author: PER CURIAM. THOMAS, Judge,

text:
    SHADESCREST HEALTH CARE CENTER v. Patricia HOLLOWAY.
    2081164.
    Court of Civil Appeals of Alabama.
    Aug. 6, 2010.
    Certiorari Denied Feb. 11, 2011 Alabama Supreme Court 1091593.

      Tom Burgess and Ethan R. Dettling of Burgess & Associates, L.L.C., Birmingham, for appellant.
    Pat Nelson of The Pat Nelson Law Firm, Jasper, for appellee.
   PER CURIAM.

Patricia Holloway was employed by Sha-descrest Health Care Center (“Shades-crest”) as a certified nursing assistant (“CNA”). In January 2001, Holloway slipped on a puddle of water and fell, injuring her back. Holloway informed her supervisor of the fall. She did not undergo medical treatment provided by her employer between the date of the injury and October 2002. However, in October 2002, Holloway sought treatment from an employer-selected physician, Dr. Scott Twil-ley, who then referred Holloway to Dr. Mark Prevost. In April 2003, after more conservative treatments had not resolved Holloway’s continued back pain and intermittent shooting pains in her right leg, Dr. Prevost performed a lumbar-fusion surgery on Holloway. Although the surgery resolved Holloway’s intermittent leg pain, her back pain continued.

Holloway underwent physical therapy after her surgery. She also underwent a functional capacities evaluation (“FCE”) in September 2003. Holloway explained that the FCE took about an hour and that it was difficult to complete due to her pain. However, she said that she performed the tasks requested of her, including walking up and down some steps, picking up a basket, and squatting. Holloway testified that bending over during the FCE put a strain on her back and that, although she had performed the squatting requested, she recalled that an attendant had to help her stand back up. According to Holloway, she felt more sore later that afternoon and the next day than she usually felt.

After the FCE, Holloway was released to return to work by Dr. Prevost, with certain restrictions established by the FCE. Specifically, she was permitted to lift frequently up to 20 pounds and to carry loads of 20 to 25 pounds for short distances frequently. She was limited to occasionally climbing stairs or ladders, balancing, kneeling, crouching, and squatting. The FCE placed no limitation on Holloway’s ability to reach, handle objects, or use her fingers. However, the FCE did state that Holloway should completely avoid stooping, which it defined as “[blending the body downward and forward by bending the spine at the waist.”

In November 2003, Holloway attempted to return to work as a CNA for Shades-crest, which had modified her position by limiting Holloway to certain duties that, it said, were within her restrictions. Holloway was limited to taking blood-pressure readings, washing out soiled linens, and feeding patients. She performed her restricted duties for two nights; however, when she awoke the morning after her second shift, Holloway said, she “couldn’t hardly walk” and she telephoned her supervisor to report that she could not perform her duties and would not be returning to work. Holloway explained that she had had difficulty taking some patients’ blood-pressure readings because the beds were positioned very low and she had to bend over and lean down to perform that function. She also noted that she could not better position her patients because she could no longer move patients by rolling them as she could before her injury and surgery. She further complained that she was not allowed to take frequent breaks as she needed them.

In addition to testifying about the impact of her back injury, surgery, and residual pain on her ability to perform her work duties, Holloway testified that her pain impacted her daily activities as well. Holloway said that her pain was constant and that it was generally between 6 and 8 on a 10-point scale, with 10 being the worst pain. She explained that she could stand in one place for approximately 30 to 40 minutes before she needed to sit or lie down to rest for approximately 20 to 30 minutes.

Holloway is being treated for her pain by Dr. David Cosgrove, a pain-management specialist. Holloway takes Norco, a narcotic pain medication, Skelaxin, a muscle relaxer, and Celebrex, a nonsteroidal anti-inflammatory medication used to treat arthritis. She has also taken Soma, another muscle relaxer, which she reported had given her nightmares, methadone, another narcotic pain reliever, and has been prescribed a transcutaneous electrical nerve stimulation (“TENS”) unit.

Holloway said that her typical day began between 6:00 and 7:00 a.m., when she would awaken and fix breakfast. She said that, after fixing breakfast, she would sit and eat and watch television for a time and that she would later return to the kitchen to wash the breakfast dishes. After washing the dishes, Holloway said, she would then sit or recline for a time. Holloway said that she would do other tasks, like laundry, as needed, between intervals of sitting or reclining. Making a bed or sweeping and mopping, explained Holloway, hurt her back, so she was limited in performing those activities. Holloway explained that if she rested between activities, her pain would sometimes recede to about 5 on the 10-point scale.

According to Holloway, she no longer gardens, an activity that she once enjoyed. She also testified that she could drive but that she could not remain seated behind the wheel of the automobile for more than 45 minutes without needing to change position. She said that she does perform grocery shopping, provided, she stated, that the trip does not exceed 30 to 45 minutes. Holloway admitted that she did sometimes carry grocery bags as heavy as 10 to 15 pounds from her automobile into her house. She explained that, at times, she could carry the bags only to the door or that, if someone else were home, that person would assist her by bringing the groceries inside.

Holloway also testified that her pain interfered with her sleep patterns. She said that she went to bed at around midnight each night only to sleep for three to four hours before being awakened by her pain. She said that she might be awake for a time before dozing off for another hour or two of sleep. As a result, Holloway said, the pain and lack of sleep affected her ability to concentrate and caused her to feel mentally stressed.

Dr. Prevost testified that he had performed the lumbar-fusion surgery on Holloway. He explained the procedure and discussed Holloway’s recovery from the surgery. According to Dr. Prevost, the surgery went well and he was able to fuse the L4-L5 and L5-S1 vertebrae, which, he said, was like tricking them to grow together. He noted that Holloway also required the insertion of some screws to stabilize the vertebrae. Dr. Prevost commented that he was able to free up the nerve that was being impinged, resulting in the eradication of the shooting right-leg pains that had plagued Holloway.

Over the several weeks following the surgery, Dr. Prevost said, he saw Holloway for periodic follow-up appointments. He noted that Holloway had reported at her six-week follow-up appointment that she had no leg pain but that she still had back pain; Dr. Prevost indicated that continued back pain was appropriate at that stage of Holloway’s recovery. In July 2003, Dr. Prevost saw Holloway and noted that she was healing well and that she “was getting a nice, solid fusion.” Dr. Prevost noted, after being questioned, that he had been slowly weaning Holloway off of narcotic pain medications since the surgery, having prescribed decreasing doses of Lortab. Dr. Prevost said that his notes from Holloway’s August 2003 follow-up appointment indicated that Holloway reported increased back pain at that appointment. Dr. Prevost said that he ordered Holloway to undergo an FCE, which she did; Dr. Prevost placed Holloway at maximum medical improvement on September 18, 2003, and he released her to return to work within the restrictions contained in the FCE.

When questioned about whether Holloway’s light-duty CNA position appeared consistent with the restrictions placed on Holloway by the FCE, Dr. Provost answered in the affirmative. He noted, however, that Holloway reported continued back pain and that, in his opinion, Holloway’s pain was real and she was credible in her reports to him. Dr. Prevost further stated that, despite the fact that the FCE indicated that Holloway could physically perform certain tasks and therefore would be able to work, “she may not be able to work.”

Two vocational-rehabilitation counselors testified at trial: William A. Crunk, who testified on behalf of Holloway, and Beth D. Holt, who testified on behalf of Shades-crest. Crunk testified that he had concluded that Holloway had suffered a 100% loss of earning capacity. Holt, however, testified that Holloway had suffered only a 30% loss of earning capacity.

Crunk testified that he had interviewed Holloway on November 5, 2003, and that he had prepared his report on January 12, 2004. He opined that, based on Holloway’s suffering constant, moderately severe pain, Holloway had suffered a 100% loss of earning capacity. Crunk explained that he had considered Holloway’s lumbar-fusion surgery, her continued complaints of pain, her statements regarding how her pain affected her, and her ninth grade education in making his determination that Holloway was 100% vocationally disabled. According to Crunk, Holloway’s surgery and subsequent residual pain affects her ability to perform an 8-hour workday for a 40-hour workweek. Crunk admitted that Holloway could perform certain tasks consistent with her FCE; however, he noted that Holloway could perform those tasks only for short periods before needing to rest her back and that her need for frequent rest periods would not be consistent with any full-time employment status.

After he compiled his report, Crunk had a chance to review Dr. Prevost’s deposition, Holloway’s medical records from Dr. Cosgrove, and a Social Security disability decision favorable to Holloway. He stated that the information contained in those documents was consistent with and supported his conclusion that Holloway was 100% vocationally disabled. He noted that Holloway had been diagnosed by Dr. Cos-grove as suffering from “chronic, intractable non-malignant pain” and that she had been on “pretty significant” medications to control her pain, including methadone. Crunk agreed that if Holloway’s pain was managed, she would be a candidate for vocational-rehabilitation services; however, he noted that the focus of his evaluation was whether Holloway was able to consistently work an 8-hour day for a 40-hour workweek, despite her pain, which, he said, Holloway was not able to do.

