did not have number 20, but I had — I can tell you the numbers that I have that said they were ón the arson ease.” (R. 30) The trial court simply responded that the challenge was denied and called for the jury to be brought back in.

Based on the record presently before this Court, I cannot say that the judgment of the trial court is due to be reversed. The State did begin to articulate a reason that has been held in previous cases to be race-neutral, i.e., that the prosecutor based the strikes or failed to strike as the result of a mistaken belief. The majority may indeed be correct in its conclusion that the trial court believed that the complained-of strikes or lack thereof was based on the prosecutor’s mistaken belief. However, I do not believe that we are in a position to reach that conclusion at this time. Rather, I believe that the State should be given an opportunity to finish articulating the explanation it began to give regarding its notes about which jurors had served on the previous jury. Then the defense should be given an opportunity to attempt to offer evidence indicating that the State’s reasons are a sham or a pretext. At that point, the trial court should rule on the Batson motion. Then this Court will have an adequate record to address the claim on appeal. Until then, I believe that, based on the record presently before this Court, the majority’s decision to affirm Welch’s conviction is premature. For these reasons, I respectfully dissent.

WELCH, J., concurs.

      . Welch was indicted on a charge of domestic violence, based on his assault of J.G., who lived in the same household as Welch at the time of the incident because Welch was dating J.G.’s mother, Belinda Hamilton. At trial, defense counsel argued that the indictment was defective and should be dismissed because it alleged second-degree domestic violence based on second-degree assault, a viola-tionof §§ 13A-6-21 and 13A-6-131, Ala.Code 1975. However, the indictment cited the Code section defining the offense of third-degree domestic violence. See § 13A-6-132, Ala.Code 1975. (C. 9.) The circuit court denied the motion and stated it would charge the jury only on second-degree assault and would not charge on domestic violence. (R. 148-50.)

      . Defense counsel's argument is supported by the veniremembers’ responses during voir dire, which are contained in the record and was not refuted by the State at trial or on appeal.

      . Because of the timing of the trial court’s overruling of defense counsel’s Batson challenge, I do not believe that a remand would give the State a second chance to do what it should have already done. This would not be the proverbial second bite at the apple; rather, it would merely allow the State to finish taking the first bite.