author: IRVING, J.,

text:
    Patricia SMITH, Appellant v. Rogen CHHABRA and Tabor, Chhabra and Gibbs, P.A., Appellees.
    No. 2009-CP-01920-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.

      Patricia Smith, appellant, pro se.
    Robert P. Thompson, Ridgeland, Stephanie C. Edgar, attorneys for appellees.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

1. Patricia Smith retained Rogen Chhabra and his law firm, Tabor, Chhabra and Gibbs, P.A. (TCG), to represent her in her workers’ compensation claim. Smith later terminated Chhabra as her counsel and filed suit against both Chhabra and his law firm, alleging fraud, breach of contract, and legal malpractice. Chhabra moved for summary judgment, which the Hinds County Circuit Court granted on October 9, 2009. Feeling aggrieved, Smith appeals and asserts that summary judgment was improper as there is evidence that Chhabra committed fraud and legal malpractice, and his firm breached its contract with Smith.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Smith suffered a work-related injury on June 14, 2007. As a result, she received workers’ compensation payments, but for reasons that are not clear in the record, those payments were terminated. On December 17, 2007, Smith retained Chhabra and TCG to represent her in her workers’ compensation claim. She signed a contingency-fee agreement whereby TCG would receive twenty-five percent of any recovery. The agreement also authorized TCG to receive any recovered workers’ compensation payments, deposit them into the firm’s trust account, and disburse Smith’s portion (less the twenty-five percent contingency fee) to her.

¶ 4. Chhabra determined that Smith was entitled to additional workers’ compensation benefits and filed, on her behalf, a petition to controvert. On April 10, 2008, the administrative judge (AJ) entered an order adjusting Smith’s average weekly wage, directing the employer/carrier to pay the difference, and assessing a ten-percent penalty on past-due compensation payments.

¶ 5. Following the order, TCG began receiving checks directly from the workers’ compensation carrier for past-due disability benefits. In accordance with the terms of the agreement Smith signed with TCG, the funds were deposited in the firm’s trust account and Smith’s portion, less the twenty-five percent contingency fee, was remitted to her.

¶ 6. On June 23, 2008, Chhabra wrote a letter to the carrier’s attorney following up on unpaid temporary total disability and permanent partial disability payments. Chhabra also filed a motion to compel payment of temporary total disability and permanent partial disability shortages.

¶ 7. On June 25, 2008, Smith wrote Chhabra a letter terminating him as her counsel. In the letter, Smith accused Chhabra of cashing her disability checks without her consent and stealing the proceeds. Chhabra filed a motion to withdraw as counsel and requested a $5,310.02 lien for legal services rendered. On August 18, 2008, the AJ permitted Chhabra to withdraw as counsel and acknowledged that his lien request would be addressed if additional benefits were paid. Additionally, the AJ found that Chhabra was entitled to twenty-five percent of the remaining unpaid benefits from the April 10, 2008, order.

¶ 8. Smith continued to pursue her claim pro se. She argued that she was entitled to a higher average weekly wage and that the April 10, 2008, order should be modified. Additionally, Smith contended that she was permanently and totally disabled as a result of her work-related injury. On June 30, 2009, the AJ issued an order affirming the previously adjudicated average weekly wage and denying Smith’s claim for permanent disability benefits. Smith, again acting pro se, appealed the AJ’s order to the full Commission. On February 18, 2010, the full Commission entered an order affirming the award of temporary total disability benefits and reversing the denial of permanent disability benefits.

¶ 9. Following the full Commission’s order, the employer/carrier filed a motion asking for guidance regarding the payment of benefits in light of Chhabra’s services lien and Smith’s opposition to the lien. On May 17, 2010, the AJ entered an order enforcing the services lien and finding that, given the contingency-fee agreement signed by Smith, Chhabra was entitled to twenty-five percent of the full Commission’s benefit award.

¶ 10. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. A Mississippi appellate court reviews a trial court’s decision to grant or deny a motion for summary judgment de novo. O.W.O. Inv., Inc. v. Stone Inv. Co., 32 So.3d 439, 446 (¶ 18) (Miss.2010) (citing Kuiper v. Tarnabine, 20 So.3d 658, 660-61 (¶ 7) (Miss.2009)). A trial court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). In determining whether a trial court properly granted summary judgment, we view the facts in the light most favorable to the nonmovant. Fletcher v. Lyles, 999 So.2d 1271, 1276 (¶ 20) (Miss.2009). “Summary judgment is appropriate if the nonmoving party has not made a sufficient showing to ‘establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” O.W.O. Inv., 32 So.3d at 446 (¶ 18) (quoting Kuiper, 20 So.3d at 661 (¶ 7)).

¶ 12. Smith alleges that Chhabra committed fraud and legal malpractice. Additionally, Smith alleges that TCG breached its contract with Smith. Smith takes issue with the handling of her disability payments by Chhabra. She alleges that Chhabra committed fraud when he signed and deposited the checks without her permission.

¶ 13. A successful fraud claim requires that the plaintiff prove the following elements by clear and convincing evidence:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

O.W.O. Inv., 32 So.3d at 446 (¶ 20) (quoting Mabus v. St. James Episcopal Church, 884 So.2d 747, 762 (1132) (Miss.2004)).

¶ 14. Following the order adjusting Smith’s disability benefits, the carrier began submitting checks directly to TCG. Smith’s contract with TCG expressly authorized it to receive disability payments on her behalf, deposit the funds in the firm’s trust account, and remit Smith’s portion, less a twenty-five percent contingency fee. There is no evidence in the record that the firm acted outside of the express authority granted under the contract or that Chhabra misappropriated Smith’s disability payments. While there is no evidence of fraud or misappropriation, TCG did fail to provide Smith with copies of the checks received from the carrier. We feel compelled to caution lawyers that failing to provide clients with copies of checks received on a client’s behalf does not constitute best practice.

¶ 15. Smith also alleges that TCG breached its contract with Smith. “[I]n [a] suit for breach of contract, the plaintiff has the burden of proving by a preponderance of the evidence the existence of a valid and binding contract, that the defendant has broken or breached it, and that the plaintiff has suffered monetary damages as a result.” Garner v. Hickman, 733 So.2d 191, 195 (¶ 15) (Miss.1999) (citing Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992)).

¶ 16. There is no evidence in the record that TCG breached its contract with Smith. The contract expressly authorized TCG to receive any workers’ compensation benefits recovered through its efforts, deduct its fee, and remit the remainder to Smith. The firm’s actions conformed completely with what Smith contractually authorized it to do.

¶ 17. Furthermore, while the contract does not describe the specific services that Chhabra agreed to render in pursuing Smith’s workers’ compensation claim, the record reveals that Chhabra filed a petition to controvert, a motion to correct temporary total disability payments, a pre-hearing statement, and a motion to compel payment of unpaid benefits. Based on the record, Chhabra appropriately pursued Smith’s workers’ compensation claim. Therefore, Smith’s breach-of-contract claim is without merit.

¶ 18. Finally, Smith claims that Chhabra committed malpractice when he allegedly closed her claim without her consent. To prevail in a legal-malpractice claim, the plaintiff must prove, by a preponderance of the evidence, the following: “(1) the existence of an attorney-client relationship, (2) negligence on the part of the lawyer in handling his client’s affairs entrusted to him, and (3) proximate cause of the injury.” Byrd v. Bowie, 933 So.2d 899, 904 (¶ 15) (Miss.2006) (citing Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1215 (Miss.1996)). While an attorney-client relationship existed between Chhabra and Smith, there is no evidence in the record that Chhabra committed malpractice in the course of his representation of Smith. Smith’s allegations that Chhabra either closed or settled her workers’ compensation claim without her consent are not supported by the record. After Chhabra withdrew as counsel of record, Smith continued to pursue her claim pro se. However, Chhabra had no further involvement in the claim and did not participate in the resolution of Smith’s case. Smith has failed to prove that Chhabra acted negligently in handling her claim; therefore, her malpractice claim must fail.

