author: PER CURIAM.

text:
    Eddie W. WILSON v. Suzanne L. WILSON.
    2100540.
    Court of Civil Appeals of Alabama.
    Nov. 18, 2011.
    Opinion on Return to Remand Feb. 3, 2012.
    Rehearing Denied April 13, 2012.

      Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile; and Claude D. Boone, Mobile, for appellant.
    Robert E. Gibney, Mobile; and James D. Brooks, Mobile, for appellee.
   PER CURIAM.

Eddie W. Wilson (“the husband”) and Suzanne L. Wilson (“the wife”) were married in 1977. In April 2007, the parties separated. The husband filed for a divorce in July 2007. After a trial in October 2010, at which the only issues for the trial court’s determination were whether 158 shares of stock held in the wife’s name could be considered marital property and, if so, the value of that stock, the trial court entered a judgment awarding the wife the 158 shares of stock and awarding the husband $120,000 in alimony in gross, to be paid over 10 years. After his post-judgment motion was denied, the husband appealed the judgment, arguing that the trial court had improperly admitted certain testimony, had improperly restricted cross-examination, had improperly relied on certain valuation testimony, and that, based on the evidence at trial, the award of $120,000 in alimony in gross was inequitable.

The record reflects the following facts. At the time the parties married, the husband was employed at Landry’s Boat Works. However, he had worked for a short time in 1976 at Sea Pearl Seafood Company, Inc. (“SPS”), a company owned, at that time, by the wife’s parents. The husband was dismissed from his employment with SPS in 1976 after he was accused of stealing money and shrimp from SPS. Apparently at the wife’s request, her father, Joseph Ladnier, hired the husband to work at SPS again in 1985. Since that time, the husband has worked at SPS; he has run the I.Q.F. plant, which individually quick freezes shrimp, since approximately 1995. He earns over $100,000 per year and has consistently received bonuses from SPS. As part of his compensation, the husband is provided a company vehicle; until June 2010, SPS also paid for his fuel. The husband further testified that until the summer of 2010 he had charged his lunch at a certain restaurant to SPS. The wife also works for SPS; she earns approximately $74,000 per year. The testimony at trial reflected that, once the divorce case was over, the husband would lose his job at SPS.

The parties’ separation was prompted, according to the husband, by his wife’s controlling nature and his belief that the wife placed her family first in priority. The husband testified that the wife had handled the family finances and that she had placed him on a allowance of $40 per month. The husband had apparently admitted having committed adultery; however, based on the few references to the infidelity at trial, it is unclear whether the admitted infidelity was an affair in which he had been involved in 19.90 or a more recent relationship with a friend of the family into whose home he had moved after the separation of the parties.

In 1990, Joseph Ladnier transferred 137 shares of SPS stock to the wife. She executed a promissory note for $137,000, payable in annual installments of $21,347.35 over 10 years in favor of Joseph Ladnier. At trial, both the wife and Joseph Ladnier testified, however, that the stock was a gift to the wife and that the wife had never paid any money for the stock. Bruce Vest, SPS’s accountant, testified that the wife had not paid Joseph Ladnier for the 137 shares of stock, despite the fact that Joseph Ladnier had listed the annual payments as income on his annual tax returns.

In 2000, Joseph Ladnier and his wife sold their shares of stock to SPS for the price of $4,000 per share. That same year, SPS transferred 21 additional shares of stock to the wife. Although the husband testified that the wife paid for that stock with a check drawn from their joint checking account, the wife testified at trial that she had not paid for the 21 shares of stock. Vest testified that the wife had paid for the 21 shares with a check but, as he recalled, the check had been returned to the wife.

Vest also testified about SPS’s viability as a “going concern.” Vest stated that he had had concerns as to whether SPS was a going concern when he prepared the most recent tax return for the company. However, he testified, as of the date of trial, SPS was a “going concern” because, he said, he had determined that SPS had adequate equity to carry it through the next tax year.

The evidence established that the wife had received several disbursements from SPS after it became an “S” corporation in 2006. In December 2006, the wife received a $100,000 disbursement, which, she testified, she had placed in the parties’ joint checking account and which she used to pay off a home-equity debt and a debt owed to the parties’ home builder; the wife testified that the remaining funds, approximately $20,000, were used to pay regular family expenses. In April 2007, the wife received a $325,000 disbursement. She testified that the entire $325,000 was used to pay both state and federal income taxes. In December 2007, the wife received a disbursement of $50,000; she testified that she gave the entire $50,000 to her parents because they had paid the college expenses of her children. The final distribution to the wife occurred in January 2008; the wife testified that she used the entire $85,000 disbursed to her at that time to pay state and federal income taxes.

The parties both employed experts to determine the value of SPS and its stock. Their valuations differed significantly. Both experts testified at trial.

The husband’s expert, Mark Pawlowski, is a certified public accountant (“CPA”) specializing in business valuation. He has two certifications relating to business valuation: a CVA, or certification as a valuation analyst, and a ABV, or an accreditation in business valuation. Pawlowski testified that there are three approaches to valuing a business: the asset approach, the market approach, and the income approach. He explained that he had chosen, in December 2007, to utilize the income approach when valuing SPS. That approach, he explained, used a capitalization-of-earnings method that required the projection of future earnings. According to Pawlowski, based on the income approach, SPS was worth $6.4 million as of December 2007.

However, Pawlowski explained that SPS’s sales had been decreasing since 2004 and that SPS’s profits had also been deteriorating. Pawlowski questioned how SPS could have made such significant disbursements to its three shareholders in 2008 when it posted an $800,000 loss. Pawlow-ski noted that SPS had offset its production losses by receiving at least $550,000 per year in “Byrd” money, which refers to a tariff imposed on imported seafood that is collected by the federal government and then distributed to domestic seafood producers. In 2008, however, SPS had received no Byrd money. Because of the significant cash-flow issues created by the loss of the Byrd money and the “near impossible” task of estimating ongoing cash flow, Pawlowski said, he reevaluated SPS using the asset method. The asset method, he said, required him to determine the sum of the value of the assets of SPS and to subtract from that sum its liabilities. As of December 31, 2009, Paw-lowski testified, SPS was worth $2.8 million based on the asset method of valuation. Each share of SPS stock was worth approximately $8,860 based on Pawlow-ski’s December 31, 2009, valuation. Paw-lowski adjusted his valuation as of July 31, 2010, based on updated information; he testified that, as of that date, SPS was worth $3.3 million and that each share of SPS was worth $10,541.

The wife’s expert, Jack D. Carney, is a CPA. He submitted two reports valuing SPS. Carney testified that he had reviewed SPS’s financial statements and tax returns and had interviewed Vest and SPS’s president, Greg Ladnier, who is the wife’s brother and an SPS stockholder. Carney said that he had discussed the shrimp business in general and the business climate in Bayou La Batre, where SPS is located, with Greg Ladnier and Vest, as well as with someone named Mr. Ficarino. Specifically, Carney said that he had discussed the decline in the price of shrimp, the loss of suppliers and shrimp boats, the increase in the cost of diesel fuel, the loss of investors for rebuilding due to hurricanes, the decline in the economy, and the assets of the company. Based on the information he gathered, Carney testified, he concluded that SPS was worth $1,719,000 as of December 31, 2007. He explained that he based his conclusion on the fact that he did not think anyone would want to buy the company. He updated his valuation as of July 31, 2010, and determined that SPS was worth $1,206,400 as of that date, in part because of the negative effects of a large oil spill in the Gulf of Mexico on the shrimp industry.

At trial, Carney testified that his opinion of SPS’s worth had been affected by the testimony he had heard. He explained that, based on testimony at trial, he did not believe that the buildings and equipment of the company could be sold for their value because of the lack of the market for those items, that the possibility that SPS would no longer be a “going concern” troubled him, and that the significant losses the company had suffered were problematic. Thus, at trial, Carney lowered his valuation of SPS a final time to $1 million.

Carney’s valuation reports indicate that he applied a “fast sale discount” to SPS’s assets. His estimate of SPS’s value as of July 31, 2010, indicated that it was a liquidated value. Pawlowski testified that Carney was also using an asset approach to valuing SPS; however, he explained that Carney was basing SPS’s value on “liquidation value,” which, Pawlowski explained, resulted in Carney’s “significantly reducing the fair market value of the assets.” Pawlowski testified that there existed no reason to reduce the value of, for example, the inventory on hand by 50%, which Carney had done to arrive at its “liquidated value.” Because there were no indications that SPS was on the verge of liquidation, Pawlowski said, SPS should be treated as he had treated it — as a going concern. In fact, at trial, Greg Ladnier testified that no plans to close or to liquidate SPS existed.

As noted above, the trial court awarded the wife all 158 shares of SPS stock and awarded the husband $120,000 in alimony in gross, representing his share of the parties’ marital assets. The parties had divided all personal property and had sold the marital residence and divided its remaining equity, which had totaled approximately $120,000, before the trial. The trial court was presented with the issues whether the stock had been purchased with marital funds or had been a gift to the wife alone and, if the stock was gift property, whether it had been used for the common benefit of the parties such that it could be considered by the trial court under Ala.Code 1975, § 30-2-51(a). In addition, the trial court was assigned the task of valuing the stock.

In reviewing any division of property, we must be mindful that the trial court has wide discretion over the division of property and that it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). The trial court’s judgment is presumed to be correct and will not be reversed unless it is so unsupported by the evidence as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. In making a property division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174, 1176 (Ala.Civ.App.1986). Because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So .2d 620, 623 (Ala.Civ.App.1993).

On appeal, the husband first argues that the trial court erred by admitting and by considering Carney’s testimony regarding the valuation of SPS. He argues that Carney’s testimony should not have been admitted because it was based, in part, on hearsay. The husband further argues that Carney used an inappropriate methodology to value the company and, thus, that the trial court was precluded from relying on Carney’s opinion.

