author: MOORE, Judge. BRYAN, Judge,

text:
    B.V. and D.V. v. Wanda DAVIDSON, Karen Marks, and Clay Brannon.
    2081125.
    Court of Civil Appeals of Alabama.
    June 25, 2010.
    Rehearing Denied Aug. 13, 2010.

      Robert D. Drummond, Jr., Fairhope, for appellants.
    Keith S. Miller of Wilkerson & Bryan, P.C., Montgomery, for appellee Clay Bran-non; W. Gregory Ward, Lanett, for appel-lee Karen Marks; and Jackson B. Harrison of The Harrison Firm, Montgomery, for appellee Wanda Davidson.
   MOORE, Judge.

B.V. and D.V. (sometimes hereinafter referred to collectively as “the foster parents”) appeal from a summary judgment entered by the Montgomery Circuit Court in favor of Wanda Davidson, Karen Marks, and Clay Brannon on their tort-of-outrage claim. We affirm.

Procedural History

On April 30, 2008, B.V. and D.V., and their daughter, R.V., by and through her next friend, B.V., filed a complaint seeking compensatory and punitive damages against Wanda Davidson, Karen Marks, and Clay Brannon (sometimes hereinafter referred to collectively as “the defendants”) in them individual capacities. At all times relevant to the complaint, the defendants were all employees of the Macon County Department of Human Resources (“the Macon County DHR”). The foster parents alleged that the defendants had committed the “tort of outrage” by the manner in which they removed J.C., a foster child, from B.V. and D.V.’s home. Specifically, B.V. and D.V. alleged that they had acted as foster parents solely for J.C., a severely mentally retarded and autistic child, since November 1990, and that, through the years, they had developed a parent-child relationship with J.C. They further alleged that, on February 22, 2008, the defendants, “without notice or cause” and acting “willfully, maliciously, in bad faith, and in violation of state statutes and standards,” removed J.C. from the high school he was attending and from the home of the foster parents, informed the foster parents that J.C. would not be returning to their home, and thereafter refused any contact between J.C. and the foster parents and R.V.

On September 29, 2008, following the denial of their motions to dismiss, Davidson, Marks, and Brannon answered the complaint, generally denying all the factual allegations and asserting various affirmative defenses, including lack of standing and state-agent immunity. On May 5, 2009, Davidson, Marks, and Brannon filed a motion for a summary judgment, along with a brief and evidentiary materials in support thereof. In that motion, Davidson, Marks, and Brannon argued that the foster parents lacked standing; that the defendants were entitled to state-agent immunity; and that the defendants had not committed any acts of outrageous conduct. On May 11, 2009, the foster parents filed a response to the summary-judgment motion. On May 18, 2009, the trial court granted the defendants’ motion for a summary judgment without explanation. On June 16, 2009, the foster parents filed a motion to alter, amend, or vacate the trial court’s judgment; the trial court denied that motion on June 18, 2009. The foster parents appealed on July 30, 2009. This court conducted oral argument on April 21, 2010.

Facts

When viewed in a light most favorable to the foster parents, the record reveals the following relevant facts. J.C. was born with multiple medical problems, including later-diagnosed mental retardation, on August 19, 1989. Within months of J.C.’s birth, the Macon County DHR acquired legal custody of J.C. pursuant to dependency proceedings filed in the Macon Juvenile Court. On August 15, 1990, B.V. and D.V. became licensed foster parents, and the Macon County DHR placed J.C. in their home on November 21, 1990. J.C. remained in the home of B.V. and D.V. for the next 18 years, except for a 20-month period in 1999-2000 when he resided at the Mobile branch of The Learning Tree, a residential-care facility. Throughout that 18-year period, and at all times material herein, the Macon County DHR retained legal custody of J.C.

In 2005, when J.C. was 15 years old, the Macon County DHR developed an individualized service plan (“ISP”) in which it established long-term goals for the eventual permanent placement of J.C. either into the care of his natural relatives or into an adult custodial-care facility when he became eligible at age 18 years. Those long-term goals, of which both B.V. and D.V. had actual knowledge, remained the same for the next 8 years, as documented in the next 11 ISPs. However, as of January 2008, the Macon County DHR had not identified any particular placement for J.C. and none of the short-term goals that had been designed to prepare J.C. for the transition from foster care had been achieved.

On January 19, 2008, the foster-care license held by B.V. and D.V. expired. Nevertheless, J.C. remained in their care. On January 23, 2008, the Macon County DHR conducted an ISP meeting that was attended by B.V. At that meeting, Marks, who had recently been appointed foster-care supervisor for the Macon County DHR, informed B.V. that the Macon County DHR was actively looking for an adult-custodial facility in which to place J.C. At that point, the foster parents had also been independently investigating adult-custodial facilities for J.C.’s potential placement; however, no specific facility had been identified and no definitive plan had been activated to remove J.C. from the home of the foster parents.

On February 22, 2008, the foster parents attended an ISP meeting held in a conference room at the high school J.C. was attending. The foster parents were not informed of the purpose of the meeting, which, somewhat unusually, had been set only a month after the last ISP meeting. Upon their arrival, the foster parents observed J.C. crying as he was being loaded into a vehicle that was to take him to weekend visitation with his maternal grandmother. The foster parents did not approach J.C. because it was common for J.C. to be upset when he was leaving for visitation and because the foster parents did not want to exacerbate the situation.

Once inside the conference room, the foster parents signed in and the meeting soon commenced. Brannon, who had recently been reassigned as the caseworker for J.C., having previously served in that capacity from August through December 2007, presided over the meeting. After calling the meeting to order, Brannon announced the “good news” that an opening had arisen at a different branch of The Learning Tree that served as an adult-custodial facility and that J.C. would be placed there on the following Monday. The foster parents were shocked by the news. B.V. almost immediately fled from the room crying and telephoned the foster parents’ attorney. D.V. remained in the room and questioned Brannon as to why the foster parents had not been involved in the decision to transfer J.C. Brannon responded that the foster parents had not been consulted based on their past disagreements with the Macon County DHR regarding the “case planning” for J.C. D.V. also inquired whether the foster parents would be allowed to visit J.C., but Brannon had said that that subject would be addressed later.

Brannon adjourned the meeting 10 or 15 minutes after it commenced. After the meeting, in a hallway, D.V. again questioned Brannon regarding the foster parents’ being allowed to visit J.C. Marks intervened and told D.V. that the hallway was an inappropriate place to discuss the matter and that she would contact D.V. on the following Monday regarding visitation. D.V. testified that Marks never called him. Brannon testified that The Learning Tree has a policy disallowing visitation for 30 to 45 days after admission. D.V. testified that all subsequent attempts to arrange visitation with J.C. through the Macon County DHR failed.

Unbeknownst to the foster parents, the decision to remove J.C. from their home had been made three weeks earlier. Sharon Ficquette, counsel for the Alabama Department of Human Resources (“the Alabama DHR”), had convened a meeting in her office in Montgomery at which Marks, Davidson, and other personnel and consultants of the Macon County DHR and the Alabama DHR determined that it would serve J.C.’s best interests to be transferred to The Learning Tree in Tallassee, which had only recently experienced an unexpected opening. According to Davidson, at that same meeting, “counsel” had also instructed that, in order to minimize any disruption with the transfer, the foster parents were not to be told of the decision until the February 2008 ISP meeting. Marks testified that the decision not to inform the foster parents had actually occurred in subsequent meetings with “counsel.” Brannon testified that he understood from a meeting with supervisors of the Macon County DHR, including Marks and Davidson, that he was not to tell the foster parents of the decision until the February 2008 ISP meeting. Davidson, Marks, and Brannon all attested that, by not immediately informing the foster parents of the decision, they were merely carrying out the instructions of the Alabama DHR’s counsel. They also all testified that they had anticipated and understood that the foster parents would be emotionally disturbed by the news, although none of them had specifically intended to inflict emotional distress on the foster parents.

B.V. and D.V. admitted that they had known that the Macon County DHR had legal custody of J.C. and that it could legally remove J.C. from their home. B.V. testified, however, that she had not thought the purpose of the February ISP meeting would be to discuss a transitional placement for J.C. She testified that the ISP team had been waiting for certain evaluations to be scheduled. D.V. testified that the move was inconsistent with the complete program the ISP team had agreed on for J.C. and that the team had just started planning for J.C.’s transition. B.V. testified that, had she received notice that J.C. was going to be placed at The Learning Tree, she would have prepared J.C. and her family and would have sought the advice of professionals. She testified that she would have gathered information to learn more about what J.C.’s placement at The Learning Tree would entail so that she could have participated in making a transition plan. D.V. also testified that he would have tried to prepare himself, J.C., and his family if he had known that J.C. was about to be removed from their home.

B.V. testified that the manner in which J.C. was removed from the foster parents’ home had been devastating. She described, among other things, “initial shock, grief, hurt, sadness, despair, hopelessness, sleeplessness, fatigue, irritability, reflux, esophageal spasms, weight gain, weight loss, nightmares, [and] anxiety.” She testified that she worries about how J.C. is and is concerned for D.V. and R.V. B.V. testified that her husband had suffered “sleeplessness, irritability, difficulty concentrating, loss of focus[,] ... weight gain, weight loss[,] ... [and] dizziness.” Both B.V. and D.V. testified that they had been prescribed medication as a result of the manner in which J.C. was removed from their home. B.V. also testified that, due to the manner of the removal of J.C., R.V. had been diagnosed with depression, for which she had been prescribed medication and was receiving weekly psychological treatment.