¶ 19. Based on our review of the record, Smith has failed to prove the essential elements of her claims against Chhabra and TCG; therefore, the circuit court did not err in granting the appellees’ motion for summary judgment.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . Smith fractured her toe when a steel die fell on her foot.

      .Smith signed the firm's "Contract and Authority to Represent,” which provided in pertinent part:
      I agree to pay unto Tabor, Chhabra & Gibbs, P.A., the sum of twenty-five percent (25%) of all monies recovered in this matter prior to an appeal.... I hereby set over and assign to Tabor, Chhabra & Gibbs, P.A., an undivided interest in and to my said claim in those said percentages of recovery heretofore stated above as consideration.
      I instruct and authorize Tabor, Chhabra & Gibbs, P.A. to request that all drafts and moneys affected by this paragraph be sent to them and deposited in their trust account with my portion being disbursed to me in a reasonable amount of time.

      . The record is not clear as to what services Chhabra agreed to render in the context of Smith’s workers’ compensation claim. However, based on the pleadings, Chhabra clearly made efforts to correct the average weekly wage used to calculate Smith’s temporary total disability benefits and collect unpaid amounts of permanent partial disability benefits and temporary total disability benefits.

      . The full Commission took issue with the AJ's favoring the findings of the second orthopedic surgeon who concluded that Smith had no ratable impairment to her foot. The first orthopedic surgeon to examine Smith assessed a two percent permanent disability rating to Smith's foot, and the Commission saw no reason to favor the second surgeon’s opinion regarding permanent impairment over the first. As such, the Commission awarded permanent partial disability benefits consistent with a two percent impairment to the foot.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Chaddrick BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01881-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.
    Chaddrick Brown, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, Jackson, attorney for appellee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. Chaddrick Brown appeals the Circuit Court of Rankin County’s dismissal of his petition to order the Mississippi Department of Corrections (MDOC) to determine his parole eligibility date. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 1999, Brown was convicted of armed robbery after a jury trial in the Rankin County Circuit Court. The robbery occurred in July 1998. He was sentenced to a term of forty years in the custody of the MDOC. Brown appealed his conviction, which this Court affirmed in November 2003.

¶ 3. Approximately six years later, in July 2009, Brown filed with the circuit court a document entitled “Petition to Show Cause of Senate Bill No. 2136.” In it, he asserted that he should be eligible for parole review based upon the passage of Senate Bill 2136 during the 2008 Legislative Session. Senate Bill 2136 amended Mississippi Code Annotated section 47-7-3(l)(g) (Supp.2006) to provide that nonviolent offenders convicted after June 30, 1995, may be eligible for parole. Brown further explained that he should be eligible for parole because he had conducted himself under the rules of the MDOC, is not a habitual offender, and has served ten years of his sentence. Brown requested that the circuit court order the MDOC to recalculate his sentence and provide him a parole eligibility date. The circuit court dismissed Brown’s petition because Brown is ineligible for parole according to Mississippi Code Annotated section 47-7-3(l)(d)(ii) (Supp.2010), which provides, in pertinent part, that no person convicted of armed robbery on or after October 1,1994, shall be eligible for parole. The circuit court also found that while Brown did not make any allegations related to the administrative review procedures of the MDOC: there was no “evidence of fraud”; the MDOC findings of fact were supported by the evidence; and “its decision should be affirmed.” Brown appeals that decision.

STANDARD OF REVIEW

¶ 4. The applicable standard of review for questions of law is de novo. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). This Court will not disturb the circuit court’s findings of fact unless they are found to be clearly erroneous. Id.

ANALYSIS

¶ 5. On appeal, Brown maintains that he is eligible for parole review under section 47-7-3(1) after having served ten years of his forty-year sentence due to the 2008 passage of Senate Bill 2136.

¶ 6. Section 47 — 7—3(l)(d)(ii) provides that no person convicted of armed robbery on or after October 1, 1994, shall be eligible for parole. Mississippi’s parole statute reads in pertinent part:

(1) Every prisoner who has been convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi Department of Corrections for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the department, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided, except that:
[d](ii) No person shall he eligible for parole who shall, on or after October 1, 199Jp, be convicted of robbery, attempted robbery or carjacking ... through the display of a firearm or drive-by shooting. ... The provisions of this paragraph (d)(ii) shall also apply to any person who shall commit robbery, attempted robbery, carjacking or a drive-by shooting on or after October 1, 1994, through the display of a deadly weapon[.]

Miss.Code Ann. § 47 — 7—3(l)(d)(ii) (emphasis added). Brown was convicted in 1999 for an armed robbery that he had committed in 1998. This code section became law in 1994, before Brown’s robbery and his subsequent conviction of robbery; thus, Brown is not eligible for parole. This Court has explained that “prior to the enactment of section 47-7-3(l)(d)(ii), persons convicted of armed robbery could be eligible for parole after serving ten years of their sentence. However, it is clear that such felons are now completely ineligible for parole.” Wells v. State, 936 So.2d 479, 480 (¶ 5) (Miss.Ct.App.2006). This Court has upheld this interpretation of section 47 — 7—3(1)(d)(ii). See Sykes v. Epps, 963 So.2d 31, 32 (¶¶ 4, 6) (Miss.Ct.App.2007) (affirming dismissal of complaint against the MDOC for failing to provide a parole eligibility date where under section 47 — 7—3(l)(d)(ii) prisoner was ineligible for parole, having been convicted of armed robbery after October 1, 1994).

¶ 7. In 2008, Senate Bill 2136 amended section 47 — 7—3(l)(g) to read: “No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30,1995, except that an offender convicted of only nonviolent crimes after June 30, 1995, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph.” (Emphasis added.) Brown claims that this amendment entitles him to parole, but he is incorrect. Senate Bill 2136 does not impact parole eligibility for those sentenced to armed robbery, as it applies only to “nonviolent crimes.” Section 47-7-3(l)(g) specifically explained that “nonviolent crimes” includes “a felony other than ... robbery.” This argument is without merit.

¶ 8. Finally, in its judgment of dismissal, the circuit court stated that the findings of the MDOC were supported by the evidence; there was no evidence of fraud; and the MDOC’s “decision should be affirmed.” We note the record before us contains no such findings or decisions from the MDOC, nor does the record give us any indication that this case was ever before the MDOC. Regardless, these findings do not change the final disposition of the case — dismissal—because Brown is not eligible for parole.

¶ 9. In his brief, Brown also claims that he sought administrative review of his sentence through the MDOC and was told he “could be” eligible for parole. It is true that the proper initial procedure for inmates to address any confusion about the operation of the state’s system for incarceration is through the administrative processes of the MDOC, rather than by the courts on a motion for post-conviction relief. Burns v. State, 933 So.2d 329, 331 (¶ 9) (Miss.Ct.App.2006) (citing Miss.Code Ann. §§ 47-5-801 through 47-5-807 (Rev. 2004)). However, we again note that there is no such indication in the record that the case was ever before the MDOC.

¶ 10. “The burden rest[s] upon [the] appellant to see to it that the record contain[s] all data essential to an understanding and presentation of matters relied upon for reversal on appeal.” Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973) (citing Willenbrock v. Brown, 239 So.2d 922, 925 (Miss.1970)). Further, “[t]his Court may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record.” Id. Therefore, this Court cannot take the information Brown alleges, that the MDOC informed him he was eligible for parole, into consideration. Even if we could, the MDOC would be mistaken in granting Brown parole eligibility according to section 47-7-3(l)(d)(ii).

¶ 11. In conclusion, we find the circuit court properly dismissed Brown’s petition.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . See Brown v. State, 868 So.2d 1027 (Miss.Ct.App.2003).

      . In 2010, section 47-7-3(1) was again amended, and the former subsection (g) was redesignated as subsection (h). Subsection (g) now pertains to parole for aggravated domestic violence. We have retained the subsection designation from the 2008 amendment in the text of this opinion for the sake of simplicity.


author: BOLIN, Justice.

text:
    Ex parte ALABAMA STATE PERSONNEL BOARD (In re Nationwide Retirement Solutions, Inc. v. Alabama State Personnel Board, PEBCO, Inc., and the Alabama State Employees Association).
    1090530.
    Supreme Court of Alabama.
    June 30, 2010.

