author: THOMAS, Judge.

text:
    Robert TERWILLIGER v. Katherine TERWILLIGER.
    2100722.
    Court of Civil Appeals of Alabama.
    Oct. 28, 2011.
    Certiorari Denied Feb. 10, 2012 Alabama Supreme Court 1110195.

      Michael C. Lambert of Lambert Law Firm, LLC, Athens, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Robert Terwilliger (“the father”) appeals from an order of the Madison Circuit Court (“the Alabama trial court”) dismissing, in its entirety, the father’s divorce action, which included a claim seeking custody of the children born of the marriage between the father and Katherine Terwilliger (“the mother”). Pursuant to § 30-3B-207, Ala.Code 1975, the Alabama trial court declined to exercise jurisdiction over the action, based on its determination that, although Alabama is the “home state” of the children, Texas is the more appropriate forum in which to litigate the parties’ child-custody dispute. We affirm.

The father and the mother were married in February 2004. The parties moved to Alabama in 2005. Three children were born of the marriage. On September 9, 2009, the parties separated, and the mother, along with the parties’ three minor children, went to San Antonio, Texas, to stay with the mother’s family.

The mother filed a complaint for a divorce in the Alabama trial court in October 2009; however, the mother subsequently dismissed that divorce action. On March 12, 2010, the father filed a divorce action in the Alabama trial court, claiming incompatibility of temperament and an irretrievable breakdown of the marriage. Additionally, the father requested that the Alabama trial court award him custody of the parties’ children. The record indicates that the mother was served with the father’s complaint for a divorce by certified mail on March 22, 2010. On March 31, 2010, the mother filed a divorce action in Texas, in which she requested that she be awarded custody of the parties’ children.

On March 12, 2010, the Alabama trial court entered a standing pendente lite order. The father subsequently filed a “motion for pendente lite relief,” requesting that the Alabama trial court require that the parties’ children be returned to Alabama immediately, that the court award him pendente lite sole physical and legal custody of the children, and that the court award him pendente lite child support. On April 21, 2010, the Alabama trial court conducted an emergency hearing regarding the father’s request for pendente lite relief and heard ore tenus testimony from the parties. At the hearing, the mother failed to mention that she had filed a separate divorce and child-custody action in Texas. Following the hearing, the parties, among other things, agreed to allow the father summer visitation with the children, and the Alabama trial court entered an “Amendment to Standing Pendente Lite Order” on April 22, 2010. In its April 22, 2010, order, the Alabama trial court stated:

“This Court looks with disfavor on a parent removing children from the jurisdiction of this Court, pending entry of an order allowing such a move. However, the Mother and the parties’ minor children have been relocated to San Antonio, Texas, since September 9, 2009; and this Court has been made aware of the issuance of an Ex parte Protection From Abuse Order in an action filed by the Mother against the Father in the Circuit Court of Madison County, Alabama, being Civil Action Number DR2009-3851 (LWH). The parties indicated during said emergency hearing, however, that the Mother intended to seek a dismissal of that case, which would thereafter void the Ex parte Protection Order entered by Judge Hamilton of this Court on August 18, 2009. Even though the Father has requested a final hearing in that case, it has not yet been held, and was previously continued on motion of the Mother when previously set. This Court has not been provided with any credible evidence that either party presents a threat for physical harm or abuse towards the other, nor to the parties’ minor children. Both parties are financially limited and earn small incomes. This Court has determined that it is not in the best interests of the parties’ minor children for this Court to enter that their residence be relocated to Madison County, Alabama, on a pendente lite basis. Rather, this Court reserves that decision for a final hearing, after both parties have been given a full and fair opportunity to present all evidence and witnesses they desire, without time constraints, and this Court is able to make a better decision on the custody determination to be made by this Court for the parties’ minor children.”

Upon realizing that there was a divorce and child-custody action also pending in Texas, the judge of the Alabama trial court communicated with Judge Victor Negron of the District Court of Bexar County, Texas (“the Texas trial court”), regarding the jurisdictional issues arising under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), which has been adopted by both Alabama, see § 30-3B-101 et seq., Ala.Code 1975, and Texas, see Tex. Family Code Ann. § 105.101 et seq. Pursuant to § 30-3B-110, the Alabama trial court entered a “Notice of Conversation with Court in Texas” on January 24, 2011. In the “Notice of Conversation with Court in Texas,” the Alabama trial court stated “that there [wa]s no dispute that the State of Alabama was the ‘home state’ of the parties’ minor children when the action now pending in the [Alabama trial court] was filed by the [father].” Further, the Alabama trial court clarified that

“[t]he issue to be resolved by [the Alabama trial court] is whether or not [the Alabama trial court], being the court of the home state of the [children], should decline to exercise jurisdiction on the ground that the [Texas trial court] is the ‘more appropriate forum’ to make and decide the initial child custody determinations ... regarding the parties’ minor children.”

On March 18, 2011, the Alabama trial court conducted an evidentiary hearing regarding whether it should decline to exercise jurisdiction over the parties’ child-custody dispute pursuant to § 30-3B-207. On March 21, 2011, the Alabama trial court entered an order declining to exercise jurisdiction over the action, finding that Texas was the more appropriate and convenient forum in which to litigate the parties’ child-custody dispute, and dismissing the action with prejudice. The father timely appealed to this court.

In Ramsey v. Ramsey, 995 So.2d 881, 886 (Ala.Civ.App.2008), this court stated that a trial court’s decision to decline to exercise jurisdiction pursuant to § 30-3B-207 is purely discretionary. See § 30-3B-207(a), Ala.Code 1975 (providing that an Alabama trial court “may decline to exercise its jurisdiction”). Accordingly, in Ramsey, this court concluded that the standard of review applied to a trial court’s determination as to whether it should exercise jurisdiction under § 30-3B-207 is whether the trial court abused its discretion. 995 So.2d at 886 (“[W]e must affirm [the trial court’s] determination unless the appellant demonstrates that the trial court abused its discretion.”).

On appeal, the father argues that the Alabama trial court’s decision declining to exercise jurisdiction over the parties’ child-custody dispute, thereby acknowledging that Texas was a more appropriate forum, was plainly and palpably wrong and was an abuse of discretion. We disagree.

This court has stated:

“A court having jurisdiction to make a child-custody determination may nevertheless decline to exercise that jurisdiction ‘if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.’ § 30-3B-207(a). The determination whether it is an inconvenient forum under the UC-CJEA requires a trial court to consider several enumerated factors, which are outlined in § 30-3B-207(b).”

Ramsey, 995 So.2d at 884.

Section 30-3B-207(b) provides:

“(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
“(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
“(2) The length of time the child has resided outside this state;
“(3) The distance betweén the court in this state and the court in the state that would assume jurisdiction;
“(4) The relative financial circumstances of the parties;
“(5) Any agreement of the parties as to which state should assume jurisdiction;
“(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
“(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
“(8) The familiarity of the court of each state with the facts and issues in the pending litigation.”

In his brief to this court, the father discusses only the relative financial circumstances of the parties. He contends that the mother is more able to absorb the travel costs associated with defending a divorce and child-custody action in Alabama, the undisputed home state of the children, because, he says, the mother makes $2,000 more per year than he does. That contention is unsupported by the record.

At the evidentiary hearing, the mother testified that she works at a Marriott hotel call center, making a salary of $9.75 per hour. However, she did not testify as to the number of hours she works or as to her annual salary. She did testify that she receives benefits, including insurance, paid vacation, and paid sick leave. The mother further testified that she receives government assistance from Texas, such as food stamps and Medicaid, because, she said, her income is so low. The father testified that he is employed as a Special Education Instructional Assistant in the Madison City School System and that he makes an annual salary of $16,177. Thus, there is no evidence in the record establishing that the mother, has a higher income than the father, as the father argues in his brief. However, the parties’ testimony makes clear, as the Alabama trial court noted, that “[b]oth parties are financially limited and earn small incomes.”

Although the relative financial circumstances of the parties is one factor a court should consider in determining whether, under the UCCJEA, it should exercise jurisdiction over a child-custody dispute, the existence or nonexistence of one single factor listed in § 30-3B-207(b) is not dispositive. Instead, the statute makes clear that a trial court “shall consider all relevant factors.” § 30-3B-207(b). Accordingly, because the relative financial circumstances of the parties is only one factor to be considered and because the evidence indicates that both parties are financially limited, without indicating which party has a higher income, we cannot conclude that the Alabama trial court abused its discretion in declining to exercise jurisdiction based solely on the parties’ testimony regarding their financial circumstances.

Moreover, in this case, the Alabama trial court conducted an evidentiary hearing regarding whether it should decline to exercise jurisdiction and defer to the jurisdiction of the Texas trial court, and, at that hearing, the mother presented evidence regarding many of the factors enumerated in § 30-3B-207(b). Specifically, the mother testified that she had gone to Texas with the parties’ children intending it to be a temporary visit but that, after enrolling the children in school and day care and locating employment in Texas, she decided to make the move permanent.