Holt testified that when determining a disability rating or performing a vocational assessment, she considered work history, educational level, medical history, vocational testing, and that she conducted an interview with the employee. She explained that she had concluded, based on all the information she normally considered, that Holloway had suffered a 30% loss of earning capacity. Holt noted that the results of Holloway’s FCE indicated that she should be able to perform at least light-duty work; specifically, Holt noted that nothing in the FCE indicated that Holloway would not be able to perform those tasks assigned to her when she returned to the light-duty CNA position provided to her by Shadescrest. Holt testified that Holloway would be a good candidate for vocational rehabilitation with proper pain management. She said that many patients are able to effectively manage pain levels in the “6 range” like that suffered by Holloway. However, when questioned further about Holloway’s testimony that she needed to lie down several hours a day, Holt admitted that her opinion “might” be impacted by that fact; Holt clarified that she would still like to see efforts at rehabilitation made in such a circumstance. Holt then admitted that, if an individual is unable to effectively manage chronic pain and could not be rehabilitated or reconditioned, it was possible that the person would not be able to maintain full-time employment.

In January 2003, Holloway sued Shades-crest, seeking workers’ compensation benefits. After a trial in May 2006, the trial court entered a judgment finding Holloway permanently and totally disabled and awarding benefits accordingly. Shades-crest appeals, arguing that, pursuant to Ala.Code 1975, § 25-5-57(a)(4)d., Holloway is precluded from being declared permanently and totally disabled because she refused reasonable accommodation and vocational rehabilitation provided by Shades-crest. Shadescrest also argues that the trial court’s determination that Holloway is 100% permanently and totally disabled is not supported by substantial evidence.

The trial court’s judgment makes several pertinent factual findings. Chief among those findings is the finding that Holloway’s “injuries have left her severely restricted and limited not only in her ability to work, but [in] her ability to fully conduct her activities of daily living.” The trial court determined that Holloway “suffers from chronic and debilitating pain,” found Holloway’s testimony “totally credible,” was impressed with Holloway’s “candor and genuineness,” and found her “demeanor and appearance in open court ... consistent with her complaints of chronic, debilitating pain.” Based on its finding that Holloway suffered from chronic, debilitating pain and its determination that Crunk’s testimony that Holloway suffered a 100% loss of earning capacity was also “credible and supported by the other evidence” at trial, the trial court determined that Holloway “is not a candidate and could not be considered a candidate for vocational rehabilitation” and that she is “permanently and totally disabled from sustaining any substantial, gainful employment.”

Shadescrest argues that the trial court was precluded from concluding that Holloway was permanently and totally disabled because, it says, § 25-5-57(a)(4)d. excludes “[a]ny employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation or to accept reasonable accommodation” from being considered permanently and totally disabled. Because Shadescrest failed to assert those arguments in the trial court, we are precluded from considering them on appeal. See McGinnis v. Jim Walter Homes, Inc., 800 So.2d 140, 145-46 (Ala. 2001). The only argument presented to the trial court at trial and in Shadescrest’s postjudgment motion was that Holloway was a candidate for vocational rehabilitation, not that she had been offered vocational rehabilitation and refused it. Thus, we will not consider Shadescrest’s argument that the exclusions in § 25-5-57(a)(4)d. precluded a determination that Holloway was permanently and totally disabled.

Shadescrest further argues that the trial court’s determination that Holloway is permanently and totally disabled is not supported by substantial evidence. Shadescrest argues that the only direct evidence of Holloway’s inability to work is her own “self-serving” testimony and that it presented substantial evidence in support of its contention that Holloway was able to work after her recovery from her lumbar-fusion surgery.

“The determination of the extent of the employee’s disability is a discretionary function of the trial court. Dolgencorp, Inc. v. Hudson, 924 So.2d 727 (Ala.Civ.App.2005). It is not within the province of an appellate court to determine or establish the percentage of disability of an injured employee. Hill v. [J.P.] Ste vens & Co., 360 So.2d 1035 (Ala.Civ.App.1978). Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).”

Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007).

Shadescrest specifically relies on a statement in Holt’s vocational-disability report that indicates that Holloway chose not to work because “a lawyer told her not to” and Holloway’s earlier failure to cooperate with medical treatment offered by Shades-crest. These facts, urges Shadescrest, should have cast doubt on the “self-serving” testimony offered by Holloway at trial. Although such facts might well impact a trier of fact weighing the evidence, the trial court determined that Holloway’s complaints of pain and her reported inability to work were credible in light of the totality of the evidence presented. The mere existence of evidence that might serve as a basis to question Holloway’s credibility does not require reversal of the trial court’s judgment, because “[i]t was the function of the trial court, as the finder of fact, to determine the credibility of [Holloway’s] testimony and to assign relative weight to that testimony.” Millry Mill Co. v. Manuel, 999 So.2d 508, 519 (Ala.Civ.App.2008).

As further support for its argument that the trial court’s judgment should be reversed because it is not supported by substantial evidence, Shadescrest points to substantial evidence in the record that would support a conclusion that Holloway could return to work after her recovery from surgery and that the light-duty CNA position Shadescrest offered to her met her restrictions. Shadescrest specifically relies on the FCE results, which, it says, indicate that Holloway could perform the tasks assigned to her in the light-duty CNA position. Shadescrest further contends that Dr. Prevost agreed with the FCE results and with the proposition that the light-duty CNA position met those restrictions, thus proving, it urges, that Holloway is not permanently and totally disabled. Finally, Shadescrest argues that the testimony of both Crunk and Holt supports a conclusion that Holloway is a candidate for vocational rehabilitation.

However, although one view of the evidence relied on by Shadescrest might well have supported a conclusion that Holloway has the physical ability to perform the tasks assigned her in the light-duty CNA position created for her by Shadescrest, other evidence in the record supports the trial court’s ultimate conclusion that Holloway’s chronic and debilitating pain prevent her from being able to maintain gainful employment. Dr. Prevost agreed that the FCE might indicate that Holloway could perform certain tasks, but he also stated that Holloway still might not be able to work because of her pain and the affect it has on her. Crunk testified that Holloway’s unmanaged pain prevented her from being able to work an 8-hour day and a 40-hour workweek, resulting in permanent and total vocational disability. Holloway’s testimony, which the trial court expressly found to be credible, explained that she could do certain tasks for limited periods before needing to lie down and rest to manage her pain. Thus, although substantial evidence in the record might well have supported a judgment in favor of Shades-crest, our review of all the evidence of record, with the attendant presumption in favor of the trial court’s findings of fact based on conflicting evidence, convinces us that the trial court’s judgment was supported by substantial evidence and should be affirmed. See Landers, 14 So.3d at 151.

AFFIRMED.

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

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

THOMAS, J., concurs in part and dissents in part, with writing.

THOMAS, Judge,

concurring in part and dissenting in part.

Although I concur in the affirmance of the judgment in favor of Holloway because I agree that the evidence at trial was sufficient to support the trial court’s judgment declaring Holloway permanently and totally disabled, I disagree with the majority’s conclusion that the other arguments presented by Shadescrest were not sufficiently raised in the trial court to be considered on appeal. Shadescrest relied on Ala.Code 1975, § 25-5-57(a)(4)d., which prevents an employee who has refused a reasonable accommodation or vocational rehabilitation offered by the employer from being considered permanently and totally disabled. Although I agree that Shadescrest did not artfully argue its position at trial or in its postjudgment motion, it is apparent to me that at least part of the focus of Shadescrest’s presentation of evidence and at least a portion of its argument below was that Holloway had been offered a light-duty position that was designed to accommodate her restrictions, that she should have been able to perform the duties assigned to her in the light-duty position based on her FCE results, and that her failure to return to work after only two days in that light-duty position should preclude a permanent-total-disability finding. Thus, I would consider the arguments Shadescrest asserts on appeal relating to the application of the failure-to-accept-reasonable-accommodation-or-vocational-rehabilitation exclusion set out in § 25-5-57(a)(4)d.

      . Although Holloway offered into evidence her favorable Social Security disability decision, the trial court refused to admit it over Shadescrest’s objection. We have not reviewed or considered the decision in our preparation of this opinion, but we have included Crunk's reference to it because that testimony was not excluded.

      . Section 25-5-57(a)(4)d. provides:
      "The total and permanent loss of the sight of both eyes or the loss of both arms at the shoulder or any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment, shall constitute prima facie evidence of permanent total disability but shall not constitute the sole basis on which an award of permanent total disability may be based. Any employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation or to accept reasonable accommodation shall not be deemed permanently and totally disabled.”

      . We assume that Shadescrest is referring to the fact that Holloway did not seek treatment for her back injury until October 2002, 22 months after her January 2001 injury.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. MOORE, Judge,

license: Public Domain

text:
    Jeff WHITE v. HB & G BUILDING PRODUCTS, INC.
    2090323.
    Court of Civil Appeals of Alabama.
    Aug. 20, 2010.
    Certiorari Denied Feb. 11, 2011 Alabama Supreme Court 1091670.

      Stevan K. Goozée, Birmingham, for appellant.
    Robert C. Thomas, Jr., of Smith, Tyra, Thomas & Haggard, LLC, Alabaster, for appellee.
   THOMPSON, Presiding Judge.

Jeff White appeals from a judgment finding that White’s former employer, HB & G Building Products, Inc. (“HB & G”), was no longer obligated to pay workers’ compensation benefits for a knee injury White had suffered while working for HB & G. The basis for the trial court’s judgment was its finding that, while working for a subsequent employer, White aggravated his knee injury rather than having a recurrence of that preexisting injury.

