source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Jennifer BURNETT v. Jimmy BURNETT and Linda Burnett.
    2100935.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.
    Dan Warnes, Guntersville, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Jennifer Burnett (“the mother”) and Stephen Burnett (“the father”) were divorced by a March 12, 2010, judgment of the Marshall Circuit Court. In that divorce judgment, the trial court, among other things, awarded the mother custody of the two minor children born of the marriage, and it ordered that the father receive supervised visitation.

On June 16, 2010, Jimmy Burnett and Linda Burnett (hereinafter together referred to as “the grandparents”) filed a motion to intervene in the divorce action and filed a petition in that action seeking an award of visitation with the two minor children pursuant to the former Alabama Grandparent Visitation Act (“the former Act”), § 30-3-4.1, Ala.Code 1975. The trial court granted the grandparents’ motion to intervene. The mother opposed the grandparents’ petition; she argued, among other things, that the former Act was unconstitutional. The attorney general submitted a brief in support of the constitutionality of the former Act.

After conducting a hearing, on April 12, 2011, the trial court entered a judgment in which it, in pertinent part, granted the grandparents’ claim for grandparent visitation. On May 10, 2011, the mother filed a postjudgment motion. While the mother’s postjudgment motion was pending, she amended that motion, arguing that a decision of the Alabama Supreme Court released after she had filed her post-judgment motion had determined the former Act to be unconstitutional. See Ex parte E.R.G., 73 So.3d 634 (Ala.2011). On June 24, 2011, the trial court entered an order in which it, in pertinent part, denied that portion of the mother’s postjudgment motion pertaining to grandparent visitation.

The mother timely appealed, arguing only that the trial court had erred as a matter of law in failing to deny the grandparents’ claim for visitation under the former Act based on our supreme court’s holding in Ex parte E.R.G., supra. The mother does not challenge the factual basis for the award of grandparent visitation. Accordingly, because only a question of law is implicated in the sole issue raised on appeal, this court reviews the trial court’s judgment de novo, and we apply no presumption of correctness in favor of the trial court’s judgment. Morgan Bldg. & Spas, Inc. v. Gillett, 762 So.2d 366, 368 (Ala.Civ.App.2000).

In its decision in Ex parte E.R.G., supra, our supreme court declared unconstitutional the former Act, which allowed a grandparent to assert a claim for visitation with his or her grandchild. Under the former Act, a trial court could award visitation to a grandparent against the wishes of the child’s parent if the trial court found that such visitation was in the child’s best interests; in determining whether visitation with the grandparent was in the child’s best interests, the trial court was to consider, among a list of other factors, the wishes of the child’s parent. See former § 30-3-4.1, Ala.Code 1975 (amended by Ala. Acts 2011, Act No. 2011-562). In reaching its decision in Ex parte E.R.G., supra, our supreme court noted that fit parents have a “fundamental right ... to direct the education and upbringing of their children” and that fit parents are presumed to act in the best interests of their children. 73 So.3d at 643. The court then explained its determination that the former Act was unconstitutional as follows:

“In order for a grandparent-visitation statute to pass constitutional muster, it must recognize the fundamental presumption in favor of the rights of the parents. The Act, however, and particularly § 30-3^.1(d), makes no mention of the fundamental rights of parents. Instead, it instructs the trial court to ‘determine if visitation by the grandparent is in the best interests of the child.’ The ‘wishes of any parent who is living’ are merely among the ‘[ojther relevant factors’ the court should ‘consider.’ § 30-3-4.1(d)(6), Ala.Code 1975. As noted above, a parent’s right is fundamental, and a limitation on that right must be subject to strict scrutiny. To be constitutional, the Act must infringe upon the parent’s right only to the extent necessary to protect a compelling state interest and must do so in a narrowly tailored way, using the least restrictive means....
“The reliance in the Act on the best-interests-of-the-child standard does not protect the fundamental right of parents, even though it is that right that is at issue. Instead of recognizing the substantive and procedural rights of parents, fundamental in nature and protected by the Due Process Clause of the Fourteenth Amendment, the Act looks only to the interests of the child. Those interests are incredibly important, to be sure, but, absent more, they do not rise to the level of a compelling state interest. Furthermore, application of a best-interests standard substitutes the judge for the parent as the decision-maker, without regard for parental rights, again without a compelling interest. Because no compelling interest is required by the Act and because there is no showing that application of the Act is the least restrictive means of achieving any state interest, the Act violates a parent’s fundamental right.
“We do not deny the valuable role played by grandparents in the lives of many grandchildren. We share the sentiments expressed by the Supreme Court of West Virginia:
“ ‘It is biological fact that grandparents are bound to their grandchildren by the unbreakable links of heredity. It is common human experience that the concern and interest grandparents take in the welfare of their grandchildren far exceeds anything explicable in purely biological terms. A very special relationship often arises and continues between grandparents and grandchildren. The tensions and conflicts which commonly mar relations between parents and children are often absent between those very same parents and their grandchildren. Visits with a grandparent are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship. Neither the Legislature nor this Court is blind to human truths which grandparents and grandchildren have always known.’
“Petition of Nearhoof, 178 W.Va. 359, 364, 359 S.E.2d 587, 592 (1987) (quoting Mimkon v. Ford, 66 N.J. 426, 437, 332 A.2d 199, 204-05 (1975)).
“There is no evidence in this case, however, indicating that the State has a compelling interest in forcing interaction between the grandparents and the grandchildren over the objections of the parents. And even if such a case were before us — i.e., a case showing such a compelling state interest — the Act applies in any case where the best interests of the child indicate that visitation with a grandparent might be appropriate, without any regard for the parents’ fundamental rights. This failure of the Act to include a presumption in favor of the parents when deciding questions of visitation infringes on the constitutional right of parents to direct the upbringing of their children, and the Act is therefore fatally flawed and unconstitutional.2

Ex parte E.R.G., 73 So.3d at 646-48 (emphasis added). The court in Ex parte E.R.G. concluded:

“The State must have a compelling interest to justify encroaching on the fundamental right of a parent to decide what is in the best interests of his or her child. The Act grants no deference to that fundamental right, however, and fails to limit the operation of the Act to those cases where there is a compelling state interest, instead requiring the court to decide visitation disputes between parents and grandparents based only on ‘the best interests of the child.’ ”

73 So.3d at 649.

We note that, at approximately the same time as the release of our supreme court’s opinion in Ex parte E.R.G., supra, the Alabama Legislature enacted Ala. Acts 2011, Act No. 2011-562 (hereinafter “the new Act”), which amended the former Act and became effective September 1, 2011. Among the amendments to the former Act set forth in the new Act is a requirement that a grandparent seeking visitation with his or her grandchild must overcome a “rebuttable presumption ... that the parent or parents with whom the child is living know what is in the best interests of the child.” § 30-3-4.1(d), Ala.Code 1975. Thus, the new Act attempts to correct the constitutional infirmity of the former Act by creating, in favor of a fit parent, a rebuttable presumption that the parent is acting in the child’s best interests. The new Act, however, was not in effect at the time the grandparents asserted their claim for visitation; they proceeded under the former Act.

In denying that part of the mother’s postjudgment motion pertaining to the issue of grandparent visitation, the trial court acknowledged the holding of Ex parte E.R.G., supra, but stated that “the most recent Supreme Court decision was not the rule of law at the time the case was tried.” On appeal, the mother argues, as she did before the trial court, that the trial court erred in failing to apply our supreme court’s holding in Ex parte E.R.G., supra, to the grandparents’ claim in this case.

In support of her argument, the mother cites Alabama State Docks Terminal Railway v. Lyles, 797 So.2d 432 (Ala.2001), in which our supreme court held that, generally, substantive changes in the law are to be applied retroactively.

“The general rule is that a case pending on appeal will be subject to any change in the substantive law. The United States Supreme Court has stated, in regard to federal courts that are applying state law: ‘[T]he dominant principle is that nisi prius and appellate tribunals alike should conform their orders to the state law as of the time of the entry. Intervening and conflicting decisions will thus cause the reversal of judgments which were correct when entered.’ Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327 (1941). See also United States v. Schooner Peggy, 1 Cranch 103, 5 U.S. 103, 2 L.Ed. 49 (1801)....
“In general, with regard to civil matters, prospective-only decision-making within the realm, of constitutional law is disfavored. ‘Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form, does not make sense.’ American Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 201, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (Scalia, J., concurring).
“Even when this Court is not applying a rule of constitutional or statutory law, but is only addressing the effects of decisional law, our strong inclination is to avoid establishing rules that are to be applied prospectively only:
“ ‘Although circumstances occasionally dictate that judicial decisions be applied prospectively only, retroactive application of judgments is overwhelmingly the normal practice. McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156 (Ala.1996) (plurality opinion). “Retroactivity ‘is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law.... It also reflects the declaratory theory of law, ... according to which the courts are understood only to find the law, not to make it.’ ” 687 So.2d 156, quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535-36, 111 S.Ct. 2439, 2443-44, 115 L.Ed.2d 481 (1991).’
“Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 352 (Ala.1997).”

Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d at 438-39.

In Palm Harbor Homes, Inc. v. Turner, 796 So.2d 295 (Ala.2001), the Turners sued Palm Harbor Homes, Inc., asserting claims under the Magnuson-Moss Warranty-Federal Trade Commission Act, 15 U.S.C. §§ 1501-12 (“the Magnuson-Moss Act”), and Palm Harbor moved to enforce an arbitration agreement between the parties. During the pendency of the action, our supreme court overruled an earlier case and held that the Magnuson-Moss Act did not invalidate arbitration provisions in warranties. See Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131 (Ala.2000). However, the trial court in Palm Harbor denied Palm Harbor’s motion to compel arbitration. Our supreme court rejected the Turners’ argument that Ard, supra, should have been applied prospectively only and explained, in part:

“The United States Supreme Court has adopted the following rule regarding the retroactivity of its decisions:
“ ‘When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.... In both civil and criminal cases, we can scarcely permit “the substantive law [to] shift and spring” according to “the particular equities of [individual parties’] claims” of actual reliance on an old rule and of harm from a retroactive application of the new rule.’
“Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (citations omitted).”

Palm Harbor Homes, Inc. v. Turner, 796 So.2d at 296.

Recently, our supreme court, in determining whether a change in the law should be applied retroactively, noted the distinction between changes in procedural law and changes in substantive law. In Ex parte Capstone Building Corp., [Ms. 1090966, June 3, 2011] - So.3d - , - (Ala.2011), our supreme court overruled previous precedent established in McKenzie v. Killian, 887 So.2d 861 (Ala.2004), which had held that a claim of wantonness was subject to a six-year statute of limitations. In Ex parte Capstone Building, supra, our supreme court instead held that a wantonness claim is subject to the two-year statute of limitations set forth in § 6 — 2—38(i), Ala.Code 1975. Our supreme court acknowledged that, generally, “retroactive application of judgments is the usual practice.” — So.3d at -. However, the court held that its decision in Ex parte Capstone Building should be applied prospectively only because “applying our decision retroactively to parties [with an existing cause of action] would deprive them of a vested right without granting them any opportunity to preserve it.” — So.3d at —.

The distinction between the facts of this case and those of Ex parte Capstone Building is that in Ex parte E.R.G., supra, our supreme court held that the cause of action under the former Act was unconstitutional and, therefore, that an action could not be maintained under that Act; in Ex parte Capstone Building, supra, the cause of action remained, but the time in which a party was entitled to assert that cause of action was shortened. In Ex parte Capstone Building, supra, in addition to discussing whether the case affected a vested right, our supreme court quoted in a parenthetical citation 20 Am.Jur.2d Courts § 151 (2005), for the following proposition:

“(‘A decision overruling a judicial precedent may be limited to prospective application where required by equity or in the interest of justice.... Some jurisdictions distinguish between decisions that overrule substantive law and those that ovemle procedural law; in these jurisdictions, a decision overruling substantive law applies retroactively, while a decision overruling procedural law applies prospectively only.’)9
“359 So.2d at 1155.”

In Ex parte E.R.G., supra, our supreme court did not “expressly define” whether the holding of that case should be applied retroactively or prospectively only. See Ex parte Capstone Bldg., — So.3d at — n. 9. However, approximately one month after the release of Ex parte E.R.G., our supreme court summarily reversed a trial court’s judgment, which had been entered before the decision in Ex parte E.R.G. was issued, awarding grandparent visitation pursuant to the former Act, because the Act had been declared unconstitutional in Ex parte E.R.G., supra. Ex parte A.S., [Ms. 1091156, July 22, 2011] — So.3d — (Ala.2011). See also G.M. v. T.W., 75 So.3d 1181, 1182 n. 1 (Ala.Civ.App.2011) (recognizing that Ex parte E.R.G. determined the former Act to be unconstitutional).

In this case, while the mother’s postjudgment motion was pending, the substantive law applicable to the grandparents’ claim for grandparent visitation changed; the statute upon which the grandparents based their claim for grandparent visitation was declared unconstitutional, and, therefore, it could not support the grandparents’ claim. Ex parte E.R.G., supra. When the substantive law applicable to an action changes, the change in the law should be applied retroactively. Alabama State Docks Terminal Ry. v. Lyles, supra; Palm Harbor Homes, Inc. v. Turner, supra; and Ex parte Capstone Bldg., supra. In this case, although the trial court had entered a judgment on the grandparents’ claim for visitation, it retained jurisdiction by way of the pending postjudgment motion to alter that judgment to correct any possible errors in the judgment or, as in this case, to bring that judgment into compliance with recent changes in the law applicable to the claims at issue. See, e.g., Palm Harbor Homes, Inc. v. Turner, supra. We conclude that the trial court erred in failing to enter a postjudgment order in favor of the mother on the grandparents’ claim under the former Act. Therefore, we reverse the trial court’s judgment awarding the grandparents visitation and remand the cause for the trial court to enter a judgment in compliance with this opinion.

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

REVERSED AND REMANDED.

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

      . As is explained later in this opinion, the Act has been amended, effective September 1, 2011. See Ala. Acts 2011, Act No. 2011-562.

      . This court makes no determination regarding the constitutionality of the new Act.

       Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. See Ex parte Capstone Bldg. Corp., [Ms. 1090966, March 16, 2012] - So.3d - (Ala.2012).

       Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. The substituted opinion contains the same quoted material. See Ex parte Capstone Bldg. Corp., [Ms. 1090966, March 16, 2012] - So.3d - (Ala.2012).

       Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. The substituted opinion does not contain the quoted material.

       Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. The substituted opinion does not contain the quoted material.

       Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. Note 9 from the original opinion was not carried over into the substituted opinion.

       2 Furthermore, nothing in the Act requires a narrow tailoring of relief to the least restrictive means of addressing the State’s interest (e.g., modes and duration of visitation).”

         9 The general rule in some jurisdictions as described in the cited section of American Jurisprudence is consistent with our decision today and arguably other decisions of this Court. This rule was expressly articulated in the following passage from Corpus Juris Se-cundum quoted with approval by this Court in City of Birmingham v. Brasher, 359 So.2d 1153 (Ala. 1978), though our research has not found any express repetition of it in more recent cases:
      " ‘ "As a general rule, the effect of overruling a decision and refusing to abide by the precedent there laid down is retrospective, as well as prospective, and makes the law at the time of the overruled decision as it is declared to be in the last decision .... The distinction has been made that if the overruled decision is one dealing with procedural or adjective law the effect of the subsequent overruling decision is prospective only; but if the overruled decision is one dealing with substantive law the effect of the subsequent overruling decision is retroactive. In any event, a court of final decision may expressly define and declare the effect of a decision overruling a former decision, as to whether or not it shall be retroactive, or operate prospectively only, and may, by a saving clause in the overruling decision, preserve all rights accrued under the previous decision." 21 C.J.S. Courts § 194(a) (Footnotes omitted.)’


author: MOORE, Judge.

text:
    K.D. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES and C.W.
    2100761.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2012.

      Adrian B. Dunning, Birmingham, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, asst. atty. gen., Department of Human Resources, for appellee Jefferson County Department of Human Resources.
    Matthew Kinder, Fultondale, for appel-lee C.W.
   MOORE, Judge.

K.D. (“the mother”) appeals from a judgment of the Jefferson Juvenile Court (“the juvenile court”) finding K.W. (“the child”), who was born on June 4, 2004, to be dependent and placing the child in the custody of her father, C.W. (“the father”). We affirm.

Background

The child was taken into protective custody on September 13, 2009, when the police responded to a shooting at the residence where the mother and her husband, J.D., lived. The police report indicated, in pertinent part:

“Among the people in the house were [the child and her half sibling] and [the mother]. There were also several dogs in the house. When officers entered the residence it was found to be in a severe state of filth. There was a very strong, foul odor throughout the house. Filth, clothing, and food items were also found throughout the house. The firearm used in the shooting was located under the sofa, in an unsecure manor [sic]. Officers have also received numerous ‘tips’ that narcotics were being used and sold out of the residence. Several residents of the incident location are well known by officers of the Fultondale Police Department and have been incarcerated on several occasions for various crimes, including drug charges.”

The Jefferson County Department of Human Resources (“DHR”) filed a dependency petition as to the child on September 14, 2009.

At a September 16, 2009, shelter-care hearing, the mother stipulated to the child’s dependency, and the juvenile court awarded temporary legal custody of the child to DHR and placed the child with the child’s paternal grandmother, M.W. The juvenile court’s order noted that the father was incarcerated at that time. The juvenile court ordered the mother and J.D. to submit to psychological evaluations, substance-abuse assessments, and random drug screens. They were also ordered to obtain and to maintain stable and suitable housing and employment. The mother was awarded supervised visitation with the child; the juvenile court, however, ordered that neither the father nor J.D. were to live with the child or to stay overnight in the same house with her.