The mother testified that the oldest child is in kindergarten and that he attends Northern Hills Elementary School in San Antonio, Texas. She testified that the two younger children attend Playhouse Child Care, which is a day-care center in San Antonio. The mother also testified that the children see doctors with whom they are comfortable in Texas and that the children attend St. Mark’s Catholic Church in Texas. Additionally, the mother testified that the children visit their maternal grandfather and other family living in San Antonio at least once a week. In contrast, the father testified that the children have no family living in Alabama other than himself. Moreover, the mother testified that the children had never attended day care or schools in Alabama. From this testimony, the Alabama trial court could have reasonably concluded that the majority of the “evidence required to resolve the pending litigation” was located in Texas. § 30-3B-207(b)(6).

Additionally, the Alabama trial court stated that it found the Texas trial court to be well equipped and able to handle the case. See § 30-3B-207(b)(7). Specifically, the judge of the Alabama trial court stated:

“I have no doubt — let me just say I have no doubt, from my conversations with the judge in Texas, Judge Negron, that he can adequately handle this case, that he knows what he’s doing and that he will give it the emphasis and importance that it needs in his job. So the lack of a good judge to be able to adequately address it is not an issue in this case.”

Thus, the evidence regarding this factor also supports the Alabama trial court’s determination to decline to exercise jurisdiction over the action.

It was also undisputed that the parties’ children had been living in Texas from September 9, 2009, until March 18, 2011, the date of the evidentiary hearing. Thus, the children had resided outside Alabama for approximately a year and a half. See § 30-3B-207(b)(2). The mother also testified that the children had left Texas to visit their father in Alabama only once since moving to Texas in September 2009. Additionally, the mother testified that the trip between Texas and Alabama was long, but, she said, the trip could be completed in one day of driving. The father testified that he had traveled to Texas approximately seven or eight times since March 2010, and he testified that it was not a problem for him to drive that distance, although he stated that the cost of travel was an issue. See § 30-3B-207(b)(3). Accordingly, the Alabama trial court heard testimony regarding several factors enumerated in § 30-3B-207(b) from which it could have reasonably concluded that Texas and not Alabama was the more appropriate and convenient forum to exercise jurisdiction over the parties’ child-custody dispute.

Many of the other factors enumerated in § 30-3B-207(b) were inapplicable to this case. Specifically, the Alabama trial court stated that it had “not been provided with any credible evidence that either party presents a threat for physical harm or abuse towards the other, nor to the parties’ minor children.” See § 30-3B-207(b)(1). Additionally, the parties never entered into any agreements as to which state should assume jurisdiction over the litigation. See § 30-3B-207(b)(5).

In Ramsey, this court affirmed a decision of a trial court declining to exercise jurisdiction pursuant to § 30-3B-207, although several of the § 30-3B-207(b) factors weighed “in favor of the Alabama forum.” 995 So.2d at 887. In affirming the trial court’s decision, this court explained that the presence of several of the factors in favor of the home state — Alabama — “d[id] not necessarily require the Alabama trial court’s retention of jurisdiction over the case.” Id. Unlike Ramsey, in the present case, the Alabama trial court did not hear any testimony indicating that even a single factor enumerated in § 30-3B-207(b) weighed in favor of Alabama as the more appropriate forum to exercise jurisdiction over the parties’ child-custody dispute.

Accordingly, because of the discretion afforded the Alabama trial court in making a determination under § 80-3B-207, coupled with the evidence presented in this case, we cannot agree with the father that the Alabama trial court abused its discretion by declining to exercise jurisdiction over the parties’ child-custody dispute. Therefore, we affirm the order of the Alabama trial court declining to exercise jurisdiction over the parties’ child custody dispute.

AFFIRMED.

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

      .Although the father requests that we reverse the Alabama trial court’s order dismissing his divorce action, on appeal he addresses only the Alabama trial court’s decision to decline to exercise jurisdiction over the parties’ child-custody dispute pursuant to § 30-3B-207. Therefore, we address only that issue on appeal, and we express no opinion as to whether the Alabama trial court erred in dismissing the father's divorce action in its entirety.

      . The mother testified that she fled to Texas to get away from the father’s harassment. The mother had filed a petition for an ex parte protection-from-abuse order in Madison County before traveling to Texas; however, that protection-from-abuse proceeding was later dismissed.

      . The mother testified that she dismissed that divorce action because she intended to immediately initiate another divorce action in Texas.

      . The mother testified that she had already signed the divorce complaint, which was filed in Texas on March 31, 2010, before she was served with the father’s divorce complaint on March 22, 2010. She further testified that she had assumed that her attorney in Texas had filed the divorce complaint on the same day she signed the complaint.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Jim HARRIS v. CITY OF BIRMINGHAM.
    2100721.
    Court of Civil Appeals of Alabama.
    Nov. 4, 2011.
    Rehearing Denied Feb. 10, 2012.

      Joseph T. Simonetti, Jr., of Hayes, Jackson, Weaver & McKinney, LLC, Birmingham, for appellant.
    Fredric L. Fullerton II and Steven T. Stine, asst, city attys., City of Birmingham Legal Department, Birmingham, for appel-lee.
   MOORE, Judge.

Jim Harris appeals from a summary judgment entered by the Jefferson Circuit Court (“the trial court”) on his claims aris-mg from the demolition of his house by the City of Birmingham (“the City”).

Facts and Procedural History

On November 30, 2009, Harris filed in the trial court a complaint against the City and several fictitiously named defendants, alleging, among other things, that the City had. been negligent in connection with its demolition of a house owned by Harris (“the house”) that was located within the jurisdiction of the City. He requested that the trial court issue a judgment declaring that the City had violated his due-process rights in connection with the demolition of the house. On December 22, 2009, the City filed its answer to Harris’s complaint, as well as a counterclaim alleging abuse of process in connection with Harris’s filing of his complaint. The City filed an amended answer and an amended counterclaim on January 5, 2010. On January 29, 2010, Harris answered the City’s counterclaim, as amended.

On November 16, 2010, the City filed a motion for a summary judgment. In support of its motion, the City filed, among other things, an affidavit of Curtis Fag-gard, the chief of condemnation for the City’s Department of Planning, Engineering, and Permits. Faggard stated in his affidavit:

“I am the Chief of Condemnation for the City of Birmingham Department of Planning, Engineering, and Permits. I have been the Chief of Condemnation for 2½ years. Prior to that, I was an Inspector for 12½ years for the City of Birmingham Department of Planning, Engineering, and Permits. My responsibilities are to coordinate, determine and advise on the demolition of properties located within the City of Birmingham. I have reviewed the condemnation files and am familiar with the property
“The City has been dealing with Mr. Harris concerning the state of his property for about eleven (11) years. Mr. Harris purchased the property on February 19, 1999. On April 16, 1999, Mr. Harris applied for a condemnation repair permit. He was granted a condemnation repair permit.
“On July 3, 2001, after an inspection by the City’s inspectors, the City’s Department of Planning, Engineering and Permits forwarded Mr. Harris a certified letter to his address [in] Ensley. Linda Harris signed for the letter. The letter informed Mr. Harris that the property ... was in a dangerous state of disrepair and a public nuisance. The letter further informed Mr. Harris that the condemnation repair permit was voided on June 29, 2001 due to the fact that repairs had not been made to the property and that the condemnation process [was] being reinstated. The property was placed back on the condemnation process list.
“On September 4, 2002, the City forwarded ... a certified letter to Mr. Harris .... The letter was signed [for] by Mr. Larry Johnson. The letter informed Mr. Harris that the property ... was in a dangerous state of disrepair, unsafe and a public nuisance. The letter further ... informed Mr. Harris that the property would be demolished in thirty (30) days.
“On October 2, 2002, Mr. Harris came to the City’s condemnation office and requested another condemnation repair permit. The condemnation repair permit was issued. The City continued to monitor the ... property. However, again, over time, Mr. Harris did not make any repairs to the property.
“On June 18, 2009, the City wrote and forwarded [Harris] a certified letter .... It was signed [for] by Lenorn Gilchrist. The letter informed Mr. Harris that the property was in a dangerous condition, unsafe and constituted a public nuisance. The letter further informed Mr. Harris to get a permit by July 21, 2009[,] or his property would be subject to condemnation and demolition consideration by the Birmingham City Council. All demolitions are approved by a vote by the Birmingham City Council. Mr. Harris did not acknowledge the certified letter or come to City Hall.
“On July 21, 2009, the Birmingham City Council considered the condemnation and demolition of the ... property. The matter was agenda item # 50. The agenda item was called up for consideration and debated. Mr. Harris was not present. Seeing no objections, the City Council voted and ordered that [the] property be condemned and demolished.
“On July 21, 2009, I forwarded [Harris] a certified letter to his residence [in] Ensley. It was signed [for] by Mr. Harris. The letter informed Mr. Harris that the Birmingham City Council on July 21, 2009 had voted on the condemnation o[f] his property and ordered the Director of Planning, Engineering and Permits to take bids to demolish [the] property. The letter also informed him that all property would be removed by the contractor demolishing the property if not removed within fifteen (15) days. Mr. Harris did not acknowledge the certified letter or come to City Hall.
“On or after October 4, 2009, following the mandate by the Birmingham City Council, the City’s Public Works Department went to the ... property ... capped the sewer and then demolished the property. The property was vacant and uninhabitable. The property was demolished pursuant to the City’s condemnation process.”