      C. Lee Reeves, David R. Mellon, and Jaime C. Erdberg of Sirote & Permutt, P.C., Birmingham; and Alice Ann Byrne, Alabama Sate Personnel Department, Montgomery, for petitioner.
    Sharon D. Stuart and Lynn S. Darty of Christian & Small LLP, Birmingham; and Charles C. Platt and David W. Bowker of Wilmer Cutler Pickering Hale & Dorr, LLP, New York City, New York, for respondent Nationwide Retirement Solutions, Inc.
    Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery; and J. Mark White, Rebecca G. DePalma, and Hope Marshall of White, Arnold & Dowd, Birmingham, for respondents Alabama State Employees Association, PEBCO, Inc., Edwin McAr-thur, Steve Walkley, Glenn Parker, Ulysses Lavender, Diana McLain, Randy Hebson, and Robert Wagstaff.
   BOLIN, Justice.

The Alabama State Personnel Board, an agency of the State of Alabama (“the Board”), petitions this Court for a writ of mandamus directing the trial court to vacate its order referring the underlying case to a special master. We grant the petition and issue the writ.

Facts and Procedural History

On July 15, 2009, Nationwide Retirement Solutions, Inc. (“NRS”), filed an in-terpleader action against the Board, PEBCO, Inc., and the Alabama State Employees Association (“ASEA”), depositing $432,740 in the court. The complaint provided that future sums would also be added to the interpleaded amount. The moneys interpleaded by NRS involve a supplemental retirement plan available to State employees called the “Alabama State Employees Deferred Compensation Plan” (“the plan”), which is administered by NRS. The plan permits State employees to save for retirement on a tax-deferred basis, deferring a portion of their income in accordance with § 457 of the Internal Revenue Code. The Board sponsors the plan and is its fiduciary. Pursuant to § 36-26-14, Ala.Code 1975, the Board adopts the plan as recommended by State employees through ASEA. NRS alleged that the Board and ASEA both claimed a legal right to the moneys, and NRS was seeking direction from the court regarding the payment of the moneys and an order discharging NRS and its affiliated company, Nationwide Life Insurance Company, from liability.

On August 20, 2009, ASEA and PEBCO each filed a motion to dismiss the inter-pleader complaint, arguing that they had settled claims alleging that NRS and Nationwide had been paying “kickbacks” in the form of unauthorized commissions, expenses, and fees to ASEA and PEBCO, benefiting them at the expense of the plan and its participants. Both ASEA and PEBCO also asked that the Board be ordered to stop interfering with the Securities and Exchange Commission, which made the original allegations involving the kickback scheme.

On August 21, 2009, the Board filed its answer and filed cross-claims against ASEA and PEBCO and added claims against seven individuals, who are officers and employees of ASEA and PEBCO. The Board alleged that it recently discovered that improper payments had been made to ASEA and/or PEBCO from NRS and/or Nationwide and that the amounts due on those payments from 2009 were the funds that were the subject of the inter-pleader action. The Board further alleged that improper payments had been made each year since 2000. The Board asserted that it was entitled to the interpleaded funds and that there should be an accounting from ASEA, PEBCO, and the seven named individual defendants. The Board also asserted claims of breach of fiduciary duty, fraud, fraudulent suppression, and conspiracy. The Board demanded a jury trial on those claims triable of right by a jury.

On September 10, 2009, Twanna Brown, a State employee and a member of ASEA and of the plan, moved to intervene in the action. She also sought certification of a class action on behalf of all ASEA members and plan participants.

On December 16, 2009, the trial court entered the following order:

“It has become apparent that the appointment of a special master is necessary to hear pending motions and other matters and make recommended orders. Pursuant to Rule 58, Ala. R. Civ. P., it is hereby ordered that Frank Wilson is appointed special master to hear all matters in the above-styled case.
“The special master shall have the rights, powers, and duties provided in Rule 58 and may adopt such procedures as are not inconsistent with that rule or with this or other orders of the Court.
“The special master shall make findings of fact, as necessary, and conclusions of law with respect to matters presented by the parties, and he shall report expeditiously to the Court.
“Compensation at rates mutually agreeable to the special master and the parties shall be paid to the special master on a monthly basis by the parties, together with reimbursement for reasonable expenses incurred by the special master. If the parties and the special master are unable to agree upon the compensation, it shall be fixed by the Court. The special master shall, within five (5) days, inform the Court if he and the parties have agreed upon his compensation.”

On December 21, 2009, the Board filed an objection to the court’s appointment of a special master and moved the court to vacate that order or, in the alternative, to modify the order appointing the special master so that the appointment was only for issues directly related to accounting work that may arise in the case. Brown also filed a motion objecting to the appointment.

On January 26, 2010, the Board filed this petition for a writ of mandamus. That same day, the Board amended its pleadings to add a new defendant, AON Consulting, Inc., and to add additional claims against ASEA, PEBCO, and the seven named individual defendants.

On January 28, 2010, the trial court held a status hearing. The trial court appears to have anticipated that the parties would have a contentious discovery process and that the special master would hear those issues, among others. The court also indicated that it would terminate the special master’s appointment if the parties did not get into “a lot of fights.” Ultimately, the trial court stated that it would hold another status conference and then decide how to use the special master.

On February 4, 2010, the trial court entered an order amending its order appointing the special master:

“This matter is before the Court on the Objection of the Alabama State Personnel Board ... to the Appointment of a Special Master, and Motion to Vacate and/or Modify The Court’s Order Appointing the Special Master.
“[NRS] filed a complaint to interplead approximately $1,000,000.00 into the court to determine to whom the money should be awarded. [The Board,] PEB-CO, Inc. (‘PEBCO’), and the Alabama State Employees Association (‘ASEA’) are named as defendants.
“[The Board] filed a cross-claim that contains thirteen counts, as amended. The counts are as follows:
“Count 1: claim for the interpled funds, against ASEA, PEBCO, and Edwin J. McArthur, Steve Walkley, Glenn Parker, Ulysses Lavender, Diana McLain, Randy Hebson, and Robert Wagstaff (‘seven individual named defendants’);
“Count 2: accounting, against ASEA, PEBCO, and seven individual named defendants;
“Count 3: breach of fiduciary duties, against ASEA, PEBCO, seven individual named defendants, and AON Consulting (‘AON’);
“Count 4: fraud, against ASEA;
“Count 5: fraudulent suppression, against ASEA;
“Count 6: conspiracy, against ASEA, PEBCO, and seven individual named defendants;
“Count 7: conspiracy, against AON;
“Count 8: breach of contract, against AON;
“Count 9: conspiracy, against ASEA, PEBCO, seven individual named defendants, and AON;
“Count 10: conversion, against ASEA, PEBCO, and seven individual named defendants;
“Count 11: unjust enrichment, against ASEA, PEBCO, seven individual named defendants, and AON;
“Count 12: declaratory judgment, against ASEA, PEBCO, and seven individual named defendants;
“Count 13: wrongful interference with contractual relationship, against ASEA, PEBCO, seven individual named defendants, and AON.
“In addition, [the Board] is seeking injunctive relief, equitable relief, monetary damages, and an accounting. The relief sought, as well as the accounting, is not a simple mathematical determination. This Court believes this will be difficult to compute. [The Board] has requested a jury trial on all issues that could be tried before a jury but could not specify the issues that would be tried jury and non-jury.
“There has also been a motion to intervene filed by Twanna Brown (‘Brown’) as a member of ASEA and seeks a class action certification on behalf of all members of ASEA. This complaint contains four counts against all named parties: ASEA, Nationwide, PEBCO, and seven individual named defendants:
“Count 1: conspiracy;
“Count 2: breach of fiduciary duty;
“Count 3: declaratory and injunctive relief seeking the removal of officers and directors;
“Count 4: derivative claim.
“To clarify its previous order appointing the Special Master, this Court will preside over the trial of this case, determine all matters of the requested relief including, but not limited to, dispositive motions, monetary damages, equitable relief, injunctive relief, and determine all evidentiary issues.
“This Court has appointed and is currently using without objection by the State of Alabama a Special Master in approximately thirty cases wherein corporations sought refunds of franchise taxes from the Alabama Department of Revenue. Likewise, another Circuit Judge in this Circuit has appointed two Special Masters in cases involving the Alabama Medicaid Agency and pharmaceutical companies. Special Masters have been appointed by the judges in the 15th Judicial Circuit as ‘an exception’ and not as a general rule.
“There are approximately thirteen attorneys representing several different parties with claims for equitable and injunctive relief, and monetary damages. There are nonjury and jury demands, cross-claims, counterclaims, and third party claims involving complex issues. In addition, the parties cannot agree on whether or not the monies should be interpled to the Court. This Court has determined from the arguments of the parties, the pleadings, and motions filed that this case is complicated and meets the criteria stated in Rule 53, Ala. R. Civ. P., for the appointment of a Special Master. Absent an agreement between the parties, the Court will reserve ruling on whether or not [the Board] will have to pay its share of the fee of the Special Master until a future date.
“Based on the foregoing, it is the opinion of this Court that a Special Master is necessary in this case. Accordingly, the request by [the Board] for this Court to modify its previous order is granted as stated herein; however, the Motion by [the Board] is denied.”