In an order entered on March 11, 2010, the juvenile court indicated that the mother and J.D. had complied with the requirements to submit to psychological evaluations, substance-abuse assessments, and random drug screens and that the mother had successfully completed courses on parenting skills and domestic violence. The juvenile court also noted in its order that the father had appeared at a March 10, 2010, hearing and that he had been ordered to submit to a substance-abuse assessment and to maintain stable and suitable housing and employment. The juvenile court ordered that the father was allowed to exercise the visitation awarded to him in the parents’ divorce judgment, conditioned on the father’s maintaining negative drug screens.

On August 10, 2010, the mother moved the juvenile court to return custody of the child to her. The mother asserted that she and J.D. had complied with all the requirements that had been set for them by the juvenile court and by DHR. After a hearing on August 10, 2010, the juvenile court entered an order on August 17, 2010, awarding custody of the child to the father. The juvenile court left the matter open for future action and ordered DHR to supervise the parties’ compliance with its order.

On January 13, 2011, the juvenile court set aside its September 16, 2009, judgment as to the father, noting that the father had not been served with DHR’s dependency petition until January 7, 2011; however, it ordered that that judgment remain in force as to the mother. The juvenile court scheduled a hearing for February 16, 2011.

At the beginning of the February 16, 2011, hearing, the juvenile court inquired of the parties as to whether they stipulated to the dependency of the child. After an off-the-record discussion, the juvenile court stated as follows:

“All right. We’re back on the record. We do have a stipulation to dependency. We’re at disposition. Anything before we start taking testimony?”

Thereafter, no party objected to the juvenile court’s characterization of the stipulation, and the case proceeded to trial solely on the issue of the proper disposition of the custody of the child.

Sara Shadix, DHR’s caseworker, testified at the hearing. At the conclusion of Shadix’s testimony, the mother moved the juvenile court to dismiss the dependency action, arguing that DHR had not established that the child remained dependent at the time of that hearing; the juvenile court denied the mother’s motion. The father then called as a witness Polly Kavli, a police officer who had been present at the mother’s residence on September 13, 2009, when the child was taken into protective custody. The father also testified at the hearing.

On March 30, 2011, the juvenile court entered its judgment finding the child to be dependent, awarding custody of the child to the father, and allowing the mother visitation to be supervised by the father or his designee. The juvenile court also ordered the dependency file to be closed. On April 13, 2011, the mother filed a motion to alter, amend, or vacate the judgment. The mother’s postjudgment motion was deemed denied by operation of law on April 27, 2011, see Rule 1(B), Ala. R. Juv. P., and the mother timely appealed on May 10, 2011.

Analysis

The mother challenges the juvenile court’s finding, included in its March 30, 2011, judgment, that the parties had stipulated to the child’s dependency at the February 16, 2011, hearing. The mother denies that she stipulated to the child’s dependency at that hearing; she argues that, rather than stipulate to the child’s dependency, she had argued that the child was no longer dependent.

Ordinarily, a juvenile court cannot find a child dependent without receiving clear and convincing evidence establishing the dependency of the child. See Ala.Code 1975, § 12-15-310(b). However, nothing in the law prevents parties from stipulating to the dependency of a child. “A stipulation is a judicial admission, dispensing with proof, recognized and enforced by the courts as a substitute for legal proof.” Spradley v. State, 414 So.2d 170, 172 (Ala.Crim.App.1982). Therefore, when parties stipulate to the dependency of a child, a juvenile court may find a child dependent without clear and convincing evidence establishing the child’s dependency.

In this case, at the outset of the February 16, 2011, hearing, the juvenile court declared in open court that the parties had stipulated to the dependency of the child. The mother did not, at that time, dispute the juvenile court’s statement or otherwise object to its characterization of the stipulation. Hence, the record supports the juvenile court’s finding that the parties had, in fact, stipulated to the dependency of the child. See Rule 47, Ala. R.App. P. (declaring oral agreements reached in open court to be binding on the parties).

The mother did, at the close of Shadix’s testimony, argue that DHR had not proved that the child was presently dependent and that the case should be dismissed. See V.W. v. G.W., 990 So.2d 414 (Ala.Civ.App.2008) (holding that juvenile court may only dispose of custody of child in dependency proceeding if child is, in fact, dependent at time of disposition). However, because the mother had already stipulated to the dependency of the child, DHR did not have the burden of proving the dependency of the child in the dispositional hearing, and the juvenile court acted within its authority in denying the mother’s motion to dismiss on that ground. On appeal, the mother argues that the child was not dependent, but “[o]ne who has stipulated to certain facts is foreclosed from repudiating them on appeal.” Spradley, 414 So.2d at 172.

Once a child is found dependent, a juvenile court may proceed immediately to a dispositional hearing to determine the appropriate custodial arrangement for the child. See Ala.Code 1975, § 12-15-311(a). It appears from the record that the juvenile court, after receiving the stipulation of dependency from the parties, proceeded directly to a dispositional hearing, as it was authorized to do. We find no error in the juvenile court’s finding that the parties stipulated to the dependency of the child or in its decision to conduct a dispositional hearing immediately upon receiving that stipulation.

The mother next challenges the juvenile court’s failure to allow her unsupervised visitation with the child. The juvenile court’s final judgment allowed the mother “supervised visitation with the minor child at least two (2) hours every week. Visitation shall be supervised by the father or his designee. The mother is not to bring anyone else to her visitation.” In her postjudgment motion, the mother asserted that she was entitled to the “least restrictive visitation,” which, she suggested, was a “standard visitation” schedule. That motion was denied by operation of law.

R.B.O. v. Jefferson County Department of Human Resources, 70 So.3d 1286 (Ala.Civ.App.2011), an opinion authored by Judge Moore in which four judges concurred in the result, states:

“In dependency cases, a juvenile court possesses discretion over visitation, pursuant to former § 12-15-71 (a)(4), Ala. Code 1975 [amended effective January 1, 2009, and recodified as Ala.Code 1975, § 12-15-215]. That Code section provided that the juvenile court shall exercise its discretion according to the ‘welfare and best interests of the child.’ Notably, that standard is identical to the standard used for determining the visitation rights of noncustodial parents in divorce cases. See Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994) (‘[T]he primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child.’). In Carr, this court held that, under the best-interests standard, in order ‘to limit a parent’s visitation based on misconduct, the limitation ordered must be supported by evidence that the misconduct of the parent is detrimental to the child.’ 652 So.2d at 304 (citing Jones v. Haraway, 537 So.2d 946, 947 (Ala.Civ.App.1988)); see also Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010) (‘A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.’)....
“... It is in the best interest of a child to restrict the manner of his or her visitation with his or her parent only when necessary to protect the health, safety, or welfare of the child. Ex parte Thompson, supra. A juvenile court exceeds its discretion, however, when it imposes an overbroad restriction on visitation that does more than is necessary to protect the child and thereby unduly infringes on the parent-child relationship. Pratt v. Pratt, 56 So.3d 638, 641 (Ala.Civ.App.2010).”

70 So.3d at 1288-91 (footnotes omitted).

The risks identified at the February 16, 2011, hearing — indeed, throughout the pendency of this action — related primarily to the physical conditions found in the mother’s residence and to safety concerns stemming from other persons living in, staying at, or frequently visiting the mother’s residence. Although Shadix’s testimony established that some of the problems found at the mother’s residence had been rectified by February 16, 2011, the testimony provided by Polly Kavli, a Fulton-dale police officer, established that the safety issues remained a concern.

According to Kavli’s testimony, she had been dispatched to the mother’s residence on September 13, 2009, where she learned that J.D. and a young man had been involved in a shooting. Kavli described the condition of the residence that night as “atrocious.” Kavli testified that there were dirty clothes and dishes everywhere and “mattresses stacked up on the floor” because multiple people were living there. According to Kavli, the child was taken into protective custody because of the unsuitable living conditions found at the residence and because the child had been in the midst of a violent shooting.

Kavli also testified that she had been dispatched to the mother’s residence on multiple occasions before September 13, 2009. Kavli testified that the Fultondale Police Department regularly received complaints or reports of criminal activity regarding the occupants of the mother’s residence; she described the activities at issue as “domestics,” “assaults,” “warrant service,” “drug complaints,” and “just numerous types of calls.” According to Kavli, between 2008 and 2010, the police had made 11 arrests at the residence and had responded to 33 “calls” regarding the occupants or the activities at the mother’s residence. Kavli further testified that 29 of those police calls regarding the mother’s residence had been made between 2009 and 2010. Kavli testified, without objection, that the residence was known as a “drug house” to the Fultondale Police Department. The juvenile court also heard the father testify that he and his wife had observed an automobile parked at the mother’s residence on “December 28.” According to the father, the automobile belonged to a person whom the father knew to be a drug addict.