On December 15, 2010, Harris responded to the City’s summary-judgment motion. He attached to his response his affidavit in which he detailed the repairs that he had made to the house and stated that all necessary repairs had been made by early 2006. Harris further stated:

“A few weeks before the house was demolished, I called Mr. Curtis Faggard on the telephone; it is my understanding that Mr. Faggard is a) an employee of the City of Birmingham; b) is ‘in charge’ of the demolition effort by the City of Birmingham, and; c) was so acting during my conversation with him. The reason for the noted conversation was that I had received an earlier call from my sister Linda Harris, who told me that she had seen a demolition notice on the property from the City of Birmingham and that I needed to call Mr. Faggard. I wish to point out that I never received the notice of July 21, 2009 which contains my name on the receipt card, but which I never signed for. A cursory examination of the receipt card for the July 21st notice shows: a) that the name ‘Jim Harris’ thereon could not reasonably be called a signature, and; b) it bears absolutely no resemblance to any of the numerous examples of my signature appearing on documents that the City of Birmingham uses in support of the Motion for Summary Judgment. It does however bear a striking resemblance to the ‘signature’ of Larry Johnson on the receipt card for the notice dated September 4, 2002; I am not Larry Johnson.
“Again, as a result of my sister phoning me I called Mr. Faggard and informed him of the completed renovations/repairs made on, and to the house. During our conversation Faggard seemed satisfied with my efforts relative to the house, and he told me to paint the exterior (so that the house would not look like it was abandoned) and it would not be demolished. Again, it was my understanding that Mr. Faggard was the City employee ‘in charge’ of the demolition effort by the City of Birmingham, and was so acting during my conversation with him. Also, it was my understanding, based upon Faggard’s statements during our conversations that he had the authority to enter into an agreement or give me assurances (on behalf of the City of Birmingham) regarding postponing or setting aside any demolition of a home. I recall asking Faggard if there was something that he could do to stop the demolition, and he said ‘yes.’ It was, at this point, that he instructed me to paint the exterior of the house. In my opinion, my reliance upon Faggard’s representations that if I had the exterior of the house painted it would not be demolished was, based upon[] the circumstances, both reasonable and justified.
“In reliance on Mr. Faggard’s representation, I had the exterior of the house painted prior to the day of demolition. I had no reasons to think or believe that my home, in light of Faggard’s representation, would be slated for demolition. Alternatively stated, I thought that I had an agreement with the City of Birmingham, via Mr. Faggard’s representations and authority, and that because I had lived up to my end of the agreement my home would not be slated for demolition.
“On the date of the demolition, I was notified, in person, by a neighbor, Ms. Veronica Fields, who informed me that earlier in the day the City of Birmingham’s demolition crew: a) had come the house; and b) kicked my front door in. I thereupon went to the house. Upon arriving, the demolition crew was not present, but I immediately noticed that (1) my aluminum storm door at the front of the house had been carefully removed from its hinges and set away from the entry door, and (2) my HVAC air conditioning compressor unit that I had placed in the living room of the house was missing. As I proceeded to the rear of the house, I found the rear door open, and my HVAC furnace laying outside in the back yard next to a large mound of dirt that had been gouged out of the ground. Upon seeing all of this, I ran back to [the address at which I reside] and attempted to call the City of Birmingham to get an explanation as to why my home was going to be demolished. However, I was unable to reach any City of Birmingham officials. Then Ms. Fields reminded me that, it being a weekend, the City offices were closed. I then went back to the ... property and waited for the demolition crew to return. When they returned, I asked the foreman to explain to me why he kicked in the door of my house and who authorized the demolition of my house. After he attempted to explain his understanding of his orders, I asked him to go inside [the] house with me to observe the interior himself and satisfy himself that it was in livable, move-in ready condition. He, also at my request, got on his walkie-talkie and called his supervisor and explained what he had observed. I had previously told the foreman that I had an agreement with Mr. Faggard regarding holding off on demolition, and that there was apparently a misunderstanding/miscommunication regarding demolition. The crew foreman relayed what I had told him, and what he saw relative to the good condition of the interior of the home, to his supervisor. I overheard the superior tell the foremen that if I could not produce the proper permit, to proceed with the demolition, irrespective of: a) the good condition of the house, and; b) any agreement that I did or did not have, with Faggard. Based upon the circumstances the crew foreman, and his supervisor, were Birmingham employees, acting as such, on the date of the demolition.
“At this point I pleaded with the foreman to try to get his superiors to wait until the next business day when I could talk to Mr. Faggard, or some other appropriate official, and straighten out the question of demolition. However, upon receiving his instructions from his superior, he proceeded to demolish the house — the house I had put so much money, time and effort into — with me standing there, helplessly watching. I was so aghast and in shock that this was actually happening, that I did not think to even go into the house to retrieve the records and receipts nor anything else. In my opinion, in no way was the house in a condition that justified condemnation or demolition. In my opinion, the demolition of my house was a breach of the agreement that I had with the City of Birmingham via Mr. Faggard, regarding demolition of my house.
“I never received the notice that was apparently signed for by Lenorn [Gilchrist]. Mr. [Gilchrist] is mentally ill and did not give me any document that he signed for. The photo sets included by the City of Birmingham in support of its Motion for Summary Judgment contain no substantial interior, or exterior views of the house: a) after I purchased it, or; b) after I had begun and/or completed work on it.”

Harris also included a supporting affidavit from Veronica Fields in which she stated that the house was not a nuisance. On December 17, 2010, the City filed a reply to Harris’s response. Harris then filed a supplemental response and attached an affidavit executed by Harris’s sister, Linda Harris, in which she stated:

“Some weeks before the actual demolition, I saw a notice posted on the house. Though I do not recall the exact words and did not save it, my best recollection is that it did reference the City Council and said the house was condemned. I informed my brother about the notice. I had been in the habit of looking in on the property three of four times a week for a number of years, since my brother lived out of town and came to work on the house on the weekends. I had never before seen such a notice on the house and did not see a subsequent one prior to the demolition.”

The trial court entered a summary judgment in favor of the City and certified that judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. The trial court subsequently dismissed the City’s counterclaim. On February 17, 2011, Harris filed a motion to alter, amend, or vacate the trial court’s judgment; that motion was denied on March 7, 2011. On April 14, 2011, Harris appealed to the Alabama Supreme Court; that court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“‘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 nonmoving 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).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

Discussion

Harris raises several issues on appeal. We first address his arguments relating to the propriety of the demolition order.

Section 11-40-30, Ala.Code 1975, authorizes municipalities to demolish a building when the local governing body finds the building to be an unsafe public nuisance. Before demolishing a building, a municipality must comply with the notice provision in § 11-40-31, Ala.Code 1975, which provides, in pertinent part:

“Whenever the appropriate municipal official of the municipality finds that any building, structure, part of building or structure, party wall, or foundation situated in the municipality is unsafe to the extent that it is a public nuisance, the official shall give the person or persons, firm, association, or corporation last assessing the property for state taxes and all mortgagees of record, by certified or registered mail to the address on file in the tax collector’s or revenue commissioner’s office, notice to remedy the unsafe or dangerous condition of the building or structure, or to demolish the same, within a reasonable time set out in the notice, which time shall not be less than 30 days or suffer the building or structure to be demolished by the municipality and the cost thereof assessed against the property. The mailing of the certified or registered mail notice, properly addressed and postage prepaid, shall constitute notice as required herein. Notice of the order, or a copy thereof, shall, within three days of the date of mailing, also be posted at or within three feet of an entrance to the building or structure. If there is no entrance, the notice may be posted at any location on the building or structure.”

Following proper notice, any party having an interest in the building to be demolished may petition the local governing body for a hearing, stating any objections that party may have to the finding that the building is an unsafe public nuisance. § ll-40-32(a), Ala.Code 1975. If the local governing body maintains its position that the building is an unsafe public nuisance and should be demolished, the aggrieved party may file an appeal in the appropriate circuit court within 10 days of that determination. § ll-40-32(b), Ala.Code 1975.

The record shows that the city council of the City determined at a meeting conducted on July 21, 2009, that the house was an unsafe public nuisance and that it should be demolished. According to Faggard’s affidavit, his office sent Harris a certified letter on June 18, 2009, to inform him of the July 21, 2009, city council meeting, so that he would have an opportunity to be heard on the issue. When Harris did not attend the meeting, the city council determined that no one objected to the house being declared an unsafe public nuisance and it issued a demolition order.