The record indicates the following. White was employed by HB & G as a work-release inmate. On January 22, 2007, he slipped and fell while at work, dislocating his right knee. HB & G authorized Dr. Tai Q. Chung to treat White’s knee and paid the attendant medical expenses. It also paid White workers’ compensation benefits.

Dr. Chung, who testified by deposition, said he first treated White’s right-knee injury on January 31, 2007, at which time he diagnosed White with patella dislocation. He noted that White had been able to push his patella back into place himself. An MRI was performed on White’s right knee on February 7, 2007. Dr. Chung said that the MRI indicated that White’s right kneecap had “come out or was half coming out” and that there was a probable tear in the soft tissue around the kneecap. Based upon the results of the MRI, Dr. Chung asked White to wear a brace to protect the kneecap and to do exercises to build up the muscles surrounding the kneecap.

White continued to see Dr. Chung for treatment throughout the spring of 2007. At White’s April 9 visit, Dr. Chung determined that the right kneecap was no longer moving and that there was no knot on the medial side, or inside, of the knee. Dr. Chung said that White’s knee had healed to the point where White could return to regular duty at work, without restriction. White returned to regular duty for HB & G on April 10.

White next saw Dr. Chung on May 7, 2007. At that time, Dr. Chung said, White’s knee was no longer coming out of place, there was no laxity in the kneecap, and White had full range of motion in his right knee. However, White told Dr. Chung that his knee was still “swollen, aching, and popping.” Dr. Chung told White that the knee was healing and refused to operate on it. White was not satisfied with Dr. Chung’s treatment and requested a second opinion, which Dr. Chung said he encouraged. May 7, 2007, was the last time Dr. Chung saw White. In July 2007, White selected Dr. Dexter Walcott, pursuant to the procedure set forth in § 25-5-77(a), Ala. Code 1975, to replace Dr. Chung. White’s first appointment with Dr. Walcott was not until October 2, 2007.

In the midst of seeking a second opinion regarding the treatment of his knee injury, White asked Sgt. Ward, one of his correctional officers, if he could change jobs. He did not say what prompted his desire to change jobs. Regardless, White said that he left HB & G in May or June 2007 and began a new job at Cutt’s Restaurant (“Cutt’s”). White worked at Cutt’s part time from June 2007 until January 2008; he worked there full time from January 2008 to June 2008. His duties at Cutt’s included washing dishes, emptying the trash, cleaning the kitchen at the end of the day, mopping, and sweeping. Much of his job at Cutt’s required him to stand on a concrete floor. While working at Cutt’s, White said, his knee would swell and ache “every day,” and he developed leg cramps from standing. He also said that his knee hurt worse after standing for long periods.

When White first saw Dr. Walcott in October 2007, he complained that his right knee “felt loose” and that he felt something “slipping around inside his knee.” When providing his history to Dr. Walcott, White attributed his knee problems to the January 22, 2007, fall that occurred while he was working for HB & G, and he said that he had not had any other accidents since that fall. During Dr. Walcott’s initial examination of White, he discovered a knot in the medial part of White’s knee; however, Dr. Walcott said, he did not believe that the knee felt mobile. White was “apprehensive” when Dr. Walcott pushed his kneecap laterally, which, Dr. Walcott testified, is the way a kneecap will usually dislocate, and White’s kneecap tilted slightly to one side, which is typical for someone who has a kneecap problem, Dr. Walcott said, but he did not find that White had any laxity in the ligaments in the sides of his right knee. Dr. Walcott also noted that White had a small amount of swelling in his right knee.

As part of his initial examination, Dr. Walcott also reviewed the February 7, 2007, MRI and X-rays taken of White’s knee. He said White’s X-rays showed a tilting of the patella and an “irregular appearance on the medial, or inside, part of his patella, or kneecap, which sometimes can be where a piece of bone could be chipped off or ligament pulled off of your patella.” The MRI indicated that White had swelling in his soft tissue around the right knee. Dr. Walcott said that he also saw what he “thought might be a loose body, loose piece of cartilage or bone, floating around in [the] suprapatellar pouch just above [White’s] kneecap.” Based upon his examination, and the fact that White’s problems had persisted since January 2007, Dr. Walcott suggested that White was a good candidate for surgery.

In his deposition, Dr. Walcott testified that, after his October 2, 2007, examination of White, White’s case manager at HB & G’s workers’ compensation carrier provided him with paperwork asking whether he had an opinion as to whether White had reinjured his right knee, had aggravated his right-knee injury, or had sustained a new injury since leaving his job at HB & G. Dr. Walcott said that, although he circled the word “aggravated” on the form, he did not think the question was well worded, so he included a paragraph in which he stated that it was possible that White had aggravated his knee injury but that it was also possible that White had reinjured his knee. He noted that, at the time he was asked to make that determination, he had seen White only once and he could not say whether White’s knee problem was a reinjury or an aggravation; Dr. Walcott said, “I think it could have been a continuation of his symptoms from his original injury.” During his deposition, Dr. Walcott also testified, however, that White’s knee problems could have been aggravated by the physical requirements of his job at Cutt’s. Dr. Walcott candidly testified that he “really [did not] know” whether White’s right-knee problem was an old injury, a new injury, an aggravation, or a recurrence.

After considering the evidence and the arguments of the parties, the trial court determined that the medial knot and patella apprehension in White’s right knee were new findings and that, according to Dr. Chung’s records on White, they had not been present when White left HB & G’s employment. Accordingly, citing the “last-injurious-exposure rule,” the trial court found that the activities in which White had engaged in the course of his employment with Cutt’s had aggravated a preexisting condition and that, therefore, HB & G was no longer responsible for White’s workers’ compensation benefits. White appeals.

White asserts that the material facts in this case were not in dispute; thus, he says, the trial court’s judgment is essentially a summary judgment entered in favor of HB & G. White urges this court to use the standard of review applicable to an appeal from a summary judgment rather than the standard used to review a judgment entered in a workers’ compensation action. However, the legislature has established the standard of review that this court is to apply in workers’ compensation actions, and this court will not deviate from that standard, which was stated in Jackson Landscaping, Inc. v. Hooks, 844 So.2d 1267, 1268 (Ala.Civ.App.2002), as follows:

“This case is governed by the 1992 Workers’ Compensation Act. This Act provides that an appellate court’s review of the standard of proof and its consideration of other legal issues shall be without a presumption of correctness. § 25-5 — 81(e)(1), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2). Our supreme court ‘has defined the term “substantial evidence,” as it is used in § 12-21-12(d), to mean “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: ‘The new Act did not alter the rule that this court does not weigh the evidence before the trial court.’ Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).”

White asserts that the “ ‘last injurious exposure’ rule has no place” in this ease. The basis for his argument seems to be that, in his opinion, the evidence does not support the trial court’s finding that White aggravated his preexisting knee condition. Instead, he says, the evidence indicates that, even though White was working at Cutt’s when Dr. Walcott treated his most recent knee condition, White was experiencing a recurrence of the knee problems that arose from the injury he sustained while working for HB & G, meaning the last-injurious-exposure rule was inapplicable in this case.

“ ‘Under the last-injurious-exposure rule, the carrier [or employer] covering the risk at the time of the most recent compensable injury bearing a causal relation to the disability bears the responsibility to make the required workers’ compensation payments. “The characterization of the second injury as a new injury, an aggravation of a prior injury, or a recurrence of an old injury determines which insurer [or employer] is liable.” If the second injury is a “new injury” or an “aggravation of a prior injury,” then the carrier [or employer] at the time of the second injury is liable for the resulting medical bills and disability payments.’ ”

Hooker Constr., Inc. v. Walker, 825 So.2d 838, 845 (Ala.Civ.App.2001) (quoting Ex parte Pike County Comm’n, 740 So.2d 1080, 1083 (Ala.1999)); see also 2 Terry A. Moore, Alabama’s Workers’ Compensation § 31:35 at 873 (1998). This court recently discussed the application of the last-injurious-exposure rule.