In P.D. v. S.S., 67 So.3d 128 (Ala.Civ.App.2011), this court reversed a judgment requiring all visitation between a noncustodial parent and her dependent children to be supervised because of the “lack of evidence indicating that the [noncustodial parent] had ever abused the children or had placed the children in harm’s way....” 67 So.3d at 136. Although in the present case the record does not reveal that the child had ever actually been physically harmed by the mother’s irresponsible behavior, the juvenile court reasonably could have determined from the evidence in the record that the mother had routinely placed the child in harm’s way by allowing criminal and dangerous activity to occur in the presence of the child. Under the circumstances, the juvenile court reasonably could have determined that, without supervision, any visitation between the mother and the child would pose an undue risk of harm to the child. The juvenile court therefore acted within its discretion in ordering supervised visitation.

For the foregoing reasons, the juvenile court’s judgment is affirmed.

AFFIRMED.

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

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

      . At a dispositional hearing held on February 16, 2011, the juvenile court, without objection from the mother, took judicial notice of its entire court file pertaining to this child.

      . The child's younger half sibling was also taken into protective custody. That child, who has a different father, is not at issue in this appeal.

      . On May 4, 2011, the juvenile court purported to grant the mother’s postjudgment motion in part by modifying the visitation schedule set forth in its March 30, 2011, judgment. That postjudgment motion, however, had been deemed denied by operation of law on April 27, 2011, and, therefore, the juvenile court’s attempt to modify its earlier judgment was of no effect.

      . Kavli identified additional persons that the Fultondale Police Department knew to be living in the mother’s residence at certain times.

      . Kavli explained that a "call” was logged into the police system whenever an officer was dispatched to the residence. According to Kavli, the police department itself or a complaint from a third party could initiate a call.


author: THOMAS, Judge.

text:
    Willie KENDRICK v. Patrick Dewayne LEWIS.
    2100527.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2012.
    A1 Jones, Tuscaloosa, for appellant.
    William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellee.
   THOMAS, Judge.

Willie Kendrick claimed that he was injured on December 10, 2007, when, he says, Patrick Dewayne Lewis caused a three-vehicle accident because Lewis did not stop his automobile in time to avoid hitting the car ahead of him, which in turn hit the car ahead of it. Kendrick was the driver of the last car to be struck. On December 3, 2009, Kendrick filed a complaint against Lewis and his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), with the Tuscaloosa circuit clerk’s office, alleging negligence, “gross negligence,” the tort of outrage, and intentional infliction of emotional distress.

On January 6, 2010, the clerk’s office served a summons and complaint upon State Farm but not upon Lewis. On April 14, 2010, State Farm was dismissed from the action and the circuit court ordered Kendrick to perfect service upon Lewis, the only remaining defendant, within 90 days if Kendrick intended to proceed against Lewis. On April 15, 2010, Kendrick provided a written request for service of the summons and complaint upon Lewis to the clerk’s office, and Lewis was, for the first time, served by certified mail on April 26, 2010. Lewis answered on May 20, 2010.

On June 14, 2010, Kendrick moved to add as a defendant his insurer, which, he said, was GMAC Insurance Company. The circuit court granted that motion, and it informed Kendrick that it had treated that motion as a motion to amend his complaint. Subsequently, in the second amendment to the original complaint, Kendrick changed his insurer’s name from GMAC Insurance Company to its correct name, National General Assurance Company (“NGAC”). NGAC was served with a summons and complaint.

On June 25, 2010, Lewis amended his answer to include a statute-of-limitations defense. Lewis claimed that undisputed facts proved that service of the summons and complaint upon him occurred more than two years after the alleged accident. Based on that defense, he filed a motion for a summary judgment on November 12, 2010, pursuant to Rule 56, Ala. R. Civ. P. On December 26, 2010, Kendrick filed his narrative summary of undisputed facts and his brief in opposition to Lewis’s motion for a summary judgment. Kendrick failed to present any evidence to the circuit court in opposition to Lewis’s motion for a summary judgment, although Kendrick gave at least seven different explanations in his brief in opposition to the motion for a summary judgment and other filings as to why service had not been perfected upon Lewis before the statute of limitations had expired. See Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000) (“ ‘[m]otions and arguments of counsel are not evidence’ ” (quoting Williams v. Akzo Nobel Chems., Inc., 999 S.W.2d 836, 845 (Tex.App.1999))).

In January 2011, Kendrick filed his third amendment to his original complaint, seeking to assert two additional causes of action. Lewis filed a motion to strike that amendment. At a January 31, 2011, hearing, the circuit court did not rule on the motion for a summary judgment, but it granted Lewis’s motion to strike the third amended complaint, because, the court ruled, Kendrick had failed to comply with Rule 15(a), Ala. R. Civ. P.; Kendrick had neither sought leave of the court nor shown good cause for his third amended complaint, which he filed less than 42 days before the first setting of the case for trial. Furthermore, the circuit court stated that there was “no reasonable probability that the complaint would survive a dispositive motion.” The circuit court ordered that an evidentiary hearing would be held on the material issue whether Kendrick had filed a summons for Lewis with his December 3, 2009, complaint, because, although Kendrick insisted that he had filed the summons for Lewis, the records of the clerk’s office included a note indicating that Kendrick had requested that service upon Lewis be withheld. The handwritten, signed note reads:

“I spoke with A1 Jones, Attorney of Record for [Kendrick] on 12/09/09 at approximately 9:50 am via telephone call. Mr. Jones expressed his wish to not demand a trial by struck jury, and to set the case for a bench trial. Mr. Jones failed to include a civil summons along with his complaint. Mr. Jones informed me that he has (120) one hundred and twenty days until service must be sent, and that he would wait to request service until he finished ‘negotiations.’ ”

The circuit court set a hearing for February 10, 2011, and on February 1, 2011, Kendrick’s attorney, Albert Jones, wrote a letter, addressed to the circuit judge, in which he stated his belief that the issue whether he had filed a summons for Lewis was moot. In the letter, Jones stated, in part, that “[t]his law office, nor its attorney, will render or submit any sworn testimony concerning the record keeping of the issuing of the Summons for [Lewis] in the above referenced case.” Therefore, Jones’s letter both specifically stated that he would not provide evidence in the form of testimony or an affidavit to the circuit court and failed to retract his earlier assertions against the clerk’s office (see note 1, supra). The circuit court confirmed that the hearing would remain scheduled for February 10, 2011. On February 2, 2011, Jones filed a document in which he withdrew the earlier assertions against the clerk’s office in the December 2010 narrative summary of undisputed facts and brief in opposition to the motion for a summary judgment, finally admitting that he had not submitted the summons for, or requested service upon, Lewis on' December 3, 2009.

Accordingly, on February 7, 2011, the circuit court entered a summary judgment in favor of Lewis based on the circuit court’s conclusion that Kendrick had not filed his December 3, 2009, complaint with the intent to serve a summons on Lewis; the circuit court concluded that the case had not been commenced against Lewis before the expiration of the two-year statute of limitations on Kendrick’s claims. The February 7, 2011, judgment was a non-final judgment because Kendrick’s claims against NGAC remained outstanding. Kendrick then filed a “motion to reconsider” the summary-judgment order, which the circuit court denied on February 9, 2011.

Kendrick then filed multiple motions and documents, including a motion to vacate, a motion for leave to amend the motion to vacate, a “renewed” motion to vacate, amendments to the motion to vacate and to the renewed motion to vacate, a motion for clarification of ruling, a “motion to add supplemental evidence,” another brief, and an affidavit from Jones. In his affidavit, Jones did not state that he had requested that service upon Lewis be perfected before April 15, 2010. He said that he recalled a conversation with “the clerk” and that he had not stated that he had 120 days to serve Lewis but that he had asked whether he had 120 days to serve Lewis. He said that he had no recollection of the answer to the inquiry he claims to have made. He alleged that the clerk’s note had been taken “out of context” and that he “never requested that service [upon Lewis] be withheld.” The circuit court conducted a hearing on March 4, 2011, at which Jones and Ryan Montgomery, an employee of the clerk’s office, testified.

Montgomery testified about the note in the file that he had written on December 9, 2009, detailing the telephone call that he had initiated to Jones on that day concerning the lack of a summons for Lewis. Lewis offered the handwritten note into evidence. According to Montgomery’s testimony and the note, Jones “informed [Montgomery] that [Jones] ha[d] (120) one hundred and twenty days until service must be sent, and that [Jones] would wait to request service until he finished ‘negotiations.’ ” Jones, however, testified that he believed that the clerk’s office was responsible for preparing the summons and that Montgomery had misinterpreted the telephone conversation. Following the hearing, the circuit court again entered a summary judgment in favor of Lewis, determining that Kendrick did not have a bona fide intent to commence proceedings against Lewis before December 10, 2009, and denying all pending motions. Kendrick appealed to this court on March 7, 2011.