Harris argues generally that the city council erred in determining that the house was an unsafe public nuisance. However, § 11-40-32 provides the procedure to challenge a finding that a building constitutes a public nuisance; as outlined above, that procedure includes the right to appeal the determination of the governing body of the municipality to the circuit court. In Brown v. City of Mobile, 578 So.2d 1251 (Ala.1991), our supreme court held that a “challenge [to] the city council’s finding that the house should be demolished” could not be brought in a collateral action but, instead, was “reserved for ... the appeal process” provided by statute, which, in this case, is § 11-40-32. 578 So.2d at 1253. Similarly, in the present case, Harris’s arguments challenging the City’s finding that the house was an unsafe public nuisance should have been made in an appeal to the circuit court from the City’s decision and cannot be considered on this appeal.

Harris next argues that the notice provisions set out in § 11-40-31 are unconstitutional because they do not assure that the owner of a building scheduled for demolition will receive timely personal service of the demolition order. We construe that argument as a facial attack on the constitutionality of the statute. See State v. Adams, [Ms. CR-08-1728, Nov. 5, 2010] — So.3d -, - (Ala.Crim.App.2010) (“To prevail on a facial challenge to the constitutionality of a statute, it must be established ‘that no set of circumstances exists under which the [statute] would be valid.’ ” (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987))). A court has jurisdiction to consider a facial constitutional challenge to a statute only if the challenging party has served notice of the challenge on the state’s attorney general, pursuant to § 6-6-227, Ala.Code 1975.

“Ala[bama] Code 1975, § 6-6-227, requires that, in any proceeding in which a ‘statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.’ ... When a party seeks a declaration of rights regarding the validity of a statute, ‘service on the Attorney General, pursuant to § 6-6-227, is mandatory and jurisdictional.’ Barger v. Barger, 410 So.2d 17, 19 (Ala.1982). Although § 6-6-227 is found within the Declaratory Judgment Act, when the constitutionality of a statute is challenged, service on the attorney general is required regardless of whether the action was in the nature of a declaratory judgment action. Wallace v. State, 507 So.2d 466 (Ala.1987).
“If the party challenging the constitutionality of a statute fails to serve the attorney general, as required by Ala. Code 1975, § 6-6-227, the trial court has no jurisdiction to decide the constitutional claims. Guy v. Southwest Alabama Council on Alcoholism, 475 So.2d 1190 (Ala.Civ.App.1985). Furthermore, our Supreme Court has held ‘that failure to serve the attorney general “goes to the jurisdiction of the court,” that the “absence of jurisdiction is apparent on the face of the record,” and that we must take notice of our own want of jurisdiction’ and dismiss the appeal. Smith v. Lancaster, 267 Ala. 366, 367, 102 So.2d 1, 2 (Ala.1958) (citations omitted).”

Tucker v. Personnel Bd. of Dothan, 644 So.2d 8, 9 (Ala.Civ.App.1994). Accordingly, we dismiss the appeal to the extent that Harris challenges the constitutionality of § 11-40-31.

Harris further argues that a genuine issue of material fact exists as to whether the City complied with the notice requirements in § 11-40-31. Faggard’s affidavit establishes that he personally sent a certified letter to Harris notifying him of the demolition order. Harris asserts, however, that the City did not establish in its summary-judgment motion that it had posted the required notice on the house itself as required by the last two sentences in § 11-40-31. We note that the City generally asserted in its summary-judgment motion that it had met all the legal requirements for demolition of the house, and the record contains a photograph of the notice affixed to the house. Moreover, Harris addressed the issue whether the City properly posted the notice in his response to the summary-judgment motion. Thus, it was incumbent upon Harris to introduce substantial evidence indicating that the City had not complied with the posting of the notice requirement. Pritchett, supra. Harris contends that the affidavit testimony of Linda Harris presents a genuine issue of material fact as to whether the City properly posted the notice. However, the record shows that the demolition occurred “on or after” October 4, 2009. Linda Harris attested only that she saw the notice posted on the house “some weeks” before the demolition; she did not testify that the notice was not posted on the house within three days of the mailing of the July 18, 2009, letter, as required by § 11-40-31. We therefore conclude that, because of the imprecise nature of Linda Harris’s assertions, it cannot be considered substantial evidence indicating that the City did not post the required notice at the required time.

Harris also argues that, even if the City fully complied with § 11-40-30 et seq., the City nevertheless negligently proceeded with the demolition because, he says, Fag-gard had agreed to forgo demolition if Harris painted the house, which Harris did. The City counters that a property owner can avoid demolition of an unsafe public nuisance only by obtaining a repair permit and promptly remedying the defects rendering the building an unsafe public nuisance, see § 11-40-31, or by appealing the demolition order through the process provided in § ll-40-S2(b). According to the City, a municipal employee cannot enter into an informal agreement that, if a property owner remedies certain defects in a building, the municipality will not execute a valid, existing demolition order. Based on the general rule that a governing body cannot be estopped by the invalid or unauthorized acts or statements of its employees, see Ex parte Ballew, 771 So.2d 1040 (Ala.2000), and Perkins v. Shelby County, 985 So.2d 952 (Ala.Civ.App.2007), the City argues that it could not have been negligent in failing to carry out Faggard’s agreement.

In his brief to this court, Harris does not dispute the basic principle that a municipality generally cannot be estopped by the invalid or unauthorized acts or statements of its employees. Harris further does not dispute that his agreement with Faggard does not comply with §§ 11-40-31 or 11-40-32. Instead, Harris maintains that the estoppel doctrine does not apply to his case. Harris maintains that he is not attempting to avoid the demolition order based on the defense of equitable estoppel but, rather, is claiming that Faggard acted negligently in making the unauthorized agreement and in failing to assure its performance, resulting in the house being demolished. However the claim is couched, it remains that Harris cannot recover on his claim unless the City acted unreasonably in demolishing the house despite the unauthorized agreement. Harris has not cited any specific legal authority to support his position that a municipality would be negligent in following a demolition order under these circumstances. See Rule 28, Ala. R.App. P. “Authority supporting only ‘general propositions of law1 does not constitute a sufficient argument for reversal.” Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 708 (Ala.2004) (quoting Geisenhoff v. Geisenhoff, 693 So.2d 489, 491 (Ala.Civ.App.1997)).

Harris next argues that there is a genuine issue of material fact as to whether the unnamed supervisor, who was contacted on the day of the demolition, was negligent in not halting the demolition once the demolition-crew foreman inspected the house and found it to be in a habitable condition. Harris also argues that the City was negligent by requesting that the city council condemn the property. We note, however, that both of those arguments are tantamount to challenging the city council’s conclusion that the property was an unsafe public nuisance that should be demolished. As set out above, those claims cannot be raised in this collateral proceeding.

Conclusion

Based on the foregoing, we dismiss the appeal to the extent that Harris challenges the constitutionality of § 11 — 40—31. We affirm the judgment in all other respects.

APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED.

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

      . On January 14, 2011, the trial court entered an order entitled "Order Granting Defendant City of Birmingham's Motion for Summary Judgment.” (Emphasis added.) At the conclusion of the order, however, the trial court stated: "For the preceding reasons, it is hereby ORDERED, ADJUDGED and DECREED, that summary judgment is hereby DENIED.” (Capitalization in original.) The trial court certified the judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. On January 18, 2011, the trial court amended the January 14, 2011, order by stating: "For the preceding reasons, it is hereby ORDERED, ADJUDGED and DECREED, that summary judgment is hereby GRANTED/' (Capitalization in original.) On January 19, 2011, the trial court entered an order dismissing the City’s counterclaim.

      . Harris does not argue that he did not receive the letter or that his due-process rights were violated because Lenorn Gilchrist signed for the certified mail.

      . Harris disputes that he received that certified letter, maintaining that the signature on the receipt card was forged. However, §11-40-31 provides that ‘‘[t]he mailing of the certified or registered mail notice, properly addressed and postage prepaid, shall constitute notice as required herein.” Moreover, Harris does not argue in his brief to this court that the City did not provide him due process on the basis that he never actually received the certified letter. "When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).” Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).

      . For the purposes of the summary-judgment motion, we must assume that Faggard made the agreement with Harris and that Harris performed all of his obligations pursuant to that agreement because Harris presented substantial evidence supporting those facts. See Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).


text:
    B.B.T. v. HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100795.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2011.
    Rehearing Denied Feb. 17, 2012.

      Shannon A. Rash, Dothan, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, asst. atty. gen., Department of Human Resources, for ap-pellee.
   MOORE, Judge.

B.B.T. (“the father”) appeals from a judgment of the Houston Juvenile Court (“the juvenile court”) terminating his parental rights to K.T. (“the child”). We affirm the judgment.

Facts and Procedural History

The father has previously been before this court. See B.B.T. v. Houston Cnty. Dep’t of Human Res., 985 So.2d 479 (Ala.Civ.App.2007). In B.B.T., this court set forth the background of this case up to that point as follows:

“A.H. (‘the [child’s birth] mother’) gave birth to the child on February 20, 2002. The father, who was living with, but not married to, the [child’s birth] mother at the time, signed the birth certificate as the father. The couple subsequently ended their relationship; the [child’s birth] mother retained physical custody of the child. On June 3, 2003, the Houston County Department of Human Resources (‘DHR’) obtained custody of the child, along with three of the child’s half siblings. On October 21, 2005, DHR filed a petition to terminate the [child’s birth] mother’s parental rights to the child and to terminate the parental rights of, as DHR put it, the ‘unknown father’ of the child. On April 25, 2006, DHR obtained DNA test re-suits indicating that B.B.T. was the biological father of the child. The father filed a petition to obtain custody of the child on August 3, 2006. After four ore tenus hearings occurring on November 21, 2006, December 18, 2006, February 1, 2007, and March 13, 2007, the juvenile court entered a judgment terminating the [child’s birth] mother’s and the father’s parental rights to the child. The father appealed], asserting that the evidence presented to the juvenile court was insufficient to support the termination of his parental rights.”