“In Kohler Company v. Miller, [921 So.2d 436 (Ala.Civ.App.2005),] an employee sued Kohler Company, Inc., alleging that she was entitled to workers’ compensation benefits for injuries caused by repetitive motions she had been required to make during her employment with Kohler. Kohler answered and filed a third-party complaint against the employee’s subsequent employer, Cinram, Inc. The third-party complaint alleged that the employee had suffered an aggravation of a preexisting injury while working for Cinram; it also alleged that Cinram was liable to the employee for workers’ compensation benefits. Cinram moved for a summary judgment, arguing, among other things, that the employee had not suffered a new injury or an aggravation of a preexisting injury. Cinram argued that the employee had suffered a recurrence of a preexisting condition that had been caused by an on-the-job injury that had occurred when the employee was employed by Kohler. The trial court entered a summary judgment in favor of Cinram on the third-party complaint.
“On appeal, Kohler argued that the trial court had erred by entering a summary judgment in favor of Cinram on the third-party complaint because, it asserted, there was a disputed issue of material fact with regard to whether the last-injurious-exposure rule applied. This court discussed the last-injurious-exposure rule, quoting Patterson v. Liz Claiborne, Inc., 872 So.2d 181, 186 (Ala.Civ.App.2003):
“ ‘ “ ‘Under the “last injurious exposure” rule, “liability falls upon the carrier covering [the] risk at the time of the most recent injury bearing a causal relation to the disability.” North River Insurance Co. v. Purser, 608 So.2d 1379, 1382 (Ala.Civ.App.1992). The trial court must determine whether the second injury is “a new injury, an aggravation of a prior injury, or a recurrence of an old injury; this determination resolves the issue of which insurer is liable.” Id.
‘ “ ‘A court finds a recurrence when “the second [injury] does not contribute even slightly to the causation of the [disability].” 4 A. Larson, The Law of Workmen’s Compensation, § 95.23 at 17-142 (1989). “[T]his group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.” 4 A. Larson, § 95.23 at 17-152. A court finds an “aggravation of an injury” when the “second [injury] contributed independently to the final disability. ” 4 A. Larson, § 95.22 at 17-141. If the second injury is characterized as a recurrence of the first injury, then the first insurer is responsible for the medical bills; however, if the injury is considered an aggravation of the first injury, then it is considered a new injury and the employer at the time of the aggravating injury is liable for the medical bills and disability payments. North River, supra.’
“‘“United States Fid. & Guar. Co. v. Stepp, 642 So.2d 712, 715 (Ala.Civ.App.1994).”’
“Kohler Co. v. Miller, 921 So.2d at 445 (emphasis added). The last-injurious-exposure rule applies to employers as well as insurance carriers. Id.
“In Kohler Co. v. Miller, this court affirmed the summary judgment entered in favor of Cinram on the basis that Kohler had
“ ‘failed to present substantial evidence indicating that the worker’s employment with Cinram either caused a new injury or aggravated her old injury to the extent that it increased her disability. Kohler submitted no evidence indicating that the worker suffered a “new” injury or an “aggravation” of an old injury at Cin-ram; instead, the evidence was undisputed that the worker experienced a recurrence of the earlier symptoms of the injuries she had sustained while working at Kohler.’
921 So.2d at 445.”

Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1126-27 (Ala.Civ.App.2008).

In this case, the evidence is undisputed that White’s complaints of knee pain, swelling, and aching never resolved before he was treated by Dr. Walcott. Indeed, White asked to see another physician because Dr. Chung’s treatment was not providing him with relief. There is no evidence indicating that White sustained a “second injury” to his right knee that contributed to his knee problems during the time he worked at Cutt’s. No single event occurred during White’s employment at Cutt’s that caused a new injury to his knee, and HB & G failed to present substantial evidence tending to indicate that White suffered a cumulative trauma that resulted in a second injury or an aggravation to his right-knee injury giving rise to his current knee problems.

When White visited Dr. Walcott in October 2007, he was working at Cutt’s part time. After examining White, Dr. Walcott testified that the knee pain of which White was complaining in October 2007 was consistent with the pain White had experienced as a result of the January 22, 2007, injury. In October 2007, White still complained that his right knee was loose and that he felt something “slipping around inside” his knee. Dr. Walcott testified that, in his review of White’s February 2007 MRI and X-rays, he saw a “loose body” just above White’s right kneecap. Dr. Walcott also said that such a loose body could cause the tilting of White’s patella. Dr. Walcott could not say whether the activities White had undertaken at Cutt’s had aggravated White’s knee condition or whether White was experiencing a continuance of his earlier knee problems.

Based upon the record before us, we conclude that substantial evidence does not support the trial court’s finding either that a second injury to White’s right knee arose out of his employment with Cutt’s or that White aggravated his previous injury. On the other hand, evidence that the swelling, aching, and pain in White’s right knee never abated, even after Dr. Chung determined that he no longer needed to treat White, constitutes substantial evidence indicating that WTiite’s continuing knee problems are a recurrence of his January 22, 2007, injury. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ„ concur.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

As I understand the contention made in this appeal by Jeff White (“the employee”), he is arguing that the “last-injurious-exposure rule” does not apply to this ease because “there is absolutely no evidence that [he] sustained any new traumatic injury/aecident to his right knee that the rule, North River [Insurance Co. v. Purser, 608 So.2d 1379 (ALa.Civ.App.1992) ], and its progeny require,” and because his employment -with Cutt’s Restaurant merely “caused his already damaged knee to be symptomatic because of the condition it was in at the time he left HB & G [Building Products’] employment....”

As to the first point, the appellate courts have repeatedly held that the last-injurious-exposure rule, which places responsibility for the payment of workers’ compensation benefits on the employer whose employment last causally contributed to the worker’s injury, see North River Ins. Co. v. Purser, 608 So.2d 1379 (Ala.Civ.App.1992), depends on the characterization of the injury as a new injury, as an aggravation of a prior injury, or as a recurrence of a prior injury. See Purser, 608 So.2d at 1382; United States Fid. & Guar. Co. v. Stepp, 642 So.2d 712, 715 (Ala.Civ.App.1994); Ex parte Pike County Comm’n, 740 So.2d 1080 (Ala.1999); Health-Tex, Inc. v. Humphrey, 747 So.2d 901 (Ala.Civ.App.1999); Hooker Constr., Inc. v. Walker, 825 So.2d 838 (Ala.Civ.App.2001); Patterson v. Liz Claiborne, Inc., 872 So.2d 181 (Ala.Civ.App.2003); Alpine Assoc. Indus. Servs., Inc. v. Smitherman, 897 So.2d 391 (Ala.Civ.App.2004); Edmonds Indus. Coatings, Inc. v. Lolley, 893 So.2d 1197 (Ala.Civ.App.2004); and Kohler Co. v. Miller, 921 So.2d 436 (Ala.Civ.App. 2005).

In Purser, this court first applied the last-injurious-exposure rule to resolve a dispute between successive insurers as to which insurer bore responsibility for the payment of workers’ compensation benefits on account of a worker’s work-related back injury. The worker originally injured his back in 1984, but he complained again of a back injury in 1988. This court noted that the 1988 back injury arose out of the worker’s employment because the worker’s job “included considerable standing, twisting, bending, and lifting of objects” and that the worker had received his 1988 injury when bending down to pick up an object. 608 So.2d at 1382. In affirming a judgment placing responsibility on the insurer who insured the employer in 1988, the court did not discuss whether the 1988 injury resulted from a traumatic event or cumulative trauma, apparently recognizing the immateriality of that concern. After Purser, this court approved a judgment finding that a worker had aggravated her prior carpal tunnel syndrome by repetitively using her hands and arms in her subsequent employment, Humphrey, supra, and this court applied the last-injurious-exposure rule in an occupational-disease case in which no traumatic accident had ever occurred, see Lolley, supra.

Based on the foregoing caselaw, I find no merit in the contention of the employee that the last-injurious-exposure rule applies only to cases involving successive traumatic accidents. Thus, the mere fact that the employee did not sustain any slip, trip, fall, or other similar traumatic injurious event while working for Cutt’s does not mean that the last-injurious-exposure rule does not apply to determine whether Cutt’s, as opposed to HB & G, should be liable for the workers’ compensation benefits payable on account of the employee’s right-knee injury. The last-injurious-exposure rule would apply equally if the employee’s ordinary job duties at Cutt’s exposed him to cumulative trauma or repetitive physical stress that gradually caused or contributed to the employee’s injury.

On that point, this court decided in Miller, supra, that, if repetitive trauma from performing the ordinary job duties of subsequent employment merely causes a flare-up of the existing symptoms of the original injury, but does not cause any anatomical change to the injury itself, the manifestation of increased symptoms will be considered a recurrence of the original injury. 921 So.2d at 445; see also Hokes Bluff Welding & Fabrication v. Cox, 33 So.3d 592 (Ala.Civ.App.2008) (Moore, J., with Thomas, J., concurring, and Thompson, P.J., and Pittman and Bryan, JJ., concurring in the result) (worker with long history of severe back problems from 2000 work-related injury who experienced increased symptoms, but who did not sustain any anatomical change following lifting episode at work in 2004, held to have suffered recurrence of original, compensable injury). The employee in this case basically argues that the rule from Miller applies because HB & G offered no evidence indicating that his employment at Cutt’s caused any anatomical change to his right knee and no evidence indicating that his employment at Cutt’s caused any new symptoms, as opposed to an increase in his old symptoms. The record, however, contradicts those assertions.

A comparison of the medical records and testimony of the doctors who treated the employee show that the employee suffered anatomical changes in his right knee after leaving HB & G and working at Cutt’s, including the appearance of a “loose body” in the kneecap as well as the development of a medial knot. Also, while working at Cutt’s the employee experienced new symptoms, including leg cramps and instability in the kneecap, in addition to an increase in his old symptoms of swelling, popping, and pain. The employee actually testified that he experienced those new symptoms due to the job duties he performed at Cutt’s, which required repetitive use of the knee while performing a variety of physically demanding activities on a concrete surface. Some medical testimony indicates that the employee’s job duties at Cutt’s could have aggravated the original, compensable right-knee injury. From that substantial evidence the trial court reasonably could have concluded that the employee’s job duties at Cutt’s had caused the employee a new injury or an aggravation of his original right-knee injury for which HB & G should not be liable.