This court has explained that a trial court valuing a closely held business in the context of a divorce is not to determine the “fair market value” of the entity but, instead, is to determine the “fair value” of the entity. Grelier v. Grelier, 44 So.3d 1092, 1097 (Ala.Civ.App.2009). We have determined that a trial court valuing a business for divorce purposes cannot use discounts that artificially deflate the value of the company because such an approach is inequitable. Grelier, 44 So.3d at 1097. As we explained:

“Alabama law has not adopted a ‘fair market value’ standard for assessing marital property. Rather, under Alabama law, a trial court must determine the value of property with the only limitation being that the value must be equitable under the circumstances of the particular case. See generally Yohey v. Yohey, 890 So.2d 160 (Ala.Civ.App.2004). That standard implies that the valuation must be fair to all parties concerned. See generally Black’s Law Dictionary 578 (8th ed.2004) (defining ‘equitable distribution’ as the ‘fair ... allocation’ of marital property). In cases in which a divorce court does not contemplate the sale of a business in which one of the spouses holds a minority interest but, instead, intends that the business shall remain a going concern, it makes little sense to determine fair value by the measuring stick of a hypothetical sales price. That methodology would artificially reduce the value of the marital asset in almost every case, which would be unfair, i.e., inequitable, to the party receiving only a portion of the reduced value or the property equivalent to that reduced value but would be advantageous to the party retaining the business interest, including its actual value to him or her as the holder.”

Id. (emphasis added).

The husband is correct that Carney’s valuation is based entirely on a liquidation approach. Carney said that he reduced his valuation after hearing testimony at trial indicating that the buildings and equipment lacked a market, and he stated in his testimony regarding his earlier valuations that he did not think anyone would want to buy the company. However, SPS was not for sale and was not being liquidated at the time of trial. Using the liquidation approach and applying the “fast sale discounts” resulted in a lower valuation than would otherwise obtain. If the trial court did apply the figures used by Carney, that error obviously would require reversal of the judgment, but if the trial court did not, the error in admitting those figures into evidence would merely be harmless and would not require reversal of the judgment. See Rule 45, Ala. R.App. P. (“No judgment may be reversed or set aside ... on the ground of ... the improper admission ... of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”). Consequently, because we are unable to determine whether the trial court relied on Carney’s figures in valuing the shares, we are remanding the cause to the trial court for it to explain how it valued the shares.

The husband further argues that the trial court erred to the extent it failed to include all 158 shares of SPS stock in the marital estate. However, we cannot address the merits of that contention without some indication from the trial court as to the number of shares it considered to be marital property subject to division and its reason for excluding any shares, if in fact it did, when determining the amount of the alimony-in-gross award.

The husband additionally contends that the amount of alimony in gross awarded to him is not fair and equitable. This court cannot give that issue any serious review without knowing the factual determinations made by the trial court as set out above and without also knowing whether the trial court discounted the award for equitable reasons.

Generally, in the absence of specific findings of fact, this court will assume that the trial court made those findings necessary to support its judgment. See Ex parte Fann, 810 So.2d 631, 636 (Ala.2001). However, when, after reviewing the record and the language of the judgment, this court is unable to determine the precise nature of the factual findings of the trial court as to the classification and value of marital property, thereby inhibiting this court’s ability to determine whether a property division is equitable, this court should remand the cause for further clarification from the trial court. See Wilhoite v. Wilhoite, 897 So.2d 303, 308-09 (Ala.Civ.App.2004); and Giardina v. Giardina, 987 So.2d 606, 622-23 (Ala.Civ.App.2008). Accordingly, we remand the cause and instruct the trial court to specify its findings as to (1) the fair value of the 158 shares of SPS stock; (2) the number of shares it determined to be divisible as marital property; (3) the reasons for excluding any shares from its property division, if it did; (4) the factors it considered in dividing the shares; and (5) the calculations it used in reaching its award of $120,000 in alimony in gross to the husband. The trial court shall make a return to this court containing the above-mentioned findings within 42 days.

Because we are remanding the cause as outlined above, we need not address the husband’s other issues at this juncture. If, after clarification of the judgment, the husband still maintains that the trial court erred in limiting his cross-examination of Bruce Vest and in admitting evidence relating to the prior termination of his employment at SPS, this court may address those issues at that time.

The wife’s motion to strike the husband’s brief is denied.

REMANDED WITH INSTRUCTIONS.

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

On Return to Remand

PER CURIAM.

The trial court has entered an order as required by our instructions in our opinion on original submission. See Wilson v. Wilson, 93 So.3d 122 (Ala.Civ.App.2011). The trial court’s order on remand reads, in its entirety, as follows:

“In compliance with [the appellate court’s] order of November 18, 2011, with instructions to this Court, the following is submitted:
“In reaching the award set out in the Judgment of Divorce rendered herein, this Court considered the following evidence: testimony of all the witnesses as presented in open Court, the exhibits that were admitted into evidence, the demeanor of the witnesses, length of the marriage of the parties, the relative fault of the parties resulting in the divorce, the age, education, work experience, and health of the parties, the earning potential of the parties, the totality of the marital estate, to include the source and use of marital property.
“After considering the above, the Court determined a fair value of the marital estate and awarded an equitable, not necessarily equal, but equitable property award.
“In making the property award set forth in the Judgment of Divorce, the Court did not apply any specific figures as presented by the witnesses as the basis for its award nor make any mathematical calculations to determine what property would be awarded to the parties. Rather, the court considered the totality of the evidence as presented and arrived at an equitable property awarded [sic].”

The trial court’s order fails to comply with our instructions that it “specify its findings as to (1) the fair value of the 158 shares of [Sea Pearl Seafood Company, Inc.,] stock; (2) the number of shares it determined to be divisible as marital property; (3) the reasons for excluding any shares from its property division, if it did; ... and (5) the calculations it used in reaching its award of $120,000 in alimony in gross to [Eddie W. Wilson].” 93 So.3d at 129.

As explained in our opinion on original submission, the value of the Sea Pearl Seafood Company, Inc. (“SPS”), stock was contested by the parties. In addition, the parties disagreed over whether all 158 shares of SPS stock were marital property. The trial court was required to determine whether all 158 or only 21 shares of the SPS stock were marital property and then to determine the value of the SPS stock in order to effect an equitable property division. The trial court has tacitly admitted that it did neither. Its failure to make the necessary conclusions or perform the necessary calculations required to determine the contents of and the value of the marital estate is not insulated by the ore tenus presumption. Neither this court nor the trial court could possibly determine that the award of $120,000 in alimony in gross to Eddie W. Wilson (“the husband”) is equitable without knowing how many shares of SPS stock were part of the marital estate and without knowing the value of that stock. Accordingly, because the trial court did not determine whether all or part of the SPS stock was included in the marital estate and because the trial court failed to determine the value of the stock, we have no recourse but to reverse the judgment of the trial court and to remand the cause for the trial court to make the necessary determinations and perform the necessary calculations to arrive at an equitable pi’operty division.

Because a decision on the issues raised by the husband on appeal but pretermitted by this court in our opinion on original submission could impact the trial court’s review of the record evidence, we will address the husband’s arguments that the trial court erred in (1) limiting his cross-examination of Suzanne L. Wilson (“the ■wife”) and (2) in admitting testimony regarding the prior termination of the husband’s employment with SPS.

The husband complains on appeal that the trial court erred in limiting his cross-examination of the wife regarding her friendship with Bruce Vest, SPS’s accountant, with which the husband intended to prove bias on the part of Vest. The husband relies on the general principle that “a party is entitled to a thorough and sifting cross-examination of the witnesses against him.” Perry v. Brakefield, 534 So.2d 602, 607 (Ala.1988). He also points out that “ ‘[i]t is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony.’ ” Ex parte Brooks, 393 So.2d 486, 487 (Ala.1980) (quoting Green v. State, 258 Ala. 471, 474, 64 So.2d 84, 87 (1953)). Of course, a trial court may limit cross-examination “that is repetitious, irrelevant, harassing, annoying, or humiliating, or concerns wholly collateral matters.” Riley v. City of Huntsville, 379 So.2d 557, 560 (Ala.1980). We note that “[t]he usual discretion vested in the trial court to control the extent of cross-examination is narrowed in proportion to the extent of the adverseness of the testimony of the witness and the value to the defendant of a disaccreditation of the witness.” Hendrick v. State, 368 So.2d 576, 578 (Ala.Crim.App.1979).

Certainly, the husband had a general right to attempt to establish bias on the part of Vest through cross-examination. However, Vest’s testimony was confined to basic financial information regarding SPS based on documents in evidence and to the issue whether the wife had paid for the stock she had acquired in SPS. The fact that Vest’s testimony regarding the wife’s failure to pay for the stock was identical to testimony from the wife and her father, Joseph Ladnier, on that subject renders Vest’s testimony merely cumulative. Pipeline Technic, L.L.C. v. Mason, 6 So.3d 1176, 1181 (Ala.Civ.App.2008); Yeomans v. State, 641 So.2d 1269, 1272 (Ala.Crim.App.1993) (“Testimony that may be apparently inadmissible may be rendered innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred.”). “ ‘The exclusion of admissible evidence does not constitute reversible error where the evidence “would have been merely cumulative of other evidence of the same nature, which was admitted.” ’ ” Jordan v. Calloway, 7 So.3d 310, 315 (Ala.2008) (quoting Houston v. State, 565 So.2d 277, 281 (Ala.Crim.App.1990), quoting in turn Ex parte Lawson, 476 So.2d 122, 122 (Ala.1985)). Thus, any error on the part of the trial court in limiting the husband’s ability to prove that Vest was biased in favor of the wife was harmless error not affecting the husband’s substantial rights. See Rule 45, Ala. R.App. P.; see also Hendrick, 368 So.2d at 578 (reversing because the trial court failed to allow a thorough cross-examination but noting specifically that “[s]uch testimony would not have been cumulative”).