Standard of Review

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion.” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmov-ing party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala. Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

Discussion

On appeal, the foster parents argue that the trial court erred in entering the summary judgment in favor of Davidson, Marks, and Brannon because, they say, they offered substantial evidence in support of their tort-of-outrage claim.

“A plaintiff seeking to establish the tort of outrage bears a heavy burden. ‘The tort of outrage was not developed to provide a person with a remedy for the trivial emotional distresses that are common to each person in his everyday life.’ U.S.A. Oil, Inc. v. Smith, 415 So.2d 1098, 1101 (Ala.Civ.App.1982). As our supreme court has explained:
“ ‘This Court first recognized the tort of outrage, or intentional infliction of emotional distress, in American Road Service Co. v. Inman, 394 So.2d 361 (Ala.198[0]). In Inman, the Court held that to present a jury question the plaintiff must present sufficient evidence that the defendant’s conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it....’”

Hurst v. Cook, 981 So.2d 1143, 1156-57 (Ala.Civ.App.2007).

The foster parents specify that they do not challenge the authority of the Macon County DHR, as J.C.’s legal custodian, to transfer him from their care to The Learning Tree, but, instead, they assert that the manner in which the change in placement was conducted amounted to outrageous conduct. The foster parents point out that the decision to remove J.C. from their home abruptly without allowing them and R.Y. an opportunity to say goodbye or to have any contact with J.C. so as to ensure his smooth transition into his new living arrangement was so outrageous that it should not be tolerated in a civil society. Gunter v. Huddle, 724 So.2d 544, 547 (Ala.Civ.App.1998) (“ ‘With respect to the conduct element, this Court has stated that the conduct must be “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” ’ ” (quoting Harris v. McDavid, 553 So.2d 567, 570 (Ala.1989))); see also American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980). The foster parents maintain that J.C.’s removal was conducted in such a manner that all who were involved knew or should have known that it would cause emotional upset of such a nature that no one reasonably could have been expected to have endured it.

Alabama law allows for the summary removal of even natural children from their family home in order to protect their welfare. See Ala.Code 1975, § 12-15-306. When a foster child is involved, Alabama caselaw suggests that state actors may act summarily to remove a child in even less urgent circumstances when the child is not at risk. The supreme court in Mitchell v. Davis, 598 So.2d 801 (Ala.1992), a case conditionally extending the doctrine of parental immunity to foster parents, stated that “[fjoster children can be transferred at any time.... ” 598 So.2d at 805 (emphasis added). In English v. Macon, 46 Ala.App. 81, 238 So.2d 733 (Civ.App.1970), this court held that a foster father, from whom the State Department of Pensions and Security had, without notice, removed a foster child after nine years, had no legal recourse to gain information regarding the welfare of the child or to seek visitation. See also Clements v. Barber, 49 Ala.App. 266, 270 So.2d 815 (Civ.App.1972) (foster parents lacked standing to recover custody of child removed by the State Department of Pensions and Security). The reasoning employed in those cases suggests that, so long as a state agency retains legal custody of a child, employees of that agency may lawfully remove the child without notifying a foster parent.

That caselaw, however, predates the adoption of the Foster Parents’ Bill of Rights. See Act No. 2004-257, Ala. Acts 2004, p. 351, § 1, codified at Ala.Code 1975, §§ 38-12A-1 and 38-12A-2. In pertinent part, the Foster Parents’ Bill of Rights provides:

“The Department of Human Resources shall ensure that each foster parent shall have all of the following rights:
“(1) The right to be treated with dignity, respect, trust, value, and consideration as a primary provider of foster care and a member of the professional team caring for foster children.
“(12) The right to information of scheduled meetings and appointments concerning the foster child and permission for the foster parent to actively participate in and provide input to be used by the ISP team in the case planning and decision-making process regarding the child in foster care, including, but not limited to, individual service planning meetings, foster care reviews, individual educational planning meetings, and medical appointments.
“(17) The right to necessary information on an ongoing basis which is relevant to the care of the child, including timely information on changes in the case plan or termination of the placement and reasons for the changes or termination of placement to the foster parent, except in the instances of immediate response of child protective service.”

Ala.Code 1975, § 38-12A-2. In addition, the Alabama DHR has promulgated regulations that, among other things, (1) include foster parents as part of all ISP teams, see Ala. Admin. Code (DHR), Rule 660-5-47-.04(3)(a), (2) include foster parents in ISP meetings at which removal decisions are to be made, see Ala. Admin. Code (DHR), Rule 660-5-47-.05(5)(b), and (3) prohibit the exclusion of foster parents from ISP meetings “because of their view about strengths, needs, or services, or their displeasure or dissatisfaction with DHR or a provider’s activities,” see Ala. Admin. Code (DHR), Rule 660-5-47-.04(4)(b). Both the Foster Parents’ Bill of Rights and the operative regulations provide that, except in cases in which a child must immediately be removed from a foster-care placement for the protection of the child, foster parents shall be given an opportunity to be part of the ISP team making the decision to remove the child and shall be provided timely notice before the removal of the child from the foster home. Those provisions do not alter the rule that a state agency with legal custody of a child may always remove the child from a foster home when it determines removal to be in the child’s best interest; however, it alters the manner in which that decision is to be made and how the removal is to be carried out.

Applying current Alabama law and the Alabama DHR regulations to the facts of the ease, when viewed in a light most favorable to the foster parents, it appears that violations of both the Foster Parents’ Bill of Rights and the Alabama DHR regulations attended the removal of J.C. from the home of the foster parents. The foster parents had been part of J.C.’s ISP team for years and had long acknowledged that the Alabama DHR had established transferring J.C. to an adult-custodial facility as one permanency goal. However, the foster parents were excluded from the meeting held in Montgomery at the beginning of February 2008 at which it was determined that the permanency goal would be achieved by removing J.C. from the foster parents’ home and transferring J.C. to The Learning Tree. At the time of that meeting, the foster-care license held by the foster parents had expired; however, they continued to act and to be treated as foster parents for J.C. in accordance with the Macon County DHR policy, see note 1, and, as such, had a general regulatory right to attend the meeting. It appears that the foster parents were not given an opportunity to present any input into the decision to remove J.C. from their home or to place him in The Learning Tree because of the foster parents’ past disagreements with the Macon County DHR over the proper case plan for J.C., which is no lawful basis for having excluded them. Lastly, the foster parents deliberately were not informed of the decision to remove J.C. from their home until he had already been taken away under the guise of merely visiting his maternal grandmother, which is hardly “timely” under any definition the legislature could have intended when enacting § 38-12A-2(17).

Were this court faced with the question whether the Alabama DHR and the Macon County DHR acted lawfully in the manner in which it removed J.C. from the home of the foster parents, the answer would be a simple and resounding, “No.” However, the immediate question before us is whether the foster parents and R.V. have presented substantial evidence indicating that the individual defendants, Davidson, Marks, and Brannon, committed acts of outrageous conduct. On that point, we must agree with the learned trial judge that the foster parents have failed to carry their very high and exacting burden of proof.

The undisputed evidence in the record indicates that the decision to delay informing the foster parents of the plan to remove J.C. until after he had already been taken away, the act that the foster parents allege to be outrageous in nature, was made unilaterally by counsel for the Alabama DHR and that Davidson, Marks, and Brannon had simply followed the instruction of counsel by waiting to inform the foster parents of the transition plan until the February 22, 2008, ISP meeting. The individual defendants did not object to the plan, but any alleged failure to question the advice of counsel can hardly be construed as a deliberate or reckless action on their part intended to cause emotional distress to the foster parents and R.V.

With that said, we note that the Foster Parents’ Bill of Rights places a duty on DHR to treat foster parents with respect and dignity. That duty may be carried out only by the individual members of DHR, whether at the state or county level. When making a decision regarding the best interests of a child, personnel of the Alabama DHR and the various county DHRs must not ignore the ramifications of those decisions on the foster parents upon whom both they, and the entire state, rely to care for dependent children. Even a cursory review of the facts of this case reveals that the foster parents were not treated with the respect and dignity they deserved.

The record shows without dispute that the foster parents acted as the primary caregivers for J.C. from the time he was a young child until after his 18th birthday. During that time, the foster parents incorporated J.C. into every facet of their family existence. Because of J.C.’s special needs, the foster parents devoted extra attention to his safety, welfare, and education, often advocating for him to assure that he received quality care even while outside their home. In his deposition, Brannon testified that, during his time serving as the caseworker on this case, he observed that the foster parents had forged a relationship with J.C., which he described as that of loving parents to a young child. It should have been obvious to any person concerned that the summary removal of J.C. from the foster parents’ home would be felt by the foster parents as strongly as would the summary removal of their own natural children, which Bran-non, Marks, and Davidson all at least implicitly acknowledged would cause any rational person extreme emotional distress.