That same day, Brown filed a motion to withdraw her motion to intervene. On March 10, 2010, this Court ordered answers and briefs.

Standard of Review

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ ”

Ex parte Novartis Pharm. Corp., 975 So.2d 297, 299 (Ala.2007)(quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

“ ‘ “In cases involving the exercise of discretion by an inferior court, [the writ of] mandamus may issue to compel the exercise of that discretion. It may not, however, issue to control or review the exercise of discretion, except in a case [where the trial court has exceeded its discretion].” ’ ” Ex parte Monsanto Co., 794 So.2d 350, 351-52 (Ala.2001) (quoting Ex parte Auto-Owners Ins. Co., 548 So.2d 1029, 1030 (Ala.1989), quoting in turn Ex parte Edgar, 543 So.2d 682, 685 (Ala.1989)).

Arguments

The Board argues that the trial court exceeded its discretion in issuing the order of December 16, 2009, referring all matters to a special master where there was no showing as required by Rule 53(b), Ala. R. Civ. P., that the computation of damages was difficult, the issues were complicated, or there was some exceptional condition warranting the appointment of a special master. The Board also argues that the trial court erred in requiring in its December 16, 2009, order the State to pay fees to a special master in contravention to Art. I, § 14, Ala. Const.1901.

ASEA, PEBCO, the seven named individual defendants, and NRS (“the respondents”) argue that the Board cannot meet the heavy burden of proof required for mandamus relief. Citing Ex parte Novartis Pharmaceuticals Corp., 991 So.2d 1263 (Ala.2008)(holding that, like an appeal, a petition for a writ of mandamus may be dismissed if, while the petition is pending, an event occurs that renders it impossible for the appellate court to grant the requested relief), they argue that the trial court’s amended order of February 4, 2010, moots the Board’s petition. The respondents further argue that the February 4, 2010, order expressly found that the issues before a jury would be complicated and that the nonjury issues involved exceptional circumstances, as required by Rule 53.

In response to the respondents’ argument that the trial court’s amended order moots the petition, the Board argues that the trial court’s amended order of February 4, 2010, makes a mere conclusory statement that the case is complicated, which statement it argues is not supported by the record, and that the modification to the special master’s authority did not remedy the trial court’s violation of the Board’s right to a trial by jury because, it says, the amended order improperly delegated the court’s judicial function.

Discussion

We agree with the respondents that the trial court’s order of December 16, 2009, was rendered moot by the amended order of February 4, 2010. Because no party objects to this Court’s consideration of the February 4, 2010, amended order, and because the parties, in fact, argue the merits of the February 4, 2010, order, it would be a waste of judicial resources to dismiss the Board’s petition, which was filed on January 26, 2010, as moot.

Rule 53, Ala. R. Civ. P., provides that a court may appoint a special master. Rule 53(b), Ala. R. Civ. P., sets out the occasions upon which the appointment of a special master is appropriate and provides as follows:

“(b) Reference. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.”

The appointment of a special master lies within the sound discretion of the trial court, and its decision to appoint a special master should not be reversed unless the trial court clearly exceeds that discretion. Hall v. Mazzone, 540 So.2d 1353 (Ala.1988). In a jury trial, a case should be referred to a special master only if the issues are “complicated”; those matters to be tried without a jury are to be referred to a special master only upon finding of “some exceptional condition” requiring such referral, unless a claim requires an accounting or a difficult computation of damages. We emphasize the sentence in Rule 53(b) that precedes the applicable standard (jury or nonjury) that tells us that the reference to a special master is the exception not the rule. “Because of the increased costs, likelihood of delay, and possible lack of confidence in the outcome, the power to order a reference is to be sparingly exercised. See Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir.1942).” Committee Comments on 1973 Adoption of Rule 53.

Because the Alabama Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, federal cases construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure. Borders v. City of Huntsville, 875 So.2d 1168, 1176 n. 2 (Ala.2003). Rule 53, Ala. R. Civ. P., is substantially similar to Rule 53, Fed. R. Civ. P.

Referring fundamental issues of liability to a special master for adjudication, over objection, is not permitted. Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir.1992). “Determining bottom-line legal questions is the responsibility of the court itself.... Because determining a fundamental question of liability goes beyond mere assistance and reaches the essential judicial function identified by Article III, [United States Constitution,] Rule 53[, Fed.R.Civ.P.,] does not allow the responsibility for making such judgments to be delegated to masters (or other persons not of Article III stature) in the face of a contemporaneous objection.” 977 F.2d at 695. “Rule 53 ... authorizes the appointment of special masters to assist, not to replace, the adjudicator, whether judge or jury, constitutionally indicated for federal court litigation.” In re Bituminous Coal Operators’ Ass’n, Inc., 949 F.2d 1165, 1168 (D.C.Cir.1991). “Actions for fraud are particularly inappropriate for reference to a master, ‘save in extraordinary or exceptional cases.’ ” Bradshaw v. Thompson, 454 F.2d 75, 80 (6th Cir.1972). “A district court has no discretion to delegate its adjudicatory responsibility in favor of a decision maker who has not been appointed by the President and confirmed by the Senate.” Prudential Ins. Co. of America v. United States Gypsum Co., 991 F.2d 1080, 1086 (3d Cir.1993).

In Alabama, Art. I, § 10, Alabama Constitution of 1901, provides “[t]hat no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.” Section 11 provides “[t]hat the right to trial by jury shall remain inviolate.” Section 13 provides “[t]hat all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.” Article VI, § 139(a), provides:

“Except as otherwise provided by this Constitution, the judicial power of the state shall be vested exclusively in a unified judicial system which shall consist of a supreme court, a court of criminal appeals, a court of civil appeals, a trial court of general jurisdiction known as the circuit court, a trial court of limited jurisdiction known as the district court, a probate court and such municipal courts as may be provided by law.”

The judicial power of this State must be exercised by courts having the attributes prescribed in the Alabama Constitution.