In his brief to this court, the employee presented substantial evidence, when viewed in a light most favorable to his position, indicating that he did not experience any new injury or an aggravation of his original right-knee injury while working at Cutt’s. However, our statutorily mandated standard of review requires us to view the evidence in a light most favorable to the findings of the trial court and to affirm the judgment in cases in which there is conflicting substantial evidence. Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007). This court cannot reweigh the evidence and substitute its opinion for that of the trial court, even if we are convinced that we would have decided the facts differently. Ex parte Kmart Corp., 812 So.2d 1205 (Ala.2001). Because the record contains substantial evidence to support the findings of the trial court, I would affirm the judgment. Therefore, I respectfully dissent. •

      . Interestingly, in his brief to this court White does not bother to define what constitutes a "recurrence” of an injury, even though that is the crux of his argument and there are numerous cases defining the term in the context of the last-injurious-exposure rule.

      . The main opinion states: "HB & G failed to present substantial evidence tending to indicate that White suffered a cumulative trauma that resulted in a second injury or an aggravation to his right-knee injury giving rise to his current knee problems.” 68 So.3d at 160-61. I note that the employee does not argue that HB & G failed to present evidence of work-related cumulative trauma occurring at Cutt’s. The employee simply argues that the cumulative trauma did not cause a new injury or an aggravation of his original right-knee injury. The circumstantial and medical evidence recited above refutes that contention.


author: BRYAN, Judge.

text:
    E.D. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2090415.
    Court of Civil Appeals of Alabama.
    Aug. 27, 2010.
    Rehearing Denied Nov. 5, 2010.
    Certiorari Denied Feb. 11,2011 Aabama Supreme Court 1100210.

      Ronald W. Smith of Clark, Smith & Lambert, P.C., Huntsville, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   BRYAN, Judge.

E.D. (“the father”) appeals from a judgment entered on December 30, 2009, by the Madison Juvenile Court that found his child, A.N. (“the child”), dependent, that awarded legal custody of the child to the Madison County Department of Human Resources (“DHR”), and that “authorized and directed” DHR to place physical custody of the child with L.T. (“the mother”). On appeal, the father specifically contends that an order entered by the juvenile court on August 19, 2009, is due to be reversed because he was not represented by an attorney at the adjudicatory and permanency-plan hearing that preceded the entry of the August 19, 2009, order. For the reasons stated below, we affirm the December 30, 2009, judgment entered by the juvenile court.

Procedural History

On May 14, 2009, DHR filed a petition in the juvenile court alleging that the child was dependent. The petition alleged that the child had been living with the father in Huntsville and that the father had been arrested on May 12, 2009, for domestic violence and failure to register as a sex offender. The juvenile-court clerk issued a summons to the father notifying him of the dependency action; attached to the summons was a “Notification of Right to Counsel.” The record does not contain a return of service for the father.

The juvenile court conducted a shelter-care hearing on May 14, 2009; the mother was present at the hearing, but the father was not. Pursuant to an order dated June 2, 2009, DHR was awarded shelter care of the child and was ordered to perform a home study of the mother’s residence in Los Angeles, California.

The juvenile court conducted a permanency hearing on July 31, 2009 (“the July 2009 hearing”). The record reveals that the mother and her attorney were present at the July 2009 hearing but that neither the father nor an attorney for the father was present at the July 2009 hearing. The juvenile-court judge read into the record DHR’s recommended permanency plan for the child, which was to return the child to the parents, and proceeded to hear testimony from the mother and the foster mother of the child. The juvenile court entered an “Order on Adjudicatory, Dispo-sitional, and Permanency Hearing” on August 19, 2009 (“the August 2009 order”). Pursuant to the August 2009 order, the juvenile court found the child dependent, determined that DHR had made reasonable efforts to finalize the permanency plan for the child, adjudicated the father to be the father of the child, and awarded temporary legal and physical custody of the child to DHR.

The father filed an “Affidavit of Indigen-cy” on August 27, 2009, and the father was appointed legal counsel on August 28, 2009. On December 22, 2009, more than four months after the juvenile court had entered the August 2009 order, the father filed a motion to set aside or vacate the August 2009 order, pursuant to Rule 59(e), Ala. R. Civ. P. The father argued that the August 2009 order was due to be vacated because he had a right to be present at the July 2009 hearing and he had “a fundamental right to appointed counsel at every stage of a dependency proceeding,” citing R.H. v. D.N., 5 So.3d 1253 (Ala.Civ.App.2008), and § 12-15-305(b), Ala.Code 1975. A notation in the case-action summary has the word “DENIED” in parentheses after the December 22, 2009, entry of the father’s Rule 59(e) motion.

The juvenile court conducted a disposi-tional and permanency hearing on December 23, 2009 (“the December 2009 hearing”), and the father and his appointed attorney were present. At that hearing, the father argued that the August 2009 order was due to be reversed because the father had not been represented by counsel at the July 2009 hearing. The juvenile court only heard testimony from the child’s foster mother. On December 30, 2009, the juvenile court entered an “Order on Dispo-sitional and Permanency Hearing” (“the December 2009 order”), and, pursuant to that order, legal custody of the child remained with DHR and DHR was “authorized and directed” to return physical custody of the child to the mother. The father was awarded telephone contact with the child and supervised visitation with the child. The juvenile court’s order stated that all provisions of prior orders that were not inconsistent with the December 2009 order were to remain in effect, and the juvenile court set a dispositional hearing to be conducted on April 5, 2010.

On January 5, 2010, the father filed a motion to alter, amend, or vacate the December 2009 order. The father again argued that the August 2009 order was due to be vacated because he had not been represented by an attorney at the July 2009 hearing that led to the juvenile court’s August 2009 order finding the child dependent. The father alleged that he was “prejudiced by hearsay testimony that may have been allowed in without objection.” The father also argued that it was not in the child’s best interest to be placed in the physical custody of the mother. The father’s postjudgment motion was denied by operation of law on January 19, 2010. See Rule 1(B), Ala. R. Juv. P. (“A postjudgment motion is deemed denied if not ruled on within 14 days of filing.”). The father timely filed a notice of appeal to this court.

Issue

On appeal, the only issue presented by the father is whether his due-process rights were violated because he was denied representation by an attorney at all stages of the child’s dependency proceeding.

Standard of Review

“Because the issue before us presents a pure question of law, we review the matter de novo, without any presumption of correctness.” Ex parte Byrom, 47 So.3d 791, 794 (Ala.2010) (citing Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001)).

Discussion

Before we reach the merits of the father’s argument on appeal, we must first address DHR’s contention that the father’s appeal is due to be dismissed as an appeal from a nonfinal judgment. See James v. Rane, 8 So.3d 286, 288 (Ala.2008) (an appellate court is without jurisdiction to review a case appealed from a nonfinal judgment). DHR argues that the father’s appeal is premature because the juvenile court, in the December 2009 order, set a dispositional hearing to be held in April 2010. We disagree. In D.P. v. Limestone County Department of Human Resources, 28 So.3d 759, 763 (Ala.Civ.App.2009) (quoting J.J. v. J.H.W., 27 So.3d 519, 522 (Ala.Civ.App.2008)), we stated:

“ ‘Under our caselaw, a formal determination by a juvenile court of a child’s dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a “temporary” award and further review of the case is envisioned.’ ”

In this case, the judgment appealed from, the December 2009 order, maintained the child’s status as a dependent child, awarded legal custody of the child to DHR, and authorized and directed DHR to give physical custody of the child to the mother.

“[W]e have treated a juvenile court’s permanency order as final and appeal-able when it results in depriving a parent of the care, custody, or visitation with his or her child. See R.J.L. v. Lee County Dep’t of Human Res., 976 So.2d 455, 456 (Ala.Civ.App.2007) (appeal of a permanency order transferring ‘physical custody of ... the mother’s two-year-old son[ ] from the child’s foster parents in Alabama to the mother’s cousins ... in Watertown, New York’), and D.B. v. Madison County Dep’t of Human Res., 937 So.2d 535, 536 (Ala.Civ.App.2006) (appeal of a permanency order awarding legal and physical custody of the child to the maternal aunt).
“In determining whether any juvenile-court order that is subject to revision is appealable, we consider that the focus should be on whether the order addresses crucial issues that, if not objected to by the aggrieved party, are thereafter precluded from appellate review. This court has long considered dependency determinations to be final and appeal-able, but there is nothing magic about dependency determinations as opposed to permanency orders. We hold that it is immaterial, for purposes of finality and appealability, that a juvenile court’s order emanates from the permanency-plan hearing rather than from the periodic review of a dependency determination. If the order addresses crucial issues that could result in depriving a parent of the fundamental right to the care and custody of his or her child, whether immediately or in the future, the order is an appealable order.”

D.P. v. Limestone County Dep’t of Human Res., 28 So.3d at 764.

The December 2009 order addressed, among other thing, the disposition of the child pursuant to the juvenile court’s finding of dependency. The December 2009 order deprived the father of the care, custody, and control of the child by continuing legal custody of the child with DHR and by permitting DHR to place physical custody of the child with the mother, who lived in California. Pursuant to this court’s decision in D.P., supra, we conclude that the father’s appeal from the December 2009 order is properly before this court.

On appeal, the father argues that the initial finding of dependency in the August 2009 order is due to be reversed because the juvenile court failed to provide him notice of his right to appointed counsel, pursuant to § 12-15-305(b), Ala. Code 1975, and because an attorney was not appointed on his behalf until after the entry of the August 2009 order finding the child dependent. The father argues that he did not receive proper notice of his right to appointed counsel during the dependency proceedings because he was never properly served with process.