Regardless of the law, which, as set out above, militated . against the decision to conceal the plan to remove J.C. from the foster parents, human compassion should have compelled all involved to have developed a transition plan that would have accounted for the natural anxiety the foster parents would surely endure upon the departure of J.C. For a state agency whose main function involves supervising and coordinating intimate human relations, the decision to rip from the foster parents a child to whom they had undoubtedly devoted their love and attention for many years, without even allowing for a proper goodbye, appears especially and unnecessarily callous. But see DiBattista v. State, 808 A.2d 1081 (R.I.2002) (affirming summary judgment in favor of the Department of Children, Youth, and Families on foster parents’ outrage claim, in part, because the department’s actions in revoking the foster parents’ license and removing their foster children were not extreme and outrageous).

In conclusion, although we strongly disapprove of the decisions leading up to the removal of J.C. from the home of the foster parents, we affirm the summary judgment on the ground that the foster parents did not present substantial evidence indicating that the individual defendants committed acts of outrageous conduct. We, therefore, pretermit any discussion of the other issues raised by the parties in their excellent briefs.

AFFIRMED.

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

BRYAN, J., concurs specially.

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

BRYAN, Judge,

concurring specially.

I concur with the main opinion. I write specially to state that my vote to affirm the summary judgment in favor of the defendants is not meant as a condonation of the insensitive manner in which J.C. was removed from the foster parents’ care. I recognize that the Alabama DHR is charged with an extremely difficult task— protecting children throughout the State with finite resources, both financial and human. However, that is no excuse for how the foster parents were treated in this case. It is hard to believe how anyone could have imagined that the disruption caused by J.C.’s transfer would be minimized by informing the foster parents in the manner chosen. The only positive aspect of this case is that, hopefully, DHR will never proceed in like manner again.

      . Marks stated in her affidavit that, ”[o]n occasion, children in the custody of DHR may remain for a short time in a formerly-licensed foster home after the expiration of the license to allow time for DHR to make an alternative placement or to permit additional time for the former foster parents to obtain a new license. This delay, however, does not alter or change the fact that the home is no longer licensed. After a licensed foster home loses its license, if a child is still in that home, it is merely a temporary interim placement.”


source: Caselaw Access Project

author: MAIN, Justice. MURDOCK, Justice

license: Public Domain

text:
    Ex parte B.V. and D.V. (In re B.V. and D.V. v. Wanda Davidson, Karen Marks, and Clay Brannon).
    1091632.
    Supreme Court of Alabama.
    Aug. 19, 2011.

      Robert D. Drummond, Jr., Fairhope, for petitioners.
    Keith S. Miller of Wilkerson & Bryan, P.C., Montgomery, for respondent Clay Brannon; W. Gregory Ward, Lanett, for respondent Karen Marks; and Jackson B. Harrison of The Harrison Firm, Montgomery, for respondent Wanda Davidson.
    Troy King, atty. gen., and Corey L. Maze and James E. Long, deputy attys. gen., and William G. Parker, Jr., asst. atty. gen., for amicus curiae State ex rel. Attorney General Troy King, in support of the respondents.
   MAIN, Justice.

WRIT QUASHED. NO OPINION.

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

MURDOCK and WISE, JJ., concur specially.

MURDOCK, Justice

(concurring specially).

I was shocked and saddened by the apparently callous and cruel manner (whether or not done on advice of counsel) in which the 18-year-old mentally retarded child in this case was so suddenly taken from the only parents he had ever known, parents who had raised him for almost his entire life. I therefore voted to grant certiorari review in this case. In them brief to this Court, however, the petitioners failed to address legal authority relevant to the issues whether this Court should apply the tort of outrage to conduct of this nature and whether this conduct fell within the protection afforded by the doctrine of state-agent immunity. Accordingly, I concur in the action of the Court today in quashing the writ.

WISE, J., concurs.


author: THOMPSON, Presiding Judge.

text:
    BLOUNT COUNTY COMMISSION v. Clinton A. SHERRELL.
    2090266.
    Court of Civil Appeals of Alabama.
    June 25, 2010.
    Rehearing Denied Sept. 10, 2010.

      Robbie Alexander Hyde, Gary L. Will-ford, Jr., and Jamie K. Hill of Webb & Eley, P.C., Montgomery, for appellant.
    J. Stanton Glasscox of Hayes, Jackson, Weaver & McKinney, LLC, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

The Blount County Commission (“the commission”) appeals from a summary judgment entered in favor of Chief Deputy Sheriff Clinton A. Sherrell, ordering the commission to pay Sherrell the amount allowed under § 36-26-36, Ala.Code 1975, for the 480 hours of unused sick leave that Sherrell had accrued at the time of his retirement.

The record indicates the following. Sherrell worked for the Blount County Sheriffs Office (“the sheriffs office”) from October 19, 1978, to February 12, 1988, and again from January 15, 1991, to October 31, 2002. During his tenure with the sheriffs office, Sherrell accrued 480 hours of unused sick leave. When he retired on October 31, 2002, Sherrell held the position of chief deputy sheriff.

The money used to pay the operating costs of the sheriffs office, including deputies’ salaries, comes from commission appropriations. Upon his retirement, Sherrell filed a verified claim with the commission seeking payment for his unused sick leave. In his claim, Sherrell asserted that, as a deputy sheriff, he was considered a state employee subject to the state merit system for purposes of calculation, accrual, and partial payment for his unused sick leave. In November 2002, the commission denied Sherrell’s claim. Sherrell filed the instant action on December 20, 2002.

For reasons not made clear in the record, this case progressed slowly through the trial court. Ultimately, the commission moved for a summary judgment, contending that, as a deputy sheriff, (1) Sher-rell was exempt from the merit system; (2) on its face, § 36-26-36, which allows employees governed by the merit system to collect partial payment for their unused sick leave, did not apply to Sherrell; and (3) even if Sherrell were subject to the merit system, the State of Alabama was obligated to pay Sherrell for his unused sick leave, not Blount County. In support of its motion, the commission submitted the affidavits of Chris Green, the Blount County administrator, and Jackie Graham, director of the state personnel department.

In his affidavit, Green stated that the commission had paid Sherrell’s salary. He also stated that the commission’s policy was not to pay employees for their unused sick leave upon retirement. He further opined that Sherrell was not subject to the merit system.

Graham likewise stated that Sherrell was not subject to the merit system. She said that pursuant to a “long-established policy,” deputy sheriffs were considered exempt from the state merit system. The basis for that policy, she said, was because deputy sheriffs are the legal alter egos of the sheriffs for whom they work, and the sheriffs are exempt from the merit system.

The trial court held a hearing on the motion for a summary judgment on June 30, 2009. Although Sherrell had not sought a summary judgment, the trial court treated his response to the commission’s motion as a motion for summary judgment. On November 2, 2009, the trial court entered a summary judgment in Sherrell’s favor, finding that there were no genuine issues of material fact and that Sherrell was entitled to a judgment as a matter of law. Specifically, the trial court found that Sherrell was a state employee who was not exempt from the merit system because, the court said, § 36-26-10(b), the statute defining various categories of state employees, does not explicitly exempt employees of sheriffs from the merit system. Therefore, the trial court held, the commission was obligated to pay Sherrell $10,771.20 as payment for his unused sick leave. The commission appeals.

“In reviewing a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Handlers v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). Furthermore, ‘[i]f the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court and, when appropriate, may be decided by summary judgment.’ McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991).”

Taylor v. Striplin, 974 So.2d 298, 301 (Ala.2007).

The commission contends that the trial court erred in finding that, as a deputy sheriff, Sherrell is not exempt from the merit system. In its judgment, the trial court found “no mention” within § 36-26-10(b) that “employees of a sheriff’ were exempt from the merit system.

The commission does not dispute that Sherrell is a state employee. See, e.g., Whitten v. Lowe, 677 So.2d 778, 780 (Ala.Civ.App.1995) (county personnel board’s rules and regulations did not apply to deputy sheriffs because they are state employees); Mack v. Arnold, 929 So.2d 480, 483 (Ala.Civ.App.2005) (county personnel system’s manual did not apply to deputy sheriff, who was a state employee). The commission argues that because the county sheriff, who is an elected official, is exempt from the merit system, see § 36-26-10(b)(1), a deputy sheriff, as the sheriffs legal alter ego, is also exempt.