985 So.2d at 480 (footnote omitted). On appeal, this court held that the record did not contain clear and convincing evidence of the sole ground relied upon by the juvenile court in terminating the father’s parental rights. 985 So.2d at 483. Therefore, on November 30, 2007, this court reversed the judgment of the juvenile court terminating the father’s parental rights. Id.

After a period during which the father and the Houston County Department of Human Resources (“DHR”) made efforts toward family reunification, the father regained custody of the child on September 3, 2008; however, DHR later regained custody of the child on August 6, 2009, apparently through a dependency proceeding. The child was then placed in foster care, where she has resided with the same married couple and their children ever since. S.G., the father’s employer, filed a petition to obtain custody of the child in September 2010. DHR filed a petition to terminate the father’s parental rights to the child on October 14, 2010. After a trial, the juvenile court entered a judgment on May 4, 2011, terminating the father’s parental rights. The father filed his notice of appeal on May 17, 2011.

Issues

On appeal, the father argues that the judgment terminating his parental rights should be reversed because (1) DHR did not present clear and convincing evidence of grounds for the termination, (2) DHR did not use reasonable efforts to reunite the father with the child, and (3) DHR did not explore all viable alternatives to termination.

Analysis

Section 12-15-319(a), Ala.Code 1975, provides, in pertinent part:

“If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

Pursuant to that statute, a juvenile court has grounds to terminate parental rights if clear and convincing evidence shows that a parent is unable or unwilling to meet the basic parental responsibilities to provide the child food, clothing, shelter, health care, education, nurturing, and protection.

Section 12-15-319 lists a variety of factors a juvenile court must consider in determining whether a parent is unable or unwilling to discharge his or her parental responsibilities. The father points out that many of those statutory factors indicate that his parental rights should not have been terminated. The father is correct because the record contains no evidence indicating that the father abandoned the child, see § 12-15-319(a)(l); that the father has a mental illness or mental deficiency, or alcohol or drug problems, see § 12-15-319(a)(2); that the father has ever maltreated the child, see § 12-15-319(a)(3); that the father has been convicted of a felony, see § 12-15-319(a)(4); that the father has committed any crime against children, see § 12-15-319(a)(5); that the child has ever received any unexplained injuries while in the father’s care, see § 12-15-319(a)(6); that the father’s parental rights to other children have been extinguished, see § 12-15-319(a)(8); that the father has ever failed to provide for the material needs of the child, see § 12-15-319(a)(9); or that the father has failed to maintain regular visits or consistent communication with the child, see § 12-15-319(a)(10) & (11).

Nevertheless, DHR presented evidence indicating that, after the father had regained custody of the child on September 3, 2008, he depended primarily on C.M., who was his wife at the time, to care for the child. The father worked a split-shift schedule that required him to work 6 days a week from 10:00 a.m. to 1:00 p.m. and from 4:00 p.m. to 9:00 or 10:00 p.m. C.M. left the father in March 2009, and, according to the testimony of Judy Clark, a DHR foster-care worker, on August 6, 2009, DHR regained custody of the child after discovering that the father had returned the child to the child’s birth mother, whose parental rights had been terminated because of her danger to the child. DHR immediately placed the child in a foster-care home, where she was still residing at the time of the trial. The father has since become involved with T.P., a woman who has served prison time as a result of the death of one of her children and who has not been allowed to exercise custody over any of her other children. DHR advised the father that, in order to regain custody of the child, he would have to end his relationship with T.P. Although the father testified at trial that he would end that relationship, the father admitted that T.P. had lived with him for a long period after DHR had advised him to end the relationship.

Based on that evidence, the juvenile court reasonably could have been clearly convinced that the child would be in danger of maltreatment if returned to the custody of the father. See § 12-15-319(a)(3). The juvenile court also reasonably could have been clearly convinced that the father had failed to make any real effort to adjust his circumstances to meet the needs of the child in accordance with DHR’s reunification plan. See § 12-15-319(a)(12). More to the point, the totality of the evidence could have clearly convinced the juvenile court that the father, who denied that T.P. had done anything wrong to warrant imprisonment, would not and could not assure that the child would be protected at all times. The evidence thus supports the juvenile court’s finding that the father was unable or unwilling to discharge his responsibility to protect the child — one of the most basic parental responsibilities owed to the child.

The father maintains that DHR did not provide him any services to assist him in reuniting with the child. In considering whether grounds exist to terminate parental rights, a juvenile court shall consider “[tjhat reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.” § 12 — 15—319(a)(7). The record indicates that DHR did, in fact, provide family-reunification services to the father in 2007 and 2008, during the period following the reversal of the judgment initially terminating his parental rights. Those efforts succeeded at first, allowing for the child to return to the home of the father; however, the juvenile court reasonably could have been clearly convinced from the evidence that, after C.M. left the family home, the father could not independently care for the child and that he attempted to return the child to the child’s birth mother. Thereafter, the presence of T.P. presented the primary barrier to family reunification, but the father refused to end his relationship with T.P. As Clark testified, DHR could not offer the father any service that would have led to his reunification with the child so long as he maintained that hazardous relationship. “Although ..., generally, DHR is to provide services that are aimed at reuniting the family, DHR is not required to offer services that appear unadvisable under the circumstances of the individual case or that would not lead to the reunification of the family.” K.C. v. Jefferson Cnty. Dep’t of Human Res., 54 So.3d 407, 414 (Ala.Civ.App.2010).

The father last argues that the juvenile court did not consider placing the child in the custody of S.G., his employer. See Ex parte Beasley, 564 So.2d 950 (Ala.1990) (requiring juvenile court to consider all viable alternatives before terminating parental rights). Ordinarily, when family reunification is not reasonably foreseeable, a parent cannot avoid a judgment terminating his or her parental rights on the sole basis that some fit person exists who has volunteered to assume custody of the child. A.E.T. v. Limestone Cnty. Dep’t of Human Res., 49 So.3d 1212 (Ala.Civ.App.2010). However,

“if, notwithstanding the unfitness of a parent, there remains a significant emotional bond between a child and an unfit parent, and it has been demonstrated that some alternative-placement resource would allow the child to visit periodically with the unfit parent so as to reap the benefit of partially preserving that relationship without incurring the harm of the child being raised on a day-to-day basis by an unfit parent, the court would be required to weigh the advantage of that arrangement against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of these alternatives would be in the child’s best interest.”

D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala.Civ.App.2003) (plurality opinion). Citing D.M.P., this court stated in T.D.K. v. L.A.W., 78 So.3d 1006, 1011 (Ala.Civ.App.2011):

“Our caselaw has recognized that removing the child from [an] abusive parent’s custody but allowing that parent restricted visitation rights can be a viable alternative to termination of parental rights when it appears that a wayward parent cannot be rehabilitated but still shares a deep and beneficial emotional relationship with his or her children.... In such cases, permanently depriving children of association with a parent by terminating parental rights could do more harm than good to the children.”

In this case, Clark testified that the child has a strong emotional attachment to the father. To avoid having the child testify at trial, the parties stipulated that the child, who did not know the nature of the termination proceedings, would testify that she loves the father. The evidence further shows that the father has consistently visited with the child every two weeks for one hour and that the child enjoys those visits.

S.G. testified that she had long known the father and that she considered him to be a reliable employee and a good person. When she became aware that the father may permanently lose association with the child, she and her husband petitioned for custody of the child and began taking classes in order to qualify as foster parents for the child. She had completed most of those classes by the time of trial. S.G. testified that she had housed minor relatives and foreign exchange students in her home, but, she said, she had never planned on adopting a child. S.G. testified that she believed she could still provide a loving, spacious home for the child, with significant financial and cultural advantages. At the same time, S.G. testified that she would assure that the child maintained her association with the father, subject to any protective guidelines established by the juvenile court.

Against that evidence, the juvenile court heard testimony that S.G. had met the child only a few times and had spent a total of only five or six hours with the child by the time of trial. In B.S. v. Cullman County Department of Human Resources, 865 So.2d 1188, 1196 (Ala.Civ.App.2003), this court cited the fact that a potential custodial resource had little to no relationship with the child in deciding that a juvenile court had not erred in finding that placement of the child with that potential custodian would not serve the best interests of the child. It is a question of fact whether a potential custodian is qualified to receive and care for a child. J.B. v. Cleburne Cnty. Dep’t of Human Res., 991 So.2d 273 (Ala.Civ.App.2008). Based on the evidence, the juvenile court reasonably could have determined that S.G. was not an appropriate person to assume custody of the child. Additionally, DHR presented evidence indicating that the child has a strong emotional attachment to her foster parents and that DHR would pursue adoption with the foster family in the event of a termination of the father’s parental rights. The juvenile court reasonably could have determined that the benefits of such a permanent custodial arrangement outweighed the advantages of placing the child with S.G.