The father filed a timely appeal from the entry of the December 2009 order, and, as we discussed above, the December 2009 order was a final judgment. Thus, the father’s appeal from the December 2009 order is properly before this court. However, the father, on appeal, does not present this court with any alleged errors of law deriving from the entry of the December 2009 order; instead, the error alleged by the father emanates from the entry of the August 2009 order that found the child dependent after conducting a hearing at which the father was not represented by an attorney. Pursuant to this court’s holding in D.P., supra, the August 2009 order was a final appealable judgment because it adjudicated the child dependent and made a custody award incident to that determination that deprived the father of the care, custody, and control of the child. The father did not file a timely appeal of the August 2009 order. Thus, we are constrained to conclude that the father’s failure to timely challenge the August 2009 order precludes him from raising the issue of lack of representation at the July 2009 hearing. We cannot reverse the August 2009 order, which constituted a final judgment, when an appeal was not taken from that judgment. See Morgan v. Lauderdale County Dep’t of Pensions & Sec., 494 So.2d 649, 651 (Ala.Civ.App.1986) (determining that the mother’s argument on appeal from an order terminating her parental rights, that the juvenile court had erred by failing to appoint an attorney on her behalf during earlier dependency proceedings, was “an unauthorized collateral attack” upon the previously entered dependency judgments that were final appealable orders).

The father has not asked this court to review any part of the December 2009 order; thus, the December 2009 order is due to be affirmed.

AFFIRMED.

PITTMAN, J., concurs.

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

      . At the outset of the July 2009 hearing, the juvenile-court judge stated on the record that the father had requested that he be adjudicated the legal father of the child. An attorney for DHR stated on the record that genetic testing had been completed and that the re-suits of the genetic testing confirmed that the father was the biological father of the child.

      . But see Rule 1(B), Ala. R. Juv. P. (requiring postjudgment motions in a juvenile proceeding to be filed within 14 days after the entry of an order or judgment).

      . Section 12-15-305(b) states, in pertinent part:
      "In dependency ... cases, the respondent parent ... shall be informed of his or her right to be represented by counsel and, if the juvenile court determines that he or she is indigent, counsel shall be appointed where the respondent parent ... is unable for financial reasons to retain his or her own counsel."

      . Even if we considered the father's December 22, 2009, motion to set aside or vacate the August 2009 order as a motion made pursuant to Rule 60(b), Ala. R. Civ. P., we could not afford relief to the father because he did not file a timely appeal from the denial of that motion.

      . We note that the father correctly argues on appeal that " ‘[p]arents of a child in a dependency case must be advised of their right to be represented by counsel and to have counsel appointed....’” K.P.B. v. D.C.A., 685 So.2d 750, 751 (Ala.Civ.App.1996) (quoting F.D.M. v. C.D.S., 646 So.2d 117, 118 (Ala.Civ.App.1994)). However, our review of the record reveals that the only argument the father presented to the juvenile court regarding the July 2009 hearing and the August 2009 order was that he had a right to be represented by an attorney at the July 2009 hearing. The record does not demonstrate that the father argued that service of process was defective or that he did not receive notice of his right to counsel. It is a fundamental principle of appellate review that an appellate court may not consider an issue raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Therefore, this court may not consider whether the father received notice of his right to appointed counsel.
      This court has held that a parent has a fundamental right to be represented by counsel at every stage of a dependency proceeding. See R.H. v. D.N., 5 So.3d 1253, 1254-55 (Ala.Civ.App.2008) (quoting Smoke v. State Dep’t of Pensions & Sec., 378 So.2d 1149, 1150 (Ala.Civ.App.1979)). This fundamental right is protected by court decisions and by statute, specifically § 12 — 15—305(b), Ala.Code 1975. Id. See supra n. 3. Section 12 — 15—305(b) does not require a juvenile court to appoint counsel on behalf of a respondent parent in a dependency proceeding until the juvenile court determines that the respondent parent is indigent. The record on appeal reveals that the father filed an "Affidavit of Indigency” on August 27, 2009, and that the juvenile court appointed counsel to represent the father on August 28, 2009 — one day after the juvenile court received evidence to support a finding that the father was indigent.


author: PITTMAN, Judge. MOORE, Judge,

text:
    Jack L. MARTIN v. Stephanie E. MARTIN.
    2081162.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.
    Rehearing Denied Dec. 30, 2010.
    Certiorari Denied Feb. 11, 2011 Alabama Supreme Court 1100415.
    Jack L. Martin, pro se.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.; Rule 28(a)(10), Ala. R.App. P.; Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988); Suggs v. Suggs, 54 So.3d 921, 926 (Ala.Civ.App. 2010); Huggins v. Goldstein, 918 So.2d 934, 938 (Ala.Civ.App.2005); and P.Y.W. v. G.U.W., 858 So.2d 265, 267 (Ala.Civ.App.2003).

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

MOORE, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring in part and dissenting in part.

I concur to affirm the trial court’s judgment divorcing Jack L. Martin (“the husband”) and Stephanie E. Martin (“the wife”), except to the extent the trial court’s judgment imputes income to the husband and orders the husband to pay child support to the wife; as to the resolution of those issues, I dissent based on the reasons set out in my special writing in Suggs v. Suggs, 54 So.3d 921, 927 (Ala.Civ.App.2010) (Moore, J., concurring in the result, but dissenting from the rationale).


text:
    Mark RYDER v. James F. MABRY.
    2080992.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.
    Certiorari Denied Feb. 11, 2011 Alabama Supreme Court 1100195.

      Earl J. Reuther of Davis & Associates, P.C., Birmingham, for appellant.

      Russell M. Cunningham IV of Cunningham Firm, LLC, Birmingham, for appel-lee.
   On Application for Rehearing

BRYAN, Judge.

The opinion of March 12, 2010, is withdrawn, and the following is substituted therefor.

Mark Ryder, the defendant below, appeals from a default judgment entered in favor of the plaintiff below, James F. Ma-bry. We affirm.

On July 27, 2007, Mabry sued Ryder, a resident of Virginia, alleging that Ryder had fraudulently induced him to buy units in People in Profit Systems, Inc. (“PIPS”), that those units constituted securities under Alabama law, and that they were part of a Ponzi scheme, which had resulted in Mabry’s losing the $42,022.67 he had paid for the PIPS units. Mabry stated claims of conversion, fraud, and violation of the Alabama statutes governing the sale of securities.

Ryder, acting pro se, filed an answer denying liability and asserting, as an affirmative defense, that the trial court lacked in personam jurisdiction over him because he had not had sufficient contacts with the State of Alabama. Upon completion of discovery, the trial court set the action for trial on July 14, 2008.

On May 23, 2008, Ryder moved the trial court to dismiss the action on the ground that it lacked in personam jurisdiction over him. Specifically, Ryder’s motion to dismiss asserted that Mabry had admitted in his responses to Ryder’s discovery requests that Ryder’s only contacts with the State of Alabama were four telephone calls that Mabry had made to Ryder while Ryder was in Virginia.

Contemporaneously with the filing of his motion to dismiss, Ryder filed a motion for a summary judgment. As one of the grounds of his summary-judgment motion, Ryder asserted that the trial court lacked in personam jurisdiction, and he adopted his motion to dismiss as his statement of that ground.

In response to Ryder’s motion to dismiss, Mabry asserted that the motion was untimely because, Mabry said, Rule 12(b), Ala. R. Civ. P., required that a motion to dismiss on the ground of lack of personal jurisdiction be made before Ryder filed his answer. In the alternative, Mabry asserted that, because Ryder had sold securities to an Alabama resident and those sales violated the Alabama Securities Act, § 8-6-1 et seq., Ala.Code 1975, the Alabama courts had personal jurisdiction over Ryder.

The trial court did not rule on Ryder’s motions before the trial. Several days before the trial, which, as noted earlier, was scheduled for July 14, 2008, Ryder informed the trial court by letter that he would not be appearing at the trial and that he had previously asserted that the trial court lacked in personam jurisdiction over him in his answer and in two motions. When Ryder did not appear at the trial, the trial court entered an order on July 16, 2008, denying Ryder’s motion to dismiss, granting the oral motion for a default judgment that Mabry had made after Ryder failed to appear at trial, and setting a hearing on the issue of damages for August 18, 2008. The trial court did not expressly rule on Ryder’s summary-judgment motion; however, the trial court’s July 16, 2008, order is inconsistent with an intent to grant that motion.