Section 36-26-10 provides:

“(a) Positions in the service of the state shall be divided into the exempt, the unclassified and the classified service.
“(b) The exempt service shall include:
“(1) Officers elected by the vote of the people.
“(2) Officers and employees of the Legislature.
“(3) All employees of a district attorney’s office.
“(4) Members of boards and commissions, whether appointed or self-perpetuating, and heads of departments required by law to be appointed by the Governor or by boards or commissions with the approval of the Governor.
“(5) All officers and employees of the state’s institutions of higher learning, teacher-training institutions and normal schools, educational, eleemosynary and correctional institutions which are governed and controlled by boards of trustees or similar governing bodies and secondary agricultural schools and vocational schools.
“(6) All inmate help in all charitable, penal and correctional institutions.
“(7) All commissioned and warrant officers and enlisted men of the national guard and naval militia of the state in their respective military and naval grades.
“(8) The Governor’s private secretary, legal advisor, recording secretary and those employees of the Governor’s office paid exclusively out of the Governor’s Emergency or Contingent Funds.
“(9) The employees of the Alabama State Port Authority engaged in railroad service and subject to the provisions of an act of Congress known as the Railway Labor Act as amended or as it may hereafter be amended.
“The services listed in this subsection as exempt shall in no respect be subject to the provisions of this article, anything to the contrary notwithstanding.
“(c) The unclassified service shall include:
“(1) One confidential assistant or secretary for each board, commission and elected officer and, when requested by the Governor, for each department head appointed by the Governor; and
“(2) All employees of the Governor’s office not exempted. The positions in the unclassified service enumerated in this subsection may at the request of the appointing authority be filled by classified employees. Each of the employees thus appointed shall, at the conclusion of his occupancy of such position, resume his previous status in the classified service.
“(d) The classified service shall include all other officers and positions in the state service.
“(e) Except as to services denominated as exempt or unclassified services in subsections (b) and (c) of this section, the Governor shall have the power by executive order to extend the provisions of this article to include additional positions or classes of positions.
“(f) Employees in the unclassified service shall be subject to the same rules and regulations of employment as apply to employees in the classified service except as to appointment and dismissal.”

Although it is true that § 36-26-10 does not explicitly state that deputy sheriffs are exempt from the merit system, our inquiry requires us to go beyond a simple reading of the statute. Our supreme court has recently reiterated the well-established principle that deputy sheriffs are the legal alter egos of the sheriffs by whom they are employed.

“A deputy sheriff enjoys the immunity of the sheriff because of long-standing precedent treating the deputy as an alter ego of the sheriff.
“ ‘We must reach the same conclusion with regard to Deputies Brandon and Finley. In Mosely v. Kennedy, 245 Ala. 448, 450, 17 So.2d 536, 537 (1944), this Court stated, “In general, the acts of the deputy sheriff are the acts of the sheriff. The deputy sheriff is the alter ego of the sheriff.” (Citations omitted.) In dealing with the same issue that is present here, the federal appellate court in Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (11th Cir.1990), affirmed summary judgments for the Lauderdale County sheriff and his deputies, stating:
“ ‘ “[Under Alabama law, a] deputy is legally an extension of the sheriff. If the deputy’s acts are generally considered the acts of the sheriff, it is logical that those acts should also enjoy the immunity covering the sheriffs own acts.” ’
“Hereford v. Jefferson County, 586 So.2d 209, 210 (Ala.1991).”

Wheeler v. George, 39 So.3d 1061, 1093 (Ala.2009).

In Whitten, supra, this court applied the principle that a sheriffs deputy is the alter ego of the sheriff to hold that Marshall County sheriffs deputies seeking to retain their jobs were not entitled to the protection of the Marshall County Personnel Act, stating:

“In Terry v. Cook, 866 F.2d 373 (11th Cir.1989), the [United States] Court of Appeals for the Eleventh Circuit established that a deputy is a legal extension of the sheriff, and, therefore, a deputy’s actions are considered the actions of the sheriff and the two should share the same immunity. Specifically, the Terry court stated:
“ ‘Under Alabama law, a deputy sheriff is the general agent of and empowered to enter into business transactions for the sheriff. Any transaction within the scope of the sheriffs duties may be acted upon by his deputy. The deputy sheriff is the alter ego of the sheriff, and the sheriff is civilly liable for actions committed by a deputy done in the performance of his duty.’
“Id., at 377 (citations omitted). That court also concluded that a sheriff could refuse to rehire politically disloyal deputies, because of the ‘closeness and-cooperation required between sheriffs and their deputies.’ Id. at 377. Both Lowe and Pickett [the deputy sheriffs seeking protection of the county personnel act] were fired for making disloyal remarks about Whitten.
“For further support for the proposition that a sheriffs deputies are not employees in the service of the county, we look to Hooks v. Hitt, 539 So.2d 157 (Ala.1988). There, an investigator who had worked for the district attorney’s office challenged his dismissal on the grounds that he had been denied statutorily created substantive and procedural due process protection afforded to county employees under Etowah County’s civil service statute, Act 84-462, Acts of Ala. 1984. Our supreme court held that the investigator was not entitled to any protection provided by the statute because he was not a county employee: ‘By virtue of the fact that a district attorney is a state employee, we conclude that those in his employ are also state employees.’ Id., at 159. A sheriff is not a county employee; rather, he is a member of the executive branch of state government and thus a state employee by virtue of the Constitution of the State of Alabama. Ala. Const. 1901, § 112; Hereford v. Jefferson County, 586 So.2d 209 (Ala.1991). Applying Hooks to the facts of this case, we must conclude that a sheriffs deputy is also a state employee. Local Act No. 82-206 applies only to those ‘employees in the service of the County.’ Therefore, the sheriffs deputies, as employees in the service of the state, are not entitled to protection under the statute. In view of the clear meaning of the pertinent provisions of Act 82-206 and given the case law, we hold that the sheriffs exemptions specifically provided for in the Acts should extend to his deputies and that the sheriffs deputies are not employees of the county and that the Act therefore does not apply to them.”

Whitten, 677 So.2d at 779-80.

Applying the rationale of Whitten to the instant case, we conclude that the exemption of a county sheriff from the state merit system should also extend to his deputies. In other words, if a sheriffs exemption from an act governing county personnel extends to his deputies because they are his legal alter egos, it follows that a sheriffs exemption from the state merit system also extends to his deputies for the same reason. Because in his position as chief deputy sheriff Sherrell was exempt from the state merit system, he was not entitled to be paid for his unused sick leave pursuant to § 36-26-36.

Because we hold that Sherrell was exempt from the state merit system and, thus, not entitled to compensation for his unused sick leave, we do not address the other issues the commission raised regarding the propriety of the trial court’s judgment.

For the reasons set forth above, the judgment of the trial court is reversed, and this cause is remanded to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

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

      . Section 36-26-36, Ala.Code 1975, provides as follows:
      “(a) Upon retirement, each employee who acquires sick leave pursuant to the state Merit System shall receive payment of 50 percent of his or her accrued and unused sick leave, not to include escrowed sick leave as provided herein, at the time of his or her retirement, and payments for the sick leave shall be made at the same rate as his or her regular pay, not to exceed 600 hours.
      "(b) When a state employee in the classified service dies while in active service to the state, the estate of the deceased employee shall receive a monetary payment of 50 percent of the accrued and unused sick leave, not to exceed 600 hours, which the employee was credited with at the time of his or her death.
      "(c) The state shall calculate sick leave each pay period. Sick leave earned over 1200 hours shall be considered excess sick leave which shall be accrued and credited to the employee for use as sick leave in the year the excess sick leave is earned.
      "(d) On December 31, 2000, and on December 31 of each year thereafter and at no other time during the year, excess sick leave over 1200 hours shall be placed in escrow for the state employee who earned the sick leave to be used only as may be provided by State Personnel Board rules.
      "(e) This section does not preclude the accumulation of and payment for a greater number of hours of sick leave to an employee upon retirement pursuant to Section 16-1-18.1."

      . Although an opinion of the state attorney general is not binding precedent, we note that the attorney general also has concluded that deputy sheriffs are exempt from the state merit system. See Ala. Op. Atty. Gen., No. 2002-316 (Aug. 14, 2002).


author: MAIN, Justice. STUART, Justice

text:
    Ex parte Clinton A. SHERRELL. (In re Blount County Commission v. Clinton A. Sherrell).
    1091756.
    Supreme Court of Alabama.
    Aug. 26, 2011.
    J. Stanton Glasscox of Hayes, Jackson, Weaver & McKinney, LLC, Birmingham, for petitioner.
    Robbie Alexander Hyde, Gary L. Will-ford, Jr., and Jamie K. Hill of Webb & Eley, P.C., Montgomery, for respondent.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for amicus curiae Alabama Sheriffs’ Association, in support of the respondent.
    Mary E. Pons, Montgomery, for amicus curiae Association of County Commissions of Alabama, in support of the respondent.
   MAIN, Justice.

WRIT QUASHED. NO OPINION.

WOODALL, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

MALONE, C.J., and STUART, J., concur specially.

WISE, J., dissents.

STUART, Justice

(concurring specially).

I concur in the decision to quash the writ of certiorari previously issued and to uphold the Court of Civil Appeals’ reversal of the trial court’s judgment; however, I do not agree with the rationale given by the Court of Civil Appeals for reversing the trial court’s judgment. Blount Cnty. Comm’n v. Sherrell, 77 So.3d 1196 (Ala.Civ.App.2010). Specifically, I do not agree that because a deputy sheriff is the alter ego of the sheriff for purposes of State immunity, a deputy sheriff is the alter ego of the sheriff for all purposes. I believe the case should be decided on a different basis. Therefore, I agree only with the result reached by the Court of Civil Appeals.

Section 36-26-36(a), Ala.Code 1975, provides:

“Upon retirement, each employee who acquires sick leave pursuant to the state Merit System shall receive payment of 50 percent of his or her accrued and unused sick leave, not to include es-crowed sick leave as provided herein, at the time of his or her retirement, and payments for the sick leave shall be made at the same rate as his or her regular pay, not to exceed 600 hours.”