For the foregoing reasons, the judgment of the juvenile court is affirmed.

AFFIRMED.

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

      . In a separate appeal, this court affirmed the juvenile court’s judgment terminating the child's birth mother's parental rights. See A.D.B.H. v. Houston Cnty. Dep’t of Human Res., 1 So.3d 53 (Ala.Civ.App.2008).

      . The father denied that he took the child to live with the child’s birth mother, but it appears from the parties’ briefs to this court that DHR relied solely on that ground in obtaining a dependency judgment. That judgment has not been appealed, so we consider that factual issue to have been resolved adversely to the father.

      . The record indicates that S.G. attempted to visit with the child but that DHR would not allow any visitation because its representatives maintained that S.G. would have no chance to obtain custody of the child. The father does not argue in his brief to this court that DHR acted inappropriately in denying S.G. contact with the child or that DHR was required to foster a relationship between S.G. and the child as part of its general duty to explore all viable alternatives to termination of parental rights.


text:
    ATI ALLDYNE v. Jean WISEHEART, dependent widow of Gary Wiseheart, deceased.
    2100267.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2012.

      David B. Block and Christopher S. Kuff-ner of Maynard, Cooper & Gale, P.C., Huntsville; and Drayton Nabers, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
    J. Barton Warren of Warren & Simpson, P.C., Huntsville, for appellee.
   MOORE, Judge.

ATI Alldyne (“ATI”) appeals from a judgment of the Madison Circuit Court (“the trial court”), in an action stemming from the death of its employee, Gary Wi-seheart, in which it awarded workers’ compensation death benefits and the cost of funeral expenses to Wiseheart’s wife, Jean Wiseheart (“the widow”). We affirm the trial court’s judgment.

Facts

Wiseheart, a maintenance mechanic, was working at ATI’s metal-extraction plant (“the plant”) in Huntsville on December 7, 2008. He was not ill the day before and showed no signs of illness that day. As part of his assigned duties that day, Wi-seheart was required to work in relatively close proximity to a chemical reactor, referred to as T-3 reactor, for an extended period. At approximately 2:00 p.m., Chris Mills and James Langford, chemical operators and co-employees of Wiseheart, began the mixing process in the T-3 reactor in which they added scheelite ore to hydrochloric acid. Within a half an hour, Mills noticed the smell of rotten eggs resulting from the presence of hydrogen sulfide in the atmosphere, signifying to him that something was wrong. After unsuccessful attempts by Mills to locate a leak in the T-3 reactor system, the odor of rotten eggs became strongest around 4:00 p.m. near the “P trap,” a device located at the bottom of the T-3 reactor. Around that time, Langford discovered Wiseheart lying face-up on the floor 15 to 30 feet from the P trap; Wiseheart was unconscious and unresponsive, whereas approximately seven minutes earlier Wiseheart had been observed working on a platform without any problem.

After telephoning a supervisor to report the situation and receiving instructions from a supervisor to don respiratory masks, Mills and Langford attended to Wiseheart until paramedics arrived. Upon arrival of a hazardous-materials team, exhaust fans in the plant were activated and bay doors were opened in order to clear the air. Wiseheart was taken to the Huntsville Hospital emergency room where he was treated for chemical poisoning. Wiseheart died on December 8, 2008, without ever regaining consciousness. A later autopsy performed by Dr. Valerie Green, a medical examiner working for the Alabama Department of Forensic Sciences, attributed Wiseheart’s death to “complications of hydrogen sulfide toxicity.”

At trial in August 2010, the widow maintained that Wiseheart died of hydrogen-sulfide poisoning. In support of her case, the widow proved that the particular bag of scheelite ore used in the mixing process on December 7, 2008, contained 50 times as much sulfur as the scheelite ore ATI generally used, which, according to Michael Shinn, the operations manager at the plant, could have resulted in an increased emission of hydrogen sulfide. The widow also showed that the exhaust system of the T-3 reactor could become overwhelmed and emit hydrogen sulfide into the plant during the mixing process, especially if the P trap runs low or out of water, which Mills testified happened at least three times on December 7, 2008, before Wiseh-eart was found unconscious. The widow also introduced evidence indicating that, when they went to Huntsville Hospital, Mills complained to emergency-room personnel of a headache and Langford complained of a burning sensation in his throat as well as a headache, both of which could have been due to adverse reactions to exposure to hydrogen sulfide.

Over the objection of ATI, the trial court admitted thiosulfate test results from a Pennsylvania laboratory purporting to show that Wiseheart had a significantly elevated level of thiosulfate in his urine on December 7, 2008. The trial court overruled ATI’s objection that the test results should be excluded on the ground that the widow had not established a chain of custody between Huntsville Hospital, where the urine sample was collected, and the Pennsylvania laboratory, where the urine same was purportedly tested. See Swanstrom v. Teledyne Continental Motors, Inc., 43 So.3d 564 (Ala.2009) (requiring proof of chain of custody of human-sample testing in civil cases). The trial court also admitted the deposition of Dr. Green over ATI’s objection that Dr. Green had relied on the same thiosulfate test results for which no chain of custody had been established. In her deposition, Dr. Green testified that the thiosulfate test results constituted the only “medical proof’ she had that Wiseheart had been exposed to hydrogen sulfide and that without those results she “would reconsider a different way of assigning the cause of death.” However, she repeatedly clarified that she did not base her opinion as to the cause of Wiseheart’s death exclusively on the thios-ulfate test results and that those results were not even the most important factor she considered. In reaching her conclusion as to Wiseheart’s cause of death, Dr. Green noted the circumstances surrounding Wiseheart’s working environment and his collapse on December 7, 2008, as well as multiple physical findings in the Huntsville Hospital records and in the autopsy report consistent with death by chemical poisoning. Dr. Green testified that the thiosulfate test results “basically supported everything else.”

In defense, ATI called Dr. David J. Hewitt, an occupational-medicine physician, as an expert witness. Dr. Hewitt stated that, in some cases, exposure to hydrogen sulfide can cause death and result in the physical findings that were exhibited by Wiseheart; however, he did not believe that Wiseheart had died from hydrogen-sulfide exposure. Dr. Hewitt explained that Wiseheart’s physical findings were consistent with any number of causes of death other than chemical exposure, which Dr. Green also acknowledged in her deposition. To conclude that those findings resulted from hydrogen-sulfide exposure, Dr. Hewitt explained, an expert would have to ascertain that Wiseheart had inhaled a lethal dose of hydrogen sulfide. Dr. Hewitt testified that a human can receive a fatal dose of hydrogen sulfide in basically two ways, either by an acute “knock-out” exposure of extremely high levels of hydrogen sulfide, which immediately incapacitates a human, or by prolonged exposure to elevated levels of hydrogen sulfide in the atmosphere, which results in a deteriorating physical condition before rendering a person unconscious. Dr. Hewitt testified that he had inspected the plant and had found no possible source near where Wiseheart’s body was found that could have emitted a sudden burst of a knock-out dose of hydrogen sulfide, so he had eliminated that possibility. Dr. Hewitt also ruled out prolonged exposure to high levels of hydrogen sulfide because humans cannot smell hydrogen sulfide at significantly elevated levels and both Mills and Langford, who had been working near where Wiseheart had been working, testified that they had consistently smelled the odor of rotten eggs throughout the day. Dr. Hewitt also stated that he did not believe that hydrogen sulfide could have accumulated in sufficient quantities at Wiseheart’s location to cause death because hydrogen sulfide quickly diffuses in the air and Wiseheart was not in a confined space. Dr. Hewitt also noted that Mills and Langford did not exhibit any physical symptoms of exposure to higher levels of hydrogen sulfide despite their proximity to Wiseheart and the T-3 reactor. Dr. Hewitt attributed Wiseh-eart’s death to sudden cardiac arrest, to which Wiseheart was susceptible due to multiple preexisting conditions. Upon questioning by the trial court, Dr. Hewitt conceded that it was possible that Wiseh-eart may have been exposed to a sufficient quantity of hydrogen sulfide to cause minor adverse health effects that increased his stress level and precipitated a cardiac arrest.

