author: STUART, Justice.

text:
    Joseph DZWONKOWSKI, Sr. v. SONITROL OF MOBILE, INC., Joseph Dzwonkowski, Jr., and Robert Dzwonkowski.
    1100929.
    Supreme Court of Alabama.
    Nov. 18, 2011.
    Rehearing Denied Jan. 13, 2012.

      Joseph Dzwonkowski, Sr., pro se.
    Submitted on appellant’s brief only.
   STUART, Justice.

This appeal is the latest in a decade-long dispute between Joseph Dzwonkowski, Sr. (“Joe Sr.” or “the father”), and two of his sons, Robert Dzwonkowski (“Robert”) and Joseph Dzwonkowski, Jr. (“Joe Jr.”) (hereinafter referred to collectively as “the sons”), regarding the ownership and control of Sonitrol of Mobile, Inc. (“Sonitrol”), a closely held corporation providing commercial-security services in the greater Mobile area. In a 2004 opinion, this Court dismissed Joe Sr.’s appeal of a judgment entered against him by the trial court, holding that the appeal was premature because the damages to be awarded Soni-trol, Robert; and Joe. Jr. in connection with that judgment had not yet been set. Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361-63 (Ala.2004) (“Dzwonkowski II”). In a May 5, 2011, order, the trial court finalized the damages award, awarding Sonitrol $764,359 and Joe Jr. $1. Joe Sr. appeals. We affirm.

I.

The origins of this dispute were described by the Court of Civil Appeals in Dzwonkowski v. Sonitrol of Mobile, Inc., 854 So.2d 598, 599-600 (Ala.Civ.App.2002) (“Dzwonkowski I ”), as follows:

“The father has been president of the Sonitrol franchise in Mobile since 1977. Before 1990, all shares of the corporation were held in a voting trust controlled by the father. In 1990, nine shares of stock were issued, as follows: one share to Joe Sr.; four shares to Robert; and four shares to Joe Jr. At the same time, the parties executed a buy-sell agreement that gave the corporation or the remaining shareholders the option to purchase the shares of a shareholder whose employment with the corporation had ceased.
“In 1994, Joe Jr. transferred his four shares of Sonitrol stock to Joe Sr., in exchange for his father’s paying certain debts and paying for Joe Jr.’s treatment for gambling addiction. The record contains a certifícate of shares, with an issue date of February 16, 1990, endorsed by Joe Jr. and delivered to Joe Sr. on July 13, 1994. Joe Sr. never reendorsed the certificate to Joe Jr.; the certificate remained in Joe Sr.’s possession until it was admitted in evidence in the instant case. Joe Jr. alleged that his father had promised to return the four shares of stock to him once he ‘got his life in order.’ Joe Jr. also alleged that his father’s conduct since 1994 has evinced an intent to retransfer the stock to him.
“In November 1999, the father, acting as the president of Sonitrol, terminated the sons as employees of the corporation and demanded that the sons offer their shares of stock back to the corporation pursuant to the 1990 buy-sell agreement. The sons responded by calling a special meeting of the board of directors for the purpose of removing the father as president of the corporation.
“On December 3,1999, the father filed a declaratory-judgment action, seeking a determination of the ownership of stock in the corporation and a temporary restraining order (‘TRO’) to prevent the sons from holding a special meeting of Sonitrol’s board of directors or from otherwise acting as directors and officers of Sonitrol. The sons counterclaimed, alleging that the father had interfered with the business operations of Sonitrol and had wrongfully diverted funds belonging to Sonitrol. They sought, among other things, a TRO to prohibit the father from acting in any representative capacity on behalf of Sonitrol.
“Following a hearing, the circuit court determined, on December 13, 1999, that Sonitrol’s board of directors consisted of Joe Sr., Robert, and Joe Jr. and that the directors’ meeting called by the sons was authorized by Sonitrol’s bylaws. Immediately following that determination, a meeting of the Sonitrol board of directors took place. The sons attended the meeting; the father did not attend. By a majority vote of the directors, the father was removed as an officer, discharged from employment, and asked to surrender his stock for resale to the corporation. The following officers were then elected at the meeting: Joe Jr., president; and Robert, vice-president, secretary, and treasurer.”

After those actions had taken place, the trial court notified the parties that the stock-ownership issue would be heard by an advisory jury on January 19, 2000. At the conclusion of a two-day trial, the advisory jury returned a verdict finding that Joe Sr. owned five shares of Sonitrol stock, that Robert owned four shares of Sonitrol stock, and that Joe Jr. owned no shares. Four days later, however, the sons moved the trial court to hold that Joe Jr. was the owner of the four shares of Sonitrol stock in dispute on the basis of the doctrine of judicial estoppel; at a subsequent hearing, they submitted evidence indicating that Joe Sr. had testified in a February 1999 deposition given in connection with divorce proceedings then underway in Florida involving him and his then wife that he owned only one share of Sonitrol stock and that Robert and Joe Jr. each owned four shares. On February 4, 2000, the trial court entered an order estopping Joe Sr. from claiming ownership of more than one share of Sonitrol stock.

The sons subsequently moved the trial court to enter a partial summary judgment in their favor on the stock-ownership issue, submitting evidence that, they alleged, established that Joe Sr. had transferred the four shares back to Joe Jr. and arguing that Joe Sr. was judicially estopped from claiming the four disputed shares. On August 20, 2001, the trial court granted their motion, certifying its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Joe Sr. subsequently appealed that judgment and, in Dzwonkowski I, the Court of Civil Appeals reversed the judgment of the trial court, holding (1) that it could not be affirmed on the basis that Joe Sr. had transferred the four shares back to Joe Jr. because there were material questions of fact concerning Joe Sr.’s donative intent and (2) that the judgment could not be affirmed on the basis of the doctrine of judicial estoppel because all the elements necessary to apply the doctrine were not present — specifically privity and reliance. 854 So.2d at 607-09. The Court of Civil Appeals accordingly remanded the case for further proceedings.

On remand, the trial court empaneled another advisory jury to try the outstanding factual questions regarding the ownership of the Sonitrol stock. However, several days into the trial of that issue, the trial court entered a default judgment against Joe Sr. and dismissed all of his claims against Sonitrol, Robert, and Joe Jr. as a result of Joe Sr.’s contumacious behavior during the proceedings. In a subsequent written order, the trial court declared Joe Jr. the owner of the four disputed shares of Sonitrol stock and stated that it would enter a judgment setting the monetary damages due Sonitrol, Robert, and Joe Jr. at a later date. Nevertheless, the trial court also certified its judgment as final pursuant to Rule 54(b). On July 18, 2008, Joe Sr. moved the trial court to alter, amend, or vacate that judgment.

On September 12, 2003, while Joe Sr.’s postjudgment motion was pending, this Court released its opinion in Ex parte First Alabama Bank, 883 So.2d 1236, 1244-46 (Ala.2003), in which we restated how the doctrine of judicial estoppel should be applied in Alabama, removing the privity and reliance elements from consideration. Sonitrol, Robert, and Joe Jr. promptly moved the trial court to supplement its order entering judgment in their favor by again holding that Joe Sr. was judicially estopped from claiming the four disputed shares of Sonitrol stock, and, on October 14, 2003, the trial court entered an order denying Joe Sr.’s postjudgment motion and granting Sonitrol and the sons’ request by supplementing its judgment. Joe Sr. then filed the appeal that was the subject of Dzwonkowski II, arguing (1) that the default judgment entered against him and the dismissal of his claims failed to comport with due process and that, even if there had been no due-process violation, the trial court exceeded its discretion in entering the default judgment and the dismissal and (2) that the trial court erred in holding that he was judicially estopped from claiming ownership of the four shares of Sonitrol stock that Joe Jr. also claimed. As stated supra, this Court ultimately dismissed that appeal as being from a nonfi-nal judgment because damages had not yet been determined. 892 So.2d at 363.

Thus, in April 2004, this case returned to the trial court, presumably so that damages could be awarded and a final judgment entered. However, before those proceedings could be completed, Joe Sr. initiated an action against Sonitrol, Robert, Joe Jr., and their attorneys in the United States District Court for the Southern District of Alabama. At the request of Sonitrol and the sons, the trial court delayed further consideration of this matter so that they could defend that new litigation. Unbeknownst to Sonitrol and the sons at the time, they would be defending themselves from new claims filed by Joe Sr. for the next several years — not only before the United States District Court for the Southern District of Alabama, but before the United States Court of Appeals for the Eleventh Circuit, the Jefferson Circuit Court, the United States Bankruptcy Court for the Northern District of Alabama, and this Court, as well as the Court of Civil Appeals. However, aside from Joe Sr.’s being ordered to pay an impressive amount of attorney fees, those proceedings ultimately had little effect. Finally, on August 18, 2010, after all the other proceedings involving these parties were completed, Joe Sr. moved the trial court to enter a final order in this case so that he could file an appeal. After providing all parties with the opportunity to submit affidavits on the issue of damages, the trial court entered a final judgment on May 5, 2011, awarding Sonitrol $764,359 and Joe Jr. $1 on their claims against Joe Sr. and dismissing all of Joe Sr.’s claims against Sonitrol and the sons. On May 13, 2011, Joe Sr. filed this appeal.