In Ex parte Flexible Products Co., 915 So.2d 84 (Ala.2005), the trial court in consolidated tort actions appointed a special master to conduct jury trials on damages in the individual cases. This Court stated:

“Rule 53 does not envision that a trial court could appoint a special master with the authority to conduct a jury trial. Moreover, we cannot conclude that Rule 53, a rule of procedure, is sufficiently broad to vest the trial court with authority to appoint a special master with the same authority as is ‘exclusively vested’ in the judicial system. Ala. Const.1901, Amend. No. 328, § 6.01 [§ 139, Ala. Const. 1901 (Off.Recomp.) ].
“This Court has stated:
“ ‘The function of a “judge” is to determine controversies between litigants, and they are not advisers. In re Richardson, 247 N.Y. 401, 160 N.E. 655 [ (1928) ]. A “judge” is one who presides over a court. State ex rel. Madden v. Crawford, 207 Or. 76, 295 P.2d 174 [ (1956) ]. His “judicial acts” are the performance of duties which have been confided to him as a judicial officer to be exercised in a judicial way. Supervisors of Onondaga v. Briggs, (N.Y.) 2 Denio 26 [(1846)].
“‘As stated by Chancellor Kent, “The general rule is that judicial offices must be exercised in person, and that a judge cannot delegate his authority to another. I do not know of any exception to this rule with us.” 3 Kent Com. 12th Ed. 457.’
“Opinion of the Justices No. 187, 280 Ala. 653, 658, 197 So.2d 456, 461 (1967). Further, the courts of this State have recognized that judicial functions, such as declaring a mistrial, Parham v. State, 47 Ala.App. 76, 250 So.2d 613, 617 (Ala.Crim.App.1971), or striking jurors, Russaw v. State, 572 So.2d 1288 (Ala.Crim.App.1990), may not be delegated in the absence of specific statutory authority.”

915 So.2d at 54. “[W]e recognize that a court may not delegate a judicial function [to a special master].” Ex parte Mid-Continent Sys., Inc., 447 So.2d 717, 720 (Ala.1984).

In its February 4, 2010, order, the trial court stated that it was clarifying its previous order and then stated that the court would preside over the trial; would determine all matters regarding the requested relief, including, but not limited to, dispositive motions, monetary damages, equitable relief, and injunctive relief; and would determine all evidentiary issues. The trial court also stated its reasons for referring the case to a special master.

Rule 53(c), Ala. R. Civ. P., governs the powers and duties of a special master and provides as follows:

“(c) Powers. The order of reference to the master may specify or limit the master’s powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master’s report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master’s duties under the order. The master may require the production before the master of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in the Alabama Rules of Evidence for a court sitting without a jury.”

A case is assigned to a special master by an order of reference for the special master to follow. “The power of a special master is completely dependent upon the order of reference.” United States v. International Bus. Machs. Corp., 66 F.R.D. 154, 158 (S.D.N.Y.1974). “The object, of course, is to give the master as much latitude as possible in achieving the objectives of the reference with a minimum of judicial intervention.” 9C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2609 at 617 (2008). Here, the amended order sets out the trial court’s responsibilities without delineating the special master’s charge, other than by an omnibus pourover of responsibility. The trial court recognized that both jury and nonjury claims were involved, but the court did not distinguish the special master’s duties as to the claims. Even if the order of reference had not been ambiguous, the trial court’s stated reasons for referring the case to a special master did not support the reference, nor does anything attached to the mandamus petition or the respondents’ briefs support a reference.

The trial court justified referring the cases to a special master by citing the number of attorneys representing the different parties and the fact that there are claims seeking both equitable and injunc-tive relief and money damages. The trial court also states that there are nonjury and jury demands, cross-claims, counterclaims, and third-party claims involving complex issues. In addition, the trial court states as a reason for the reference to a special master that the parties cannot agree on whether the moneys should be interpleaded to the court.

As noted earlier, the trial court’s appointment of a special master will not be reversed unless the trial court has exceeded its discretion in making the appointment. The trial court recognized that there were jury and nonjury claims involved in this case. Where there is a demand for a jury trial, the reference to a special master shall be made only when the issues are complicated. “In view of the powers given to District Courts by Federal Rule of Civil Procedure 58(b) to appoint masters to assist the jury in those exceptional cases where the legal issues are too complicated for the jury to adequately handle alone, the burden of such a showing is considerably increased and it will indeed by a rare case in which it can be met.” Dairy Queen, Inc. v. Wood, 369 U.S. 469, 478, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962) (footnotes omitted). “[T]he minimum required is a demonstration that over and beyond a mere numerical quantitative analysis, the case is intrinsically complex.” In re Watkins, 271 F.2d 771, 774 (5th Cir.1959). Citing Watkins, supra, the Supreme Court held: “Even this limited inroad upon the right to trial by jury 'should seldom be made, and if at all only when unusual circumstances exist.’ ” Dairy Queen Inc., 369 U.S. at 478 n. 18 (quoting La Buy v. Howes Leather Co., 352 U.S. 249, 258, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957)). The alleged kickback scheme here is not so complicated or technical as to require reference to a special master. Cf. In re “Agent Orange” Prod Liab. Litig., 94 F.R.D. 173, 174 (E.D.N.Y.1982) (referencing discovery issues in products-liability case to special master was appropriate because of “the magnitude of the case, the complexity of the anticipated discovery problems, the sheer volume of documents to be reviewed, ... the number of witnesses to be deposed, [and] the need for a speedy processing of all discovery problems in order to meet the trial date”). The number of allegedly improper financial transactions does not appear to be large, although they allegedly occurred over a 10-year period. Cf. Burgess v. Williams, 302 F.2d 91 (4th Cir.1962) (holding that trial court did not exceed its discretion in referring to a special master a bankruptcy issue requiring factual findings regarding the nature of each of 1,500 individual financial contributors). The fact that 13 attorneys are involved and that the parties have filed counterclaims, cross-claims, and third-party claims does not automatically justify reference to a special master, because under the facts of this case the pleadings are seeking recovery from the same alleged kickback scheme. Cf. Chisolm v. TranSouth Fin. Corp., 194 F.R.D. 538 (E.D.Va.2000) (holding that Rule 53 standard was met where the action involved seven different legal theories of liability from the plaintiffs, exculpatory theories from the defendant, and a putative class in excess of 2,500).

The Board requested a declaratory judgment, injunctive relief, and an accounting, and there is the issue of who is entitled to the interpleaded funds. With regard these nonjury actions, a reference to a special master should be made only upon a showing that some exceptional condition requires it. Cf. Gary W. v. Louisiana, 601 F.2d 240, 244-45 (5th Cir.1979) (trial court did not exceed its discretion in appointing a special master to oversee the implementation of an injunctive order where a significant number of children were involved and had not be accorded the relief ordered by the court); Johnson Fare Box Co. v. National Rejectors, Inc., 269 F.2d 348, 351 (8th Cir.1959) (holding that district court did not exceed its discretion in referring “all issues of fact and law” in complicated patent-infringement case to a special master for comprehensive report and recommendation). The Board recognized in its pleadings that a special master might be necessary for the purpose of an accounting, but the trial court’s amended order does not limit the special master to an accounting. Additionally, no showing of an “exceptional condition” is required when “matters of account and of difficult computation of damages” are involved. Hall v. Mazzone, 540 So.2d at 1356. The fact that an accounting may be required does not in itself offer a basis for reference to a special master. Hanover Ins. Co. v. Emmaus Mun. Auth., 38 F.R.D. 470 (E.D.Pa.1965). A disagreement between the parties regarding the interpleading of disputed funds is not an exceptional condition warranting a reference to a special master.

In La Buy v. Howes Leather Co., 352 U.S. at 256, the Supreme Court affirmed the appellate court’s issuance of a writ of mandamus compelling the district court to vacate its order of reference of two complex antitrust cases to a special master for trial. The Court stated:

“[The trial judge] referred both suits to a master on the general issue. Furthermore, neither the existence of the alleged conspiracy nor the question of liability vel non had been determined in either case. These issues, as well as the damages, if any, and the question concerning the issuance of an injunction, were likewise included in the references. Under all of the circumstances, we believe the Court of Appeals was justified in finding the orders of reference were an abuse of the petitioner’s power under Rule 53(b)[, Fed.R.Civ.P.]. They amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation.”