The trial court entered its judgment on November 8, 2010. Among its findings of fact, the trial court stated:

“The testimony of Dr. Green supports a finding by the court that substantial, competent evidence exists to find that Gary Wiseheart sustained an accidental exposure to [hydrogen-sulfide] gas which caused or contributed to his death. The defendant attacks Dr. Green’s findings specifically relating to her acceptance of the thiosulfate urine analysis from the hospital as an indicator of the toxic exposure. The defendant ] also objected to the admission of the report ... which the hospital received as an ‘outsourced’ analysis because the local hospital does not perform such tests. The exhibit was admitted with the court duly noting the limited weight of the exhibit because of the ‘weak’ chain-of-custody issues. However, both the ‘head’ of the lab at the local hospital and the defendant’s expert, Dr. Hewitt[,] acknowledged familiarity with the outsourced lab and its chain-of-custody procedures. Dr. Hewitt testified he has relied on tests from this same lab “when (he) had to.’ Without considering the ... report, the court considers the findings of the autopsy are sufficiently and substantially supported from independent sources, microscopic analyses, physiological and medical indications, opinions and records other than the thiosulfate analysis. Based upon all of the foregoing and totality of the testimony, both lay and expert evidence, the court hereby FINDS that Gary Wiseh-eart suffered an accidental exposure to [hydrogen-sulfide] gas which CAUSED OR CONTRIBUTED TO HIS DEATH....”

(Capitalization in original; emphasis added.) ATI timely appealed from the judgment on December 20, 2010. This court heard oral argument on November 8, 2011.

Issues

On appeal, ATI raises three issues: (1) that the trial court erred in admitting into evidence the results of the thiosulfate test due to a lack of evidence as to the chain of custody of the urine sample taken from Wiseheart; (2) that the trial court erred in admitting into evidence the opinion testimony of Dr. Green, which was based, in part, on the results of the thiosulfate test; and (3) that the trial court erred in finding that Wiseheart’s death was caused or contributed to by a lethal exposure to hydrogen-sulfide gas.

Analysis

In workers’ compensation cases, if there is substantial legal evidence to support the trial court’s findings, this court will not consider arguments regarding the trial court’s rulings on objections to the admission of evidence unless the record suggests the probability that the trial court’s findings have been influenced by that evidence. See O’Dazier v. U.S. Steel, Fairfield Works, 644 So.2d 966, 968 (Ala. Civ.App.1994). In this case, the trial court expressly indicated in its judgment that it found sufficient evidence to conclude that Wiseheart died from hydrogen-sulfide toxicity without considering the thiosulfate test results. See King Power Equip., Inc. v. Robinson, 777 So.2d 723, 729 (Ala.Civ.App.2000) (declining to address questions on admissibility of evidence when trial court indicated in its judgment that it did not base its findings on that evidence). Therefore, this court reviews the record solely to determine if the evidence, other than the thiosulfate test results and any opinions based thereon, constitutes substantial evidence to support the findings of the trial court. See § 25-5-81(e)(2), Ala. Code 1975. Our supreme court has defined the term ‘“substantial evidence! ]’ ... to mean ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved,’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

In this case, it is undisputed that hydrogen sulfide leaked from the T-3 reactor and that Wiseheart was exposed to the chemical due to his proximity to that reactor throughout his workday. The amount of hydrogen sulfide to which Wiseheart was exposed cannot be specifically determined due to the absence of operating sensors that day. However, some circumstances — namely, the high sulfur content of the scheelite ore, the inability of the P trap to maintain consistent water levels, and the unusual and strong odor of rotten eggs — indicate that the amount of hydrogen sulfide was overwhelming the T-3 reactor system. Mills and Langford continued to smell hydrogen sulfide, suggesting the level of hydrogen sulfide was insufficient to cause death; however, they were not in the same precise location as Wiseh-eart, and Dr. Hewitt conceded that, because hydrogen sulfide quickly diffuses in the atmosphere, they could have smelled the hydrogen sulfide while Wiseheart may not have detected its odor. Dr. Hewitt also testified that it was possible that Wi-seheart, due to his location, may not have received a knock-out dose of hydrogen sulfide but that he could have been exposed to levels sufficient to cause distressful physical symptoms that precipitated a cardiac arrest.

Dr. Green and Dr. Hewitt both testified that Wiseheart exhibited physical findings consistent with death due to exposure to hydrogen sulfide. The experts both testified that those same findings could also result from death by other, natural means; however, under the circumstances, the trial court reasonably could have determined that the physical findings resulted from chemical overexposure, especially in light of the evidence indicating that, from the time Wiseheart was discovered unconscious, the employer and the medical personnel at Huntsville Hospital all treated the case as involving an accidental chemical exposure.

The trial court also heard evidence indicating that Wiseheart was not ill or exhibiting any signs of discomfort in the day and hour leading up to his exposure to hydrogen sulfide and that he was fully functioning only minutes before he was found unconscious near the P trap. Wi-seheart had multiple health conditions that independently could have caused cardiac arrest, but, considering the totality of the circumstances, the trial court reasonably could have rejected the premise that Wi-seheart coincidentally died from natural causes at the same time the plant was experiencing an unanticipated leak of hydrogen sulfide from a batch of scheelite ore with an unusually high sulfur content. In similar circumstances, our supreme court has held that a trial court reasonably could infer that an injury resulted from chemical exposure. See New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360 (1926) (a causal connection between the accident and the disability may be inferred when an employee, apparently in good health and able to work regularly, can no longer work due to heart weakness following exposure to carbon monoxide that rendered him unconscious).

Undoubtedly, the employer presented substantial evidence indicating that Wiseh-eart did not die from hydrogen-sulfide poisoning, and this court, if acting as a fact-finder, might have reached a different result than the trial court. However,

“ ‘[o]ur review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).’
“Landers v. Lowe’s Home Ctrs., Inc., [14] So.3d [144, 151] (Ala.Civ.App.2007). ‘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). We cannot substitute our opinion of the facts for that of the trial court. See Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1047 (Ala.Civ.App.2008) (“We may not reverse a judgment simply because we would have decided the facts differently than the trial court.”).

Because there is substantial evidence to support the findings of the trial court, we decline to address the merits of ATI’s argument as to the inadmissibility of the thiosulfate test results and any opinion expressed by Dr. Green based on those test results. The trial court’s judgment is affirmed.

AFFIRMED.

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


author: PITTMAN, Judge.

text:
    Ex parte BILLY BARNES ENTERPRISES (In re Aimee Heathcoe v. Billy Barnes Enterprises).
    2101158.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2012.

      Jarrod J. White of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Mobile, for petitioner.
    Stewart L. Howard and Keith B. Franklin of Stewart L. Howard, P.C., Mobile, for respondent.
   PITTMAN, Judge.

Billy Barnes Enterprises (“Barnes”) petitions this court to issue a writ of mandamus directing the Washington Circuit Court to vacate its order denying Barnes’s motion to transfer the workers’ compensation action filed by Aimee Heathcoe to the Monroe Circuit Court and to grant Barnes’s motion to transfer. We deny the petition.

Facts and Procedural History

On January 30, 2006, Heathcoe was injured in Mississippi while working as a truck driver for Barnes. Barnes acknowledged that Heathcoe’s injury was compen-sable; it paid for the medical treatment necessitated by her injuries, and it paid temporary-total-disability benefits to her until May 2007, when Heathcoe’s treating physician determined that she had reached maximum medical improvement (“MMI”). Beginning in December 2008, however, Barnes again paid Heathcoe temporary-total-disability benefits after she underwent knee surgery. Heathcoe’s treating physician determined that she had reached MMI for a second time in February 2009. Barnes apparently paid Heathcoe temporary-total-disability benefits through May 2009.

In January 2007, Heathcoe sued Barnes in the Washington Circuit Court, seeking benefits for a claimed permanent total disability under the Workers’ Compensation Act, AIa.Code 1975, § 25-5-1 et seq. (“the Act”). Barnes answered and asserted that venue did not lie in Washington County because, Barnes said, Heathcoe was not a resident of that county and Barnes, a corporation, did not do business by agent in that county. On February 27, 2007, Barnes moved the circuit court to transfer the action to Monroe County, the location of Barnes’s principal office. In support of that motion, Barnes submitted the affidavit of Michelle Green, a claims examiner with the Alabama Self-Insured Workers’ Compensation Fund, the entity that provided workers’ compensation coverage for Barnes. Green stated that Heathcoe had contacted her on November 16, 2006, had advised her that Heathcoe had moved to Tallapoosa County, and had requested that Heathcoe’s temporary-total-disability benefit checks be mailed to Heathcoe’s new address in Tallapoosa County. Barnes also submitted the affidavit of Wiley Downing, its human-resources director. Downing stated that Barnes is a domestic corporation whose principal office is in Monroe County, that Barnes neither owned property nor had any terminals or other business locations in Washington County, and that Barnes had not picked up or delivered any freight in Washington County since 2000.

In opposition to Barnes’s motion, Heath-coe submitted an affidavit stating that she owned a home in Washington County, that she was registered to vote in Washington County, and that she had purchased tags for her vehicles in Washington County. She stated that her husband, a construction worker, had been unable to find work in Washington County but that he had recently obtained employment in Tallapoo-sa County, and, Heathcoe stated, she had traveled to Tallapoosa County to be with her husband. Heathcoe testified that she considered her stay in Tallapoosa County to be temporary and that she had no intention of changing her residence from Washington County.

Heathcoe further averred that Barnes had regularly transported cargo in Washington County, had hired her and trained her in Washington County, and had dispatched her from Washington County to do work. She also testified that Barnes had authorized her to park the truck she drove for Barnes at her residence in Washington County, had allowed her to perform pre-trip inspections of the truck in Washington County, and had maintained an on-call truck repairman in Washington County.