II.

In his brief to this Court, Joe Sr. lists three issues for this Court’s review; however, all three of those issues rest on essentially the same inquiry — whether, after this case was remanded to the trial court following the decision of the Court of Civil Appeals in Dzwonkowski I, the trial court should have immediately entered an order declaring Joe Sr. the owner of the four disputed shares of Sonitrol stock. We have stated:

“In Ex parte Edwards, [727 So.2d 792 (Ala.1998),] this Court held that when an appellate court remands a case, the trial court does not have the discretion to conduct a new trial or an evidentiary hearing. 727 So.2d at 794-95. Instead, after a case is remanded, the trial court may enter ‘ “ ‘[n]o judgment other than that directed or permitted by the reviewing court.... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence.’ ” ’ Id. at 794 (quoting Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983), quoting in turn 5 Am.Jur.2d Appeal & Error § 991 (1962)).”

Ex parte Queen, 959 So.2d 620, 621 (Ala.2006). Accordingly, we must determine if the trial court exceeded its discretion on remand by failing to follow the instructions given by the Court of Civil Appeals in Dzwonkowski I.

III.

Joe Sr. argues that the trial court was required to enter a judgment declaring him the owner of the four disputed shares of Sonitrol stock after the Court of Civil Appeals in Dzwonkowski I reversed the partial summary judgment entered in favor of Sonitrol and his sons. We disagree. In Dzwonkowski I, Sonitrol and the sons argued that the trial court’s judgment declaring Joe Jr. the owner of the four disputed shares of Sonitrol stock should be affirmed either because Joe Sr. had allegedly transferred those shares back to Joe Jr. or because Joe Sr. had denied owning the stock while under oath in a separate court proceeding, and he was thus judicially estopped from claiming ownership in this proceeding. 854 So.2d at 602-07. The Court of Civil Appeals held that there were genuine issues of material fact with regard to whether Joe Sr. had transferred the shares back to Joe Jr. and that all the elements of judicial estoppel were not present; accordingly, it reversed the judgment of the trial court, stating: “The judgment of the circuit court is reversed and the cause is remanded for further proceedings.” 854 So.2d at 610. Thus, the Court of Civil Appeals did not issue a mandate to the trial court to enter a judgment in favor of Joe Sr. on remand; rather, it held that the summary judgment was inappropriate not only because the elements of judicial estoppel were not met, but also because genuine issues of material fact remained. In light of those outstanding issues, it would have been equally inappropriate for the trial court to enter a judgment in favor of Joe Sr. on remand because summary judgment is appropriate only when there are no genuine issues of material fact before the court. See Rule 56(c)(3), Ala. R. Civ. P. (summary judgment is appropriate when there exists “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law”).

On remand, the trial court accordingly complied with the direction of the Court of Civil Appeals to conduct “further proceedings” when it empaneled an advisory jury to try the remaining factual questions regarding stock ownership. Before those issues could be decided, however, the trial court was compelled to enter a default judgment against Joe Sr. as a result of his unruly behavior and his failure to abide by the instructions of the trial court. While postjudgment motions were pending in the trial court, this Court restated the elements of judicial estoppel in a separate case, Ex parte First Alabama Bank, and the trial court then supplemented its judgment to also hold that Joe Sr. was judicially estopped from claiming the four disputed shares of Sonitrol stock. Joe Sr. argues that the trial court violated the law-of-the-case doctrine and acted contrary to the mandate of the Court of Civil Appeals in Dzwonkowski I in applying the doctrine of judicial estoppel; however, he fails to recognize that “[t]he law-of-the-case doctrine may be disregarded if the court is convinced its prior decision was clearly erroneous or there has been an intervening change in the law..." Belcher v. Queen, 39 So.3d 1023, 1038 (Ala.2009) (emphasis added). Clearly, Ex parte First Alabama Bank constituted a change in the law regarding the doctrine of judicial es-toppel, and the trial court accordingly violated no legal principle by recognizing that change.

IV.

Thus, although Joe Sr. is correct to argue that a trial court has a strict duty on remand to comply with the mandate given by an appellate court and that it has no authority to enter any judgment other than that directed by the reviewing court, his argument ultimately fails because the trial court considering his case was not directed by the Court of Civil Appeals to enter a judgment in his favor. Rather, that court reversed a partial summary judgment that had been entered against him on the basis that there were genuine issues of material fact, and it instructed the trial court to conduct the further proceedings necessary to resolve those issues and to conclude the case. The trial court did not act contrary to that specific mandate, to our caselaw setting forth the law-of-the-case doctrine or the duties of a trial court on remand, or to Joe Sr.’s due-process rights by taking the action it did when the case was remanded to it after Dzwon-kowski I. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.

      . In the intervening period between the release of Dzwonkowski II and the trial court’s May 5, 2011, order, Robert advised the trial court that he no longer wished to pursue monetary damages against Joe Sr., and Joe Jr. stated that he sought only nominal damages.

      . We quoted from the trial court's June 20, 2003, order describing Joe Sr.'s in-court behavior in Dzwonkowski II, 892 So.2d at 357-61.

      . Joe Sr. had attempted to initiate bankruptcy proceedings on behalf of Sonitrol in the United States Bankruptcy Court for the Northern District of Florida as well in February 2000.

      . In Dzwonkowski II, this Court summarized the holding of the Court of Civil Appeals in Dzwonkowski I as follows:
      "[Joe Sr.’s] appeal was the subject of Dzwonkowski I, in which the Court of Civil Appeals decided that there were genuine issues of material fact regarding ownership of the four disputed shares, so that a summary judgment was inappropriate. That court reversed the summary judgment and remanded the case for further proceedings.”
      892 So.2d at 357.

      . In Dzwonkowski II, Joe Sr. raised the issue whether the trial court had violated his due-process rights and exceeded its discretion in entering the default judgment against him; however, because that appeal was dismissed as being from a nonfinal judgment, the issue was not addressed at that time. 892 So.2d at 361. Joe Sr. has not raised that issue in this appeal.


source: Caselaw Access Project

author: WISE, Justice.

license: Public Domain

text:
    SPRINGHILL HOSPITALS, INC., et al. v. Dimitrios CRITOPOULOS.
    1090946.
    Supreme Court of Alabama.
    Nov. 18, 2011.
    Rehearing Denied Jan. 13, 2012.

      Philip H. Partridge and Bryan D. Smith of Partridge, Smith, P.C., Mobile, for appellants.
    Chris N. Galanos, Mobile, for appellee.
   WISE, Justice.

The defendants, Springhill Hospitals, Inc., d/b/a Springhill Memorial Hospital (“Springhill”), Dennis Rushing, Ashley Fleming, and Janel Ostriechmerer (hereinafter referred to collectively as “the defendants”), appeal from a judgment in favor of the plaintiff, Dimitrios Critopoulos.

Facts and Procedural History

On April 10, 2006, Critopoulos was admitted to Springhill Memorial Hospital to undergo a heart catheterization. On April 11, 2006, Dr. Dimitris Kyriazis performed a cardiac-artery-bypass graft (“CABG”) on Critopoulos. After the surgery, Critopou-los was admitted to the cardiac-recovery unit. Critopoulos was in the cardiac-recovery unit until April 16, 2006, when he was transferred to the cardiac-step-down or cardiac-intervention unit. Around 11:50 a.m. on April 14, 2006, before Critopoulos was transferred, Rushing, a registered nurse who worked in both the cardiac-recovery and cardiac-intervention units performed a reassessment of Critopoulos. During that reassessment, Rushing noticed a discoloration on the back of Crito-poulos’s neck. He subsequently moved Critopoulos from the bed to a chair. At approximately 1:50 p.m., Rushing was helping Critopoulos back to bed when he noticed a blister on the back of Critopou-los’s neck and. a stage I decubitus or pressure ulc.er on Critopoulos’s coccyx. On April 19, 2006, Critopoulos was released from the hospital.

On April 20, 2006, Critopoulos went to Mobile Infirmary, a hospital in Mobile, where he complained of shortness of breath, difficulty breathing, a sacral pressure ulcer, and an open wound in the posterior of his neck. The plastic surgeon at the hospital determined that surgery was not necessary for Critopoulos’s wounds at that time and that the wounds could be treated with local wound care and by applying medicines to the wounds. Cri-topoulos was subsequently released from the hospital.