Standard of Review

‘We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).
“ ‘ “We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘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.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.”
“‘Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2001) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.’ ”

Cooper v. Federal Nat’l Mortg. Ass’n, [Ms. 2090983, June 30, 2011] — So.3d —, — (Ala.Civ.App.2011) (quoting Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002)).

Lewis had the burden to prove that no genuine issue of material fact existed regarding his statute-of-limitations defense, which is an affirmative defense. See Porter v. Fisher, 636 So.2d 682, 684 (Ala.Civ.App.1994). In reviewing the summary judgment, we view the evidence in the light most favorable to Kendrick, the non-movant. When the circuit court entered its summary judgment, both parties agreed that the accident had occurred on December 10, 2007, and that Lewis had received the summons and complaint on April 26, 2010; there existed no genuine issue of material fact as to whether the applicable two-year statute of limitations had run before Kendrick served Lewis with the complaint. See Ala.Code 1975, § 6-2-38(1) (providing that “[a]ll actions for injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years”).

We determine that the circuit court did not err by entering a summary judgment in favor of Lewis because Kendrick filed the complaint without the bona fide intent to serve Lewis before the statute of limitations expired. Our supreme court has stated that, although filing a complaint is surely a significant factor for a court to consider in determining whether a party has commenced an action and whether a statute of limitations has thus been tolled, it is not the only factor that a court may consider. Freer v. Potter, 413 So.2d 1079, 1081 (Ala.1982). For practical reasons, a party’s intent is a factor to consider as well. Our supreme court has explained:

“ ‘We hold that in the present case the action was not “commenced” when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served. To hold otherwise would permit a party to extend unilaterally the period of limitations by an oral request that actual service be withheld, thereby giving that party an additional period of time within which he could conduct an investigation to determine whether in fact, he had a claim. To permit this would violate the fundamental concept of repose found within every statute of limitations.’
“[Ward v. Saben Appliance Co.,] 391 So.2d [1030] at 1035 [ (Ala.1980) ]. A large number of cases support that rule. Jordan v. Bosworth, 123 Ga. 879, 51 S.E. 755 (1905) (filing with note to ‘hold it’ did not constitute commencement of the action until such instructions were withdrawn); Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969) (‘hold’ order given to sheriff releases party from suit since there was no proper filing); Green v. Ferguson, 184 S.W.2d 790 (Mo.App.1945)(filing of suit with instructions to clerk to hold service until further notice was not the ‘commencement of suit’); Franz v. Radeackar, 264 S.W. 97 (Mo.App.1924) (if clerk is instructed upon filing to withhold service until further notice, action will not be treated as brought until the clerk proceeds with service); McMullen Oil and Royalty Co. v. Lyssy, 853 S.W.2d 311 (Tex.Civ.App.1962) (filing of petition does not toll statute of limitations since there must be a bona fide intent to issue process).”

Freer, 413 So.2d at 1081.

Kendrick attempts to make 10 arguments to this court on appeal. We reject each argument. In large part, Kendrick continues to argue in his brief to this court that a summary judgment in favor of Lewis is improper because, Kendrick says, he had the intent to institute an action against Lewis when he filed his complaint on December 3, 2009.

First, we cannot agree with Kendrick’s argument that the circuit court abused its discretion when it granted Lewis’s motion to strike the January 11, 2011, third amended complaint, which purported to assert claims subject to a longer statute of limitations than the two-year statute of limitations applicable to the claims asserted in his earlier complaints, for failing to comply with Rule 15(a), Ala. R. Civ. P. That rule, which governs amending and supplementing pleadings, provides, in part:

“(a) Amendments. Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.”

As Lewis points out, Kendrick failed to seek leave of the court before attempting to amend his complaint, and he failed to make a showing of good cause. It was within the circuit court’s discretion to grant or to deny the motion to strike the amended complaint.

“Rule 15(a), Ala. R. Civ. P., requires that amendments ‘be freely allowed when justice so requires.’ See Tounzen v. Southern United Fire Ins. Co., 701 So.2d 1148 (Ala.Civ.App.1997). Under Rule 15, the trial court has discretion to allow or to deny amendments, and the trial court’s ruling on that matter should not be reversed in the absence of an abuse of that discretion. Hayes v. Payne, 523 So.2d 333 (Ala.1987).”

Patrick v. Tuscaloosa Cnty. Comm’n, 816 So.2d 46, 51 (Ala.Civ.App.2001). In his brief to this court, Kendrick faults the circuit court for what he characterizes as a swift and decisive refusal to allow his third amended complaint, despite his lack of compliance with our rules of civil procedure. He says that the circuit court could have asked: “ ‘Mr. Jones, before I make my ruling, will you be asking leave of the Court to amend?’” Kendrick contends that “[t]his is indicative of the air of the Court at this point and discretion, from the standpoint of Plaintiffs Attorney was unfocused.” Kendrick attempts to convince this court that the circuit court was simultaneously unfocused, swift, and decisive and that, for no reason other than its ruling was detrimental to him, its refusal to allow the third amendment to the original complaint was an abuse of discretion. We do not agree; there is no evidence of an abuse of discretion.

Kendrick also argues that the circuit court’s order of April 14, 2010, requiring him to serve Lewis within 90 days extended his time to perfect service. We do not agree. Kendrick fails to comprehend that the summary judgment was entered because the applicable statute of limitations had run before he demonstrated a bona fide intent to have a summons served upon Lewis and not because of untimely service. Alabama law required Kendrick to have commenced his action with a bona fide intent to serve Lewis by December 10, 2009. See Ala.Code 1975, § 6-2-88(0 (providing that “[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years”).

Kendrick also argues in his brief to this court that a summary judgment in favor of Lewis is improper because, he asserts, the clerk’s office failed in its duty to serve Lewis. However, he presented no evidence to the circuit court in support of his argument. The evidence before the circuit court at the time of the entry of the summary judgment included Montgomery’s testimony and his note stating that Kendrick did not intend to perfect service upon Lewis at the time he filed the complaint and Jones’s testimony and his affidavit in which he did not state that he had requested service upon Lewis before the statute of limitations expired. Consistent with his affidavit, in his testimony at the hearing, Jones was unwilling to testify that he had requested service upon Lewis before April 15, 2010. He said that he had a bona fide intent to commence the action as to Lewis before the expiration of the statute of limitations but that he had no records to prove that he had filed a summons on December 3, 2009. He continued to insist that the clerk’s office took his statements out of context and that it was obligated to serve the complaint upon Lewis. Jones testified as follows:

“THE COURT: [D]o you contend it’s the clerk’s obligation to prepare and generate a summons to go with the complaint?
“MR. JONES: I do, Your Honor.
“THE COURT: All right. So you think by filing the complaint only, with a filing fee, it was the clerk’s obligation to prepare a summons?
“MR. JONES: On December 3rd. I do believe that, Your Honor.”

He further testified that he knew that he had filed a complaint but that he did not recall whether he had “promised” to bring a summons to the clerk’s office. He said: “[Rjeally, my whole argument is on that day a complaint was filed.”

Kendrick contends that this ease is unlike Latham v. Phillips, 590 So.2d 217 (Ala.1991), upon which the circuit court relied in entering the summary judgment in favor of Lewis. Kendrick urges this court to “infer” from the holding in La- tham that an attorney must intentionally “try and keep the filed complaint from being served.” He says that Jones is unlike the attorney in Latham because he paid the filing fee and Lewis’s address was on the complaint “open for all to see.” Again, the evidence before the circuit court at the time of the entry of the summary judgment included Montgomery’s testimony and his note stating that Kendrick did not intend to perfect service upon Lewis at the time he filed the complaint and Jones’s testimony and his affidavit in which he did not state that he had requested service upon Lewis before the statute of limitations expired. The additional undisputed facts that Kendrick had paid a filing fee and had placed Lewis’s address in the complaint cannot alter the fact that Kendrick provided no evidence to the circuit court indicating that he had a bona fide intent to serve Lewis until after the statute of limitations had run.

In another argument, Kendrick contends that Lewis’s reference to Kendrick’s unpleaded claim of wantonness in his answer and in his motion for a summary judgment leads to the result that the wantonness claim was “activated” or, stated more accurately, tried by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P. We do not agree.

Rule 15(b) provides:

“(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent- of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

(Emphasis added.)