(Emphasis added.) Deputy sheriffs and employees of the Sheriffs Office in Blount County are not subject to the State merit system under a local act applicable to Blount County, which provides:

“In the absence of any general law of statewide application fixing the annual salaries of deputies of the sheriff, in Blount County, the following officers and employees in the office of the sheriff shall receive the following annual salaries in lieu of all other compensation and allowances.... There shall be employed in said office such number of deputies and other personnel as the county commission and the sheriff may agree are necessary for the efficient operation of the office. If it is determined that additional personnel is necessary, the sheriff may set the salaries of same, subject to the approval of the county commission. The sheriff shall be entitled to select his own deputies and employees and they shall serve at his pleasure. All salaries herein provided for shall be paid in equal monthly installments in the same manner as salaries are paid to other county officers. The salaries prescribed in this section shall be come effective on the first day of the first month next following this act becoming law.”

Act No. 649, Ala. Acts 1973, § 1.

Because Clinton A. Sherrell, a chief deputy in the Blount County Sheriffs Office, was not subject to and did not acquire sick leave pursuant to the State merit system, he is not entitled to payment for unused sick leave under § 36-26-36(a), Ala.Code 1975. For that reason, the decision of the Blount Circuit Court is due to be reversed.

MALONE, C.J., concurs.


text:
    SUSAN SCHEIN CHRYSLER DODGE, INC. v. Selby K. RUSHING, Jr.
    2091112.
    Court of Civil Appeals of Alabama.
    April 15, 2011.
    Certiorari Denied Aug. 12, 2011 Alabama Supreme Court 1100855.

      R. Austin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and David M. Wilson of Wilson & Berryhill, P.C., Birmingham, for appellant.
    E.L. Brobston of Brobston & Brobston, P.C., Bessemer, for appellee.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of January 28, 2011, is withdrawn, and the following is substituted therefor.

Susan Schein Chrysler Dodge, Inc. (“Schein”), appeals from a judgment holding that Selby K. Rushing, Jr., was an employee of Sehein’s and awarding workers’ compensation benefits to him for injuries he received in a motor-vehicle accident. When the accident occurred, Rushing was transporting a pickup truck from an automobile dealership in Jacksonville, Florida, to Schein’s automobile dealership in Pelham.

By agreement of the parties, Rushing’s claim for workers’ compensation benefits was bifurcated. The first issue determined by the trial court was whether Rushing was an employee of Schein’s or whether he was acting as an independent contractor when he was injured. On October 1, 2009, after a hearing during which ore tenus evidence was presented, the trial court entered an order holding that Rushing was an employee of Schein’s and, therefore, that he was entitled to appropriate benefits pursuant to the Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”). Based upon the parties’ subsequent submissions to the trial court regarding the nature and extent of the injuries Rushing suffered in the accident and his resulting disabilities, the trial court entered a final judgment on July 28, 2010, holding that Rushing was permanently and totally disabled and awarding benefits accordingly.

The only issue Schein raises on appeal is whether the trial court improperly determined that Rushing was Schein’s employee, as that term is contemplated by the Act. Therefore, we will set forth the facts relevant to that issue. The record indicates the following. Rushing was one of numerous retirees who supplemented their retirement incomes by delivering or transferring vehicles to and from Birmingham-area automobile dealerships as the need arose. Todd Moore, the former inventory-control manager at Schein, testified that if the dealership did not have the specific vehicle a customer wanted, it would attempt to locate that vehicle at another dealership. When the vehicle was located, the dealership would use drivers to retrieve the vehicle from the other dealership, a process known as a dealer transfer. Two drivers would ride in one vehicle to the other dealership, and then one would drive the vehicle the customer had ordered while the other would return in the same vehicle used to make the trip.

Moore testified that, years earlier, he had had trouble finding drivers to make the dealer transfers. A colleague at another dealership gave him the name of Fred McGriff, who kept a list of seven or eight people — primarily retirees in their 60s and 70s — who would make dealer transfers for a flat fee. McGriff, who had stopped driving for the dealerships because of his advanced age, was not an employee of any of the dealerships. Moore explained that when a dealership needed someone to transfer a vehicle, it would contact McGriff and tell him it needed a “pick up” from a certain location. McGriff would in turn contact someone on the list of drivers and ask whether that person would be able to make the dealer transfer. The person who was contacted had the option of turning down any request. Moore testified that he never made the initial contact with the drivers. Generally, once the dealer-transfer vehicle had been delivered to the dealership, the driver would be paid by a check from the dealership. Rushing and other drivers testified that taxes were not taken from the payments. If a payment to a driver for a single delivery was more than $600, the dealership would provide the driver with a form 1099 for income-tax purposes.

Rushing testified that he had made dealer transfers for Schein and two other dealerships in the area. He said he could not recall exactly when he had begun making dealer transfers, but, at the time of the accident, he had been making the transfers for at least several years. Rushing’s tax records, which were submitted into evidence, indicate that he never earned more than $2,800 in a year from the dealer transfers. On his tax returns, Rushing indicated that he was retired and that he earned no wages and listed as other income the money he earned driving dealer transfers.

Regarding the dealer transfer that resulted in the accident made the basis of this action, Rushing testified that he received a telephone call from either McGriff or Moore, he was unsure which, and that he was asked whether he could make the trip to Jacksonville, Florida, to obtain a pickup truck for Schein. Rushing agreed to the trip and went to one of Schein’s dealerships to meet with Moore. Moore provided Rushing with the make, model, and vehicle-identification number of the pickup truck Rushing was to bring back to Schein’s dealership, as well as insurance documents, documents that would enable him to transfer title, a dealer tag to place on the pickup truck, and directions to the Jacksonville dealership. On some occasions, Rushing said, he was given a check to give to the dealership from which he was retrieving a vehicle; other times, the vehicle already had been paid for by the time he arrived at the dealership to pick up the vehicle. He said he could not recall which method had been used on the trip at issue. Rushing testified that Moore also told him to go to Schein’s Chevrolet dealership, where Rushing was provided with the “chase car,” that is, the car Rushing would use to travel to Jacksonville.

Rushing said that, generally, dealer-transfer drivers were instructed to inspect the vehicles they were sent to retrieve. On the occasions he was driving a transfer vehicle for Schein, Rushing said, if a vehicle was damaged or was in poor repair, he would call Moore and describe the problem with the vehicle. The decision whether to bring the damaged vehicle back to Schein rested with Moore, Rushing said. He testified that, although Moore had provided him with directions to the Jacksonville dealership, if he knew a shorter or better route, he was free to take it. Also, other than obeying traffic regulations and speed limits, Rushing said, Schein did not have any rules or guidelines that dealer-transfer drivers had to follow. For example, drivers did not have to stop after traveling a certain amount of time, nor were they required to rest for a set period. They could stop for meals when and where they wished, and they were not required to deliver the transfer vehicles by a set time, although they were to have them delivered within a reasonable time.

Rushing said that when he learned that he would be traveling to Jacksonville, he called a friend, who was also on McGriffs list of dealer-transfer drivers, to accompany him on the trip down and who would then drive Schein’s vehicle back to Pelham. As Rushing was driving the pickup truck from Jacksonville on the return trip to Pelham, he was in a collision with another vehicle on Interstate 85 in Opelika. Rushing suffered serious injuries in the accident.

After the hearing, the trial court entered an order holding that Rushing was an employee of Schein’s at the time of the accident and that he was not an independent contractor. Specifically, the trial court found that Schein had provided Rushing with a vehicle to transport him to the Jacksonville dealership; that it had suggested the route Rushing was to take to and from Jacksonville; that it had provided Rushing with insurance documents and a dealer tag for the pickup truck; that it had directed Rushing in the manner in which he was to inspect the pickup truck before taking possession of it and that, if the vehicle appeared to be damaged, in ill-repair, or did not have all of its designated accessories, he was to call Moore for further instructions and was required to take direction from Moore. In addition, the trial court found that Schein had paid Rushing by check for each dealer-transfer trip he had made and that Rushing had been reimbursed for expenses incurred during the trips. In other words, the trial court determined that Rushing “was given no discretion as to how his mission was to be performed other than that exercised by any driver of any vehicle operated on the public way.” Accordingly, the trial court held, Rushing was an employee and not an independent contractor.

Schein appeals from the judgment of the trial court, contending that it erred in determining that Rushing was its employee rather than an independent contractor.

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

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

It is well established law that, in the context of a workers’ compensation case, when determining whether an employer-employee relationship exists, the courts will look to whether the purported employer has reserved the right to control the manner in which the worker performs the duties of the work. Atchison v. Boone Newspapers, Inc., 981 So.2d 427, 431 (Ala.Civ.App.2007).

“[F]or one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the result to be accomplished or, in other words, not only what shall be done, but how it shall be done.” ’
“White v. Henshaw, 363 So.2d 986, 988 (Ala.Civ.App.1978) (quoting Weeks v. C.L. Dickert Lumber Co., 270 Ala. 713, 714, 121 So.2d 894, 895 (1960)). In determining ‘whether [an individual] is an independent contractor or whether an employer-employee relationship exists, the court looks to the reserved right of control rather than the actual exercise of control.’ Turnipseed v. McCafferty, 521 So.2d 31, 32 (Ala.Civ.App.1987). If the right of control extends no further than directing what is to be ultimately accomplished, an employer-employee relationship is not established; however, ‘if an individual retains the right to direct the manner in which the task is to be done or if that individual does in fact dictate the manner of operation, then an employer-employee relationship is established.’ Id. at 33. The factors to be considered in determining whether an individual or an entity has retained the right of control include: (1) direct evidence demonstrating a right or an exercise of control; (2) the method of payment for services; (3) whether equipment is furnished; and (4) whether the other party has the right to terminate the employment. See Ex parte Curry, 607 So.2d 230 (Ala.1992).”