The trial judge cites other cases in which he and other judges in his circuit are currently using a special master. Although referencing a special master may be appropriate in other cases, the appointment of a special master is determined by the particular facts in each case. Rule 53 states that appointing a special master should be the exception and not the rule, but “a number of cases have established that this is not an impossible standard to meet.” United States v. Conservation Chem. Co., 106 F.R.D. 210 (W.D.Mo.1985). The trial court’s justification in its amended order for the reference — multiple parties and counsel and the presence of Rule 13, Ala. R. Civ. P., and Rule 14, Ala. R. Civ. P., pleadings — would make the umbrella of the “exception” larger than the general rule.

Based on the foregoing, we order the trial court to vacate its amended order of February 4, 2010, referring the case to a special master.

PETITION GRANTED; WRIT ISSUED.

LYONS, WOODALL, STUART, PARKER, MURDOCK, and SHAW, JJ., concur.

COBB, C.J., and SMITH, J., recuse themselves.

      . The seven individual defendants are Edwin J. McArthur, Steve Walkley, Glenn Parker, Ulysses Lavender, Diana McLain, Randy Heb-son, and Robert Wagstaff.

      . At the time she filed her motion to intervene here, Brown had filed a class action in Jefferson County, which is still pending.

      . "Ala. R. Civ. P. Rule 53(a) contains a reference to courts to which these rules are applicable while Fed.R.Civ.P. Rule 53(a) refers to district court. Ala. R. Civ. P. Rule 53(a) does not contain reference to terminology appropriate to admiralty practice, wherein Fed. R.Civ.P. Rule 53(a) contains such terminology. Ala. R. Civ. P. Rule 53(a) second sentence, contains a prohibition against the interested master, whereas Fed.R.Civ.P. Rule 53(a) does not contain such a prohibition. Fed. R.Civ.P. Rule 53 has several variations made necessary by the availability of United States Magistrate Judges.”
      2 Champ Lyons, Jr., & Ally W. Howell, Alabama Rules Civil Procedure Annotated § 53.8 (4th ed. 2004).


author: THOMAS, Judge.

text:
    FORT JAMES HOLDING COMPANY, INC., d/b/a Georgia Pacific v. Cheryl D. MORGAN.
    2090219.
    Court of Civil Appeals of Alabama.
    June 25, 2010.

      William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for appellant.
    J. Jefferson Utsey of Utsey & Utsey, Butler; and Robert Potter of Mann, Cowan & Potter, P.C., Birmingham, for appellee.
   THOMAS, Judge.

Fort James Holding Company, Inc., d/b/a Georgia Pacific (“GP”) appeals from a judgment determining that Cheryl D. Morgan is permanently and totally disabled and awarding benefits accordingly. This is the second time these parties have been before this court. Fort James Holding Co. v. Morgan, 30 So.3d 458 (Ala.Civ.App.2009). In Fort James, we reversed the trial court’s judgment in favor of Morgan and remanded the cause for the trial court, in compliance with Ala.Code 1975, § 25-5-88, to make specific findings of fact related to whether GP was obligated to pay for past medical expenses incurred by Morgan as a result of her work-related injury despite GP’s argument that Morgan’s use of unauthorized physicians and her failure to avail herself of medical care provided by GP precluded a judgment making GP responsible for those medical expenses. Fort James, 30 So.3d at 463. On remand, the trial court entered a judgment with specific findings and concluded that “GP is required to pay for past medical treatment that Morgan obtained from Dr. Armstrong, Dr. Dozier, and Dr. Fleet.” The judgment, however, does not contain a specified amount of past medical expenses that GP is required to pay. GP again appeals.

Neither party has raised the issue of this court’s jurisdiction over this appeal. However, because jurisdictional matters are of such magnitude, this court is permitted to notice a lack of jurisdiction ex mero motu. See Reeves v. State, 882 So.2d 872, 874 (Ala.Civ.App.2003). Unfortunately, based on our review of the trial court’s judgment after remand, we must dismiss GP’s appeal as being taken from a nonfinal judgment. See Ex parte Baptist Health Sys., Inc., 966 So.2d 920, 923 (Ala.2007) (“Because the trial court in this case has not specified the amount of damages to be awarded to [the employee] for past medical expenses, the trial court has not rendered a final judgment that will support an appeal.”).

As our supreme court has explained:

‘ “An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.” Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). “[Without a final judgment, this Court is without jurisdiction to hear an appeal.” Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975).’
“Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006).
“This Court has noted:
“ ‘[I]t must be remembered that “[d]amages are [an element] of a claim to vindicate a legal right.” Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001).
“ ‘ “Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.” Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977). “That a judgment is not final when the amount of damages has not been fixed by it is unquestionable.” “Automatic” Sprinkler Corp. of America v. B.F. Goodrich Co., 351 So.2d 555, 557 (Ala.1977).’
“Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361-62 (Ala.2004).
“In Williams Power[, Inc. v. Johnson, 880 So.2d 459 (Ala.Civ.App.2003) ], the Court of Civil Appeals held that an order in a workers’ compensation case purporting to award damages for past medical expenses was not a final judgment, because the order did not specify the amount of those expenses. 880 So.2d at 460-61. The Court of Civil Appeals stated:
“ ‘ “It is well established that a final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable without resorting to extraneous facts.”
“ ‘Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (emphasis added). See, e.g., Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977)
(“Where the amount of damages is an issue ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.”). In this case, the amount of damages pertaining to past medical expenses was not specified by the trial court, and, thus, the appeal has been taken from a nonfinal judgment.
“ ‘In GAF Corp. v. Poston, 656 So.2d 1225 (Ala.Civ.App.1995), the issue before this court was the payment of medical expenses for the medical treatment rendered to the employee for his work-related injury. This court explained that “the trial court specifically detailed the periods of treatment and the corresponding amount of expenses; however, only a few of these amounts are reflected in the exhibits the worker submitted as evidence of the amount of medical expenses.” Poston, 656 So.2d at 1228. This court concluded:
“ ‘ “Although the trial court did not err in its findings regarding the company’s liability for the medical treatments performed by Dr. Rodn-ing, we are unable to determine if the trial court determined the correct amount of medical expenses from the record. We remand the cause for the trial court to determine the proper amount of medical expenses which are supported by the record.”
‘Poston, 656 So.2d at 1228.
“ ‘Unlike Poston, in the present case the trial court did not make an award of a sum certain for past medical expenses. Therefore, its order was not a final judgment. A nonfinal judgment will not support an appeal. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998). We therefore dismiss the appeal.’
880 So.2d at 461.”

Ex parte Baptist Health Sys., Inc., 966 So.2d at 922-23.

The trial court’s judgment, although compliant with § 25-5-88, fails to contain a specified amount of past medical expenses incurred by Morgan that GP is required to pay and is, therefore, not final. Thus, on the authority of Ex parte Baptist Health System, Inc., we dismiss the appeal.

APPEAL DISMISSED.

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

MOORE, J., recuses himself.


author: MOORE, Judge.

text:
    Karl Kevin KING v. Jill Walker BARNES.
    2081167.
    Court of Civil Appeals of Alabama.
    July 23, 2010.

      Joseph Allen Shaw, Loxley, for appellant.
   MOORE, Judge.

Karl Kevin King (“the father”) appeals from a judgment of the Covington Circuit Court (“the trial court”) in favor of Jill Walker Barnes (“the mother”) regarding an award of postminority educational support for the parties’ two children.

Procedural History

The mother and the father were divorced by a judgment of the trial court on October 8, 1997. That judgment incorporated an agreement of the parties that, among other things, required the father to pay $375.57 per month to the mother as child support and stated:

“The parties to this cause mutually agree and understand that they shall be equally responsible for the payment of any college expenses for the minor children ... so long as said children are enrolled in college on a full-time basis, but no later than the date on which each said child reaches the age of twenty-three (23) years.”