The husband further argues that the trial court erred in admitting testimony regarding his being terminated from his employment with SPS in 1976, when he was approximately 18 years old, after being accused of stealing money and shrimp from SPS. The husband objected at trial to the relevancy of the testimony. On appeal, however, he argues that the testimony should have been excluded because it involved a matter that was remote and because it constituted improper impeachment evidence on a collateral matter. We cannot consider the husband’s arguments regarding any error in the admission of this testimony on appeal.

“ ‘The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ Ex parte Frith, 526 So.2d 880, 882 (Ala.1987); see also State v. Holloway, 293 Ala. 543, 307 So.2d 13 (1975); Scarbrough v. State, 528 So.2d 890 (Ala.Crim.App.1988). In other words, ‘if only a specific objection is made and overruled, the appellate court will not consider any other grounds of objection.’ C. Gamble, McElroy’s Alabama Evidence, § 426.01(11) (3d ed.1977).”

B.A.S.S. Coal, Inc. v. Black Warrior Minerals, Inc., 579 So.2d 1325, 1327 (Ala.1991). The husband’s relevancy objection waived any other ground for objection, and the husband’s failure to argue the relevancy of the challenged testimony on appeal prevents us from considering whether the trial court erred in admitting it.

In our opinion on original submission, we concluded that the trial court was precluded from relying on the stock-valuation testimony provided by Jack D. Carney. We have further concluded that we cannot consider the husband’s argument relating to the testimony regarding the termination of his 1976 employment with SPS and that any error committed by the trial court in limiting the husband’s cross-examination of the wife was harmless error. However, the trial court’s admitted failure to determine whether all or part of the SPS stock was part of the marital estate and its failure to determine the value of that stock makes it impossible for this court to determine whether the trial court’s $120,000 award of alimony in gross to the husband was equitable. Therefore, we reverse the trial court’s judgment awarding the husband $120,000 in alimony in gross, and we remand the cause to the trial court for it to reconsider its property division based on the evidence of record and to enter a new judgment containing a property division consistent with this opinion and our opinion on original submission.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

BRYAN, J., recuses himself.

      . Interestingly, we note that Carney should have been well aware of the losses suffered by SPS after reviewing the company’s financial statements and tax returns, as he testified he had done.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    GOODYEAR TIRE & RUBBER COMPANY v. Brian HAYGOOD.
    2100844.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2012.
    Rehearing Denied April 27, 2012.

      Joseph H. Driver and Donald B. Kirkpatrick II of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.
   THOMPSON, Presiding Judge.

Goodyear Tire & Rubber Co. (“Goodyear”) appeals from a judgment awarding worker’s compensation benefits to Brian Haygood. The trial court found that Hay-good was permanently and totally disabled as a result of an injury he suffered in a work-related accident, and it awarded benefits accordingly.

The record indicates the following. Haygood’s job at Goodyear was to sort tires by size and tread and “throw” them into the appropriate buggies, which measured three feet by eight feet. Haygood said each of the tires he handled weighed between 40 and 80 pounds. When a buggy was full, Haygood would label it, quickly move that buggy out, and pull another buggy into its place to be filled. Haygood said that on August 12, 2009, he was moving a filled buggy when he felt a “pop” on the bottom of his right foot and experienced a sensation like his foot was “on fire.” He immediately reported the injury to his supervisor, who took him on a cart to see the plant nurse. Haygood said that that night he went to the emergency room and subsequently returned to the plant doctor for a follow-up visit.

Haygood kept working in the days after the August 12 accident, but, he said, the pain in his foot did not subside. He testified that he felt a stabbing pain in his right foot when he put weight on it and that a knot had developed on the bottom of his right foot. Goodyear initially denied that Haygood’s injury was covered under the workers’ compensation system, so when his foot continued hurting Haygood saw a family doctor, John Belyeu. Dr. Belyeu referred Haygood to an orthopedist, Dr. Charles Morley. Haygood first saw Dr. Morley on September 21, 2009. Dr. Morley diagnosed Haygood with a partial tear of the plantar fascia, a band of tissue on the bottom of the foot, and placed a walking cast on Haygood’s right foot. Dr. Morley held Haygood out of work beginning September 21, 2009.

Haygood’s right foot continued to hurt despite the use of the walking cast. When the cast was removed, Dr. Morley found that the arch of Haygood’s right foot was “hypersensitive.” At Dr. Morley’s request, a pressure specific sensory device (“PSSD”) test and an MRI were performed on Haygood’s right foot. The results of the PSSD test and the MRI indicated that Haygood had nerve irritation in his right foot and significant thickening of the plantar fascia that was consistent with chronic irritation or inflammation. In his deposition, Dr. Morley testified that the PSSD test and the MRI provided objective corroboration of Haygood’s complaints of pain and periodic numbness and tingling in his foot. Dr. Morley said that the findings were consistent with an injury caused by trauma or overuse, and he diagnosed Hay-good with post-traumatic plantar fasciitis, heel-pain syndrome, and aggravation of tarsal tunnel compression, which Dr. Morley compared with the better known carpal tunnel syndrome.

Dr. Morley operated on Haygood’s right foot in January 2010, but the pain continued. On March 2, 2010, Dr. Morley examined Haygood’s right foot and discovered that it still had generalized swelling and that Haygood’s toes were “red and shiny and cold to the touch.” Dr. Morley was concerned that Haygood had complex regional pain syndrome (“CRPS”), which he described as

“a situation in which the nerves common in the foot from factors we don’t entirely understand will become hypersensitive and overactive and cause the foot to burn and tingle and cause circulation changes which can cause the foot to change color, becoming bright red, shiny as his toes were or sometimes becoming pale, bluish color. It can also cause temperature fluctuation in a person. They feel as though the foot is burning hot one moment and icy cold the next. [Haygood] did not have complaints of temperature change or color change particularly but his sensitivity in his foot was consistent with what we associate with this situation of CRPS.”

Because of his concern that Haygood had CRPS, Dr. Morley referred him to Dr. Michael Cosgrove, who specializes in pain management.

Dr. Cosgrove determined that the origin of Haygood’s pain

“could represent partially a neuropathic origin, a milder variant of CRPS. Per the diagnostic criteria, he is one shy for me on my exams of meeting the criteria. You know, it’s not quite an all or none phenomenon. He has many of the characteristics of it, but not enough to meet the classic diagnostic.”

At the same time that Haygood’s right foot was hurting, and continuing after his January 2010 surgery, Haygood’s left foot, left leg, and back began hurting as well. Haygood brought those complaints to Dr. Cosgrove’s attention. In his deposition, Dr. Cosgrove testified that complaints like Haygood’s are “quite common in patients with lower extremity problems” and attributed the complaints to Haygood’s altered gait.

In July 2010, Haygood underwent a functional-capacities evaluation (“FCE”) at Dr. Morle/s request. Sheral Serafini, who conducted the FCE, noted that Hay-good told her that he could not walk without using a cane and that he “refused to attempt ambulation” without the cane. The FCE report also states that Haygood could not walk even short distances without using the cane because of his pain and that Haygood was “self limiting” because of pain.

At the start of the trial, the parties stipulated that Dr. Morley had determined that Haygood had reached maximum medical improvement (“MMI”) on September 19, 2010. They also stipulated that Dr. Morley established that Haygood had a partial medical impairment of 10% to the right foot, a partial medical impairment of 7% to the lower extremity, and a 3% whole-person medical impairment.

Dr. Martin Jones, Jr., an orthopedic spine surgeon, testified by deposition that he had examined Haygood several times in the fall of 2010 because of Haygood’s complaint of back pain. Dr. Jones said that Haygood told him that he was not sure how the back pain had begun but related that he had been walking with an altered gait. Dr. Jones performed an MRI and determined that Haygood had a herniation of the L4 disk and a bulging disk at the L5 disk of his spine. Dr. Jones testified that “there was no way to know absolutely for sure” but that, because Haygood was doing his job with no problem before he injured his foot, he thought it “not unreasonable to assume that the altered gait could have aggravated [Haygood’s] underlying back condition whether it was preexisting or it was created as a result of the altered gait.”

At the trial, Haygood testified that his right foot constantly hurts and that, even when he is lying down, he experiences burning and tingling sensations in his foot. The pain wakes him up. He also said that he lies down about 23 hours a day and that he often cries because of the pain. He said that he often falls because of the numbness in his foot. Haygood said that, because of the pain, he can no longer do the things he could do before the injury, both at work and at home. He testified that he seldom leaves his house and that he has only left his house twice to go to a Walmart store in the two years since the 2009 accident. In addition, he said, he had to ride around the Walmart store in a cart. Although no physician has prescribed a cane for him, Haygood said that he uses a cane, even in the house, and that he treats it as a third leg. In addition to the medication Haygood takes several times a day for pain, which he has consistently rated as a 9 or a 10 on a scale of 1 to 10, Dr. Cosgrove has prescribed antidepressants for Haygood.

The week before the trial of this case, Haygood saw Dr. Eric Beck, who ordered that Haygood undergo a second FCE. That FCE was performed by David Hing-er on April 6, 2011, before the trial of this case began on April 11, 2011. Dr. Beck also examined Haygood on April 7, 2011, and testified regarding his findings at the April 11 trial. As a result of his examination, Dr. Beck said, he recommended that additional nerve testing be performed on Haygood’s legs because Dr. Beck was concerned that Haygood did not meet the criteria for CRPS and that there had been “a misdiagnosis or an ongoing problem that has not been picked up that could be fixed.” Dr. Beck said that he was also concerned that “there can be an underlying medical condition that’s not related to this as a work injury that’s being missed because it is [being treated as] a work injury.” Dr. Beck said that he also recommended that Haygood undergo a psychological evaluation because, he said, there were “multiple nonphysiological signs” of Haygood’s problem that indicated “the presence of psychological overlay.”