On May 8, 2006, Critopoulos was again admitted to Mobile Infirmary because the sacral pressure ulcer had gotten worse. The ulcer was debrided by the plastic surgeon at that time. Critopoulos was released from the hospital on May 11, 2006. Critopoulos continued to receive treatment for his wounds until late 2009.

On April 8, 2008, Critopoulos fíléd a medical-malpractice action against Spring-hill, Rushing, Fleming, Ostriechmerer, and Scott Holcombe. Rushing, Fleming, Os-triechmerer, and Holcombe were all nurses in the cardiac-recovery unit of Spring-hill who provided care for Critopoulos.

On July 10, 2009, Holcombe and the defendants filed an “Objections to Qualifications of Plaintiffs Nursing Expert, Penny Jones, R.N.,” and a motion to exclude her testimony.

The trial in this case started on January 11, 2010. At trial, Penny Jones, a registered nurse who practiced in wound-care management, testified as Critopoulos’s expert witness regarding the standard of care. Jones testified that Rushing, Fleming, Holcombe, and Ostriechmerer had breached the standard of care in this case by not performing an assessment to determine Critopoulos’s risk of developing pressure ulcers; by not turning and repositioning Critopoulos every two hours while he was a patient in the cardiac-recovery unit; and by not developing a plan of care for the prevention of pressure ulcers. She also testified that Fleming and Rushing had breached the standard of care by not providing complete wound assessments after the pressure ulcer developed. At trial, the defense moved to exclude Jones’s testimony on the ground that she was not a similarly situated health-care provider under § 6-5-548, Ala.Code 1975. The trial court denied the motion.

Holcombe and the defendants filed motions for a judgment as a matter of law at the close of Critopoulos’s case-in-chief and again at the close of all the evidence, which the trial court denied. On January 19, 2010, the jury returned a verdict in favor of Critopoulos and against Rushing, Os-triechmerer, Fleming, and Springhill in the sum of $300,000. The jury also returned a verdict in favor of Scott Holcom-be and against Critopoulos.

On February 11, 2010, the defendants filed a renewal of their motions for a judgment as a matter of law or, in the alternative, for a new trial. Critopoulos filed an opposition to the motion. On February 26, 2010, the trial court denied the defendants’ motion. This appeal followed.

Standard of Review
‘“The standard of review applicable to whether an expert should be permitted to testify is well settled. The matter is “largely discretionary with the trial court, and that court’s judgment will not be disturbed absent an abuse of discretion.” Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 850 (Ala.2002). We now refer to that standard as a trial court’s “exceeding its discretion.” See, e.g., Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 106 (Ala.2004) (“Our review of the record supports the conclusion that the trial court did not exceed its discretion in finding that Jones was properly qualified as an expert under Rule 702[, Ala. R. Evid.,] and in considering his testimony.”). However, the standard itself has not changed.’
“Kyser v. Harrison, 908 So.2d 914, 918 (Ala.2005).”

Robinson v. Baptist Health Sys., Inc., 24 So.3d 1119, 1125 (Ala.Civ.App.2009).

“ ‘ “The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now referred to as a preverdict and a postverdict motion for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court’s ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-movant.” ’
“Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)).”

Parker v. Williams, 977 So.2d 476, 480 (Ala.2007).

Discussion

In this case, the defendants argue that the trial court erroneously allowed Penny Jones to testify as Critopoulos’s standard-of-care expert because, they argue, she was not a similarly situated health-care provider as to the individual defendants, as required by § 6-5-548, Ala.Code 1975. The Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975, includes the following provisions regarding medical-malpractice claims:

“(a) In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like ease.
“(b) Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is not certified by an appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself or herself out as a specialist, a ‘similarly situated health care provider’ is one who meets all of the following qualifications:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same discipline or school of practice.
“(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.
“(e) The purpose of this section is to establish a relative standard of care for health care providers. A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a ‘similarly situated health care provider’ as defined above.”

§ 6-5-548, Ala.Code 1975 (emphasis added). “Standard of care” is defined as:

“The standard of care is that level of such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in like cases. A breach of the standard of care is the failure by a health care provider to comply with the standard of care, which failure proximately causes personal injury or wrongful death. This definition applies to all actions for injuries or damages or wrongful death whether in contract or tort and whether based on intentional or unintentional conduct.”

§ 6-5-542(2), Ala.Code 1975 (emphasis added).

In this case, Ostriechmerer, Rushing, Holcombe, and Fleming were all nurses in the cardiac-recovery unit. Each was responsible for the total care of Critopoulos immediately following his CABG.

Penny Jones testified that, at the time of trial, she was licensed to practice nursing in North Carolina and that she has been licensed there since 1995 or 1996. She also testified that she was certified as a wound-care nurse by the Wound, Ostomy and Continence Nurses Society and that she was also certified as a wound specialist by the American Association of Wound Management.

With regard to her training, Jones testified that after high school she completed her associate’s degree in nursing. After she completed her degree, she started bedside nursing. Jones testified that she had worked in the intensive-care unit (“ICU”); that she had worked a little bit in the emergency room; that she had worked in nursing homes; and that she had “worked ... just about everywhere except for the operating room.”

Jones testified that she later returned to school and obtained her bachelor’s degree. After that, she went back to school and obtained her master’s degree in 1989. Jones testified that for her master’s degree she focused on cardiopulmonary studies, which includes the heart and lungs, but that her particular focus was the lungs. She also testified that she subsequently worked at a respiratory hospital in Los Angeles, California, and that her work there included weaning patients in the ICU from ventilators.

Jones testified that, in 1992, she moved to Durham, North Carolina, and went to work at Duke University Hospital (“Duke”). She testified that she is the wound-management clinical nurse specialist there and that she wrote the policies and procedures for Duke regarding wound management and treating pressure ulcers. Jones further testified that, in the mid-1990s, she started a “consult service” at Duke. Jones stated:

“There’s a consult service that we have at Duke Hospital, and I run that service, which means that people — other nurses, the physicians will ask us to come and see a patient who has a wound, and the wound could be anything from a post-surgical wound that hasn’t healed, a diabetic foot ulcer, skin tears, pressure ulcers, pretty much — burns, pretty much any kind of wound that you might think of, we’ll see a patient and determine what we should be — what we should do for the wound to help it to heal as well as what the patient needs to do to help the wound to heal.”

(Emphasis added.)

Jones testified that as a clinical specialist she also writes policies for Duke. She also testified that Duke has a “Skin Care Champion Program” that involves bedside nurses who have been specially trained in the prevention of pressure ulcers; that those specially trained bedside nurses then go back and train other nurses on their floors; and that she spent a lot of time in that program teaching the nurses what to do to prevent pressure ulcers. Jones testified that she and her administrator developed a program that is now called the Wound Management Institute. She also testified that she had developed a standard of care regarding the care of patients with chronic skin wounds, which would include pressure ulcers, and that that standard of care included patients in ICUs who had recently undergone cardiac-bypass surgery.

Jones testified that she had provided wound-management services to cardiac patients since the mid-1990s; that, from that time until the time of trial, she had provided hands-on wound-management care to critical patients in an ICU setting; and that she was providing such care as recently as the Friday before the trial started. She further testified that, specific to wound care and preventing pressure ulcers, she had taught doctors, nurses, and other health-care providers how to take care of cardiac patients in an intensive-care setting. She further testified that, on average 10 times a week, she provided wound-care management to patients who had recently undergone cardiac-bypass surgery and who were in the ICU.

Jones testified that as a wound-management specialist she would perform some of the same clinical services as a regular cardiac-care nurse performed. She would check vital signs and conduct skin assessments. She would also participate in either writing or reviewing care plans. The Friday before the trial was the last time she had provided wound-management care to a cardiac patient in an intensive-care setting. She also testified that she had treated or managed postoperative cardiac patients to detect and prevent pressure ulcers and that she had done so as recently as the week before trial.

However, Jones testified that she has not practiced as an intensive-care cardiac nurse. She also testified that she had never provided direct, hands-on care as a staff nurse to patients like Critopoulos, who was in immediate post-recovery in the cardiac-recovery unit. Jones further testified that she had never seen a CABG patient who had just had surgery to implement preventive measures. Additionally, she testified that she had not, as a staff nurse, determined the cardiac stability of a fresh post-CABG patient for the purpose of providing hands-on complete care. She further testified that she had not worked in an ICU setting as a bedside nurse since 1992.