On July 30, 2007, the trial court entered a judgment modifying the divorce judgment; that judgment read, in pertinent part:

“6. Both parents expect to assist their sons with their higher education.
“7. In fact, the parties’ original divorce [judgment] contained provisions concerning support for higher education, but those old provisions are superseded hereby.
“8. The [father] shall now pay the [mother] the single sum of $600.00 per month, which sum will cover his child support and post-majority education obligation for the youngest son, and which sum will likewise cover his post-majority obligation for the oldest son.
“15. The post-majority support established by this document is subject to the following:
“A. [The father] only has to pay same for the benefit of a son of the parties if that son is a full-time student seeking a college or university degree (bachelor and/or graduate). ‘Full-time student,’ however, does not mean such son has to be enrolled in classes in the summertime.
“B. If a son of the parties drops out of school, or if his education otherwise terminates, the $600.00 per month figure payable to the [mother], as set out above, shall be cut in half. If both sons of the parties drop out of school, or if education terminates for both, the $600.00 per month figure payable to the [mother], as set out above, shall completely stop.”

The trial court amended its July 30, 2007, judgment on August 14, 2007, requiring the children to forward to the father proof of their class registration within a reasonable time of their registration in college classes and to forward “end of grade period grade reports to the [father] within 10 days of their receipt of the same.” The trial court further stated in the August 14, 2007, amended judgment that, “[s]hould the children fail to comply [with this judgment], the [father] may withhold payment until the documents set forth above are tendered.”

On March 31, 2009, the mother filed a petition for contempt against the father, alleging that the father had failed to pay postminority support as ordered. The father filed an answer and a counterclaim to the mother’s petition on May 8, 2009, in which he asserted, among other things, that he did not believe the mother was paying for the education of the parties’ children as the parties had previously agreed, that he had not been provided documentation proving that the parties’ children were enrolled in college, and that, because the father was no longer financially capable of paying postminority support, a material change of circumstances had occurred requiring modification of his postminority-support obligation.

After a trial on August 10, 2009, the trial court entered a final judgment on August 11, 2009, awarding the mother a judgment against the father for $7,200, said amount representing 12 installment payments of $600 each for past-due postminority support from July 80, 2008, through July 30, 2009, plus interest thereon in the amount of $396, plus costs. No further relief was awarded to either party. The father filed his notice of appeal to this court on September 21, 2009.

Facts

The mother testified that the father had been fully compliant with the postminority-educational-support provisions of the amended judgments until he stopped payments after July 2008. The father testified that he stopped making payments at that time because he lost his job due to the downturn in the economy. The father also testified that he had not received the registration and grade information required by the August 2007 amended judgment. Additionally, the father noted that the older son had married in November 2008.

The father testified that, since he lost his job in July 2008, in which he was earning $800 a week, he had worked only sporadically and had not yet secured a full-time job. The father stated that he had sent out 245 resumes and had submitted to numerous interviews but that he had received only 1 job offer, in July 2009, which was later “postponed” due to economic conditions. As a result, he was currently receiving $1,200 per month in unemployment-compensation benefits. That income was supplemented by loans of approximately $2,000 and $1,000 from his stepfather and brother, respectively. However, the father, who has remarried and has two other young children, has been unable to meet his monthly living expenses, experiencing a shortfall of about $2,500 per month without making the postminority-educational-support payments. The father testified that he had not caught up on his bills, that his residence, which he was trying to sell, was in foreclosure, and that his electricity was about to be turned off if he did not “somehow” pay the bill. The father further testified that he owns outright two automobiles, a 1990 Ford F-150 pickup truck with 300,000 miles on it, and a Dodge Durango vehicle that was not in running condition and that has 170,000 miles on it. The father testified that he paid his attorney by using his 2009 income-tax refund.

The mother testified that she did not receive the August 2007 judgment until March 2009, when she filed her contempt petition. Subsequently, on July 28, 2009, she sent the father all of the registration and grade information required by that judgment dating from August 2008. The mother testified that, although the father did not receive the documents until July 2009, the father, through conversations with the children and through computer access, knew that the children were continuing to attend college and remained entitled to the postminority-educational-sup-port payments. The father testified that he had attempted, without success, to monitor the academic progress of at least one of the children through the school’s Web site, but he did not receive the registration and grade information until the mother sent it to him in July 2009. Until that time, he had simply taken the word of the children as to their registration and grades.

Discussion

The father first argues that the trial court erred by failing to modify his postmi-nority-educational-support obligation because, he says, the undisputed evidence revealed that a change in circumstances had occurred and that the father was no longer financially able to afford the payments.

“[T]he general principles concerning child support are equally applicable to a motion for post-minority college support.” Griggs v. Griggs, 638 So.2d 916, 919 (Ala.Civ.App.1994). “ ‘[A]n agreement between the parties fixing child support payments, when incorporated into a judgment, becomes merged into the judgment and thereby loses its contractual nature to the extent that a court of equity has the power to modify the decree when changed circumstances so justify.’ ” Thomas v. Campbell, 960 So.2d 694, 697 (Ala.Civ.App.2006) (quoting Ralls v. Ralls, 383 So.2d 857, 859 (Ala.Civ.App.1980)).

“An award of child support may be modified only upon proof of a material change of circumstances that is substantial and continuing. Browning v. Browning, 626 So.2d 649 (Ala.Civ.App.1993). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994). Whether circumstances justifying modification of support exist is a matter within the trial court’s discretion. Id. We will not disturb the trial court’s decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 930 (Ala.Civ.App.1995).”

Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997).

In Rotar v. Weiland, 591 So.2d 893 (Ala.Civ.App.1991), this court reversed a decision of the Mobile Circuit Court that failed to modify the father’s child-support obligation. In Rotar, the evidence revealed that the father had lost his job, that he had “vigorously sought employment but his efforts to earn income ha[d] failed,” that he had taken money out of his retirement plan in order to pay child support, and that he was being supported by his new wife at the time of the trial. 591 So.2d at 895. In determining that there was no evidence to indicate that the father had any means with which to pay the ordered child support and in reversing the trial court’s judgment, this court stated: “While the trial court is afforded the discretion to determine whether there has been a material change in a parent’s circumstances, it is not at liberty to ignore undisputed evidence concerning a parent’s ability to pay.” Id. See also Banks v. Spurlock, 470 So.2d 1300, 1302 (Ala.Civ.App.1985) (“A parent is entitled, upon petition for modification, to be relieved from an order of payment of child support if the evidence undisputedly shows he or she is without the financial means of complying.”).

Like in Rotar, the father in the present case testified that he had lost his job and was unemployed. The father further testified that he had sent out hundreds of resumes and that he had had numerous interviews but that he had been unable to secure employment. The father testified that he had worked sporadically since he lost his job, and the mother did not offer any evidence to refute the father’s testimony that those sporadic earnings did not enable him to pay his past-due bills. The mother also presented no evidence to dispute that at the time of the trial the father could not afford his monthly living expenses due to his involuntary unemployment and that, as a result, he did not have the ability to pay postminority support. See Miller v. Miller, 47 So.3d 262, 266 (Ala.Civ.App.2009) (“trial court did not have sufficient evidence on which to base its judgment finding that the former husband could pay his alimony obligation”); and State ex rel. Dunnavant v. Dunnavant, 676 So.2d 1329, 1331 (Ala.Civ. App.1996) (“To impute income to the father would require a finding that he was voluntarily underemployed, a finding that the trial court did not make and that the evidence would not support.”). We conclude that the trial court exceeded its discretion in failing to modify the father’s postminority-support obligation in light of the undisputed evidence that he did not have the ability to pay despite his efforts to find employment. We therefore reverse the judgment with instructions for the trial court to relieve the father of the duty to pay postminority educational support as of the date of the filing of his counterclaim on May 8, 2009, to the point the father no longer remains involuntarily unemployed or his duty to pay ends in accordance with the terms of the amended judgments, whichever is sooner.

The father next argues that the trial court erred by entering a judgment against him for an arrearage of postminority support because, he says, he had not been provided with proof of enrollment and the children’s grades as required by the trial court’s August 14, 2007, amended judgment. The father argues that that judgment allowed the father to refuse payment if those documents were not provided to him and that the judgment contained no requirement that the father pay an arrear-age when payments were withheld pursuant to that provision.