After hearing the testimony at trial and considering the evidentiary submissions of the parties, including Haygood’s medical records and the depositions of Drs. Morley, Cosgrove, and Jones, the trial court entered a detailed judgment, concluding that Haygood was permanently and totally disabled and awarding Haygood the appropriate benefits. Goodyear appealed.

Goodyear contends that the trial court abused its discretion in denying its motion for a continuance in light of Dr. Beck’s recommendations that Haygood undergo further physical and psychological testing after Haygood’s second FCE and Dr. Cosgrove’s inability to review Dr. Beck’s recommendations before trial because he was out of town.

The decision whether to grant or deny a continuance will be reversed on appeal only upon a showing of “palpable” or “gross abuse” of the trial court’s discretion. Ex parte Sparks, 699 So.2d 1268, 1269 (Ala.Civ.App.1997); Autery v. Autery, 515 So.2d 708, 709 (Ala.Civ.App.1987). In Town of Addison v. Cooke, 689 So.2d 184, 188 (Ala.Civ.App.1997), a workers’ compensation case, this court held:

“The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court; however, that discretion is not without limitation. In the matter of R.F., 656 So.2d 1237 (Ala.Civ.App.1995). ‘As a general rule, continuances are not favored, and this court will not reverse the denial of a continuance without a showing of an abuse of discretion.’ In the matter of R.F., 656 So.2d at 1288.”

In In re Vosyka, 494 So.2d 421, 423-24 (Ala.Civ.App.1986), this court discussed the factors a trial court is to consider when determining whether to grant or deny a motion for a continuance, saying:

“In Ex parte Driver, 258 Ala. 233, 62 So.2d 241 (1952), the court listed certain guidelines for determining whether a continuance is warranted by the absence of a certain witness or evidence. These guidelines included:
“‘(1) that the expected evidence will be material and competent; (2) a probability that the testimony can be obtained at a future date to which the cause may be continued or postponed; (3) due diligence having been exercised by the movant to secure the absent witness or evidence; (4) the expected evidence must be credible and will probably affect the result[;] (5) the evidence must not be merely cumulative or impeaching; [and] (6) that the motion for continuance is not made merely for purposes of delay.’ ”

At the outset of the trial on April 11, the trial court explained its reasoning for denying Goodyear’s motion for a continuance as follows:

“Well, let me say this. When this issue came up about another FCE, you know, my intention if the matter had been brought to me — I think y’all apparently worked it out without having to involve the court. But if it could have been scheduled in time to get it done by trial, then I was going to say, you know, that’s fine, let’s do it. But it was not with the intention that the case would be postponed yet again.
“So, I mean, when you get up to a point where I think on February 28th before, of course, the death of your father-in-law, everybody was ready to go and then had to drop back and, understandably, as a result of a funeral, had to put that off. And then everybody was looking towards this date and the, you know, you can get to a point where you’re too ready at one point and then you start thinking about all these things that can be done in addition.
“But at some point, the case just needs to be tried. And I think the original request was for another FCE. That was obtained and seemed to me that if Dr. Beck’s conclusions are — or Cosgrove or whoever did it, you know, the results were invalid or the effort, maximum effort wasn’t obtained from the plaintiff, that can only work to the defendant’s benefit at this point. And we could probably spend another six months trying to explain why the results were the way they were, but I think we probably just need to look at the results and get Dr. Beck’s testimony and move on from there.”

In Jim Walter Resources, Inc. v. Bentley, 560 So.2d 1072 (Ala.Civ.App.1990), the employer sought a continuance on the day of the trial for the purpose of having the employee submit to a program of vocational rehabilitation. By proceeding to hear evidence and by ultimately rendering a final judgment, the trial court impliedly denied the motion. This court held that the trial court had not abused its discretion by taking such action, explaining:

“The employer notes that two medical and two vocational experts indicated that the employee might benefit from vocational rehabilitation, yet its written request for continuance was not filed until the day of the trial. It argues that such opinions support its contention that the continuance should have been granted, although no plausible explanation exists for the employer’s delay in requesting a continuance. Because of the timing of the employer’s motion, we do not find error or abuse of discretion by the trial court in denying such motion. See Swann v. Caylor, 516 So.2d 699 (Ala.Civ.App.1987).”

Id. at 1073.

Here, Goodyear’s motion for a continuance was filed on Friday, April 8, 2011; the trial was scheduled to begin on Monday, April 11, 2011. There is no contention that the trial court erred in its statement that, in February 2011, both parties announced that they were ready for trial. But for the death of a family member of one of the attorneys for Goodyear, this case would have been tried before April 11, 2011. The parties disputed how the April 6, 2011, FCE was requested. Goodyear asserted that Dr. Cosgrove requested the FCE. Haygood asserted that the case manager for Goodyear’s workers’ compensation carrier requested the FCE.

Dr. Beck’s report of his examination of Haygood’s foot on April 7, 2011 — the day after the second FCE was conducted — is titled “Independent Medical Evaluation Report” and states that the “client organization” was “Liberty Mutual” and that the referral source was Dr. Cosgrove.

It is true that, at the time of the trial, Haygood’s treating physicians had not definitively determined the cause of his continuing pain, but there were objective indications corroborating his complaints of pain. .For example, when Dr. Beck examined Haygood the week before the trial, he found that there was a three-degree difference between the temperatures of Hay-good’s right foot and his left foot. Dr. Beck stated that Haygood would not have been able to manipulate that temperature differential. Dr. Cosgrove’s examinations of Haygood’s right foot showed that his toes were red and shiny.

More important in our consideration of whether the trial court abused its discretion in denying the motion for a continuance, Dr. Beck was present for the April 11, 2011, trial. He was able to testify regarding the results of the April 6, 2011, FCE conducted on Haygood and his impressions based on those results. In fact, in the judgment, the trial court notes that “the significant portion of the trial centered around the testimony of Dr. Beck and the 30 minute evaluation he was asked to conduct.” Dr. Beck was concerned that Haygood’s condition might have been misdiagnosed, and he ordered further testing, including testing of the nerves in Hay-good’s right foot. Such a test had already been conducted, and there is no evidence in the record to indicate that further testing would have resulted in a definitive diagnosis of Haygood’s condition. Dr. Beck’s examination amounts to a second opinion, one that calls into question the previous diagnosis of Haygood’s treating physicians. Dr. Beck was allowed to testify as to his concerns, and the trial court was able to consider those concerns in weighing its decision. Also, as to the further psychological testing recommended, the record indicates that Haygood’s treating physicians had already recognized that Haygood was suffering from depression as a result of his disability.

The trial court’s reasons for denying a continuance were rational and well-considered. Goodyear has failed to demonstrate that the trial court’s decision to deny its motion was palpably wrong or a gross abuse of discretion, and, therefore, the trial court’s refusal to grant the motion does not constitute a basis for reversal. See Jim Walter Resources, Inc., 560 So.2d at 1073.

Goodyear also asserts that the trial court abused its discretion in denying its postjudgment motions, both of which were filed pursuant to Rule 59, Ala. R. Civ. P. The judgment was entered on April 26, 2011. On April 29, 2011, Goodyear filed a motion to alter, amend, or vacate the judgment “to allow [Haygood’s] authorized treating physician to complete his evaluation, diagnosis, and treatment of [Hay-good’s] condition, or in the alternative, to amend its order to allow for Dr. Cos-grove’s evaluation of [Haygood’s] condition to be considered by the Court prior to entering a final order.” The trial court denied the motion on May 16, 2011.

On May 20, 2011, still within 30 days of the entry of the judgment, see Rule 59(e), Ala. R. Civ. P., Goodyear filed a second postjudgment motion. In the May 20 motion, Goodyear sought a new trial to consider the results of the additional tests Dr. Beck had recommended as a result of the April 6, 2011, FCE and his examination of Haygood on April 7, 2011. Attached to the May 20, 2011, motion were copies of the test results, which, according to Goodyear, indicated that Haygood’s complaints of pain were not principally due to his work injury but could be attributed to other unrelated medical conditions. Goodyear asked the trial court to accept “additional evidence which was not considered in the original judgment, amend its findings of fact and conclusions of law or make new findings and conclusions and enter a new judgment based on this newly received evidence.” The trial court denied that motion on the day it was filed, saying that it had already denied Goodyear’s first post-judgment motion and that “the Alabama Rules of Civil Procedure do not recognize the ability of a party to file successive Rule 59 motions, thus rendering this second Rule 59 motion a nullity.”

On appeal, Goodyear argues that, because its second postjudgment motion was filed within 30 days of the entry of the judgment, the trial court still had jurisdiction to consider that motion. Goodyear asserts that the Rules of Civil Procedure do not require postjudgment motions to be filed at the same time if they seek alternative relief. Goodyear argues that, in its first postjudgment motion, it sought to have the trial court alter, amend, or vacate the judgment in light of new evidence and that, in its second postjudgment motion, it sought a new trial to allow the trial court to consider new evidence.

Generally, whether to grant or deny a posttrial motion is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless by its ruling the court abused some legal right and the record plainly shows that the trial court erred. Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38 (Ala.1990). This court has held that if a second postjudgment motion

“is deemed to be an amendment to a previous postjudgment motion, that amendment will trigger a new 90-day jurisdictional period only if the amendment is filed within 30 days after the original judgment, ie., within the time for filing an ‘original’ postjudgment motion. Compare Thompson v. Keith, 365 So.2d 971, 973 (Ala.1978) (amended motion filed more than 30 days after judgment did not restart 90-day clock under Rule 59.1), with Ex parte Cleveland Consol., Inc., 435 So.2d 1285, 1287 (Ala.1983) (90-day period under Rule 59.1 began to run from date of filing of amended postjudgment motion filed less than 30 days after entry of judgment).”