Jones testified that she had reviewed Critopoulos’s medical records, particularly his vital signs, during his time in the cardiac-recovery unit and that she had determined that he was stable enough to turn. On cross-examination, she testified that she had never worked as a staff nurse in a unit dedicated to patients coming directly out of cardiac surgery; that, in her work, she had not gone to the cardiac-recovery unit for the purpose of providing hands-on preventive care for a patient; that she had only gone to the cardiac-recovery unit as educational support for the nurses who worked in the unit; and that, at Duke, the prevention of pressure sores in cardiac recovery was done by the nursing staff based on protocols she had developed. Jones testified that, excluding wound care, she does not provide care to fresh postoperative patients as a staff nurse. Also, on cross-examination, the following occurred:

“[DEFENSE COUNSEL:] Right. And you don’t consider yourself to be an expert on nursing care when it comes to evaluating the cardiac status of a post-CABG patient in recovery, do you?
“[JONES:] I would be able to evaluate their blood pressure, their mean arterial pressure. So some pieces of it, certainly, I can. But the overall, no.
“[DEFENSE COUNSEL:] I asked you on page 120 of your deposition: Tou would not consider yourself to be an expert on nursing when it comes to evaluating cardiac status of a post-CABG patient in recovery; is that correct?’ And what was your answer?
“[JONES:] That it is correct.
“[DEFENSE COUNSEL:] An unqualified correct; is that right?
“[JONES:] Correct.
“[DEFENSE COUNSEL:] And you’re not qualified to provide continuous hands-on care to a patient in cardiac recovery, are you?
“[JONES:] Not without additional training, no.
“[DEFENSE COUNSEL:] Okay. And you’re not ACLS qualified, are you?
“[JONES:] No.
“[DEFENSE COUNSEL:] What is ACLS?
“[JONES:] Advanced cardiac life support, I believe.
“[DEFENSE COUNSEL:] All right. And that would be something that any nurse working in cardiac recovery would have to be?
“[JONES:] I would certainly hope so.
“[DEFENSE COUNSEL:] All right. And so, you would not be able to provide advanced cardiac life support to a patient in need in cardiac recovery, would you?
“[JONES:] Correct.
“[DEFENSE COUNSEL:] Now, in this case, we have heard terms such as cardiac output, cardiac index, other terms that will be discussed and applicable to patients coming out of cardiac surgery, correct?
“[JONES:] I’m sorry. I haven’t heard testimony about cardiac index or output.
“[DEFENSE COUNSEL:] All right. Well, you said you reviewed the vital signs?
“[JONES:] I did.
“[DEFENSE COUNSEL:] Okay. Let me just — let’s look at some of these. And I believe this, in fact, may be the first page or first set of vital signs when Mr. Critopoulos came out of surgery. See at the bottom it’s April 11th, which was the day he came out of surgery, correct?
“[JONES:] Correct.
“[DEFENSE COUNSEL:] And Nurse Janel Ostriechmerer was his nurse; is that right?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] Okay. And Janel would have entered these entries presumably, correct?
“[JONES:] Presumably, yeah.
“[DEFENSE COUNSEL:] Okay. So, coming out of surgery, Mr. Critopoulos had some blood pressures taken. One such pressure was an MAP. What is that?
“[JONES:] Mean arterial pressure.
“[DEFENSE COUNSEL:] Do you know what the nurses were looking for in a number with regard to the MAP with Mr. Critopoulos?
“[JONES:] Specific to Mr. Critopou-los, no.
“[DEFENSE COUNSEL:] Okay. Do you know how that number, MAP here, which is 82, would that be an appropriate mean arterial pressure for Mr. Cri-topoulos coming out of surgery?
“[JONES:] It was my assumption it was, given that his blood pressure was in the normal range.
“[DEFENSE COUNSEL:] All right. So, you’re saying his pressure was in the normal range, right?
“[JONES:] Yes, it’s 126 over — is that 60?
“[DEFENSE COUNSEL:] And so, and the MAP of 82 was appropriate for him?
“[JONES:] As best I understood, yes.
“[DEFENSE COUNSEL:] And what about the pulse, 112?
“[JONES:] A little high. I didn’t anticipate that was too high coming out of surgery.
“[DEFENSE COUNSEL:] All right. And let’s look at the medicated drips. What medicated drips was Mr. Crito-poulos on at the time?
“[JONES:] He’s on some epinephrine, neosynephrine and nitroglycerin.
“[DEFENSE COUNSEL:] And what are those calculated to do?
“[JONES:] The first two, the epinephrine and neosynephrine, are what’s called vasoactive drugs, which are medications that help to keep the blood pressure in the normal range. And nitroglycerin is — the best way to describe it is for your heart.
“[DEFENSE COUNSEL:] And those are medications that a nurse in cardiac recovery would possibly have to adjust from time to time depending on the changes in blood pressure of the patient?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] Okay. Are you qualified to make those kind of adjustments in those kind of medications for a patient?
“[JONES:] For post-surgical, no, I wouldn’t be qualified for that.
“[DEFENSE COUNSEL:] Okay. All right. And under hemodynamic monitoring, we have cardiac output, 4.1— excuse me, 4.8; is that correct?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] All right. Do you know if that is an appropriate number for Mr. Critopoulos coming out of surgery?
“[JONES:] I do not.
“[DEFENSE COUNSEL:] That’s not something that you monitor?
“[JONES:] No.
“[DEFENSE COUNSEL:] All right. What about the cardiac index of 2.2, do you know if that’s an appropriate number for Mr. Critopoulos coming out of surgery?
“[JONES:] I do not. It’s not something I would monitor.
“[DEFENSE COUNSEL:] Okay. What about the SVR? What is SVR?
“[JONES:] Oh, gosh. That’s making me go back. I don’t remember enough to be able to explain it.
“[DEFENSE COUNSEL:] Okay. How about systemic vascular resistance? Does that sound familiar?
“[JONES:] Could be.
“[DEFENSE COUNSEL:] Okay. And it is 1206. Do you know whether that’s an appropriate number for Mr. Critopoulos?
“[JONES:] I do not.
“[DEFENSE COUNSEL:] Okay. CVP, do you know what that is?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] What’s that?
“[JONES:] Central venous pressure.
“[DEFENSE COUNSEL:] And it is one.
“[JONES:] Uh-huh.
“[DEFENSE COUNSEL:] Do you know if that’s an appropriate number for Mr. Critopoulos?
“[JONES:] Seems a little low, but I don’t know what they were shooting for, for him.
“[DEFENSE COUNSEL:] Okay. So, all of these things that we’ve talked about, blood pressures, the cardiac output, cardiac index, SVR, CVP, medicated drips, all of those things have to be monitored by the nurses working in cardiac recovery, correct?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] Okay. And they’re watched very closely, aren’t they?
“[JONES:] They are. They should be.
“[DEFENSE COUNSEL:] Because most of the time, the nurses work one to one with the patient or possibly one to two; is that right?
“[JONES:] It’s very typical right after surgery, yes.
“[DEFENSE COUNSEL:] Right. Okay. But this kind of monitoring is not something that you do?
“[JONES:] Not all of it. As I mentioned, I do monitor and look at blood pressure and pulse.
“[DEFENSE COUNSEL:] Okay.
“[JONES:] And oxygen saturation.
“[DEFENSE COUNSEL:] But the other items we discussed, you do not?
“[JONES:] Not typically, no.
“[DEFENSE COUNSEL:] Now, do you typically monitor patients on a balloon pump?
“[JONES:] No.
“[DEFENSE COUNSEL:] And as a direct care provider, you’ve never had to weigh the competing risks of repositioning a post-CABG patient in recovery, have you?
“[JONES:] Post-CABG person, no.
“[DEFENSE COUNSEL:] All right. Now, if tomorrow at Duke University Hospital you were told to report to the cardiac recovery unit of the hospital and begin caring for patients in cardiac recovery on a day-to-day basis, you wouldn’t feel comfortable in doing that, would you?
“[JONES:] No. Not in providing all of their care, no.
“[DEFENSE COUNSEL:] Now, you’ve indicated that sometimes it might not be appropriate to move a patient in cardiac recovery. I think you alluded to that earlier, didn’t you?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] Okay. And I think you’ve indicated that, in your opinion, based on the review of Mr. Critopoulos’s vital signs, some of which were included on the document we just looked at, that you, Nurse Jones, would have no problem in turning Mr. Crito-poulos, correct?
“[JONES:] Correct.
“[DEFENSE COUNSEL:] And that — on a two-hour basis, correct?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] And that was the whole time that he was in recovery?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] All right. And you came to that conclusion by, as you say, reviewing his vital signs, right?
“[JONES:] Reviewing the vital signs and some of the care that was provided, yes.
“[DEFENSE COUNSEL:] Right. And you think it’s important to review the vital signs and [be] able to come to that conclusion that he could be turned, correct?
“[JONES:] Sure.
“[DEFENSE COUNSEL:] All right. And you would certainly expect any nurse to review Mr. Critopoulos’s vital signs before undertaking the task of turning him, correct?
“[JONES:] Yes.
“[DEFENSE COUNSEL:] And it would certainly not be within the appropriate standard of care to turn him without evaluating those vital signs, would it?
“[JONES:] Correct.”