Kendrick relies on Rector v. Better Houses, Inc., 820 So.2d 75 (Ala.2001), to support his contention that a claim of wantonness was “activated” and tried by the implied consent of the parties. However, as Lewis points out in his brief, Kendrick’s reliance on Rector is misplaced. In Rector, our supreme court clearly distinguished the applicability of Rule 15(b) in the trial context from its inapplicability in the summary-judgment context:

“The summary-judgment context is different from the situation where an un-pleaded defense has been tried on the merits -without objection, because, at the summary-judgment stage of litigation, there has been no trial before a fact-finder. A summary-judgment motion simply tests the merits of a case. See Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated, § 56.2 (3d ed. 1996). If a court finds those merits lacking, then it properly adjudicates it. While such an adjudication under this scenario is an adjudication on the merits, the adjudication is not the product of a trial on the merits. Thus, where there is no trial, Rule 15(b) cannot apply. See Blue Cross & Blue Shield of Alabama v. Weitz, 913 F.2d 1544, 1549 (11th Cir.1990) (stating, in dictum, that Rule 15(b), Fed.R.Civ.P., the relevant portion of which is identical to Alabama’s Rule 15(b), is inapplicable at the summary-judgment stage because that stage does not involve a trial). For this reason, an affirmative defense the defendant has waived cannot be revived by the fact that it is raised and litigated in a summary-judgment proceeding. Wallace [v. Alabama Ass’n of Classified Sch. Emps.], 463 So.2d [135,] 137 [(Ala.1984) ] (quoting Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir.1976)).”

Rector, 820 So.2d at 79. In this case, Kendrick did not properly and timely raise the claim of wantonness in his pleadings and there was no trial on the merits. Accordingly, Rule 15(b) cannot “activate” Kendrick’s unpleaded claim.

Finally, we will not consider Kendrick’s undeveloped arguments that service of process upon State Farm, a potential in-demnitor of Lewis, is sufficient for service upon Lewis, that Lewis’s attorney waived service upon Lewis because he is also the attorney who represented State Farm, or that there exists a “local rule” that forces an attorney to “automatically” supply a summons when the clerk’s office does not “instantly” request the summons. Kendrick has not provided relevant citation to any authority for these arguments; therefore, he has not satisfied the appellate-briefing requirements, and these arguments have been waived. See Rule 28(a)(10), Ala. RApp. P. Our supreme court has stated:

“Indeed, it has long been the law in Alabama that failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal. An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. Humane Society of Marshall County v. Adams, 439 So.2d 150 (Ala.1983); Boshell v. Keith, 418 So.2d 89 (Ala.1982); McNeill v. McNeill, 332 So.2d 387 (Ala.Civ.App.1976); Melton v. Jackson, 284 Ala. 253, 224 So.2d 611 (1969); Pappas v. Alabama Power Company, 270 Ala. 472, 119 So.2d 899 (1960); Schneider v. Southern Cotton Oil Co., 204 Ala. 614, 87 So. 97 (1920). This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument. Brittain v. Ingram, 282 Ala. 158, 209 So.2d 653 (1968); Reynolds v. Henson, 275 Ala. 435, 155 So.2d 600 (1963) (later appeal dismissed on other grounds, 277 Ala. 424, 171 So.2d 240 (1965)).”

Ex parte Riley, 464 So.2d 92, 94 (Ala.1985).

In conclusion, the circuit court did not err by entering a summary judgment in favor of Lewis. Kendrick failed to “commence” his action against Lewis within the applicable statutory limitations period. The evidence presented (even viewed as it must be — in the light most favorable to Kendrick) shows that Kendrick did not file a summons for Lewis when he filed the original complaint and that he specifically informed the clerk’s office that he was not requesting service of the complaint upon Lewis. The circuit court did not err in concluding that Kendrick did not show a bona fide intent to commence an action against Lewis before the applicable two-year statute of limitations expired.

AFFIRMED.

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

      . In his brief in opposition to the motion for a summary judgment, Kendrick stated that he understood that his mere filing of the complaint would not commence the action against Lewis but that he had made "diligent” efforts to serve Lewis. He claimed (1) that he had left a summons for Lewis with the clerk’s office and had requested service by certified mail, (2) that he was "sure” that Lewis had been served with the summons, (3) that he was being "punished” for the failure of the clerk’s office to serve Lewis, (4) that State Farm’s awareness of the civil action was a substitute for serving a summons upon Lewis, and (5) that the fact that Kendrick had not made Lewis "physically aware” of the action against him would not lead to "prejudice toward [Lewis's] defense”; Kendrick also expressed his beliefs (6) that the circuit court had given him additional time to serve Lewis and (7) that ”[c]learly the fact that [Kendrick] believes and that it’s [Kendrick’s] attomey['s] standard procedure and practice to present all supportive summons per defendant to the clerk's office at the same time presents mitigating circumstances if the summons does not go out.”

      . Kendrick attempted to add causes of action alleging "wanton conduct as to operation of a vehicle” and "trespass upon the person of plaintiff.”

      . "A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided.” Faulk v. Rhodes, 43 So.3d 624, 625 (Ala.Civ.App.2010).

      . The circuit court's summary judgment in favor of Lewis did not adjudicate Kendrick’s claims against NGAC. Because the circuit court’s summary judgment did not adjudicate all the claims against all the parties in the action, it was a nonfinal judgment, over which this court lacked jurisdiction. Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990); Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). We remanded the cause to the circuit court for it either to adjudicate Kendrick's claims against NGAC or to certify the summary judgment in favor of Lewis as final for purposes of appeal, pursuant to Rule 54(b), Ala. R. Civ. P. On November 1, 2011, the circuit court certified the summary judgment as final pursuant to Rule 54(b).

      . Lewis asks this court to dismiss Kendrick's appeal, pursuant to Rule 2(a)(2)(D), Ala. R.App. P., based on Kendrick’s brief, which, Lewis says, fails to comply with Rules 28 and 32, Ala. R.App. P. Kendrick filed a reply brief in response. Although we decline Lewis’s request, we note that Kendrick’s principal brief and reply brief, at best, only minimally comply with the rules.

      . The January II, 2011, amended complaint asserted claims of “wanton conduct as to the operation of a vehicle” and "trespass upon the person of plaintiff.” "Actions for any trespass to the person” “must be commenced within six years.” Ala.Code 1975, § 6-2-34(1). On January 11, 2011, caselaw indicated that a six-year statute of limitations also applied to claims of wantonness. See McKenzie v. Killian, 887 So.2d 861, 870 (Ala.2004). However, on June 3, 2011, our supreme court overruled McKenzie, holding that a two-year statute of limitations applies to wantonness claims. Ex parte Capstone Bldg. Corp., [Ms. 1090966, June 3, 2011] - So.3d -, - (Ala.2011). (Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. See Ex parte Capstone Bldg. Corp., [Ms. 1090966, March 16, 2012] — So.3d -, - (Ala.2012)).

      . Kendrick contends that the clerk's office is at fault for not asking him for a summons for Lewis when Kendrick filed the complaint and then for not serving the summons despite his failure to request service. He says that he has violated no rule of procedure because he paid the filing fee and put Lewis's address in the text of the complaint and that his attorney is known to the clerk's office as an "attorney [who] always used certified mailing for service. ...”

      . As noted earlier, at the time of the proceedings below, caselaw indicated that a six-year statute of limitations applied to wantonness claims. See note 6, supra.


author: PER CURIAM. MOORE, Judge,

text:
    WHITE TIGER GRAPHICS, INC. v. Paul CLEMONS.
    2100482.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2012.

      William L. Middleton of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellant.
    L. Thompson McMurtrie and Mary Ena J. Heath of L. Thompson McMurtrie, L.L.C., Huntsville, for appellee.
   PER CURIAM.

White Tiger Graphics, Inc. (“White Tiger”), appeals from a judgment awarding Paul Clemons benefits for a permanent total disability under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”). We affirm.

White Tiger operates a printing business, and Clemons worked for White Tiger, operating a folder machine. In November 2008, Clemons sued White Tiger, seeking workers’ compensation benefits. Clemons’s complaint alleged that he had injured his left knee in a work-related accident in February 2007 and that he had injured his right shoulder in a work-related accident in March 2008. White Tiger filed an answer asserting the affirmative defense of estoppel. Clemons amended his complaint to allege that he had also injured his right shoulder in a work-related accident in March 2009. White Tiger did not file an answer to the amended complaint. The trial court held a trial in October 2010. At trial, Clemons testified that White Tiger had terminated his employment in late 2009 and that he was receiving unemployment-compensation benefits from the State Department of Industrial Relations (“DIR”). In November 2010, the trial court entered a judgment awarding Clemons permanent-total-disability benefits for his work-related injuries. Following the denial of its postjudgment motion, White Tiger appealed to this court.