Roden v. Roden, 937 So.2d 83, 85 (Ala.Civ.App.2006).

“Under Alabama law, if a party files a postjudgment motion that neither (1) requests relief on grounds different from or additional to the grounds asserted in a previous postjudgment motion so as to amount to a proper amendment to the earlier motion, nor (2) seeks different postjudgment relief so as to be a separate postjudgment motion, the second-filed motion is not due to be treated as a separate motion but as a mere repetitive filing.”

Curry v. Curry, 962 So.2d 261, 264 (Ala.Civ.App.2007).

The holdings in Roden and Curry indicate that a second postjudgment motion is not to be precluded from the trial court’s consideration merely because a party already has filed one postjudgment motion. The trial court must look to the substance of the motion to see whether it constitutes an “amendment” to the first postjudgment motion.

Goodyear concedes that the relief sought in the second postjudgment motion “was effectively the same” as the relief sought in the first postjudgment motion, but, it points out, the basis of the second postjudgment motion was distinct from the basis of the first postjudgment motion because, in the second postjudgment motion, it asked the trial court to consider the new evidence that was not available when it filed the first postjudgment motion. As explained below, however, we need not determine whether Goodyear’s second postjudgment motion constituted an amendment to the first postjudgment motion or whether it was a repetitive filing because, even if the trial court’s refusal to consider the second postjudgment motion was error, such error was harmless. See Rule 45, Ala. R.App. P. (“No judgment may be reversed or set aside, nor new trial granted in any civil ... case ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”).

In Marsh v. Smith, 67 So.3d 100 (Ala.Civ.App.2011), this court was asked to consider whether a trial court had abused its discretion in denying a Rule 59(e) post-judgment motion in which a father had sought to have the trial court alter, amend, or vacate the trial court’s judgment refusing the father’s request for a custody modification. This court wrote:

“In order to prevail on such a motion, the father was required to submit newly discovered evidence that warranted the reopening of the evidence. Bates v. State, 503 So.2d 856, 858 (Ala.Civ.App.1987) (stating that motions seeking relief from a judgment on the ground of newly discovered evidence are not granted ‘when the new evidence comes into being following the conclusion of the trial’). As this court explained in Bates, ‘[rjelief is barred when it is based on this type of evidence because trials would have the potential to become never-ending.’ Bates, 503 So.2d at 858 (citing Moody v. State ex rel. Payne, 344 So.2d 160, 163 (Ala.1977) (‘There can be no ... relief for evidence which has come into existence after the trial is over simply because such a procedure would allow all trials perpetual life.’)).”

Marsh, 67 So.3d at 107-08.

In this case, as in Marsh, Goodyear’s postjudgment motions requested that the trial court reopen the proceedings to consider evidence that was not in existence at the time of the trial, as opposed to newly discovered evidence. Specifically, Goodyear asked the court to consider the results of physical and psychological testing that had been performed on Haygood after the trial had concluded. Because a judgment cannot be vacated or revised on the ground of new evidence that comes into existence after the trial, Goodyear’s post-judgment motions could not be granted. Therefore, even if the trial court did abuse its discretion in refusing to consider the second postjudgment motion, because that motion could not have been granted on the ground stated by Goodyear, such an abuse of discretion, if any, is harmless.

Goodyear argues that the trial court erred in finding that Haygood is permanently and totally disabled. Specifically, Goodyear asserts that the evidence does not support a finding that Haygood’s complaints of pain were principally the result of his work injury. Instead, it asserts, his pain was caused by other, unrelated medical conditions.

The standard of appellate review in workers’ compensation cases is governed by § 25-5-81(e), Ala.Code 1975, which provides, in part, that, “[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81(e)(2). “Substantial evidence” is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

In support of its argument that the evidence does not support a finding that Hay-good’s pain was the result of his work injury, Goodyear relies on the results of the tests conducted on Haygood in response to Dr. Beck’s recommendations, Dr. Beck’s belief that Haygood’s previous physicians had misdiagnosed the cause of Haygood’s chronic pain, and Dr. Cos-grove’s response to Dr. Beck’s recommendations. Goodyear argues that the trial court did not have a complete record when it made its determination of Haygood’s disability.

We have already determined that the trial court did not abuse its discretion in denying the motion for a continuance and that the denial of Goodyear’s postjudgment motions seeking to introduce new evidence did not constitute reversible error. Furthermore, in its judgment the trial court noted that, although it found the April 2011 FCE and the medical examination by Dr. Beck of limited value because Dr. Beck and the FCE examiner did not have “available the same complete evidence available to this Court,” it did consider portions of Dr. Beck’s testimony in reaching its conclusion. The trial court stated that Dr. Beck had noted in his examination that Haygood had to lie down twice during the examination. Dr. Beck also found that Haygood had “diffuse tenderness to the low back” and that Haygood had a callus on the palm of his right hand. The trial court found that the callus “confirms [Hay-good’s] regular use of the cane.” The trial court further noted that Dr. Beck had testified that symptoms of CRPS “wax and wane and that all of the symptoms may not be present within the examination and in every limb on every occasion on a physical examination.” Our review of Dr. Beck’s testimony in the record shows that the trial court’s findings are reflected in the record.

Goodyear does not argue that the evidence that does appear in the record does not support the trial court’s finding that Haygood is permanently disabled. However, out of an abundance of caution, we note that the evidence in the record does support such a finding. Haygood testified to debilitating pain in his foot, consistently rating the pain as a 9, a 10, or 10-plus on a scale of l-to-10. He testified to his inability to do things such as sleep, stand, drive, shop, ride his motorcycle, or do other things that are routine in most people’s daily lives. In the judgment, the trial court stated that its own observations of Haygood showed that his “limitations are significant and [that Haygood] appeared to be struggling with pain, even at rest.”

Objective evidence was presented that tended to corroborate Haygood’s subjective complaints of pain. For example, when Dr. Beck examined Haygood more than a year and a half after the accident, Haygood still had a temperature differential of three degrees between his right foot and his left foot. Dr. Beck said that Hay-good would not have been able to manipulate that difference. Even after Dr. Morley performed surgery on Haygood’s right foot, Dr. Morley reported that the foot still had generalized swelling and that the toes on that foot were “red and shiny and cold to the touch.” Dr. Cosgrove and Dr. Jones both opined that the pain Haygood began experiencing in his left foot and leg and lower back could have been caused by his altered gait, which Haygood had adopted to attempt to alleviate the pain in his right foot.

This court has held that “for pain in a scheduled member to be totally, or virtually totally, debilitating to the body as a whole, that pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of his or her body.” G.UB.MK Constructors v. Davis, 78 So.3d 998, 1002 (Ala.Civ.App.2011) (citing Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] — So.Sd —(Ala.Civ.App.2010)). Haygood presented sufficient evidence to meet that “exceedingly high standard.” Norandal, — So.3d at —.

The trial court in this case specifically found that, based on the evidence presented and its own observations of Haygood, “the effects of the right foot pain alone (absent the additional limitation with the lumbar spine) are so severe that it virtually totally physically disables [Haygood].” Based on our review of the record, we conclude that substantial evidence supports the findings of the trial court.

Goodyear asserts that the trial court erred by awarding Haygood permanent-total-disability benefits based on his claimed back injury, even though, Goodyear says, there was no evidence that he had reached MMI as to his back condition. At the start of the trial, Goodyear stipulated that Dr. Morley had determined that Haygood had reached MMI on September 19, 2010. Moreover, as pointed out above, the trial court explicitly found that “the effects of the right foot pain alone (absent the additional limitation with the lumbar spine) are so severe that it virtually totally physically disables [Haygood].” Nonetheless, we note that there is nothing in the record to suggest that Haygood’s right-foot pain will lessen or that, over time, he will no longer walk with an altered gait. Haygood’s treating physicians testified that the altered gait could be the cause of Haygood’s lower-back pain, either alone or by aggravating a preexisting condition. We have no evidence before us to suggest that Haygood’s back pain will ease as long as he continues to walk with an altered gait.

Furthermore, the date of MMI is the date used to calculate when a temporary disability ends. See AAA Cooper Transp.v. Philyaw, 842 So.2d 689, 692 (Ala.Civ.App.2002). Because the trial court found that Haygood is permanently and totally disabled as a result of the pain he has from his right-foot injury alone and explicitly excluded the limitations Haygood has as a result of his back pain in that finding, a finding that Haygood has reached MMI as to his back would not negate the finding that Haygood is permanently and totally disabled as a result of the injury to his right foot.

For the reasons set forth above, we conclude that Goodyear has failed to demonstrate that the trial court’s judgment should be reversed. Accordingly, the judgment is affirmed.

Haygood’s motion to strike is denied on the basis that it is moot.

AFFIRMED.

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

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

      . At the end of the trial, Goodyear’s attorneys sought to leave the record open so that Dr. Cosgrove’s opinion regarding the testing that Dr. Beck had recommended could be included in the record. Dr. Cosgrove was out of town and was not immediately available to review Dr. Beck’s findings as a result of the April 6, 2011, FCE and his subsequent examination of Haygood. The trial court asked "what precipitated the request” for the FCE and medical evaluation on the eve of trial, "which has kicked off this whole cascade of additional medical requests?” Goodyear’s attorney replied:
      "There were questions sent to — which I'm sure Debbie will be there — questions sent to the adjuster or I can’t remember who by — there were questions sent to the doctor. And in response to the questions, he said we need to do this. And so we said, okay, we're gonna do this."
      Because this discussion took place after the triál court had ruled on the motion for a continuance, we have not considered it in determining whether the denial of the continuance was proper.