Regarding the qualifications of an expert witness, this Court has stated:

“In Medlin v. Crosby, 588 So.2d 1290 (Ala.1991), this Court established a framework under § 6-5-548[, Ala.Code 1975,] for determining whether an expert witness is qualified to testify in a medical malpractice case. Pursuant to Medlin, the trial court must answer the following questions before determining that an expert witness is ‘similarly situated’ as to the defendant:
“ ‘(1) What is the standard of care alleged to have breached? (2) Is the defendant “health care provider” a specialist in the discipline or school of practice of the standard of care that the court has previously determined is alleged to have been breached? (3) Does the proffered expert witness qualify as a “similarly situated health care provider” under the subsection determined in the second step to apply?’
“583 So.2d at 1293.”

HealthTrust, Inc. v. Cantrell, 689 So.2d 822, 826 (Ala.1997).

In this case, the defense presented evidence establishing the fact that Critopou-los was in critical condition after the CABG surgery. The defense also presented evidence indicating that, during the time he was in recovery, Critopoulos had issues with postoperative bleeding and high potassium levels. The defense presented further testimony that Critopoulos was on a ventilator much of the time he was in the cardiac-recovery unit and as to his reaction when he was turned or repositioned. The defense also presented testimony regarding the potential risks of turning or repositioning Critopoulos at certain times. Finally, the defense presented testimony that Critopoulos was at risk of death during some of time he was in the cardiac-recovery unit and that nurses had to prioritize the different risks for such a critically ill patient.

The first question we must answer to determine whether Jones is similarly situated to the individual defendants is what is the standard of care alleged to have been breached in this case. It is true that this case addresses the issue whether Fleming, Rushing, and Ostriechmerer took proper measures to prevent the development of pressure ulcers. However, the overwhelming issue is whether the measures taken by the nurses in this case comported with the standard of care for a post-CABG patient like Critopoulos.

In Dempsey v. Phelps, 700 So.2d 1340 (Ala.1997), Dr. Dempsey, an orthopaedic surgeon, performed surgery to correct a clubfoot on the Phelpses’ son. After the surgery, portions of the son’s foot had to be amputated. On appeal, Dr. Dempsey argued that Dr. Frank Catinella, the Phelpses’ expert witness, was not a “similarly situated health care provider” and that the trial court erred when it allowed Catinella to testify regarding the standard of care. With regard to the standard of care that was alleged to have been breached in that case, this Court stated:

“As to question (1), Dempsey maintains that the standard of care alleged to be breached here is that of an orthopedic surgeon providing care for a child after clubfoot surgery. Dempsey argues that Dr. Catinella, who is a board-certified cardiovascular thoracic surgeon, was not qualified to testify as to this standard of care. However, we agree with the trial court that this case concerned ‘a vascular matter, not an orthopedic matter’— in other words, that the Phelpses’ claims regarded Dr. Dempsey’s alleged failure to properly treat the child’s foot during the post-surgery phase for the circulatory and vascular problems that developed after the surgery and casting of the foot. These problems are not isolated to this type of surgery, and they do not concern the orthopedic surgery performed by Dr. Dempsey; they concern the treatment of the infection after the surgery that resulted in the loss of his foot. The standard of care allegedly breached was that of a health care provider treating a patient for post-surgical vascular problems and infection, which are not specific to orthopedic surgery.”

700 So.2d at 1344.

Unlike the situation in Phelps, the question whether the nurses in this case took proper measures to prevent Critopoulos from developing pressure ulcei’s is specifically related to their duties in caring for Critopoulos as nurses in the cardiac-recovery unit. The overriding question in this case is whether, in light of Critopoulos’s condition as a post-CABG patient, the nurses took proper measures to prevent the development of pressure ulcers. Therefore, the proper standard of care would be that of a cardiac-recovery nurse treating post-CABG patients to prevent pressure ulcers.

The second question we must ask is is the defendant health-care provider a specialist in the school of practice the Court has determined is alleged to have been breached. With regard to this question, the defense did not present any evidence indicating that Rushing, Fleming, and Ostriechmerer were board-certified specialists. Therefore, we must next answer the third question: whether Jones qualifies as a “similarly situated health care provider” under § 6 — 5—548(b), Ala. Code 1975.

Section 6-5-548(b), provides, pertinent part:

“[A] ‘similarly situated health care provider’ is one who meets all of the following qualifications:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same discipline or school of practice.
“(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.”

(Emphasis added.) Further, this Court has held:

“The Medical Liability Act does not require that the defendant health care provider and the expert witness have identical training, experience, or types of practice, or even the same specialties. To be ‘similarly situated,’ an expert witness must be able to testify about the standard of care alleged to have been breached in the procedure that is involved in the case.”

Rodgers v. Adams, 657 So.2d 838, 842 (Ala.1995).

In this case, Jones was licensed to practice as a nurse in North Carolina. Therefore, she satisfied the requirements of § 6 — 5—548(b)(1), Ala.Code 1975.

The next question is whether Jones was trained and experienced in the same discipline or school of practice as were Rushing, Fleming, and Ostriechmerer. It is clear that Jones was trained and experienced in the area of wound-care management and pressure-ulcer prevention. Cri-topoulos presented evidence indicating that Jones was generally qualified to testify as to the standard of care for pressure-ulcer prevention. However, her testimony clearly indicates that she was not trained and experienced with regard to the prevention of pressure ulcers for patients in a cardiac-recovery unit, particularly regarding the concerns and/or risks involving fresh post-CABG patients. Jones testified that she had never seen an immediate post-CABG patient for preventive measures; that she had provided hands-on treatment to fresh postoperative patients only for wound care; and that, at Duke, the cardiac-recovery nurses provided pressure-ulcer-prevention care for postoperative patients in the cardiac-recovery unit. Also, her testimony indicated that she was not familiar with the proper values for many of the different status components that were monitored by the nurses in the cardiac-recovery unit. Finally, Jones testified that, as a wound-management specialist, she would perform some of the same clinical services as did a regular cardiac-care nurse, such as checking vital signs, conducting skin assessments, and participating in writing or reviewing care plans. However, she also testified that, without additional training, she was not qualified to provide continuous hands-on care to a post-CABG patient in a cardiac-recovery unit.

Under the unique facts of this case, Jones did not qualify as a “similarly situated health care provider” as defined by § 6 — 5—548(b)(2), Ala.Code 1975. Cf. Jordan v. Brantley, 589 So.2d 680 (Ala.1991) (holding that, in a case involving the mis-identification of bodies by an emergency-room nurse, the plaintiffs expert was not similarly situated because she had not worked in a hospital during the three years before the date of trial and had admitted that she was not an expert in emergency-room procedures).

This Court has previously held that even if an expert witness is not a similarly situated health-care provider, the expert can offer testimony about the standard of care alleged to have been breached if he or she is highly qualified. See HealthTrust, supra; Dowdy v. Lewis, 612 So.2d 1149 (Ala.1992). Critopoulos has established that Jones is highly qualified with regard to general wound-care treatment and the prevention of pressure ulcers. However, he has not shown that Jones was highly qualified with regard to the prevention of pressure ulcers in post-CABG patients who are in a cardiac-recovery unit. Therefore, that exception does not apply in this case.

For these reasons, the trial court exceeded its discretion when it denied the defendants’ motion to exclude Jones’s testimony. Also, the only evidence indicating that Rushing, Fleming, and Ostriechmerer breached the standard of nursing care came from Jones. Therefore, the trial court erred when it did not enter a judgment as a matter of law in favor of the individual defendants. Because Spring-hill’s liability is premised on the liability of the individual defendants, it is also entitled to a judgment as a matter of law in its favor. Accordingly, we reverse the trial court’s judgment and remand the case for the entry of a judgment as a matter of law for the defendants.

REVERSED AND REMANDED.

MALONE, C.J., and STUART, PARKER, and SHAW, JJ., concur.

      . Critopoulos initially included Loretta Beck-ham, Mary Foote, Melody Ernest, and Betty Brinkman as defendants. On January 28, 2009, the parties entered a "Stipulation of Dismissal as to Defendants Loretta Beckham, Melody Ernest, Betty Brinkman, and Mary Foote.” On February 5, 2009, the trial court dismissed Beckham, Ernest, Brinkman, and Foote with prejudice.

      . Sections 6-5-548(c) and (e), Ala.Code 1975, include provisions for cases in which the defendant health-care provider is certified by an American board as being a specialist. However, none of the parties contend that the individual defendants in this case were certified as specialists. Therefore, those provisions of § 6-5-548, Ala.Code 1975, do not apply.