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

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

Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

On appeal, White Tiger first argues that Clemons is judicially estopped from receiving permanent-total-disability benefits because he received unemployment-compensation benefits for the same period. Before addressing the substance of that argument, we first address Clemons’s argument that White Tiger waived its judicial-estoppel defense by failing to assert it in an answer to Clemons’s amended complaint. Estoppel is an affirmative defense that should be pleaded, and failure to plead the defense typically constitutes a waiver. See Ex parte Luverne Geriatric Ctr., Inc., 480 So.2d 562, 568 (Ala.1985). As noted, White Tiger asserted estoppel in its answer to Clemons’s original complaint, which alleged that Clemons had injured his left knee and right shoulder in accidents on certain dates. White Tiger did not file an answer to the amended complaint, which alleged that Clemons had also injured his right shoulder on a separate date from the date alleged in the original complaint.

Assuming, without deciding, that White Tiger was required to reassert its estoppel defense in an answer to the amended complaint, White Tiger did not waive that defense because it was tried by the consent of the parties. Rule 15(b), Ala. R. Civ. P., provides, in pertinent part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” At trial, counsel for White Tiger, without objection, asked Clemons questions directly relating to the judicial-estoppel defense. At the end of the trial, counsel for White Tiger stated that he had submitted to the trial court caselaw and statutes concerning estoppel, and the record on appeal contains those materials. The record also contains Clemons’s posttrial brief, in which he addresses the substantive issue of whether judicial estoppel should apply in this case. Thus, the judicial-estoppel issue was tried by the consent of the parties and is properly before us.

We now address the merits of White Tiger’s argument that Clemons is judicially estopped from receiving permanent-total-disability benefits because he received unemployment-compensation benefits for the same period. Our supreme court has discussed the requirements of judicial estoppel:

“ ‘In Ex parte First Alabama Bank, [883 So.2d 1236 (Ala.2003),] this Court “embrace[d] the factors set forth in New Hampshire v. Maine [, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001),] and join[ed] the mainstream of jurisprudence in dealing with the doctrine of judicial estoppel.” ’ Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 60 (Ala.2007) (quoting Ex parte First Alabama Bank, 883 So.2d at 1246). For judicial estop-pel to apply (1) ‘a party’s later position must be “clearly inconsistent” with its earlier position’; (2) the party must have been successful in the prior proceeding ‘so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or second court was misled” ’; and (3) ‘the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not es-topped.’ New Hampshire, 532 U.S. at 750-51 (citations omitted); see Middleton, 979 So.2d at 60-61; Ex parte First Alabama Bank, 883 So.2d at 1244-45. This Court has stated that ‘[t]he purpose of judicial estoppel is “ ‘to protect the integrity of the judicial process’ by ‘prohibiting parties from deliberately changing positions according to the exigencies of the moment.’ ” ’ Middleton, 979 So.2d at 59 (quoting New Hampshire, 532 U.S. at 749-50; other citation omitted).”

Hamm v. Norfolk Southern Ry. Co., 52 So.3d 484, 494 (Ala.2010).

Pursuant to § 25-4-77(a)(3), Ala. Code 1975, a recipient of unemployment-compensation benefits must be “physically and mentally able to perform work of a character which he is qualified to perform by past experience or training.” White Tiger argues that Clemons’s assertion to DIR that he was able to work for purposes of receiving unemployment-compensation benefits estopped Clemons from claiming that he is permanently and totally disabled in the present workers’ compensation case.

“‘Permanent total disability’ is defined in § 25-5-57(a)(4)d., Ala.Code 1975, to include ‘any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment.’ Total disability does not mean absolute helplessness; rather, it means that the employee is not able to perform his or her trade and is unable to obtain other reasonably gainful employment.”

Dolgencorp, Inc. v. Hudson, 924 So.2d 727, 734 (Ala.Civ.App.2005). Judicial estoppel may apply to statements previously made in both judicial proceedings and quasi-judicial proceedings, see Selzer Auto., L.P. v. Cumberland Plastic Sys., LLC, 70 So.3d 272, 276 (Ala.2010), like unemployment-compensation proceedings before DIR. See Consolidated Stores, Inc. v. Gargis, 686 So.2d 268 (Ala.Civ.App.1996), overruled on other grounds, Bleier v. Wellington Sears Co., 757 So.2d 1163, 1171 (Ala.2000) (applying judicial estoppel in a retaliatory-discharge case based on an earlier statement made in a case before DIR).

Professors Arthur Larson and Lex K. Larson have discussed whether a claim that one is willing and able to work is totally inconsistent with a subsequent claim that one is permanently and totally disabled for the same period:

“Several cases have appeared in which workers have applied for and received unemployment benefits on the strength of their representation that they were physically available for work, and later have applied for worker’s compensation benefits on the theory that they were totally disabled during the same period. At first glance the two positions may appear mutually exclusive; but the inconsistency disappears when the special meaning of disability in worker’s compensation is remembered, involving ... the possibility of some physical capacity for work which is thwarted by the inability to get a job for physical reasons.
“Thus, the injured claimant may honestly represent to the [unemployment-benefits] office that he or she is able to do some work, and with equal honesty tell the [trial court in a workers’ compensation case] later that he or she was totally disabled during the same period since, despite being capable of doing some kinds of work, no one would offer a job because of the claimant’s physical handicaps. Whether such a double recovery of benefits should be tolerated in view of the desirability of treating all segments of the social insurance pattern as a coordinated whole is another question; the point here is that the courts do not feel it to be their duty to rule out an otherwise proved case of disability because of this type of representation in an unemployment insurance application.”

4 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law § 84.05 (2006) (footnote omitted).

We find the above-quoted analysis to be persuasive. In this case, Clemons testified that he “felt like [he] was able to work” at the time he received unemployment-compensation benefits. Clemons testified that he has tried to find work but has been unable to find any work that he can do. Clemons further testified that, if he could find a job, he would give it his “best shot.” Even if Clemons had found some work for which he was qualified and that he was willing and able to do, that would not necessarily preclude a finding of permanent and total disability. “ ‘An employe[e] who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist, may well be classified as totally disabled.’ ” Brunson Milling Co. v. Grimes, 267 Ala. 395, 400, 103 So.2d 315, 318 (1958) (quoting Lee v. Minneapolis Street Ry. Co., 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950)). Clemons’s assertion to DIR that he was willing and able to perform some work that he was qualified to do is not totally inconsistent with his claim to be permanently and totally disabled for workers’ compensation purposes. Thus, judicial es-toppel does not prohibit Clemons’s claim that he is permanently and totally disabled under the Act. We note that our decision today is in accord with the decisions of courts in several jurisdictions that have addressed similar cases. See Larson, § 84.05 at n. 3; Paschke v. Retool Indus., 445 Mich. 502, 519 N.W.2d 441 (1994); Wells v. Jones, 662 S.W.2d 849 (Ky.Ct.App.1983); and Utica Mut. Ins. Co. v. Pioda, 90 Ga.App. 593, 83 S.E.2d 627 (1954).

White Tiger also argues that the “doctrine of inconsistent positions” bars Clemons from claiming to be permanently and totally disabled. In making that argument, White Tiger cites Gargis, supra. In Gargis, this court discussed the “doctrine of inconsistent positions” as it was explained by our supreme court in Porter v. Jolly, 564 So.2d 434 (Ala.1990), which was overruled by Ex parte First Alabama Bank, 883 So.2d 1236, 1242 (Ala.2003). In overruling Porter, the court in Ex parte First Alabama Bank clarified (1) that the “doctrine of inconsistent positions” as discussed in Porter was actually the doctrine of judicial estoppel, 883 So.2d at 1242-43, and (2) the elements of judicial estoppel, 883 So.2d at 1243-46, which we have recited above. See Hamm, supra. Thus, we understand White Tiger’s argument based on the “doctrine of inconsistent positions” essentially to be the same as its argument based on judicial estoppel, which we have already discussed.

White Tiger also briefly argues that the record does not contain substantial evidence supporting the trial court’s determination that Clemons is permanently and totally disabled. On this issue,

“[o]ur review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).”

Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007) (opinion on original submission).

As we noted earlier,

“‘[pjermanent total disability’ is defined in § 25-5-57(a)(4)d., Ala.Code 1975, to include ‘any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment.’ Total disability does not mean absolute helplessness; rather, it means that the employee is not able to perform his or her trade and is unable to obtain other reasonably gainful employment.”

Dolgencorp, 924 So.2d at 734.

The record reveals the following relevant facts regarding whether Clemons is permanently and totally disabled under the Act. Clemons was 56 years old at the time of the trial. At trial, Clemons testified that he had completed the eighth grade and that later he had earned a general equivalency diploma. Clemons worked as a firefighter early in his working career before leaving that job due to a disability. After that job, Clemons worked for various printing companies, including White Tiger, running various machines. For less than a year, Clemons was self-employed in a lawn-maintenance business.