Atchison v. Boone Newspapers, Inc., 981 So.2d at 431-32. Furthermore, “ ‘[t]he retention of control necessary to establish employee status is determined on a case-by-case basis.’ Luallen v. Noojin, 545 So.2d 775, 776 (Ala.Civ.App.1989).” Sartin v. Madden, 955 So.2d 1024, 1027 (Ala.Civ.App.2006).

In reaching its decision that Rushing was Schein’s employee, the trial court relied on Ex parte Curry, 607 So.2d 230 (Ala.1992), in which our supreme court reversed this court’s judgment and, in turn, the judgment of the trial court, denying workers’ compensation benefits to an injured worker, a truck driver, on the ground that the worker was an independent contractor and not an employee. In Curry, a man had signed a lease agreement with the defendant, Interstate Express, Inc. (“Interstate”), pursuant to which he obtained a truck and drove cargo for Interstate. Id. at 233. Our supreme court found that Interstate had exercised control over the driver by controlling what loads he picked up, where he picked them up, and where he delivered the cargo. Interstate also told the driver how to handle the cargo. Id. Interstate booked the contracts for the cargo that the driver hauled. The customer would pay Interstate, which would retain a percentage of the proceeds and pay the driver the remainder. Thus, the supreme court held, Interstate controlled the driver’s payment. Id. Interstate also provided equipment to the driver, including the truck and the various permits and insurance required, and it paid fuel and mileage taxes. The driver also had the right to end the lease agreement upon 30 days’ written notice. In applying the factors previously quoted in Atchison to the facts in Curry, our supreme court held that the evidence did not support the trial court’s determination that the driver was an independent contractor.

As this court noted in Sartin, “ ‘[n]o one fact by itself can create an employer-employee relationship.’ ” (Quoting Luallen v. Noojin, 545 So.2d at 776.) In this case, although it is true that Schein supplied Rushing with a “chase” car, a dealer tag, and insurance, we conclude that its control over Rushing extended no further than directing what Rushing was ultimately to accomplish, i.e., the transfer of a specific vehicle from the dealership in Jacksonville to Schein’s dealership. McGriff, the man who maintained the list of transfer drivers and who was not a Schein employee, chose Rushing’s name from the list of possible drivers to make this particular transfer. Rushing could accept or decline any transfer that McGriff offered, and he could choose the dealerships for which he would drive. Rushing, not Schein, chose the individual who would travel in the chase car. Rushing could travel any route he chose for the trip to and from Jacksonville. He was free to make any stops he wished along the way. When the delivery was made and Schein had paid Rushing for the transfer, Schein and Rushing had no further obligations to one another. None of the standard formalities of employment exist in this case. For example, Rushing never applied for a job with Schein; he did not complete income-tax withholding forms; there was no “employment” from which Schein could terminate Rushing; and Rushing had no scheduled work hours, no health insurance, and no vacations or holidays. In short, Rushing made dealer transfers when and if he desired, for whom he desired. Based upon his tax returns, Rushing recognized that he was not an “employee” of Schein’s or any other automobile dealer. From the record, it appears that, before the accident, neither party considered Rushing and Schein to have an employer-employee relationship.

In reviewing the totality of the evidence in this case, see Sartin, supra, we conclude that the trial court’s judgment holding that Rushing was an employee of Schein’s and not an independent contractor is not supported by substantial evidence. Accordingly, the judgment of the trial court is reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.

APPLICATION OVERRULED; OPINION OF JANUARY 28, 2011, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . In his lawsuit, Rushing had also named as a defendant the driver of the other vehicle involved in the accident, and he sought under-insured-motorist benefits from Universal Underwriters Insurance Company (''Universal”). Before the final judgment was entered, both the driver and Universal had been dismissed from the action because they had reached pro tanto settlement agreements with Rushing. The record indicates that, in calculating the workers’ compensation benefits to which Rushing was entitled, the trial court took into account the insurance proceeds Rushing already had received from the tortfeasor’s insurance carrier.


author: PER CURIAM.

text:
    Ex parte Vikrum Singh KANDOLA. (In re STATE of Alabama v. Vikrum Singh KANDOLA.)
    CR-10-1132.
    Court of Criminal Appeals of Alabama.
    July 29, 2011.

      Glenn L. Davidson, Mobile, for petitioner.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Vikrum Singh Kandola, filed this petition for a writ of mandamus requesting that we direct Judge Charles Graddick to vacate his order revoking Kandola’s probation, to find that his probation violation was a technical violation for purposes of § 15 — 22—54(d)(1)(f), Ala.Code 1975, and to fix his term of imprisonment at no more than 90 days.

In 2009, Kandola was convicted of distributing a controlled substance and was sentenced to 10 years’ imprisonment. The sentence was split and he was ordered to serve three years on supervised probation followed by three years of incarceration. In March 2011, Kandola’s probation officer filed a delinquency report on Kandola. The report alleged that Kandola had violated the terms of his probation by using the social media Facebook, when he was instructed not to use Facebook, by leaving the county to travel to Mexico without his probation officer’s permission, and by testing positive for marijuana. A revocation hearing was held on April 7, 2011. At the hearing, Kandola admitted that he had violated the terms of his probation. Judge Graddick declined to sentence Kandola as a technical violator to 90 days’ imprisonment, revoked his probation in full, and ordered Kandola to serve his entire sentence. Kandola appealed to this Court. On May 13, 2011, Kandola filed this petition for a writ of mandamus.

Kandola asserts that we should consider this issue in this mandamus petition even though he has an appeal pending because, he says, the relief that could be granted by an appeal is not adequate. He asserts that pursuant to the newly enacted technical-violator statute his sentence can be for no longer than 90 days and that he will have served past that period if he must await the outcome of his appeal.

Generally, a petition for a writ of mandamus may not be used as a substitute for an appeal. See Ex parte Bentley, 50 So.3d 1063 (Ala.2010); State v. Murphy, 39 So.3d 1045 (Ala.2009); Ex parte King, 23 So.3d 77 (Ala.2009); Ex parte A.M.P., 997 So.2d 1008 (Ala.2008); Ex parte Ward, 957 So.2d 449 (Ala.2006); Ex parte Sawyer, 892 So.2d 898 (Ala.2004); Ex parte Wilson, 854 So.2d 1106 (Ala.2002); Ex parte Ingram, 774 So.2d 563 (Ala.2000); Ex parte Jackson, 614 So.2d 405 (Ala.1993); Ex parte Fowler, 574 So.2d 745 (Ala.1990).

The Alabama Supreme Court has recognized that in certain situations an extraordinary petition may be used when an appeal is not adequate to “prevent undue injury” to the petitioner. See Ex parte Weissinger, 247 Ala. 113, 118-19, 22 So.2d 510, 515 (1945) (“The test, as to whether mandamus will be issued, now seems to depend on whether the remedy by appeal is adequate to prevent undue injury rather than the availability merely of remedy by appeal. Ex parte Watters, 180 Ala. 523, 61 So. 904 [ (1913) ].”).

In Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), the Alabama Supreme Court stated:

“It is clearly the general rule in this state that if the matters complained of, including a ruling on a plea in abatement, can ultimately be presented by an appeal, mandamus will not ordinarily be granted. Ex parte Morton, 261 Ala. 581, 75 So.2d 500 [(1954)]; Ex parte Jones, 246 Ala. 433, 20 So.2d 859 [ (1945) ]; Koonce v. Arnold, 244 Ala. 513, 14 So.2d 512 [ (1943) ]; Ex parte Taylor, 236 Ala. 219, 181 So. 760 [ (1938) ]; State ex rel. Walker’s Heirs v. Judge of Orphans’ Court of Macon, 15 Ala. 740 [ (1849) ]. Mandamus will not be granted for the mere purpose of a review. Ex parte Jackson, 212 Ala. 496, 103 So. 558 [ (1925) ], and cases cited therein.
“This court, however, acting within its discretion has made certain exceptions to this general rule. A review by mandamus has been allowed where, because of the particular circumstances involved, appeal from a final judgment would not afford adequate relief — this [is] sometimes referred to as an emergency appeal. Ex parte Merchants National Bank of Mobile, 257 Ala. 663, 60 So.2d 684 [ (1952) ]; Ex parte Tucker, 254 Ala. 222, 48 So.2d 24 [ (1950) ]. It has similarly been held that the writ may be employed to vacate certain interlocutory rulings in divorce cases on the additional theory that a vital public interest is involved in such cases. Ex parte Davis, 249 Ala. 221, 30 So.2d 648 [ (1947) ]; Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 [ (1945) ]. The writ was also employed to review an interlocutory ruling in Thomas v. State, 241 Ala. 381, 2 So.2d 772 [ (1941) ], a condemnation proceeding involving an automobile allegedly used for the illegal transportation of liquor. As to such use of the writ the opinion in that case cites as authority Ex parte Teague, 241 Ala. 53, 200 So. 892 [ (1940) ], wherein the propriety of the use of mandamus was not expressly considered.
“In the instant ease it does not appear that the matter complained of comes within any of the established exceptions to the previously stated general rule. It is, therefore, not necessary for our present consideration that we attempt to reconcile seeming inconsistencies arising out of prior exercise of this court’s discretion or that we seek to arrive at a more definitive standard concerning the circumstances under which an exception may be made to the general rule. It is sufficient that we adhere to our prior ruling in the case of Jackson Lumber Co. v. W.T. Smith Lumber Co., 247 Ala. 661, 25 So.2d 853, 854 [ (1946) ]. There the plaintiff brought an action for conversion and in assumpsit against the defendant. Defendant filed pleas of set-off and to these plaintiff pleaded in abatement. From a judgment sustaining a demurrer to the plea in abatement plaintiff appealed and applied for an alternative writ of mandamus. As to the latter this court held:
“ ‘There is also no authority to invoke this court’s discretion to review the order by writ of mandamus.
“ ‘Such a nonappealable interlocutory ruling is not reviewable by mandamus when the matter complained of can be adequately redressed by appeal after final judgment. The general rule is that this court will not grant the writ for the mere purpose of review. Ex parte Jackson, 212 Ala. 496, 103 So. 558 [ (1925) ]; Koonce v. Arnold, 244 Ala. 513, 14 So.2d 512 [(1943)].
“‘The principle was recently adhered to and reaffirmed in the last-cited case, where it was observed: “If the matters complained of can be ultimately presented to the appellate court through the medium of an appeal from the final decree, mandamus will not ordinarily be granted. This for the reason, that appellate courts will not hear causes in piecemeal.” Koonce v. Arnold, supra, 244 Ala. at page 514, 14 So.2d at page 515.
“ ‘The effort of appellant for the present review is plainly contrary to these well-considered authorities and it results that the appeal must be dismissed and the petition for alternative writ denied.’ ”

263 Ala. at 684-85, 83 So.2d at 433-34.

More recently in Ex parte Spears, 621 So.2d 1255 (Ala.1993), the Alabama Supreme Court revisited this issue and declined to expand mandamus relief to include the review of a pretrial ruling denying a motion based on double-jeopardy principles. The Court stated:

“The tendency of this Court in the past has been to enlarge the scope of the extraordinary writ of mandamus by recognizing certain exceptions to the general rule that orders ultimately reviewable on appeal from a final judgment are not subject to mandamus review. However, we should not continue to decide cases in a piecemeal fashion. For this reason, mandamus review will generally be restricted in the future to those cases where one of the recognized exceptions applies, or to those extraordinary cases where the rights of the parties cannot be adequately protected by appellate review of a final judgment.
“If Spears is retried and convicted for the offense stated in the indictment, he can appeal his conviction to the Court of Criminal Appeals and, if he is not satisfied with the judgment of that court, he can petition this Court for certiorari review pursuant to Rule 39, Ala. R.App. P. These remedies are adequate; therefore, a petition for a writ of mandamus is not an appropriate means of reviewing the trial judge’s order in this case.”

621 So.2d at 1258. See also Harris v. Elliott, 277 Ala. 421, 423, 171 So.2d 237, 238 (1965) (“We think it is better to follow [established caselaw] and the authorities cited therein, rather than add another exception to meet the problem posed by the instant case.”).

This Court has recognized only one situation where an appeal was not adequate to prevent undue injury to the defendant. In Ex parte Wakefield, 447 So.2d 1324 (Ala.Crim.App.1983), we granted a writ of mandamus while an appeal was pending in the same case because the lower court had improperly sentenced Smith to a greater term of imprisonment than the law allowed, thus rendering Smith ineligible for an appeal bond. The Supreme Court in Smith v. State, 447 So.2d 1334 (Ala.1984), affirmed this Court’s issuance of the writ of mandamus.

We question the continued validity of our holding in Wakefield given that the statute relied on for the issuance of the writ of mandamus, § 12-22-170, Ala.Code 1975, has been superseded by the Alabama Supreme Court’s adoption of Rule 7.2(c), Ala. R.Crim. P. See Ex parte Ziglar, 604 So.2d 384 (Ala.1992). Under § 12-22-170, an appellant had an absolute right to an appeal bond if his sentence was 20 years or less. However, according to Rule 7.2, Ala. R.Crim. P., there is no absolute right to any bail pending the outcome of an appeal.

The situation presented in this case — whether Kandola is in fact a technical probation violator who is entitled to take advantage of the newly enacted legislation — does not fit within any of the recognized exceptions to the general rule that precludes this court from considering an issue in a mandamus petition that may ultimately be raised on appeal. An appeal is adequate to protect Kandola’s rights and is the appropriate method for reviewing the circuit court’s ruling in this case. In Ex parte Jones, 61 So.3d 1104 (Ala.Crim.App.2010), we held that the denial of a motion made pursuant to § 15-22-54.1, Ala.Code 1975, to be treated as a technical violator is appealable to this Court; therefore, Jones could not use a petition for a writ of mandamus to obtain review of the circuit court’s ruling.

Moreover, the State asserts in its response to this petition that Kandola failed to satisfy the qualifications necessary to be sentenced as a technical violator:

“Kandola failed to establish that he successfully performed the conditions of his probation for a consecutive six-month period. In fact, according to exhibits Kandola attaches to his petition, the evidence, adduced primarily by the defense, indicates, to the contrary, that barely three months into his probationary period, Kandola had already begun to violate the terms of his probation.”

(State’s response, at p. 6.)

Because a petition for a writ of mandamus is not the appropriate method of reviewing the circuit court’s ruling, this petition is denied. See Ex parte Spears. This Court will consider the validity of Judge Graddick’s ruling in Kandola’s appeal in case no. CR-10-1183.

PETITION DENIED.

WELCH, P.J., and KELLUM, BURKE, and JOINER, JJ., concur; WINDOM, J., concurs in the result.

      . Section 15 — 22—54(d)( 1 )(f), Ala.Code 1975, provides, in part:
      “If the probation violation is a technical violation, defined as a violation of a condition of probation other than the commission of a new offense, an eligible offender may be required to serve a term of not more than 90 days imprisonment....” Section 15-22-54(d)(2)a., Ala.Code 1975, provides:
      "An eligible offender ... is a nonviolent felon serving a probationary sentence who has violated a condition or conditions of probation other than by the commission of a new offense and who has performed the conditions of probation, including remaining current on payment of court ordered money, for a consecutive six-month period.”

      . We have docketed that appeal as case no. CR-10-1183.

      . Kandola's appeal is currently awaiting the completion of the briefing schedule.


author: WELCH, Presiding, Judge.

text:
    Melvin NICHOLSON v. STATE of Alabama.
    CR-10-0287.
    Court of Criminal Appeals of Alabama.
    July 29, 2011.
    Eric Lane Toxey, Bessemer, for appellant.
    Luther Strange, atty. gen., and Kristi 0. Wilkerson, asst. atty. gen., for appellee.
   WELCH, Presiding, Judge.

A Jefferson County grand jury indicted Melvin Nicholson on one count of possessing a pistol after having been convicted of a crime of violence, a violation of § 13A-ll-72(a), Ala.Code 1975, and one count of third-degree domestic violence, a violation of § 13A-6-132, Ala.Code 1975. Nicholson was tried before a jury; the jury found Nicholson guilty of the pistol-possession charge and not guilty of the domestic-violence charge. The trial court sentenced Nicholson, who had two prior felony convictions, to a 10-year term of imprisonment. The trial court also ordered Nicholson to pay a $50 assessment to the Crime Victims Compensation Fund, and to pay court costs.

Nicholson filed a motion for a new trial, and he later filed an amended motion for a new trial. The trial court held a hearing on the motion and entered an order denying the motion. This appeal follows.

Tamecia Nickerson testified that, on May 9, 2009, when this incident occurred, she was married to Nicholson and they were living together with her three children. Nickerson testified that she and her sons returned to the family residence and found the screen door locked, and she could not use her key to get inside the residence. Nickerson and her sons knocked on the door and the bedroom window for several minutes before Nicholson came to the door. Once inside the residence, Nickerson and Nicholson argued about the door being locked and Nicholson failing to open the door, and they walked into the bedroom during the argument. Nickerson further testified: “And [Nicholson] usually keep [sic] a gun in the Bible case under the mattress. So, he reached up under there and grabbed the Bible case from under the mattress and took the gun out. And said that he was going to make somebody dance tonight. And so I was afraid.” (R. 13.) Nicholson then sat on the side of the bed, she said, and she left the bedroom and telephoned the police. The police arrived 10-20 minutes later, and while she waited for the police she remained in the living room and Nicholson remained in the bedroom. Nicholson was taken into custody.

Nickerson testified that Nicholson had brought the gun into the house, and she described the gun as a black nine-millimeter. She said that Nicholson kept the gun in a black cloth Bible case. Nickerson appeared to testify on cross-examination that someone had given Nicholson the gun after several houses in their neighborhood had been burglarized; Nickerson denied that the gun was given to her. (R. 24-25.) On redirect examination Nickerson testified that Nicholson had had the gun at least since 2006; that she had seen the gun in their house previously; and that she had seen Nicholson use the gun previously.