      . Based on our disposition of this case, we pretermit discussion of the remaining issues raised by the defendants.


author: MOORE, Judge. BRYAN, Judge,

text:
    Elizabeth CROCKER v. Jonathan GRAMMER.
    2090957.
    Court of Civil Appeals of Alabama.
    Sept. 9, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1101517.

      J. Mark Hart of Hand Arendall, LLC, Birmingham; and Michael S. Burroughs, Tuscaloosa, for appellant.
    J. Brooks Leach and Claire B. Morgan of Frank S. Buck, P.C., Birmingham; Kenneth E. Riley of Farris, Riley & Pitt, LLP, Birmingham; and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
   MOORE, Judge.

Elizabeth Crocker appeals from an order of the Jefferson Circuit Court (“the trial court”) concluding that § 12-21-45, Ala.Code 1975, has been abrogated by the Alabama Rules of Evidence. We reverse.

On November 23, 2006, Jonathan Gram-mer was involved in a motor-vehicle accident with Crocker. On November 10, 2008, Grammer filed a complaint in the trial court against Crocker, Allstate Insurance Company (“Allstate”), who was Grammer’s uninsured- and/or underin-sured-motorist insurer, and a number of fictitiously named defendants. Grammer asserted claims of negligence and wantonness against Crocker and the fictitiously named defendants and a claim for uninsured/underinsured-motorist benefits against Allstate. Allstate filed an answer to Grammer’s complaint on December 3, 2008; Crocker filed an answer on December 9, 2008. On August 5, 2009, Allstate filed a motion to opt out of the case, noting that it was electing to opt out and to be bound by the fact-finder’s decision on the issues of liability and damages; the trial court granted that motion on February 24, 2010. See Lowe v. Nationwide Ins. Co., 521 So.2d 1309, 1310 (Ala.1988).

At the outset of the trial on March 9, 2010, Grammer orally moved the trial court to suppress any evidence regarding third-party payments of Grammer’s medical expenses. The trial court orally granted that motion, and, on March 10, 2010, it entered a detailed written order, entitled “notice and order regarding medical damages,” explaining its reason for granting the motion. In that order, the trial court determined that § 12-21-45, Ala.Code 1975, “no longer applies, having been superseded by the Alabama Rules of Evidence, and that the collateral source rule is accordingly revived to govern a plaintiffs medical damages in a general personal injury case such as this one.” (Emphasis omitted.) Based on that reasoning, the trial court ruled that any evidence of payments by a third party of Grammer’s medical expenses would be excluded from the trial as being irrelevant and unduly prejudicial.

The case was tried before a jury beginning on March 9, 2010. On March 10, 2010, the trial court entered a written order confirming the oral rulings it had made on motions and proposed jury instructions; the trial court noted, among other things, that Crocker’s oral motions for a judgment as a matter of law as to Grammer’s claim of wantonness had been denied. On March 11, 2010, the trial court entered a judgment on the jury’s verdict in favor of Grammer and against Crocker and awarded damages to Grammer in the amount of $36,500.

Crocker filed a motion for a new trial on April 12, 2010, asserting, among other things, that the trial court had improperly prohibited her from offering evidence indicating that Grammer’s medical bills had been paid by a collateral source. The trial court entered an order denying Crocker’s motion for a new trial on June 4, 2010. Crocker filed her notice of appeal to this court on July 9, 2010; this court granted oral argument in this case, which was held on June 29, 2011.

On appeal, Crocker argues that the trial court erred by failing to comply with § 12-21^45. Because our review of a trial court’s interpretation of a statute presents only a question of law, our review is de novo. See Madaloni v. City of Mobile, 37 So.3d 739, 742 (Ala.2009).

In Schoenvogel v. Venator Group Retail, Inc., 895 So.2d 225 (Ala.2004), our supreme court, in holding that Rule 601, Ala. R. Evid., superseded Alabama’s Dead Man’s Statute, § 12-21-163, Ala.Code 1975, stated that “when [the Supreme] Court adopted the Alabama Rules of Evidence effective January 1, 1996, those rules supplanted and superseded any provisions of Title 12 of the Code of Alabama 1975 inconsistent with those rules.... ” 895 So.2d at 235 (emphasis added). When the supreme court adopted the Alabama Rules of Evidence in 1996, § 12-21-45 provided, in pertinent part, as it does today:

“(a) In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiffs medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.”

The trial court in the present case concluded that § 12-21-45 is inconsistent with Rules 401 and 402 of the Alabama Rules of Evidence and, therefore, that it no longer applies.

Rule 401 provides:

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Rule 402 provides, in pertinent part, that “[e]vidence which is not relevant is not admissible.” The trial court reasoned that § 12-21-45 conflicts with Rules 401 and 402 because it makes evidence of third-party payments of certain medical and hospital expenses admissible even though such evidence does not meet the definition of “relevant evidence.” In that reasoning, the trial court erred.

Under the common-law collateral-source rule, “an amount of damages is not decreased by benefits received by a plaintiff from a source wholly collateral to and independent of the wrongdoer.” Williston v. Ard; 611 So.2d 274, 278 (Ala.1992). Based on that substantive rule of law, see American Legion Post No. 57 v. Leakey, 681 So.2d 1337, 1343 (Ala.1996), overruled on other grounds by Marsh v. Green, 782 So.2d 223 (Ala.2000) (holding that the collateral-source rule “as a whole is a rule of substantive law,” but one that contains a procedural component (emphasis omitted)), evidence of third-party payments of medical and hospital expenses was not admissible in personal-injury actions because such evidence was irrelevant to the issue of the appropriate measure of damages and unduly prejudicial to the plaintiff if used for other purposes. See, e.g., Smith v. Springsteen, 385 So.2d 56, 58 (Ala.1980); and Gribble v. Cox, 349 So.2d 1141, 1143 (Ala.1977).

Section 12-21-45 modifies the substantive component of the collateral-source rule. See Melvin v. Loots, 23 So.3d 666, 669 (Ala.Civ.App.2009). Whereas under the common-law collateral-source rule a jury could not in any case decrease the amount of damages awarded on account of a plaintiffs receipt of third-party payments of medical and hospital expenses, under § 12-21-45 a jury can now decide, based on the unique facts of each case, whether such a reduction would be appropriate. See Senn v. Alabama Gas Corp., 619 So.2d 1320, 1325 (Ala.1993). Section 12-21-45 does not dictate any particular outcome, but, rather, it allows a jury to make its own informed decision as to the effect of third-party payments of medical and hospital expenses on a plaintiffs recovery. See Marsh, 782 So.2d at 233 n. 2 (noting that § 12-21-45 allows both sides an opportunity to explore the equities of reducing a personal-injury award based on third-party payments of medical and hospital expenses). In some cases, a jury might adopt the underlying philosophy behind the collateral-source rule that it is unfair for a tortious wrongdoer to receive the benefit of third-party payments, see Leakey, 681 So.2d at 1338, while in other cases a jury may decide that it is the plaintiff who would receive an undue windfall if the damages were not reduced to account for the compensation the plaintiff had already received in the form of third-party payments. Marsh, supra.

In any case, under § 12-21-45, evidence of third-party payments of a plaintiffs medical and hospital expenses would be relevant to the determination of the appropriate award of damages, i.e., a “fact that is of consequence to the determination of the action.” Rule 401, Ala. R. Evid. Hence, § 12-21-45 does not conflict with Rule 401 or Rule 402. Rather, § 12-21-45 conforms to those rules by making evidence relating to a matter of consequence in every personal-injury action — the measure of damages — per se admissible.

The trial court also references Rule 403, Ala. R. Evid., in its order, and Gram-mer asserts on appeal that § 12-21-45 conflicts with Rule 403. We conclude that § 12-21-45 does not conflict with Rule 403. That rule provides:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Section 12-21-45(a) specifically allows plaintiffs to introduce evidence of the cost, if any, of obtaining reimbursement or payment of medical or hospital expenses. In addition, § 12 — 21—45(c) permits plaintiffs to introduce evidence that they will have to reimburse a third party who has paid their medical or hospital expenses from any damages award. See Bruno’s Supermarkets, Inc. v. Massey, 914 So.2d 862, 867 (Ala.Civ.App.2005). Through introduction of that evidence, a plaintiff can ameliorate any prejudice from the introduction by the defendant of third-party payments of medical and hospital expenses. The statute therefore provides its own mechanism for assuring that a plaintiff is not unduly prejudiced by admission of evidence of third-party payments of medical and hospital expenses.

No rule of evidence expressly supersedes § 12-21-45, and Grammer has not directed this court to any rule that directly conflicts with § 12-21-45 so as to impliedly abrogate that statute. Thus, we conclude that the adoption of the Alabama Rules of Evidence did not in any way diminish the effect of § 12-21-^15. Crocker should have been allowed to introduce into evidence third-party medical and hospital payments made on behalf of Grammer, and she should have been allowed to argue to the jury that Grammer⅛ damages should be reduced on account of those payments.