On July 8, 2007, the circuit court denied Barnes’s motion to change venue. Thereafter, the parties conducted discovery. In deposition testimony on September 27, 2007, Heathcoe stated that she had resided in Washington County until May 2007, when she had gone to Tallapoosa County to be with her husband. On November 30, 2007, and on May 27, 2009, Barnes deposed Dr. Christopher Patton, Heathcoe’s treating physician.

On May 23, 2011, Barnes filed a renewed motion to transfer the action to Monroe County, attaching to its motion additional evidentiary materials, including medical records from Dr. Patton and other health-care providers, insurance-claim forms, and traffic citations indicating that, from July 2006 through the date of the motion, Heathcoe had designated a location in Tallapoosa County as her address. The circuit court denied Barnes’s renewed motion on July 27, 2011. Barnes filed a petition for a writ of mandamus on September 7, 2011, that, as to the ruling on the renewed motion, is timely.

Standard of Review

“‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).
“ ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002).

Discussion

The proper venue of a workers’ compensation action is in “the circuit court of the county which would have jurisdiction of a civil action in tort between the parties.” Ala.Code 1975, § 25-5-81(a)(l). Section 6-3-7, Ala.Code 1975, governs venue of actions against corporate defendants. That section provides, in pertinent part:

“(a) Ail civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided ... at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

Subsection (a)(1) is inapplicable because the events giving rise to Heathcoe’s workers’ compensation claim occurred in Mississippi. Subsection (a)(2) would place venue in Monroe County. The dispute is whether subsection (a)(3) permitted Heathcoe’s choice of Washington County as the venue of the action. Barnes argues that subsection (a)(3) does not apply because, Barnes says, at the time of the accrual of Heathcoe’s claim, Heathcoe did not reside in Washington County and Barnes did not do business by agent in Washington County.

In its petition, Barnes reiterates the argument it made in the circuit court — that Heathcoe’s claim did not accrue until after she had reached MMI and had received her last temporary-total-disability payment in May 2009, rather than at the time of the accident resulting in her injury in January 2006. Barnes bases that argument upon § 25-5-81(a), Ala.Code 1975, and the penultimate sentence in § 25-5-80, Ala.Code 1975. Section 25-5-81(a) provides, in pertinent part:

“a) Commencement of action in circuit court.
“(1) Procedure. In case of a dispute between employer and employee ... with respect to the right to compensation under this article and Article 2 of this chapter, or the amount thereof, either party may submit the controversy to the circuit court of the county which would have jurisdiction of a civil action in tort between the parties.”

(Emphasis added.) Section 25-5-80 provides, in pertinent part:

“In case of a personal injury not involving cumulative physical stress, all claims for compensation under this article shall be forever barred unless within two years after the accident the parties shall have agreed upon the compensation payable under this article or unless within two years after the accident one of the parties shall have filed a verified complaint as provided in Section 25-5-88. ... Where, however, payments of compensation, as distinguished from .medical or vocational payments, have been made in any case, the period of limitation shall not begin to run until the time of making the last payment."

(Emphasis added.) Barnes contends that, because § 25-5-81 (a) limits judicial review to “disputes” and “controversies,” an employee like Heathcoe who has received medical payments and compensation from her employer has no dispute or controversy with the employer (and, therefore, Barnes says, no “claim” against which a period of limitations can begin to run) until the employee reaches MMI and seeks additional benefits that the employer denies. Barnes contends that the emphasized portion of § 25-5-80 supports the argument that Heathcoe’s claim did not accrue until she had finally reached MMI and had received her last compensation payment. Accordingly, Barnes maintains, Heathcoe’s workers’ compensation claim did not accrue until May 2009, at which time, Barnes says, Heathcoe was indisputably a resident of Tallapoosa County, not Washington County.

Barnes’s argument is mistaken for two reasons. First, Barnes interprets the provisions of § 25-5-81(a), a purely procedural statute relating to the commencement of a workers’ compensation action, to be descriptive of the time at which a workers’ compensation claim accrues. Second, it misreads a tolling provision in § 25-5-80, a workers’ compensation statute of limitations, to state the time of accrual of a workers’ compensation claim. The first sentence of § 25-5-80 makes it clear that a workers’ compensation claim accrues, and the statute of limitations begins to run against that claim, at the time of the accident causing the injury. “[A] statute of limitations ... sets forth the time period within which an action is deemed to have accrued...” Moore v. Liberty Nat’l Ins. Co., 108 F.Supp.2d 1266, 1275 (N.D.Ala.2000) (quoted in Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 765 (Ala.2002) (emphasis added)). The penultimate sentence in § 25-5-80, which is emphasized above, does not define when a claim accrues, but provides for the running of the statutory limitations period to be tolled, despite the fact that the claim has accrued. See Ex parte Morris, 999 So.2d 932, 935 (Ala.2008) (stating that § 25-5-80 “includes a tolling provision that states: ‘Where, however, payments of compensation, as distinguished from medical or vocational payments, have been made in any case, the period of limitation shall not begin to run until the time of making the last payment.’ ” (emphasis omitted)); Robert Burton & Assocs., Ltd. v. Morris, 999 So.2d 927, 929 (Ala.Civ.App.2007) (same). See generally 2 Terry A. Moore, Alabama Workers’ Compensation § 23:34 at 509-10 (1998) (explaining that the statute of limitations is tolled by voluntary payments of compensation). We reject Barnes’s argument that Heathcoe’s workers’ compensation claim did not accrue on January 30, 2006, the date of her injury.

“Section 6-3-7 was amended in 1999 to provide that the county of the plaintiffs residence at the time of the accrual of the cause of action is a proper venue in actions against corporations if the corporation does business in that county.” Ex parte Siemag, Inc., 53 So.3d 974, 980 n. 4 (Ala.Civ.App.2010). Before the 1999 amendment, § 6-3-7 provided that

“a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiffs residence.”

Our supreme court has held that the 1999 amendment makes venue proper in the county where a plaintiff resided when the cause of action accrued, notwithstanding the fact that the plaintiff later moved from that county before the plaintiff filed suit. See Ex parte Alfa Mut. Gen. Ins. Co., 806 So.2d 867 (Ala.2001). In Alfa, the plaintiff Tymika Bosby, a resident of Montgomery County, was involved in an automobile accident in Lowndes County. At the time of the accident, Bosby had a policy of automobile insurance issued by Alfa, whose principal office was in Montgomery County. Alfa paid Bosby to repair the damage to her vehicle. Bosby later moved to Wilcox County and filed a complaint in the Wilcox Circuit Court, alleging that Alfa had breached its contract of automobile insurance with her. Bosby purported to represent a class of Alfa automobile-insurance policyholders who had allegedly not been compensated for the diminished value of their damaged vehicles. Alfa objected to venue in Wilcox County and moved to transfer the action to Montgomery County. Bosby responded, requesting the Wilcox Circuit Court to deny the motion or to transfer the action to Lowndes County. When the court transferred the action to Lowndes County instead, Alfa petitioned the supreme court for a writ of mandamus. The supreme court granted the petition and issued the writ. It held:

“Section 6-3-7(a)(3) makes venue based on the plaintiffs residence proper only ‘[i]n the county in which the plaintiff resided ... at the time of the accrual of the cause of action.’ (Emphasis added.) Because Bosby resided in Montgomery County when the cause of action accrued, i.e., when Alfa allegedly failed to pay the amount due under the policy, Wilcox County was never a proper venue under § 6-3-7 ....

806 So.2d at 369 (footnote omitted).

Although the circuit court in this case had the discretion to reconsider its ruling on the question of venue in consequence of additional evidence that Barnes had obtained during discovery, Barnes, in support of its renewed motion to change venue, submitted no evidence indicating that Heathcoe had resided anywhere other than Washington County on January 30, 2006— the date of her accident and the time when her workers’ compensation claim accrued. Nor did Barnes, in its renewed motion to change venue, provide the circuit court with a reason to reexamine its earlier ruling with respect to whether Barnes was doing business by agent in Washington County when Heathcoe’s claim accrued. On the contrary, the focus of Barnes’s argument in its renewed motion was that the circuit court “should reconsider its previous order because it presumably relied upon [Heathcoe’s] inconsistent representations regarding her residence in denying [Barnes’s] original motion to transfer venue and based on the additional evidence discovered since that time.”

Because the undisputed evidence before the circuit court was that Heathcoe was a resident of Washington County when her workers’ compensation claim accrued, and because Barnes, in its renewed motion, submitted no reason for the circuit court to revisit its earlier ruling as to the doing-business-by-agent component of § 6-3-7(a)(3), Barnes has failed to establish a “ ‘clear showing of error on the part of the trial judge.’ ” Ex parte Pike Fabrication, Inc., 859 So.2d at 1091.

Based on the foregoing, Barnes’s petition for a writ of mandamus is denied.

PETITION DENIED.

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

THOMPSON, P.J., concurs in the result, without writing.

      "The only apparent basis for venue in Wilcox County is the fact that the plaintiff currently resides in that county.”