      . We take this opportunity to note that because Goodyear’s second postjudgment motion was filed within 30 days of the entry of the judgment, that postjudgment motion was required to be treated as a motion filed pursuant to Rule 59(e), not as a Rule 60(b), Ala. R. Civ. P., motion seeking relief from a judgment based on newly discovered evidence. See Curry, 962 So.2d at 263-64, and the cases cited therein.


author: MOORE, Judge.

text:
    ALABAMA STATE PERSONNEL BOARD v. Cheryl HANCOCK.
    2101033.
    Court of Civil Appeals of Alabama.
    March 30, 2012.
    Luther Strange, atty. gen., and Alice Ann Byrne and Tara S. Knee, asst, attys. gen., Alabama State Personnel Department, for appellant.
    Norbert H. Williams, Alabama State Employees Association, Montgomery, for appellee.
   MOORE, Judge.

The Alabama State Personnel Board (“the board”) appeals from a judgment of the Montgomery Circuit Court (“the circuit court”) overturning the board’s order upholding the decision of the Alabama Department of Human Resources to terminate the employment of Cheryl Hancock. We reverse.

Procedural History

Pursuant to Ala.Code 1975, § 41-22-20, a portion of the Alabama Administrative Procedure Act (“the AAPA”), Ma.Code 1975, § 41-22-1 et seq., on January 18, 2011, Hancock filed in the circuit court a petition for judicial review of the board’s order upholding the decision of the Alabama Department of Human Resources to terminate Hancock’s employment. On July 27, 2011, the circuit court entered a judgment stating:

“This matter came before the Court on appeal of the ‘recommendation of dismissal of employment’ by the hearing officer after hearing several allegations of employee alleged misconduct. The [board] having approved the recommendation, thus the appeal followed. This Court after having reviewed the recommendation of the hearing officer and having spent considerable time reviewing the record finds the hearing officer report too vague for the Court to test his ruling pursuant to the evidence. The Court further finds the evidence in the record does not support the recommendation of the hearing officer and subsequent decision by the Board dismissing [Hancock] from employment. Therefore the recommendation of dismissal by the hearing officer and the decision by the Board upholding the recommendation is hereby set aside and held for naught.”

The board filed its notice of appeal to this court on July 28, 2011.

Discussion

On appeal, the board argues that the circuit court’s judgment did not comply with Ala.Code 1975, § 41-22-20(l), which provides: “Unless the court affirms the decision of the agency, the court shall set out in writing, which writing shall become a part of the record, the reasons for its decision.” Hancock concedes that the circuit court’s judgment is not in compliance with § 41-22-20(l).

In Alabama State Personnel Board v. Carson, 939 So.2d 49, 50-51 (Ala.Civ.App.2006), this court reasoned:

“Under [Ala.Code 1975, § 41-22-20(l) ], ‘an explanatory writing must become a part of the record whenever any appropriate relief is granted, not just a reversal or modification of the agency decision.’ Ma.Code 1975, § 41-22-20, Commentary (emphasis added).
“In a long line of cases since the 1981 adoption of the AAPA, we have required substantial compliance with § 41-22-20(l) on pain of reversal. For example, in Alabama Medicaid Agency v. Norred, 497 So.2d 176, 176 (Ala.Civ.App.1986), we reviewed a judgment reversing an administrative order in which the trial court stated, in pertinent part, that ‘ “[t]he Court is satisfied that according to the testimony and exhibits presented at ... [an administrative hearing], the conclusions and recommendations of the hearing officer are correct and that the [agency] was in error.” ’ In concluding that that statement of reasons was insufficient under § 41 — 22—20(i) and in reversing that judgment, we noted the limited and deferential standard of review due to be applied in circuit courts under the AAPA. 497 So.2d at 176-77; accord, Alabama Medicaid Agency v. Beverly Enters., 504 So.2d 1211, 1213 (Ala.Civ.App.1987) (‘this court, without a listing by the circuit court of its reasons for rejecting the Agency’s decision that reimbursement should be denied, cannot determine if the circuit court complied with the prescribed review standard’); Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989) (‘the [circuit] court cannot merely recite the statutory grounds for reversal or modification set forth in § 41-22-20(k)[, Ala.Code 1975,] when setting aside an agency’s findings’); see also Alabama Renal Stone Inst. v. Trustees of Susie Parker Stringfellow Mem. Hosp., 680 So.2d 358 (Ala.Civ.App.1996); State of Alabama Home Builders Licensure Bd. v. Butler, 706 So.2d 1267, 1268 (Ala.Civ.App.1997); cf. Alabama Dep’t of Mental Health & Mental Retardation v. Marshall, 741 So.2d 434, 436 (Ala.Civ.App.1999) (although judgment stating only that agency’s findings and conclusions were contrary to the evidence contravened § 41-22-20(l), appeal from that judgment was dismissed as untimely).
“The circuit court in this case, although it reversed the Board’s order, failed to specify, in its judgment or in a separate opinion, ‘the reasons for its decision.’ Without such a specification of reasons, we ‘cannot determine if the circuit court complied with the prescribed review standard’ so as to properly assess the correctness of the circuit court’s decision to reverse the Board’s order. Beverly Enters., 504 So.2d at 1213. The judgment of the circuit court is therefore reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.”

Similarly, in the present case, the circuit court “failed to specify, in its judgment or in a separate opinion, ‘the reasons for its decision.’ ” 939 So.2d at 51. “Without such a specification of reasons, we ‘cannot determine if the circuit court complied with the prescribed review standard’ so as to properly assess the correctness .of the circuit court’s decision to reverse the Board’s order.” Id. Accordingly, we reverse the circuit court’s judgment and remand this cause for the entry of a judgment in compliance with § 41-22-20(l). Id.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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


author: PER CURIAM. WINDOM, Judge,

text:
    Aaron COLEMAN v. STATE of Alabama.
    CR-10-0421.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.
    Opinion on Return to Remand Feb. 10, 2012.

      Lydia Curtis Dillingham, Enterprise, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Aaron Coleman, was convicted of two counts of the unlawful distribution of a controlled substance and was sentenced to concurrent terms of five years in prison. The sentences were split, and he was ordered to serve six months in prison followed by five years of supervised probation.

At trial, the State’s case against Coleman consisted of the testimony of the confidential informant (“Cl”), Elba Police Officer Leslie Hussey, and John Brunner from the Alabama Department of Forensic Sciences. Officer Hussey testified that on July 17, 2009, he conducted an undercover drug operation using a Cl and that he wired the Cl and audiotaped the exchange. The Cl testified that he purchased cocaine from Coleman at an apartment complex in Elba, that he was currently in jail on assault charges, and that at the time of the drug purchase he had been working with the police in an attempt to get his drug charges nol-prossed. Brunner testified that the substance he tested was a mixture containing cocaine.

On appeal, Coleman argues that the circuit court erred in denying counsel’s motion to withdraw from the ease. Specifically, he argues that his trial attorney had a conflict of interest because, he says, he was representing both the Cl and the defendant at the same time and such representation violated Rule 1.7(a), Ala. R. Prof. Cond. The State concedes that this case should be remanded to the Coffee Circuit Court for an evidentiary hearing on this claim. For the following reasons, we agree with the State.

The record indicates that one week before the trial was scheduled to begin counsel filed a motion to withdraw from representing Coleman. In the motion, counsel asserted:

“In the case at hand it will be necessary for counsel to disclose to the jury through cross-examination, information that was ... learned through representation of the [Cl]. However, because of the Rules of Professional Responsibility counsel will not be able to ask certain questions of the [Cl] because the knowledge of that information comes from counsel’s representation of the [Cl].”

(C. 46.)

Also, when the trial court inquired if the parties were ready to make their opening statements, Coleman’s trial counsel stated: “I do have one issue I’d like on the record, if you don’t mind,” whereupon the trial court allowed Coleman’s trial counsel to present his issue outside the hearing of the jury:

“[Trial Counsel]: Judge, respectfully, I’m not going to try to ask for a continuance again. I just want to put on the record that I have asked twice for a continuance and once in a written motion and the Court has denied that, but I’m moving forward upon the Court’s instruction. I just wanted to respectfully put that on the record.
“THE COURT: For the reasons I have stated and I will state again, the motion to withdraw, the motion for a continuance are each denied. The jury was impaneled last week. Jeopardy was attached and it’s time to go on with the trial.
“Nothing was presented to me to alter that opinion on that point. And I have made a vnitten entry. I haven’t had time to type it up, but it will be filed concerning your motions—
“[Trial Counsel]: Yes, sir.
“THE COURT: — on withdrawing and continuance.
“All right. Are we ready to proceed?
“[Trial Counsel]: Yes, sir.”

(R. 10-11 (emphasis added).) This issue was again raised in Coleman’s motion for a new trial. As cited above, the circuit court referenced that it would make a written ruling on the motion to withdraw; however, no such ruling is contained in the record.

Rule 1.7(a), Ala. R. Prof. Cond., provides:

“A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
“(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
“(2) Each client consents after consultation.”

(Emphasis added.)

The Sixth Amendment right to counsel includes the right “to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). “An actual conflict of interest exists when an attorney owes loyalty to a client whose interests are adverse to another client.” Self v. State, 564 So.2d 1023, 1033 (Ala.Crim.App.1989).

“The problem that arises when one attorney represents both the defendant and the prosecution witness is that the attorney may have privileged information obtained from the witness that is relevant to cross-examination, but which he refuses to use for fear of breaching his ethical obligation to maintain the confidences of his client.”

Ross v. Heyne, 638 F.2d 979, 983 (7th Cir.1980).