We reverse the judgment of the trial court and remand the case for a new trial and for such further proceedings as are consistent with this opinion.

REVERSED AND REMANDED.

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

BRYAN, J., concurs specially.

BRYAN, Judge,

concurring specially.

I recognize that evidence of third-party payments of medical and hospital expenses could have a prejudicial effect in personal-injury cases. However, the common-law collateral-source rule, which prohibited the admission of such evidence, was abrogated by the legislature’s enactment of § 12-21-45, Ala.Code 1975. No rule of evidence, including the rules relied on by Jonathan Grammer (ie., Rules 401-403, Ala. R. Evid.) specifically addresses the provision in § 12-21 — 45 allowing the admission of evidence formerly prohibited by the collateral-source rule.

“ ‘Our cases, without conflict, give emphasis to the well defined rule that “ ‘ “special provisions relating to specific subjects control general provisions relating to general subjects” ’ and “ ‘ “when the law descends to particulars, such more special provisions must be understood as exceptions to any general rules laid down to the contrary.” ”” ”

Ex parte E.J.M., 829 So.2d 105, 108-09 (Ala.2001) (quoting Geter v. United States Steel Corp., 264 Ala. 94, 97, 84 So.2d 770, 773 (1956), quoting in turn other cases). Accordingly, I agree with the main opinion that the Rules of Evidence have not superseded § 12-21-45.

      . "A motion for a new trial should be filed not later than thirty (30) days after the entry of the judgment.” Rule 59(b), Ala. R. Civ. P. The 30Ü1 day following the entry of the trial court's judgment on March 11, 2010, was Saturday, April 10, 2010. Thus, Crocker’s motion filed on Monday, April 12, 2010, was timely. See Rule 6(a), Ala. R. Civ. P.

      . We note that the Alabama Court of Criminal Appeals recently determined in M.L.H. v. State, [Ms. CR-09-0649, July 8, 2011] - So.3d-(Ala.Crim.App.2011), that the Alabama Rules of Evidence superseded portions of the Child Physical and Sexual Abuse Victim Protection Act ("the Act”), § 15-25-30 et seq., Ala.Code 1975, regarding the admission of certain hearsay statements. Because the Rules of Evidence governing the admissibility of hearsay statements directly conflict with the provisions of the Act cited in M.L.H., see — So.3d at --, that case is distinguishable from the present case, in which we conclude that no direct conflict exists between § 12-21-45 and the Alabama Rules of Evidence.

      . For that reason, we need not determine whether the Alabama Supreme Court had the constitutional authority to "overrule” § 12-21-45 under its general authority to alter procedural statutory laws, but not substantive statutory laws. See Schoenvogel, supra (discussing supreme court's authority to alter procedural statutory laws, but not substantive statutory laws, by adopting an inconsistent court rule).

      . It appears from the record that Grammer exhibited to the jury a document illustrating some payments made by a third party; however, Crocker was not allowed to introduce her own evidence on that point or to argue the effect of the third-party payments on Grammer's damages award. Hence, we reject any contention that the trial court committed harmless error in this case.

      . Grammer has requested this court to address issues relating to the nature of the evidence Crocker intended to introduce at trial and its impact on the extent of Grammer’s recovery. However, those issues are not ripe for our consideration, and we decline to address them at this stage of the proceedings.


author: THOMAS, Judge.

text:
    Michael Joe GREEN, Johnny James Brown, and Aletha Johnson v. CITY OF MONTGOMERY, J.J. Allen, and Henry Davis.
    2100713.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2011.
    Rehearing Denied Nov. 4, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1110207.

      Joe M. Reed of Joe M. Reed & Associates, LLC, Montgomery, for appellants.
    Jason C. Paulk, City of Montgomery Legal Department, Montgomery, for ap-pellees.
   THOMAS, Judge.

Michael Joe Green, Johnny James Brown, and Aletha Johnson (hereinafter referred collectively to as “the claimants”) appeal from a judgment of the Montgomery Circuit Court in favor of the City of Montgomery and J.J. Allen and Henry Davis, officers employed by the Montgomery Police Department (hereinafter referred to collectively as “the defendants”). We reverse and remand.

This is the second time this matter has been before this court. We recited the underlying facts and procedural history of this case in Green v. City of Montgomery, 55 So.Sd 256 (Ala.Civ.App.2009), thusly:

“On December 6, 2006, Montgomery police officers stopped the claimants as they were traveling through Montgomery on Interstate 65. While issuing the claimants a speeding ticket, the officers smelled a strong marijuana odor and noticed a large amount of cash in a bag on the floorboard behind the passenger seat. When asked how much money was in the bag, the claimants responded, ‘about $20,000.’ The officers asked for permission to search the vehicle, and the claimants did not respond. The officers ordered a K-9 unit to the scene to conduct an open-air search. The search resulted in a positive identification of marijuana in the passenger door. The officers then conducted a full search of the vehicle that produced a small amount of marijuana and additional cash. The officers seized the marijuana and all the cash, totaling $32,353. Johnny James Brown, the claimant closest to the marijuana, was charged with unlawful possession of marijuana in the second degree, a misdemeanor. See § 13A-12-214, Ala. Code 1975.
“The difference between first-degree and second-degree unlawful possession is whether the marijuana is for personal use. Id. Despite having charged Brown with the lesser, personal-use offense, the City [of Montgomery] transferred the seized currency to the federal Drug Enforcement Administration (‘DEA’) pursuant to an arrangement whereby the City would receive 80% of the money and the DEA would retain 20% of the money as a fee. This process is known as ‘adoptive seizure.’ See 21 U.S.C § 881 (2002).
“The adoptive-seizure process begins when state or local authorities seize property as part of a criminal investigation or arrest. Generally, the state or local officials either make a determination that forfeiture is not possible under state law or conclude that it is advantageous to them to transfer the matter to federal authorities for a federal administrative forfeiture proceeding. See I.R.S. Manual 9.7.2.7.3 (July 25, 2007); Asset Forfeiture Law, Practice, and Policy, Asset Forfeiture Office, Criminal Division, United States Department of Justice, Vol. I (1988) at 38 (cited in Johnson v. Johnson, 849 P.2d 1361, 1363 (Alaska 1993)). Once state or local officials have determined that an adoptive seizure is advantageous, they file a request with federal authorities. The appropriate federal agency then decides whether to accept or reject the request. If the adoptive-seizure request is accepted, the property is taken into the custody of federal agents and federal administrative forfeiture proceedings begin. At the successful conclusion of those proceedings, usually 80% of the forfeited property is given back to the state or local agency.
“In the present case, the seizure occurred on December 6, 2006. The City filled ■ out the requisite forms to begin the adoptive-seizure process on December 27, 2006. During the time that the United States Department of the Treasury was reviewing the City’s adoptive-seizure request, the claimants filed a ‘Complaint and Motion for Release and Return of Seized Money in the Montgomery Circuit Court on December 29, 2006. The DEA formally adopted the seizure on January 11, 2007, and United States Marshals took custody of the money on January 23, 2007.
“One week later, the City removed the claimants’ circuit court action to federal court to address the claimants’ Fourteenth Amendment claim. The claimants subsequently amended their complaint, deleting the Fourteenth Amendment claim and asking that the case be remanded to the Montgomery Circuit Court. The case was remanded on April 17, 2007. However on February 7, 2007, while the case was still in federal court, the claimants were notified of the DEA forfeiture proceeding and made no response.
“With the case back in the Montgomery Circuit Court, the claimants filed on April 26, 2007, a motion to dismiss their case; the circuit court granted the motion the same day. Arguing that they had made a clerical error in the caption and that the motion should have been styled as a motion for a summary judgment consistent with the substance of the motion, the claimants convinced the circuit court to reinstate the case on August 3, 2007. In the period between the dismissal and the reinstatement of the claimants’ action, the DEA deposited the seized currency in the Asset Forfeiture Fund.
“On April 24, 2008, the City filed a motion for a summary judgment, arguing that the circuit court no longer had jurisdiction over the seized currency. The circuit court granted the City’s motion on May 13, 2008. The claimants filed a timely postjudgment motion, which the circuit court denied on September 3, 2008. The claimants filed a timely notice of appeal with this court on October 15, 2008.”

55 So.3d at 258-59.

In Green, this court held that “[t]he claimants’ action in state court was an in rem or quasi in rem action, and it invoked state in rem jurisdiction before the federal government attempted to acquire jurisdiction.” Id. at 265. Accordingly, because we held that the Drug Enforcement Agency (“the DEA”) had never acquired jurisdiction over the currency, we reversed the summary judgment entered by the trial court in favor of the defendants and remanded the cause to the trial court “so that the claimants may assert any and all defenses to the seizure and forfeiture under state law.” Id.