Michael Erby testified that he was employed by the City of Fairfield as a police detective and that he was assigned to investigate the domestic-violence case against Nicholson. Det. Erby stated that the police report of the incident indicated that a woman had contacted the police and said that her husband had threatened her with a weapon during a domestic dispute. Det. Erby stated that Nicholson had been arrested at the scene, and the police identified the weapon as a nine-millimeter Beretta semi-automatic pistol. He stated that the police were not able to identify the owner of the weapon, although the police ran a “trace” on the weapon to locate a record of its ownership.

The State presented a case-action summary as evidence that Nicholson had previously entered a guilty plea to a charge of third-degree burglary.

Tonkois Vandiber testified that in May 2009 he was working as a night-shift patrol officer. He stated that he had responded to the domestic-violence call at Nicholson’s residence and that he had participated in the arrest. Vandiber testified that a handgun was recovered from the home, specifically, “a Beretta nine-millimeter,” along with an ammunition magazine and some loose shells. (R. 48.)

Vandiber stated that once Nicholson was secured, Nickerson went into the home with the officers and she retrieved the gun from beneath the mattress, on what Nick-erson said was Nicholson’s side of the bed. Nickerson identified the gun as the one Nicholson had used, and she said that the gun belonged to Nicholson. The gun was inside a black leather Bible case, Vandiber said.

Peggy Sager testified for the defense. She stated that a friend had brought a gun to her house and that Nickerson then came to her house and picked up the gun. Sager stated that she did not know what Nick-erson did with the gun.

Analysis

Nicholson argues that the trial court erred when it denied the motion for a judgment of acquittal because, he says, the State failed to prove a prima facie case. Specifically, he argues that the State failed to prove that he had a prior conviction for a “crime of violence,” as that phrase has been defined by Alabama appellate courts; that the State failed to prove that the handgun was a “pistol,” as defined by § 13A-ll-70(2), Ala.Code 1975; and that the State failed to prove that he knowingly possessed the gun.

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘“When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).”

Roberson v. State, 864 So.2d 379, 384-85 (Ala.Crim.App.2002).

Section 13A-ll-72(a), Ala.Code 1975, provides: “No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his or her possession or under his or her control.” Section 13A-11-70(2), Ala.Code 1975, defines “crime of violence” as: “Any of the following crimes or an attempt to commit any of them, namely, murder, manslaughter (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny.” (Emphasis added.)

Even though the plain language of § 13A-11-70(2), Ala.Code 1975, includes “burglary” in its definition of “crime of violence,” Nicholson argues — and the State agrees — that Alabama appellate courts have held that whether a third-degree burglary conviction constitutes a crime of violence depends on the facts underlying the conviction. Ex parte Johnson, 620 So.2d 665, 666-68 (Ala.1993); Henry v. State, 714 So.2d 1002, 1004-05 (Ala.Crim.App.1998). The Alabama Supreme Court explained the basis for the appellate courts’ decisions:

“Regarding this definition, as it relates to a violation of § 13A-ll-72(a), the Court of Criminal Appeals stated:
“ ‘Sections 13-A-11-70 and -72 were not enacted as a part of Alabama’s new Criminal Code. See 1977 Acts 812, No. 607 (January 1,1980). Those sections were criminal laws in Alabama prior to the passage of the new Criminal Code, see Ala.Code 1975, §§ 13-6-150 and -152, and were transferred to the Criminal Code from Title 13, see Table II — Sections Transferred (to Title 13A) 1982 Replacement Vol. 12, Ala.Code 1975 at 3.
‘Burglary and theft are defined in the Alabama Criminal Code, § 13A-7-7 and § 13A-8-2, respectively, and each offense embraces acts which would not have constituted its predecessor offense prior to the Criminal Code. See § 13-2-41 (burglary in the second degree), § 13-3-50 (grand larceny), and § 13-3-51 (petit larceny).’
“[Johnson v. State, 620 So.2d 661, 664 (Ala.Crim.App., 1991) ]. (Emphasis added.)
“In short, as the Court of Criminal Appeals indicated, convictions for burglary in the third degree and theft in the first and second degrees, as set out in the new Criminal Code provisions, can embrace acts that are not deemed a ‘crime of violence’ as that term was intended by the legislature in enacting what is now § 13A-11-70.
“Because what is now § 13A-ll-70(2) was enacted years before the new Criminal Code offenses were enacted, see Tit. 14, § 172(a), Code of Ala.1940, one cannot simply look to the name given an offense in the new Criminal Code provision and conclude that it is synonymous with an older term found in § 13A-11-70(2). See Doss v. State, 220 Ala. 30, 123 So. 231 (1929); Hudson v. Reed, 259 Ala. 340, 66 So.2d 909 (1953).”

Ex parte Johnson, 620 So.2d at 667.

The Alabama Supreme Court then considered the evidence the State had presented at Johnson’s trial in an attempt to prove that he had been convicted of a crime of violence, and it held:

“Addressing the evidence offered by the State on the prior-crime-of-violence element, the Court of Criminal Appeals stated: ‘The State proved that the appellant had been convicted of burglary in the third degree and theft of property in the first and second degrees.’ 620 So.2d at 664. Indeed, it is undisputed that on the element of a prior ‘crime of violence, the State produced only evidence of the fact of these convictions under the new Criminal Code provisions. As we have discussed, this is insufficient to show proof on the element of a prior ‘crime of violence.’

Ex parte Johnson, 620 So.2d at 667-68 (some emphasis added).

In the case now before us the State presented only the fact of Nicholson’s conviction for third-degree burglary. That evidence did not satisfy the State’s burden of proving that Nicholson had committed a prior crime of violence, and the State, therefore, failed to establish an element of the crime. The State argues in its brief that the record does not contain a copy of the exhibit the State introduced to prove Nicholson’s third-degree burglary conviction, and that, as a result, the record is silent as to the merits of Nicholson’s claim and this Court cannot predicate error on a silent record. The case-action summary introduced by the State to prove the prior conviction is not in the record. However, our review of the record before us indicates that the State presented no evidence regarding anything other than the fact of Nicholson’s prior conviction, that is, the State presented nothing about the underlying facts of that conviction, and that information was necessary to establish an element of the crime and to prove a prima facie case.

Having found that the State failed to present an element of the offense for which Nicholson was convicted, we necessarily hold that Nicholson is entitled to relief on his claim of error.

“The judgment must be reversed and a judgment rendered for the defendant, because the State failed in its burden of proof. This Court cannot affirm a conviction where the record is silent, as it effectively is here, as to an essential element of the offense. See Ex parte Peterson, 466 So.2d 984, 987 (Ala.1984).”

Johnson, 620 So.2d at 669. See also Averhart v. State, 668 So.2d 140 (Ala.Crim.App.1995).

Because we hold that Nicholson is entitled to relief based on the failure of proof at trial, we pretermit discussion of the remaining issues he has raised in his brief on appeal.

For the foregoing reasons, the judgment of the circuit court is reversed, and a judgment is rendered for Nicholson.

REVERSED AND JUDGMENT RENDERED.

WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.

      . The State does not argue that Nicholson failed to raise the issue in the trial court, and, in fact, it acknowledged that Nicholson raised this specific claim in an amended motion for a new trial. (State’s brief, p. 14.)


author: PER CURIAM. BURKE, Judge,

text:
    Gerald Leon WATTS v. STATE of Alabama.
    CR-09-1944.
    Court of Criminal Appeals of Alabama.
    July 29, 2011.
    Debora E. Palmer, Montgomery, for appellant.
    Troy King and Luther Strange, attys. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, P.J., and WINDOM and KELLUM, JJ., concur. BURKE, J., concurs specially. JOINER, J., concurs in the result.

BURKE, Judge,

concurring specially.

Although I agree that Gerald Leon Watts has failed to preserve- for appellate review the issue regarding being tried in absentia, I believe that this fact situation, where Watts was removed from the proceedings due to medical reasons and pursuant to the trial court’s direction, distinguishes this case from prior caselaw because he was unable to waive his right to be present. Although this issue was not preserved, the error in fully trying Watts without his presence was egregious and should have been objected to. Watts may have had knowledge of which defense counsel was unaware, and he clearly could have aided in his defense. Although Watts raised specific grounds of ineffectiveness on appeal through a different counsel, these claims have not been addressed on the merits as they were held to be precluded. A Rule 32, Ala. R.Crim. P., petition would be Watts’s first opportunity to raise a claim of ineffective assistance of trial counsel because Watts’s motion for a new trial was filed by trial counsel. See Ex parte Ingram, 675 So.2d 863 (Ala.1996) (claims of ineffective assistance of trial counsel can be raised in a motion for a new trial or in a postconviction proceeding, whichever presents the first reasonable opportunity to raise such a claim). Thus, I do not believe that Watts has foreclosed his ability to raise in a Rule 32, Ala. R.Crim. P., petition, defense counsel’s failure to object to the court’s trying him in absentia.

      . The record indicates that Watts was represented by two attorneys with the same last name. The transcript refers to defense counsel by only the last name; thus it is unclear if both attorneys were present and participated in the trial.