The trial court’s August 14, 2007, amended judgment stated that, “[sjhould the children fail to comply, the [father] may withhold payment until the documents set forth are tendered.” (Emphasis added.)

“A trial court has the inherent power to interpret and enforce its own judgments. See, e.g., Gild v. Holmes, 680 So.2d 826, 329 (Ala.Civ.App.1996); Grayson v. Grayson, 628 So.2d 918, 919 (Ala.Civ.App.1993). ‘Judgments ... are to be construed like other written instruments .... The legal effect must be declared in light of the literal meaning of the language used.’ Wise v. Watson, 286 Ala. 22, 27, 236 So.2d 681, 686 (1970). That is, the unambiguous terms of a judgment, like the terms in a written contract, are to be given their usual and ordinary meaning. See Thornton v. Elmore County Bd. of Educ., 882 So.2d 855, 858 (Ala.Civ.App.2003) (quoting State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000)).”

Sosebee v. Sosebee, 896 So.2d 557, 560 (Ala.Civ.App.2004).

Based on our reading of the trial court’s August 14, 2007, amended judgment, it appears that the father was entitled to withhold payments only until the documents were provided to him. In other words, the provision at issue did not allow the father to withhold payment indefinitely; rather, it allowed him to withhold payment only until the children provided the father the information set out in the amended judgment. Upon receiving that information, the father remained obligated to pay the amounts due during the enrollment periods for which proof was provided, albeit retroactively. Because the trial court ordered the father to pay those amounts to the mother, it clearly interpreted its own judgment in accordance with our reading of the provision at issue. We conclude, therefore, that the trial court did not err by ordering the father to pay past-due postminority support. We note, however, that our conclusion that the trial court erred by failing to modify the father’s postminority-support obligation, as discussed above, requires the trial court to recalculate the father’s ar-rearage. Thus, the trial court is instructed to recalculate the father’s postminority-support arrearage to include the period from July 30, 2008, through May 8, 2009, the date the father filed his counterclaim for modification, as well as any additional arrearage that might have accrued since the filing of the father’s counterclaim, in accordance with our instructions above.

The father last argues that he should have been relieved of his postmi-nority-support obligation for the older son upon that son’s marriage in November 2008. The father first cites Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982), for the proposition that “the legal duty of a father to support a minor child ends when that child marries just as it would if the child reached majority or became self-supporting.” 412 So.2d at 822. Because this ease undisputedly involves postminority support, which refers specifically to support ordered after a child has reached the age of majority, we find the principles outlined in Owens, which merely aligns married children with children who have reached the age of majority and refers to support of minor children, uninstructive in this case.

The father next cites B.A. v. State Department of Human Resources, 640 So.2d 961 (Ala.Civ.App.1994), in support of his position. In B.A., the trial court declared the parents’ 18-year-old child, who had previously been found dependent, to be emancipated, and further ordered the parents to continue paying child support directly to the minor to assist him in his educational expenses so long as he remained in college. 640 So.2d at 962. This court reversed the trial court’s judgment, concluding that the general rule in Alabama is that a trial court has no jurisdiction to require a parent to provide support for a child who has become emancipated and that the exception thereto, allowing for an award of postminority support for college expenses, did not apply when the child had been emancipated at his own request. Id.

We conclude that B.A. is not applicable to the circumstances of the present case. The father in the present case had consented in the agreement that was incorporated into the parties’ divorce judgment, and again in the agreement that was incorporated into the trial court’s July 30, 2007, judgment, to be responsible for payments of the children’s college expenses. Those agreements included both a time limit and a monetary limit for the father’s payment of postminority educational support, as well as certain conditions required for payment. Neither those agreements, nor the trial court’s judgments, include a clause discontinuing the father’s obligation upon the older son’s marriage. Because the father’s support obligation was consensual, unlike in B.A., and because the father’s agreement did not include a condition terminating that obligation upon either of the children’s marriage, we conclude that B.A. does not apply. Because the father does not provide, and we are unable to locate, any authority suggesting that the older son’s marriage relieved the father of his support obligation, we conclude that the trial court did not err in not relieving the father of his obligation based on the older son’s marriage.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      . The father also appears to argue that, because the required documents were provided to him two months after he had filed his counterclaim requesting relief from paying postminority support based on his alleged change in circumstances, he should not be held accountable for past-due support based on his inability to pay during the time he withheld payments. However, if a petition to modify a postminority-support obligation is granted, that modification does not retroactively relieve a parent of the support due for the period before the filing of that petition. See Fielding v. Fielding, 843 So.2d 766, 769 (Ala.Civ.App.2002) (father required to pay postminority educational expenses incurred before father sought to reduce amount of support).


author: THOMPSON, Presiding Judge.

text:
    James D. MOORE v. Michael S. STRICKLAND.
    2090047.
    Court of Civil Appeals of Alabama.
    July 23, 2010.

      Dennis Steverson, Tuscaloosa, for appellant.
    Andrew A. Smith, Tuscaloosa, for appel-lee.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of April 23, 2010, is withdrawn, and the following is substituted therefor.

James D. Moore appeals from an order of the Tuscaloosa Circuit Court granting Michael S. Strickland’s motion to set aside a default judgment entered against Strickland. For the reasons stated herein, this court dismisses Moore’s appeal.

On February 12, 2007, Moore filed an action against Strickland in which he asserted a claim of malicious prosecution. Strickland filed an answer in which he denied the material allegations of the complaint. On March 2, 2009, Strickland’s attorney filed a motion to withdraw from the action, which the trial court granted.

The trial court set the case for a jury trial on July 6, 2009. On the day scheduled for trial, Strickland failed to appear, and the trial court, after hearing testimony from Moore, entered a default judgment against Strickland, awarding damages to Moore in the amount of $150,000.

On July 15, 2009, Strickland, represented by new counsel, filed a motion to set aside the default judgment. In his motion, Strickland asserted that he had not received notice from the trial court regarding the trial date and that the first notice he had of the trial setting was on July 11, 2009, when he received a copy of the default judgment the trial court had entered against him. Following a hearing at which Strickland apparently testified, the trial court, on August 18, 2009, entered an order granting Strickland’s motion and setting aside the default judgment. Moore filed an appeal to the supreme court from the trial court’s order setting aside the default judgment. That court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Moore contends that the trial court erred when it set aside the default judgment. We do not reach the merits of that contention, however, because this court lacks appellate jurisdiction in this matter. Although neither party raises the issue of appellate jurisdiction, that issue is one that this court is obligated to consider ex mero motu. See Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997).

“Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal.” Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App.2010). “[A] final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’” Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)). An order granting a motion to set aside a default judgment is not a final judgment because it revives the matters in controversy between the parties; thus, “an order granting a motion to set aside a default judgment and proceed to trial is interlocutory and not appealable.” Fisher v. Bush, 377 So.2d 968, 968 (Ala.1979).

In the present case, the trial court’s order granting Strickland’s motion to set aside the default judgment is not a final judgment because it does not demonstrate an adjudication of the matters in controversy between Moore and Strickland. As a result, that order cannot serve as a basis for appellate jurisdiction. “ ‘When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’ ” Young v. Sandlin, 703 So.2d 1005, 1008 (Ala.Civ.App.1997) (quoting Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)).

This court has the discretion to treat an appeal from an unappealable order as a petition for a writ of mandamus. See Fowler v. Merkle, 564 So.2d 960, 961 (Ala.Civ.App.1989). However, because Moore has failed to demonstrate that he does not have an adequate remedy by way of appeal once a final judgment is entered in the action, see Ex parte Carlisle, 26 So.3d 1202, 1205-06 (Ala.2009), we refuse to exercise our discretion to treat Moore’s appeal as a petition for a writ of mandamus.

For the foregoing reasons, this court lacks jurisdiction over Moore’s appeal. As a result, the appeal is due to be, and is hereby, dismissed.

APPLICATION FOR REHEARING OVERRULED; OPINION OF APRIL 23, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

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