“ ‘[T]here is no per se rule prohibiting representation of the defendant by counsel who has previously represented a government witness,’ United States v. Bowie, 892 F.2d 1494, 1502 (10th Cir.1990). However, where counsel who has previously represented a prosecution witness subsequently represents the defendant against whom the witness is to testify, the potential for a conflict of interests exists in ‘that defense counsel may not be able to effectively cross-examine the witness for fear of divulging privileged information. Id. at 1501. This same concern, as well as other rather obvious concerns, arise when counsel simultaneously represents the defendant and a prosecution witness. See, e.g., Rosenwald v. United States, 898 F.2d 585, 587-88 (7th Cir.1990); Pinkerton v. State, 395 So.2d at 1086; People v. Wandell, 75 N.Y.2d 951, 555 N.Y.S.2d 686, 554 N.E.2d 1274, 1274-75 (1990). Whether counsel’s representation of the witness occurs before or is simultaneous with the representation of the defendant, the ‘potential for conflict is great where there is a substantial relationship’ between the two cases. United States v. Bowie, 892 F.2d [1494,] 1502 [ (10th Cir.1990) ].”

Molton v. State, 651 So.2d 663, 668-69 (Ala.Crim.App.1994) (emphasis added). See also Wynn v. State, 804 So.2d 1122, 1132 (Ala.Crim.App.2000).

The United States Supreme Court has held that a trial court has an obligation to investigate into a possible conflict of interest like the type presented in this case when that potential conflict is brought to the court’s attention. See Cuyler v. Sulli van, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

In Pinkerton v. State, 395 So.2d 1080 (Ala.Crim.App.1980), this Court found that an actual conflict of interest occurred when Pinkerton’s attorney represented the informer in a previous criminal proceeding. More recently, we discussed our holding in Pinkerton, and stated:

“Pinkerton [v. State, 395 So.2d 1080 (Ala.Crim.App.1980),] did not cite Cuyler v. Sullivan, [446 U.S. 335 (1980),] although it was released subsequent to Cuyler. Later federal cases relying on Cuyler have indicated that even defendants alleging a conflict of interest based on simultaneous representation of a prosecution witness must demonstrate an actual conflict through a showing of specific facts. See, e.g., Rosenwald v. United States, 898 F.2d at 587-88; Barham v. United States, 724 F.2d [1529,] 1531-33 [(11th Cir.1984) ]. We need not resolve this conflict in this case because, even assuming that the appellant has demonstrated an actual conflict of interest, he has clearly failed to show that that conflict adversely affected trial counsel’s performance. Under the particular facts of this case, however, his failure to do so is not dispositive of the issue. This Court is troubled by the fact that, several months after having been retained by the appellant, but before the appellant’s trial, trial counsel accepted an appointment to represent a crucial prosecution witness against the appellant. As the Eleventh Circuit Court of Appeals has observed: ‘In the abstract, or the hypothetical, it is not a good idea at all’ for counsel to simultaneously represent a defendant and a prosecution witness who is to testify against that defendant. Barham v. United States, 724 F.2d at 1533. See generally Rule 1.7, Rule 1.9, A.R. Prof. Cond. ‘Defense counsel have an ethical obligation to avoid conflicting representations,’ Cuyler v. Sullivan, 446 U.S. at 346, 100 S.Ct. at 1717, and have the further ‘obligation, upon discovering a conflict of interests, to advise the court at once of the problem,’ Holloway v. Arkansas, 435 U.S. [475,] 485-86, 98 S.Ct. [1173,] 1179 [55 L.Ed.2d 426 (1978) ].”

Molton, 651 So.2d at 670. See McConico v. Alabama, 919 F.2d 1543, 1548 (11th Cir.1990) (“[T]he law formerly was that once a conflict of interest was shown, prejudice was presumed.... Since Strickland, however, it has been clear that a showing of adverse effect is required.”). See also Rael v. Blair, 141 N.M. 232, 238, 153 P.3d 657, 663 (2007) (“We conclude that defense counsel was operating under a conflict of interest in representing both [the confidential informant] and Defendant. As Defendant points out, defense counsel could not effectively cross-examine [the confidential informant] because of his confidential relationship resulting from counsel’s prior representation.”); State v. Jenkins, 257 Kan. 1074, 1087, 898 P.2d 1121, 1130 (1995) (“[T]he trial court was presented with information that established an actual conflict — defense counsel represented the key prosecution witness. Further the crime for which defense counsel represented the key prosecution witness occurred during the time the witness was acting as a confidential informant for the State in the drug transaction involved in this case.”).

In Deerman v. State, 466 So.2d 1013 (Ala.Crim.App.1984), we remanded the case to the circuit court for that court to make findings of fact concerning Deer-man’s claim that his counsel’s representation of both the defendant and one of the State’s witnesses in a pending civil litigation — a case unrelated to the criminal case against the defendant — constituted a conflict of interest. On appeal, this Court stated as follows concerning cases in which counsel may have a conflict of interest:

“ ‘Actionable conflict of interests’ have been found to exist with respect to the representation by the same defense counsel of a non co-defendant prosecution witness at a separate proceeding. Annot. 18 A.L.R.4th 360, Section 12(a) (1982), citing Pinkerton v. State, 395 So.2d 1080 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1090 (Ala.1981). In Pinkerton, a drug sale prosecution, a conflict was found where defense counsel had previously represented the informant who was the prime figure in the arrest of the defendant. The informant had been convicted of selling narcotics, and had agreed to cooperate with law enforcement officers in exchange for a recommendation of a mitigated sentence and had not yet been sentenced. This Court found it ‘clear ... that appellant’s trial attorney could not very well seek to fully represent the appellant, when that representation would of necessity involve an attack upon the credibility of the chief witness, Vickers, especially where the attorney had had a role in negotiating the agreement by which Vickers would inform in exchange for a possibly mitigated sentence.’ Pinkerton, 395 So.2d at 1089.”

466 So.2d at 1016. See also Browning v. State, 607 So.2d 339 (Ala.Crim.App.1992) (reversing Browning’s conviction because of an actual conflict of interest); Annot., Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel — State Cases, 18 A.L.R.4& 360 (1982); Annot., Propriety and Prejudicial Effect of Counsel’s Representing Defendant in Criminal Case Notwithstanding Counsel’s Representation or Former Representation of Prosecution Witness, 27 A.L.R.3d 1431 (1969).

This case presents an even stronger case for remand than did Deer-man. Here, the record shows that counsel moved on several occasions to withdraw from the case because of his simultaneous representation of the Cl on criminal charges, that the Cl testified at Coleman’s trial and was subject to cross-examination by his own attorney, and that counsel stated in his motion to withdraw that his cross-examination of the Cl was hampered in that he could not ask certain questions because the information that formed the basis of those questions was obtained through his privileged communications with the Cl.

“A review of Holloway [v. Arkansas, 435 U.S. 475 (1978) ], [Cuyler v.] Sullivan, [446 U.S. 335 (1980) ], and Wood [v. Georgia, 450 U.S. 261 (1981)], clearly demonstrates that where a trial court knows or reasonably should know of an attorney’s possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists. The duty to inquire arises not only from the general principles of fundamental fairness, but from the principle that where there is a right to counsel, there is a correlative right to representation free from conflicts of interest....
“Although we cannot be sure that an actual conflict of interest existed, there is a clear possibility of conflict of interest on the facts of this case.... ”

State v. Johnson, 185 Ohio App.3d 654, 657, 925 N.E.2d 199, 202 (2010).

“An evidentiary hearing should be granted when there are important issues of fact which were not adequately developed at trial, the failure to develop the facts was not due to the defendant’s neglect or deliberate bypass, and the record does not conclusively demonstrate that the petitioner is entitled to no relief.”

Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir.1990).

Here, as in Deerman, the record is sufficient to establish that there was, at the very minimum, a potential — if not an actual — conflict of interest in trial counsel’s simultaneous representation of Coleman and the Cl who testified against Coleman. Although, the record is silent as to why the circuit court denied trial counsel’s numerous motions to withdraw, the inadequacies of the record in that regard are overcome by the nature of the conflict involved in this case. See Browning v. State, 607 So.2d at 343 n. 1 (“When an ‘actual’ conflict of interest is proven, we will reverse the judgment even though the issue was not first presented to the trial court.”).

Accordingly, this case is remanded to the Coffee Circuit Court for that court to conduct an “evidentiary hearing on the issue of whether [Coleman] was denied the effective assistance of counsel in view of the alleged conflict of interests stemming from trial counsel’s concurrently representing the prosecution’s chief witness in another matter.” Deerman, 466 So.2d at 1018. The circuit court is further directed to make written findings of fact concerning this claim. Due return should be filed in this Court within 72 days of the date of this opinion.

REMANDED WITH INSTRUCTIONS.

WELCH, P.J., and KELLUM, BURKE, and JOINER, JJ., concur. WINDOM, J., dissents, with opinion.

WINDOM, Judge,

dissenting.

I disagree with the majority’s decision to remand this cause to the circuit court for that court to conduct an evidentiary hearing regarding Aaron Coleman’s allegation that his counsel suffered from a conflict of interest. Specifically, the record and pleadings indicate that the circuit court inquired into a possible conflict of interest and, according to defense counsel, determined that “no confidential information was acquired in the representation of the Cl that counsel could use on behalf of [Coleman] in this matter[; therefore,] no conflict of interest existed.” (C. 50.) The record, however, does not contain the proceeding during which the circuit court inquired into the possible conflict or the evidence or assertions relied upon by the circuit court to make its determination. Because Coleman has not made any effort to provide this Court with a complete record, I do not believe that Coleman has met his burden to provide this Court with a sufficient record, Carden v. State, 621 So.2d 342, 346-47 (Ala.Crim.App.1992), and I would not remand this cause for the circuit court to do what has already been done, and, presumably, has been done correctly. See Williams v. State, 55 So.3d 366, 370 (Ala.Crim.App.2010) (‘““Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done.” ’ ”) (quoting Johnson v. State, 823 So.2d 1, 18-19 (Ala.Crim.App.2001), quoting in turn Owens v. State, 597 So.2d 734, 736 (Ala.Crim.App.1992), quoting in turn Jolly v. State, 405 So.2d 76, 77 (Ala.Crim.App.1981)). Therefore, I respectfully dissent.