Ryder did not appear at the August 18, 2008, hearing. Mabry and his attorney appeared at the hearing and introduced evidence establishing a prima facie case that Ryder had violated the Alabama Securities Act and that Mabry was entitled to recover the total amount of $59,991.20 on his claims that Ryder had violated the Alabama Securities Act. On March 2, 2009, the trial court entered a default judgment against Ryder and awarded Ma-bry the full amount of the damages he had sought. The judgment stated:

“This case comes before the Court on Plaintiff James F. Mabry’s (‘Mabry’) complaint against the defendant Mark Ryder (‘Ryder’) alleging violations of the Alabama Securities Act as well as fraud and conversion. The allegations contained in the complaint stem from losses incurred by Mr. Mabry due to his investment in a ‘high yield investment’ opportunity called People in Profit Systems, Inc. or ‘PIPS.’
“This case was set for a bench trial on July 14, 2008. On July 11, 2008, a facsimile was received by this Court from Mr. Ryder declining to attend the trial. [Ryder’s] facsimile stated that the in personam jurisdictional arguments raised in his Answer, Motion for Summary Judgment, and Motion to Dismiss were the reason for not attending trial. The two aforementioned motions were not supported by affidavits or evidence of any kind — nor had a hearing of such motions been requested. True to his word, [Ryder] did not appear at trial. Mabry and his counsel appeared at trial and requested the Court enter a default against the defendant Ryder. This Court explained to Mabry and his counsel that upon entry of default, a hearing would be required not only as to damages but this Court would also require proof of the basic elements of Mabry’s claims — as this Court may require pursuant to Rule 55 of the Alabama Rules of Civil Procedure. On July 15, 2008, this Court, having considered the motions of [Mabry] and [Ryder], entered an Order (i) denying Ryder’s motions for lack of proper evidentiary support, (ii) granting Mabry’s motion for default, and (iii) setting a formal hearing.
“On August 18, 2008, a hearing was held for the proof of damages and proof of the elements necessary to substantiate Mabry’s claims. As a preliminary matter, it was shown to the Court that Ryder had been investigated by the Alabama Securities Commission with respect to his PIPS related activities. The Court was presented with a certified copy of Cease and Desist Order, dated April 8, 2008, issued against Ryder. This order found Ryder, a former registered securities agent ... in the States of North Carolina and Virginia, to have been an agent of PIPS and to have violated the provisions of sections 8-6-3 and 8-6-4 of the Code of Alabama 1975, as amended (the ‘Code’), by: (i) selling unregistered PIPS securities in the State of Alabama and (ii) selling securities in the State of Alabama without being ... registered as [a] securities broker or agent in the State of Alabama. This order further barred Ryder from further selling securities ‘into, within or from’ the State of Alabama. Mr. Ryder did not contest the findings of this Cease and Desist Order. This uncontested order is significant because its findings touch on the allegations of this case and because the certified copy of the uncontested order presented to this Court constitutes ‘prima facie evidence of the contents of the entry or document certified.’ Ala.Code § 8-6-28.
“After a review of the Cease and Desist Order, Mabry presented uncontro-verted testimony regarding the elements of his securities claims. Mabry testified that Ryder fraudulently induced him to invest in PIPS multiple times by: (i) touting his own high investment returns in PIPS; (ii) touting his being a part of the PIPS organization; (iii) touting his close relationship with certain ‘high up’ persons in the PIPS organization; (iv) claiming ‘insider’ knowledge of the inner-workings of the PIPS organization and its investment products; and (v) touting his investment knowledge as a person formerly in the securities field. These misleading representations were made by Ryder ... in approximately thirty (30) telephone conversations between Mabry and Ryder regarding the purchase of PIPS units between the months of April, 2005 and July, 2005 (both Mabry calling Ryder and Ryder calling Mabry).
“Consistent with the Alabama Securities Commission’s order, Mabry stated that, in connection with his each and every purchase of PIPS units, he viewed Ryder to be an agent of the PIPS organization and that Ryder’s actions and sales pitches were consistent with that of an agent. Mabry testified that his discovery after the demise of PIPS that Ryder had received commissions in connection with his sales of PIPS units to Mabry in excess of $5,000 further confirmed his early conclusion that Ryder was acting on behalf of PIPS.
“Mabry further testified that he invested a total of $42,022.67 in PIPS as a direct result of Ryder’s representations regarding PIPS. The amounts and dates were as follows: $481.50 on April 25, 2005, $9,950.00 on April 80, 2005, $2,500.00 on May 24, 2005, $2,600.00 on May 30, 2005, $3,000.00 on June 2, 2005, $3,091.17 on July 2, 2005, and $20,400.00 on July 29, 2005. Canceled checks, bank statements, and PIPS receipts were presented to the Court as evidence of the amounts and dates of investment. Ma-bry testified that he realized that PIPS was a seam in September, 2005 after the PIPS website had disappeared, Ryder failed to return his phone calls, and he read of the arrest of Mr. Brian Marsden, founder of the PIPS organization, in Malaysia for various fraud related bank crimes connected to the PIPS organization. After this discovery, Mabry was not willing or able to sell his PIPS units, which he then considered to be bogus, and he failed in his attempts to gain a return of his investment from Ryder and the PIPS organization.
“Counts II and III of Mabry’s Complaint relate to the return of monies invested in unregistered securities and the return of monies invested in securities where misrepresentations were made in connection with their sale. Count II and Count III both involve violations of section 8-6-19 of the Code.
“Section 8-6-19(a)(l) of the Code provides that any person who sells an unregistered security in violation of the Alabama Securities Act is liable ... to the person buying the security [from him for the consideration paid for the security,] together with interest at six percent per year from the date of payment, court costs and reasonable attorney fees, upon the tender of the security. All actions brought under section 8-6-19(a)(l) of the Code involving the sale of unregistered securities must be brought within two years of the sale of the security. Ala.Code § 8 — 6—19(f). According to the Alabama Securities Commission, ... Mabry purchased PIPS units through PIPS’ agent Ryder and these units constituted securities that were not registered in Alabama. Mabry testified to these unregistered sales and that $20,400.00 was invested on July 29, 2005 — within two years of the July 27, 2007 filing of Mabry’s complaint. Mabry retained his PIPS units and attempted to recover his investment from Ryder. Accordingly, under sections 8-6-19(a)(l) and -19(f) of the Code, Mabry is entitled to recover from Ryder this $20,400 investment, plus interest at six percent (6%) per year from payment and reasonable attorney fees. While all of the PIPS securities purchased by Ma-bry were unregistered, his earlier investments are precluded from recovery under section 8-6-19(a)(l) of the Code as these investments were made more than two years before the filing of Ma-bry’s Complaint. However, the earlier investments are still eligible for recovery under section 8-6-19(a)(2) of the Code.
“Section 8-6-19(a)(2) of the Code provides that any person who sells or offers a security by means of any untrue statement of a material fact is liable ... to the person buying the security [from him for the consideration paid for the security,] together with interest at six percent per year from the date of payment, court costs and reasonable attorney fees, upon the tender of the security. All actions brought under section 8-6-19(a)(2) of the Code involving untrue statements in connection with the sale of securities must be brought within two years of the discovery of the misrepresentation or two years after discovery should have been made by exercising reasonable care. Ala. Code § 8 — 6—19(f). According to Mabry’s testimony, Ryder made material misrepresentations in connection with each and every sale of PIPS units to Ryder, including false representations regarding his own personal returns received through PIPS. Mabry exercised care by monitoring his PIPS investments but did not discover that the representations made by Ryder were false and that PIPS was a scam until September, 2005 — within two years of the July 27, 2007 filing of Mabry’s complaint. Mabry retained his PIPS units and attempted to recover his investment from Ryder. Accordingly, under sections 8-6-19(a)(2) and -19(f), Ma-bry is entitled to recover the entire $42,022.67 he invested in PIPS, plus interest at six percent (6%) per year from payment and reasonable attorney fees.
“Considering the testimony and submissions by [Mabry], the Court finds that Mabry is entitled to recover the $42,022.67 he invested in PIPS, plus six percent (6%) per annum interest on the amounts invested totaling $8,230.67 and reasonable attorney fees of $17,718.75. Costs are taxed to [Ryder].”

On March 25, 2009, Ryder filed a motion titled “Motion to Alter, Vacate, or Amend” in which he again asserted that the trial court lacked in personam jurisdiction over him. In addition, he asserted for the first time that he was not liable to Mabry because, he said, (1) he was not a dealer or broker of securities as defined by § 8-6-2, Ala.Code 1975; (2) he was not required to register as a dealer or agent in Alabama because, he said, he did not have an office in Alabama and he did not direct business communications to 5 clients in Alabama during any period of 12 consecutive months; (3) he was not engaged in the business of effecting transactions in securities; and (4) Mabry’s claims were barred by the applicable statute of limitations. In addition, he asserted that the trial court had erred (1) in admitting into evidence the certified copy of the cease-and-desist order issued by the Alabama Securities Commission to prove the truth of its contents despite the hearsay nature of its contents, (2) in finding in favor of Mabry with respect to his fraud claim, and (3) in finding in favor of Mabry with respect to his conversion claim. Mabry responded to Ryder’s postjudgment motion.

On May 21, 2009, the trial court entered an order amending its judgment. In pertinent part, that order stated:

“With this Court’s [March 2,] 2009 Opinion And Order in the above styled action having been returned by the Clerk’s Office for clarification, said Order is hereby AMENDED to clarify that on proof, Plaintiff, James F. Mabry is GRANTED Judgment by Default against the Defendant, Mark Ryder, in the amount of $59,991,20.
“Said Judgment is comprised of the $42,022.67 [Mabry] invested in PIPS, plus six percent (6%) per annum interest on the amounts invested totaling $8,230.67 and reasonable attorneys fees in the amount of $9,737.86. Reasonable attorneys fees are determined by taking 33% of the first $10,000,00 of the Judgment and 20% of the remaining balance.”

Following a hearing on June 15, 2009, the trial court, on June 22, 2009, entered an order in which it treated Ryder’s “Motion to Alter, Vacate, and Amend” as a Rule 55(c), Ala. R. Civ. P., motion for relief from the default judgment and denied the motion. Ryder then timely appealed to the supreme court, which transferred the appeal to this court on the ground that the appeal was within this court’s jurisdiction.