Clemons injured his right shoulder and left knee in accidents while working for White Tiger. Clemons testified that he experiences constant pain in his right shoulder. Clemons testified that using his knee causes it to hurt and requires him to lie down and apply heat to the knee. He stated that he cannot not bend, run, or crawl. Clemons testified that he is unable to place his right hand on the top part of a steering wheel because of the condition of his right shoulder. Clemons stated that, due to his pain, he needs to lie down more than once “just about every day” for 30-60 minutes. He further testified that he takes Lortab and Lyrica, prescription pain medications, and that he takes Valium to help him sleep.

Clemons testified that he wants to work and has attempted to find work. Clemons stated, however, that he was unable to find any work that he would be able to do. John McKinney, a vocational-expert, evaluated Clemons. In its judgment, the trial court summarized McKinney’s conclusions regarding whether Clemons could be gainfully employed: “Considering [Clemons’s] advanced age, past work history, ... the vocational testing results, extended absence from the labor market, degree of pain, necessary and regular use of narcotic medication, along with other negative em-ployability factors, ‘there is no reasonable expectation that he could acquire, perform, or consistently maintain competitive employment.’ ” McKinney concluded that Clemons is 100% vocationally disabled. Eddie Rice, a vocational expert, examined Clemons on behalf of White Tiger, and Rice concluded that Clemons is 49% vocationally disabled. Mitchell Hamric, a physical therapist, performed a functional-capacities evaluation on Clemons and testified at trial. Hamric found that Clemons’s physical capacities for work were limited due to pain. Hamric recommended that Clemons not return to a full eight-hour workday due to his physical condition.

In its judgment, the trial court found Clemons “to be very credible,” that his “demeanor and obvious deep emotional distress [were] consistent with his claims of pain,” and that he “was in a great deal of pain even while testifying.” The trial court further found that, “based upon his age, education, work experience, ... physical infirmities, and other factors noted by John McKinney, [Clemons] is incapacitated from working at or being retrained for gainful employment.”

In arguing that there was not substantial evidence demonstrating that Clemons Was permanently and totally disabled, White Tiger emphasizes, without fully developing its argument, that Clemons claimed to be willing and able to work in seeking and receiving unemployment-compensation benefits and the existence of some evidence undermining Clemons’s evidence regarding his physical limitations. White Tiger basically asks us to reweigh the evidence in its favor. However, this court does not reweigh the evidence that was before the trial court as if we were the trier of fact. Ex parte Staggs, 825 So.2d 820, 822 (Ala.2001). Regarding factual issues, we examine only the record to see if it contains substantial evidence supporting the trial court’s findings. Landers; Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002) (“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.”). In this case, clearly the trial court had before it substantial evidence, discussed above, supporting its finding that Clemons is permanently and totally disabled under the Act, ie., that he is unable to perform his trade or to obtain other reasonably gainful employment. Dolgencorp, supra.

Based on the foregoing, we affirm the judgment of the trial court awarding Clemons permanent-total-disability benefits. Clemons’s “motion to strike assertions not supported by evidence in the record” is denied.

AFFIRMED.

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

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

MOORE, Judge,

concurring in the rationale in part and concurring in the result.

In this case, Paul Clemons sought permanent-total-disability benefits for a series of injuries he had suffered to his left knee and right shoulder. The record discloses that, after reaching maximum medical improvement from his last injury to his right shoulder on March 10, 2009, Clemons attempted to return to work at White Tiger Graphics, Inc., but was advised that no jobs were available that fit his permanent restrictions, which included no lifting over 20 pounds, limited use of the right upper extremity, no overhead lifting, and minimal repetitive motion. Clemons thereafter applied for and received unemployment-compensation benefits; White Tiger did not contest Clemons’s claim for benefits. In accordance with § 25-4-77, Ala.Code 1975, in order to obtain unemployment-compensation benefits, Clemons verified to the Alabama Department of Industrial Relations (“DIR”) that he was “physically and mentally able to perform work of a character which he is qualified to perform by past experience or training.” Clemons testified that he felt like he was able to work, that he had unsuccessfully sought employment within the printing field or otherwise, and that, if he found a job, he would “give it [his] best shot.” Clemons also testified that he had almost secured a job at an auto-parts store but that he had lost the opportunity when he informed that potential employer of his permanent physical limitations.

On appeal, White Tiger maintains that Clemons should be estopped from asserting that he is permanently and totally disabled for workers’ compensation purposes based on his representations to DIR in pursuit of his claim for unemployment-compensation benefits. The main opinion finds no basis for applying the doctrine of judicial estoppel because it finds no inconsistency between Clemons’s representations to DIR and his claim for permanent-total-disability benefits. I do not subscribe to that reasoning. A representation that a worker is able to physically and mentally perform jobs of a character within his or her prior work experience directly contradicts any claim that the worker “is not able to perform his or her trade,” Dolgencorp, Inc. v. Hudson, 924 So.2d 727, 734 (Ala.Civ.App.2005), a key component of a permanent-total-disability claim. Nevertheless, I find no basis for applying the doctrine of judicial estoppel in this context.

In Richardson Homes Corp. v. Shelton, 336 So.2d 1367, 1370 (Ala.Civ.App.1976), overruled on other grounds by Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), this court held that the receipt of unemployment-compensation benefits “does not preclude an award of workmen’s compensation [benefits].” In Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978), this court reaffirmed the holding in Shelton, noting:

“There is a provision in the unemployment compensation law disqualifying a person from receiving unemployment compensation if he is receiving workmen’s compensation benefits. Title 25, chapter 4, section 78(9), Code of Alabama 1975. Allied Paper Incorporated v. Davis, Ala.Civ.App., 342 So.2d 363 (1977). However, there is no provision in the workmen’s compensation law (such as that found in section 78(9)) disqualifying an employee from receiving workmen’s compensation benefits if he is also receiving unemployment compensation. Accordingly, we do not find that Jones is disqualified from receiving workmen’s compensation benefits.”

361 So.2d at 567.

Although the term “judicial estoppel” cannot be found in Shelton or Jones, it is apparent that the employers in those cases asserted that it would be inconsistent and unfair for an injured worker to receive both unemployment-compensation benefits and workers’ compensation benefits for the same period. However, this court definitively decided that, without any legislation on point, a worker cannot be disqualified from receiving workers’ compensation benefits on the basis of the receipt of unemployment-compensation benefits. In so doing, this court recognized that, due to the intended comprehensive nature of workers’ compensation legislation, “the rights and remedies available to the affected parties must be found within the four corners of the Workers’ Compensation Act.” BFI Waste Servs., LLC v. Pullum, 991 So.2d 249, 252 (Ala.Civ.App.2008). In other words, it is within the prerogative of the legislature to decide if and how the receipt of unemployment-compensation benefits affects a claim for workers’ compensation benefits. Unless and until the legislature acts, this court is powerless to create or rely on a judicial or equitable remedy on the subject. See Paschke v. Retool Indus., 445 Mich. 502, 520-21, 519 N.W.2d 441, 449 (1994) (Brickley, J., concurring). Hence, Clemons cannot be judicially estopped from asserting a claim for permanent-total-disability benefits on the basis of his representations to DIR.

I fully concur with the main opinion that substantial evidence supports the trial court’s finding that Clemons is permanently and totally disabled. Although at one point in his testimony Clemons testified that he felt like he was able to work, the remainder of his testimony established that he can work only sporadically and in a very limited physical manner. See generally McGough v. G & A, Inc., 999 So.2d 898, 905 (Ala.Civ.App.2007) (holding that reviewing court views entirety of a witness’s testimony in context and not merely isolated portions of testimony when assessing its substantialness). Clemons’s vocational expert took into account those restrictions when opining that Clemons could not sustain gainful employment. A worker can be classified as permanently and totally disabled if his or her ability to work is so limited that he or she cannot expect to reliably work on any consistent basis due to pain and physical limitations from a work-related injury. See, e.g., Stebbins Eng’g & Mfg. Co. v. White, 457 So.2d 425, 427 (Ala.Civ.App.1984). Therefore, the trial court did not commit any legal error in awarding Clemons permanent-total-disability benefits.

      . In Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978), this court stated that the receipt of unemployment-compensation benefits by a worker did not preclude the worker from receiving temporary-total-disability benefits for the same period. The court’s decision in Jones was based on the absence of a provision in the Act prohibiting a recipient of unemployment-compensation benefits from also receiving benefits under the Act. Compare Jones, 361 So.2d at 567, with § 25-4-78(9), Ala.Code 1975, an unemployment-compensation provision providing for a claimant’s full or partial disqualification from receiving unemployment-compensation benefits if the claimant successfully obtains workers' compensation for a temporary disability. Unlike in this case, there is no indication in Jones that the appellant made a judicial-estop-pel argument.

      . I agree with the main opinion that the parties tried the judicial-estoppel defense by consent. I note that the trial court did not make any findings of fact or conclusions of law on the issue, which ordinarily would warrant a remand of the case to enter an appropriate judgment; however, because I conclude that, as a matter of law, the judicial-estoppel defense does not apply, I see no need for remanding the case.