Coleman’s only argument on appeal is that the circuit court erroneously denied his attorney’s motion to withdraw. Specifically, Coleman asserts that his trial counsel also represented á witness for the State; therefore, counsel suffered from a conflict of interest. From there, Coleman contends that the circuit court abused its discretion by denying counsel’s motion to withdraw.

Coleman, however, has not provided a sufficient record to review the merits of this issue. The record indicates that Coleman’s trial began on November 10, 2010. According to written motions filed by trial counsel, at some point before November 9, 2010, counsel orally moved the circuit court to allow him to withdraw from representing Coleman on the ground that counsel represented a State’s witness, a confidential informant; therefore, counsel suffered from a conflict of interest. (C. 45, 50.) In Coleman’s unverified motion for a new trial, trial counsel asserted that the circuit court had denied his motion after finding that “no confidential information was acquired in the representation of the Cl that counsel could use on behalf of [Coleman] in this matter[; therefore,] no conflict of interest existed.” (C. 50.) The record, however, does not contain a transcript of trial counsel’s first oral motion to withdraw or the proceedings in which the circuit court determined that no conflict existed.

After the circuit court denied counsel’s first oral motion to withdraw, counsel, on November 9, 2010, filed a written motion renewing his oral motion to withdraw. The transcript of the proceeding begins on November 10, 2010, after jury selection and just before opening statements. Before opening statements, counsel orally renewed his motions to withdraw. The circuit court ruled that “[f|or the reasons I have stated ... the motion to withdraw ... [is] denied.” (R. 11.)

Other than the assertions in trial counsel’s pleadings, the record does not contain the reasons the circuit court previously gave for denying the motion to withdraw. Further, the record does not contain a transcript of the proceedings in which counsel first moved to withdraw; therefore, the circuit court presumably inquired into the possible conflict of interest. See Williams, 55 So.3d at 370 (“ ‘ “Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done.” ’ ”) (quoting Johnson, 823 So.2d at 18-19, quoting in turn Owens, 597 So.2d at 736, quoting in turn Jolly, 405 So.2d at 77). Accordingly, the record is silent regarding the extent to which the circuit court inquired into a possible conflict of interest and regarding the correctness of the circuit court’s determination.

It is well settled that:

“[t]he appellant bears the burden of bringing the record before the appellate court. Montgomery v. State, 504 So.2d 370 (Ala.Crim.App.1987). An appellate court may only consider the facts contained in the record on appeal, and it may not presume any facts not shown by that record and make them a ground for reversal. Williams v. State, 412 So.2d 1274 (Ala.Crim.App.1982).”

Carden, 621 So.2d at 346-47. Stated differently, “[t]he appellant ‘ “bears the burden of bringing the record before an appellate court. He and his counsel have the duty of checking the record before submitting the appealf, and if the record is incomplete,] [i]t is their duty to file a corrected record.” ’ ” Smith v. State, 745 So.2d 922, 928 (Ala.Crim.App.1999) (quoting Ingram, v. State, 629 So.2d 800, 804 (Ala.Crim.App.1993), quoting in turn Jordan v. State, 607 So.2d 333, 335 (Ala.Crim.App.1992)).

It is equally well settled that “ ‘ “[w]here the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done.” ’ ” Williams, 55 So.3d at 370 (quoting Johnson, 823 So.2d at 18-19, quoting in turn Owens, 597 So.2d at 736, quoting in turn Jolly, 405 So.2d at 77). See also Finney v. State, 860 So.2d 367, 376-77 (Ala.Crim.App.2002) (same); Welch v. State, 63 So.3d 1275, 1279 (Ala.Crim.App.2010) (same); Robinson v. State, 444 So.2d 884, 885 (Ala.1983) (holding that a silent record supports the circuit court’s judgment). In other words, “[a] reviewing court cannot predicate error on matters not shown by the record.” Ex parte Howell, 974 So.2d 304, 306 (Ala.2007) (citations and quotations omitted). “Indeed, [when an appellant fails to supply an appellate court with an adequate record, the] silent record supports [the circuit court’s] judgment.” Id. (citations and quotations omitted).

Here, Coleman did not satisfy his burden to supply this Court with a sufficient record to review the propriety of the circuit court’s determination that no conflict of interest existed. As stated above, the record is silent regarding the extent to which the circuit court inquired into a possible conflict of interest, regarding the assertions and/or evidence presented to the circuit court to support the alleged conflict, and regarding the basis for the circuit court’s denial of the motion to withdraw. The silence is not surprising. In his reporter’s transcript order, Coleman did not request a transcript of any pretrial proceedings. Further, after the transcript had been prepared, Coleman did not file a motion pursuant to Rule 10(g), Ala. R.App. P., to supplement the record with the oral motion and proceedings leading to the disposition of the motion. Further, Coleman has not made any attempt to utilize Rules 10(d) or 10(e), Ala. R.App. P., to create a record of these proceedings in the event they were not recorded.

Consequently, Coleman has not met his burden to provide this Court with a sufficient record to review the propriety of the circuit court’s denial of counsel’s motion to withdraw. Because Coleman has left this Court with a silent record, this Court must “ ‘ “presume! ] that what ought to have been done was not only done, but rightly done.” ’ ” Williams v. State, 55 So.3d 366, 370 (Ala.Crim.App.2010) (quoting Johnson, 823 So.2d at 18-19, quoting in turn Owens, 597 So.2d at 736, quoting in turn Jolly, 405 So.2d at 77).

Because the record is silent, the State asserts, and the majority agrees, that this cause should be remanded for an eviden-tiary hearing on Coleman’s claim that trial counsel suffered from a conflict of interest. In other words, the State and the majority seek to remand this cause for the circuit court to do that which, based on the silent record, this Court should “presume[ ] ... was not only [already] done, but rightly done.” Williams, 55 So.3d at 370. To support their positions, both the State and the majority rely on Deerman v. State, 466 So.2d 1013, 1014 (Ala.Crim.App.1984); however, Deerman is distinguishable. In Deerman, once the potential conflict of interest was brought to the circuit court’s attention, the court did not inquire into the extent of a potential conflict. Id. at 1017. Instead, the circuit court “anticipated [holding] a hearing on this issue [once it was raised in] a motion for a new trial[; however,] [s]uch a motion was never filed.... ” Id. Because no hearing was held, the circuit court never fully inquired into the extent of a possible conflict of interest or whether the alleged conflict of interest affected counsel’s performance. Id. Thus, Deerman was a case in which the circuit court did not make an adequate inquiry into trial counsel’s potential conflict of interest.

In contrast, the record before this Court indicates that the circuit court in this case did inquire into trial counsel’s potential conflict of interest and determined that “no confidential information was acquired in the representation of the Cl that counsel could use on behalf of [Coleman] in this matterf; therefore,] no conflict of interest existed.” (C. 50.) Thus, this is not a case like Deennan, where the record shows that the circuit court’s inquiry was inadequate. Instead, this is a case in which the record is silent regarding the proceedings in which the circuit court made its inquiry; therefore, this Court should presume that what was done was done correctly. Williams, 55 So.3d at 370.

Because Coleman has failed to provide this Court with an adequate record, this Court should presume from the silent record that the circuit court made an adequate inquiry into the possible conflict of interest and correctly determined that no conflict existed. Williams, 55 So.3d at 370. See also Salvadore v. Howard, 249 Ala. 354, 355, 31 So.2d 345, 346 (1947) (recognizing that “on appeal, all things are presumed to have been done correctly and proper adjudications made, unless the contrary appears”). Therefore, I disagree with the majority’s decision to remand this cause with instructions for the circuit court to do that which presumably has already been done, and I respectfully dissent.

On Return to Remand

PER CURIAM.

The appellant, Aaron Coleman, was convicted of two counts of the unlawful distribution of a controlled substance and was sentenced to concurrent terms of five years in prison. The sentences were split, and he was ordered to serve six months in prison followed by five years of supervised probation. Coleman appealed to this Court. We remanded the case for the circuit court to hold an evidentiary hearing and to make findings of fact as to whether there was an actual conflict of interest in defense counsel’s representing both Coleman and the confidential informant who testified against him. See Coleman v. State, 93 So.3d 145 (Ala.Crim.App.2011). The circuit court has complied with our directions and has submitted its findings to this Court. The circuit court stated the following:

“(1) At the time of the trial of the defendant, trial counsel represented both the defendant and the prosecution’s chief witness, a confidential informant named [F.C.].
“(2) During his representation of the confidential informant, trial counsel learned privileged information that later became relevant during the trial of the defendant but could not be disclosed by trial counsel without violating the attorney client privilege.
“(3) Trial counsel’s knowledge of the privileged information materially limited his ability to perform his duties and vigorously represent the defendant for fear of actually divulging the privileged information and committing professional misconduct.
“(4) The defendant was denied effective assistance of counsel by trial counsel’s inability to fully cross-examine the confidential informant.”

(Return to remand, R. 3-4.)

We agree with the circuit court that Coleman established an actual conflict of interest by his counsel’s simultaneous representation of both Coleman and the confidential informant who was the chief prosecution witness against Coleman. Based on the cases cited in our main opinion, Motion v. State, 651 So.2d 663 (Ala.Crim.App.1994), and Pinkerton v. State, 395 So.2d 1080 (Ala.Crim.App.1980), Coleman is enti-tied to a new trial with an attorney who is free from any conflict of interest.

Accordingly, Coleman’s convictions for two counts of the unlawful distribution of a controlled substance are due to be reversed and this case is remanded to the Coffee Circuit Court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

WINDOM, P.J., adheres to original dissent.

      . The majority states that "one week before the trial was scheduled to begin counsel filed a motion to withdraw.” 93 So.3d at 147. Contrary to that statement, counsel's written motion was filed on November 9, 2010, the day before the trial began. (C. 46; R. 2-6.)