On remand, the claimants moved the trial court for a summary judgment, arguing (1) that the defendants had lacked probable cause to seize the currency and (2) that the State had failed to promptly file a forfeiture action regarding the currency, thereby, the claimants said, requiring the defendants to return the currency to the claimants. The defendants opposed the claimants’ motion for a summary judgment, arguing that the currency had been validly seized pursuant to § 20-2-93, Ala. Code 1975, and that the action filed by the claimants met the requirement under that statute that the State file a forfeiture proceeding because, the defendants argued, the action sought disposition of the currency. The trial court denied the claimants’ summary-judgment motion.

The trial court later held a hearing on the claimants’ complaint, at which it heard ore tenus evidence. Following the hearing, on January 26, 2011, the trial court entered a judgment in favor of the defendants. In its judgment, the trial court determined that the defendants had had probable cause to seize the currency. The trial court also determined that the seized currency had been transferred from the City to the DEA, that the currency had then been taken into custody by the United States Marshals Service, and that the DEA had conducted an administrative-forfeiture proceeding, resulting in the forfeiture of the currency.

The claimants filed a postjudgment motion, arguing that the trial court had not addressed the issue whether the State had promptly filed a forfeiture action. The claimants’ postjudgment motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The claimants subsequently appealed to this court.

The trial court entered its judgment after hearing ore tenus evidence.

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007). Additionally, this court reviews questions of law de novo. See Wright v. Childree, 972 So.2d 771, 778 (Ala.2006) (“This Court accords the trial court’s ruling no presumption of correctness as to a question of law.”).

On appeal, the claimants argue that the trial court erred by not ordering the return of the currency because, the claimants say, the State failed to promptly institute forfeiture proceedings pursuant to § 20-2-93. We agree.

The trial court did not specifically state in its judgment whether the State had promptly filed a forfeiture action or whether the currency had been forfeited under state law; however, the trial court did state that the currency had been forfeited through the DEA’s administrative-forfeiture proceedings.

In Green, we determined that, when the claimants filed their complaint in the trial court, the trial court had acquired jurisdiction over the currency, thereby excluding the DEA from exercising jurisdiction. Green, 55 So.3d at 265. Because the trial court had jurisdiction over the currency, and because concurrent jurisdiction over the currency is prohibited, id. at 259, any attempted forfeiture proceeding conducted by the DEA was ineffectual. Id. at 265. Therefore, the trial court could not have relied on the administrative-forfeiture proceeding conducted by the DEA to determine that the currency had been forfeited.

Although the trial court erred in relying on the administrative-forfeiture proceeding conducted by the DEA to determine that the currency had been forfeited, this court may affirm the trial court’s judgment on any valid legal ground. See Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1082 (Ala.2004) (quoting General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala.2003), quoting in turn Liberty Nat’l Life Ins. Co. v. Uni versity of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003)) (‘“This [c]ourt may affirm a trial court’s judgment on “any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.” ’ ”). Therefore, we will now turn to the question whether the currency has been forfeited pursuant to the provisions of § 20-2-93.

The currency was subject to forfeiture pursuant to § 20 — 2—93(a)(9), which allows seizure of “[a]ll property of any type whatsoever constituting, or derived from, any proceeds obtained directly, or indirectly, from any violation of any law of this state concerning controlled substances.” The defendants seized the currency pursuant to § 20 — 2—93(b)(4), which provides, in pertinent part, that property subject to forfeiture may be seized without process if the “municipal law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of’ the controlled-substances laws. Section 20-2-93(c) provides that, “[i]n the event of seizure pursuant to subsection (b) of this section, proceedings under subsection (d) of this section [ — i.e., forfeiture proceedings — •] shall be instituted promptly.”

As this court explained in State v. Chesson, 948 So.2d 566 (Ala.Civ.App.2006):

“ ‘ “The mandate in [§ 20-2-93(c), Ala. Code 1975,] that forfeiture proceedings be instituted promptly is necessary to the statute’s constitutionality.” ’ Adams v. State ex rel. Whetstone, 598 So.2d 967, 969 (Ala.Civ.App.1992) (quoting Reach v. State, 530 So.2d 40, 41 (Ala.1988)). Furthermore, a forfeiture proceeding that is not instituted promptly is ineffectual. Adams, 598 So.2d at 969. ‘The term “promptly” has been construed to mean within a reasonable time in light of all the circumstances.’ State v. $17,636.00 in United States Currency, 650 So.2d 900, 901 (Ala.Civ.App.1994).
“This Court has addressed the issue of promptness under this statute. In Winstead v. State, 375 So.2d 1207 (Ala. Civ.App.1979), and Eleven Automobiles v. State, 384 So.2d 1129 (Ala.Civ.App. 1980), this Court ruled that instituting forfeiture proceedings three and one-half weeks and four weeks, respectively, after a seizure is permissibly prompt. This Court has also held that a 14-week delay between the seizure and the initiation of forfeiture proceeding was not excessive. Moynes v. State, 555 So.2d 1086, 1088-1089 (Ala.Civ.App.1989). However, in Adams, 598 So.2d at 969, this Court found that a delay of 10 weeks between the seizure of the property and the institution of the forfeiture proceedings did not meet the promptness requirement of § 20-2-93(c), Ala. Code 1975, when the record reflected no reason for the delay. This Court has stated that, without legislative guidance, ‘the facts and circumstances of each case may cause [the] issue [of promptness] to be decided on a case by case basis.’ Adams, 598 So.2d at 970.”

948 So.2d at 568-69. In $3,011 in United States Currency v. State, 845 So.2d 810, 814 (Ala.Civ.App.2002), this court stated that, “[a]s the Supreme Court noted in Lightfoot [v. Floyd, 667 So.2d. 56 (Ala.1995),] ‘[w]hat is “prompt” is decided on the facts of a given case, but a fairly short time frame,’ i.e., less than 7 to 10 months, ⅛ evident from the cases addressing the issue.’ 667 So.2d at 66 (collecting cases).”

In this case, the defendants seized the currency from the claimants on December 6, 2006 — more than four years before the trial court entered its judgment denying the claimants’ complaint seeking the return of the currency. During this four-year period, the State never filed a forfeiture action relating to the currency. Presumably, the State, relying on the administrative-forfeiture proceedings conducted by the DEA, was under the impression that it did not need to file a forfeiture action in state court. However, as we held in Green, the DEA lacked jurisdiction over the currency; therefore, its administrative-forfeiture proceeding was ineffectual. Green, 55 So.3d at 264-65. Even if we were to forgive the State’s delay in filing a forfeiture action in state court until after we released our opinion in Green, in which we held that the DEA’s attempted administrative-forfeiture proceeding was ineffectual, we still could not conclude that the State had promptly instituted a forfeiture action relating to the currency. Over 18 months passed between this court’s release of our opinion in Green and the entry of the trial court’s judgment. There is no evidence indicating that the State instituted a forfeiture proceeding during that period. Thus, any forfeiture proceeding filed by the State at this time would undeniably fail to meet the requirement in § 20-2-93(c) that the action be instituted “promptly.” See Chesson, 948 So.2d at 568-69.

Because the DEA did not have jurisdiction over the currency when it attempted to conduct administrative-forfeiture proceedings, and because the State did not promptly file a forfeiture proceeding in state court related to the currency, the claimants are entitled to a return of the currency. Therefore, we reverse the judgment of the trial court and remand the cause to that court with instructions to enter a judgment in favor of the claimants.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . In Green, the city of Montgomery was identified as the only appellee. However, the summary judgment at issue in Green, which this court reversed, was actually entered in favor of all the defendants.

      . The State, not the City, is the party with standing to initiate a forfeiture action pursuant to § 20-2-93, Ala.Code 1975. See State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027-28 (Ala.1999) (holding that § 20-2-93 incorporates the procedures set out in § 28-4-286 et seq., Ala.Code 1975, specifying that a drug-related forfeiture action is to be filed in the name of the State).

      . The claimants couch part of their argument on appeal as a challenge to the trial court’s denial of their summary-judgment motion.
      " ‘[W]e do not review a trial court's denial of a summary-judgment motion following a trial on the merits. See Grayson v. Hanson, 843 So.2d 146 (Ala.2002); Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994); see also Lind v. United Parcel Service, Inc., 254 F.3d 1281, 1283-84 (11th Cir.2001).’ ”

        Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So.2d 1196, 1205 (Ala.2006) (quoting Mitchell v. Folmar & Assocs., LLP, 854 So.2d 1115, 1116 (Ala.2003)). After denying the claimants’ summary-judgment motion, the trial court held a hearing and then entered a judgment on the merits of the case. Therefore, we will address only the question whether the trial court’s judgment was in error, not whether it should have entered a summary judgment in favor of the claimants.