Ryder first argues that the trial court erred in entering the default judgment against him and in denying him relief from that judgment because, he says, the trial court lacked in personam jurisdiction over him. He argues that the trial court lacked in personam jurisdiction over him because, he says, the only contacts between him and the State of Alabama were four telephone calls, all of which were initiated by Mabry.

First, we note that the trial court received evidence at the August 18, 2008, hearing that indicated that Ryder had participated in approximately 30 telephone calls with Mabry in which Ryder had made representations regarding PIPS securities and that some of those telephone calls had been initiated by Ryder. Second, even if there were only four telephone calls and they were all initiated by Mabry, those four telephone calls would constitute sufficient contacts with this state to confer in personam jurisdiction on a court of this state if those telephone calls resulted in Ryder’s selling a security in this state.

“Procedurally, jurisdiction over an out-of-state defendant is obtained pursuant to the ‘long-arm’ rule, Ala. R. Civ. P. 4.2(b), as amended August 1, 2004. A person or entity is subject to jurisdiction under Rule 4.2(b) when that ‘person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States.... ’ Rule 4.2(b) now embodies the ‘catchall’ clause that was found in subparagraph (I) of Rule 4.2 before it was amended. ‘The structure of former 4.2 included a “laundry list” of types of conduct that would subject an out-of-state defendant to personal jurisdiction in Alabama, as well as the “catchall” clause now contained in new 4.2(b).’ Committee Comments to Amendment to Rule 4.2 Effective August 1, 2004. ‘[S]ubparagraph (I) [was] but a restatement of the current definition of the federal constitutional standard.’ Committee Comments on 1977 Complete Revision to Rule 4.2.
“That standard ‘ “is the minimum-contacts standard elucidated in International Shoe [Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ],”’ and its progeny. Bearden v. Byerly, 494 So.2d 59, 61 (Ala.1986) (quoting Shaffer v. Heitner, 433 U.S. 186, 207, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)). Under that standard, ‘[a] physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.’ Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). What is required, however, is that the defendant have such contacts with Alabama that it ‘“should reasonably anticipate being haled into court [here].” ’ Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).
“The standard is met where ‘the defendant [has] “purposefully availed” itself of conducting activity in the forum state, by directly targeting its [activities at] the state.’ Toys ”R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir. 2003). ‘ “This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of ‘ “the unilateral activity of another person or a third person.” ”” Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525-26 (Ala.2003) (quoting Elliott v. Van Kleef, 830 So.2d 726, 731 (Ala.2002), quoting in turn Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Thus, the ultimate question under Rule 4.2(b) is the same as under former Rule 4.2(a)(2)(I), namely, whether the out-of-state defendants have ‘some minimum contacts with this state [that] ... it is fair and reasonable to require [them] to come to this state to defend an action.’ (Emphasis added.)”

Ex parte Reindel, 963 So.2d 614, 617-18 (Ala.2007).

In pertinent part, Section 8-6-12(a)(2), Ala.Code 1975, provides that a person sells securities in this state when “an offer to buy is made and accepted in this state.” In pertinent part, § 8-6-12(c), Ala.Code 1975, provides that an offer to buy is made in this state “when the offer ... originates from this state.” In pertinent part, § 8-6-12(d), Ala.Code 1975, provides that an offer to buy “is accepted in this state when acceptance ... is communicated to the of-feror in this state.” In this case, Ryder sold a security in Alabama because (1) Mabry was in this state when he communicated his offers to buy the PIPS securities to Ryder and (2) Mabry was in this state when Ryder communicated his acceptance of those offers to Mabry. See §§ 8-6-12(a)(2), 8-6-12(c), and 8-6-12(d).

Thus, the issue is whether Ryder’s sale of securities in this state in the course of four telephone conversations initiated by Mabry constitutes sufficient contacts with this state to make it “ \fair and reasonable to require [him] to come to this state to defend an action.’ ” Ex parte Reindel, 963 So.2d at 618. We conclude that it is fair and reasonable to require Ryder to come to this state to defend Mabry’s action. By accepting Mabry’s offers to purchase securities, Ryder purposely availed himself of conducting activity in this state. Moreover, because Ryder accepted Mabry’s offers, he is not being haled into court in Alabama as a result of the unilateral activity of a third party. Finally, his acceptance of Mabry’s offers made it reasonable for him to anticipate that he might be haled into a court in this state. Therefore, we find no merit in Ryder’s argument that the trial court lacked in personam jurisdiction over him.

Ryder also argues that the trial court erred in admitting the cease-and-desist order into evidence for the purpose of proving the truth of its contents because, he says, its contents constitute hearsay. However, Ryder did not appear at the August 18, 2008, hearing and timely object to the admission of the cease-and-desist order on the ground that it contained hearsay. Rule 103(a)(1), Ala. R. Evid., provides that error may not be predicated upon a ruling that admits evidence unless “a timely objection or motion to strike appears of record.... ” Therefore, we cannot reverse the trial court’s judgment on the basis of a hearsay objection that Ryder did not make in the trial court in compliance with Rule 103(a)(1).

In addition, Ryder argues that § 8-6-28, Ala.Code 1975, insofar as it provides that a certified copy of a document such as the cease-and-desist order constitutes prima faeie evidence of its contents, runs afoul of the Due Process Clause of the United States Constitution and Article 1, Section 13 of the Alabama Constitution of 1901. However, the record contains no indication that Ryder notified the attorney general of Alabama of his constitutional challenge to § 8-6-28, as required by § 6-6-227, Ala.Code 1975. Therefore, Ryder’s challenge to the constitutionality of § 8-6-28 is not properly before us. See Bratton v. City of Florence, 688 So.2d 233, 234 (Ala.1996) (holding that the issue whether an ordinance was constitutional was not properly before the supreme court because the party making the challenge to the constitutionality of the ordinance had not notified the attorney general of the challenge as required by § 6-6-227).

Ryder also argues that the trial court erred in entering the default judgment against him and in denying him relief from that judgment because, he says, his sales of PIPS securities in this state were exempt from the requirements of the Alabama Securities Act by virtue of § 8-6-3(b)(3), Ala.Code 1975, because, he says, he did not have an office in Alabama and did not direct business communications in this state to more than five clients. Section 8-6 — 3(b)(3) provides that “[i]t is unlawful for any person to transact business in this state as an investment adviser or investment adviser representative unless ... [h]e has no place of business in this state and during any period of 12 consecutive months does not direct business communications in this state in any manner to more than five clients” other than certain specified entities. (Emphasis added.) However, § 8-6-3(b)(3) does not contain any language exempting a person who transacts business in this state as an agent for securities from the requirement that he or she register pursuant to § 8-6-3(a) before transacting business as a securities agent in this state. Moreover, § 8 — 6—3(b)(3) does not contain any language exempting a security from the requirement that it be registered pursuant to § 8-6^4 before it is sold in this state. Accordingly, we find no merit in Ryder’s argument that his sales of securities in this state were exempt from the requirements of the Alabama Securities Act by virtue of § 8 — 6—3(b)(3).

Ryder also argues that the trial court erred in entering the default judgment and in denying him relief from that judgment because, he says, Mabry’s claims that Ryder violated the Alabama securities laws were barred by the two-year statute of limitations contained in § 8 — 6—19(f), Ala. Code 1975. In pertinent part, § 8 — 6—19(f) provides:

“No person may obtain relief under this section in an action involving the failure to register unless suit is brought within two years from the date of sale. All other actions for relief under this section must be brought within the earlier of two years after discovery of the violation or two years after discovery should have been made by the exercise of reasonable care.”

The trial court correctly applied § 8-6-19(f) to Mabry’s claim under § 8-6-19(a)(1) seeking recovery for Ryder’s selling of unregistered securities to Mabry by finding in favor of Mabry only with respect to sales of securities that occurred within two years of the date Mabry filed this action. The trial court also correctly applied § 8-6-19(f) to Mabry’s claim under § 8-6-19(a)(2) seeking recovery for Ryder’s selling securities to Mabry by means of untrue statements of material facts; although the trial court found in favor of Mabry on that claim with respect to sales that occurred more than two years before Mabry filed this action, the evidence established that Mabry did not discover that Ryder’s statements were untrue until a date that was within two years of the date Mabry filed this action and that he could not have discovered that those statements were untrue by the exercise of reasonable care until a date that was within two years of the date he filed this action. Accordingly, we find no merit in Ryder’s argument that the trial court erred in applying the two-year statute of limitations contained in § 8-6-19(f).

Finally, Ryder argues that trial court erred in entering the default judgment against him and in denying him relief from that judgment because, he says, Mabry failed to prove the essential elements of his fraud and conversion claims. However, a fair reading of the trial court’s judgment indicates that the trial court did not find in favor of Mabry with respect to his fraud and conversion claims — the trial court found in favor of Mabry only with respect to his claims that Ryder had violated § 8 — 6—19(a)(1) and § 8-6-19(a)(2). Therefore, Ryder’s final argument has no merit.

Because Ryder has failed to establish that the trial court erred in entering the default judgment against him or in denying him relief from that judgment, we affirm the judgment of the trial court.

APPLICATION FOR REHEARING GRANTED; OPINION OF MARCH 12, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

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