author: THOMAS, Judge.

text:
    Cynthia Yvonne GRUND v. AMERICAN TRIM, LLC.
    2090322.
    Court of Civil Appeals of Alabama.
    Sept. 17, 2010.

      William V. Powell, Jr., of Powell & Denny, P.C., Birmingham, for appellant.
    Gaynor L. St. John of St. John & St. John, LLC, Cullman, for appellee.
   THOMAS, Judge.

Cynthia Yvonne Grand appeals from a judgment in favor of American Trim, LLC, on Grund’s claim for workers’ compensation benefits and on American Trim’s claim for reimbursement of $7,176.49 in insurance premiums it paid on Grund’s behalf during the period Grand was on leave from her employment.

Facts

Grand worked for American Trim in the powder-coat department, performing several different jobs, including racking parts, grinding, and plugging tires. On November 28, 2006, Grand had been plugging tires and then began racking door handles. She said that, while racking door handles, she suddenly felt a burning, tingling pain in her right shoulder; she described the pain as feeling like someone had stuck a knife in her shoulder.

Grand sought treatment from her personal physician, Dr. Gregory Bostick, who later referred her to Dr. John Songer, an orthopedic surgeon, who first saw Grand in February 2007. Dr. Songer diagnosed Grand with carpal tunnel syndrome and a tear in her rotator cuff; he performed surgery on March 14, 2007, to resolve both conditions. Dr. Songer’s records indicate that Grand did not inform him that her rotator-cuff tear was work related; however, after her surgery, Grand did question Dr. Songer as to whether her rotator-cuff tear could have been related to her alleged November 28, 2006, on-the-job accident. Dr. Songer testified in his deposition that he could not determine whether Grand’s rotator-cuff tear was related to her alleged November 28, 2006, on-the-job accident because he had not examined her until three months after the alleged accident.

Grand remained off work for several months after her surgeries. She sought short-term-disability benefits in March 2007. On the application for those benefits, Grand indicated that her condition had not arisen out of her employment and that she did not intend to file a workers’ compensation claim. Grand also stated in the application that her shoulder pain had begun eight months before and that she had first been treated by a physician for the condition six months before. In support of Grund’s application for short-term-disability benefits, Dr. Songer filled out an attending physician’s statement on which he indicated that Grund’s condition was not work related.

After Dr. Songer cleared her to perform light-duty work on July 10, 2007, Grand returned to work on July 12, 2007. Grand worked for only three weeks performing grinding work; her last day of work was August 6, 2007. She saw Dr. Songer again on August 7, 2007, at which time she complained that she was suffering from more pain and discomfort in her right shoulder. Dr. Songer testified, however, that he found no weakness when he checked her rotator cuff at that visit. Dr. Songer placed more restrictions on Grand — specifically, no repetitive motions with her right shoulder — which resulted in Grand not being able to perform any job at American Trim.

Grand next saw Dr. Songer on August 22, 2007. At that time, she complained that she had continued to suffer more pain and discomfort in her right shoulder since she had returned to work and that the pain was now affecting her ability to sleep; Grand also reported intermittent grinding and popping in her shoulder. On September 7, 2007, Grand returned to Dr. Songer, reporting less popping in her right shoulder. Grand returned to Dr. Songer on September 21, 2007, complaining that the pain in her shoulder was worse; Dr. Son-ger noted that he could reproduce the popping of her shoulder and that he then determined that an MRI scan would be necessary to evaluate the rotator-cuff tendon. Dr. Songer testified that he told Grand that she could no longer “work production” at that time, although Grand had last worked at American Trim on August 6, 2007. On September 26, 2007, Grand underwent an MRI, which showed that her rotator cuff was torn in the same general area as the previous surgical repair. Dr. Songer performed a second ro-tator-cuff-repair surgery on Grand on October 1, 2007.

Dr. Songer testified on direct examination in his deposition that he believed that Grund’s second rotator-cuff tear was “probably secondary to her work from ... not following the restrictions.” He commented that “the repetitive overhead use [of the shoulder] and keeping the shoulder up more than eighty, ninety degrees probably would [have contributed to the second rotator-cuff tear].” However, on cross-examination, Dr. Songer was not as certain that Grund’s employment activities caused her second rotator-cuff tear.

Dr. Songer admitted that everything he knew about the jobs that Grund performed had come from Grund’s descriptions of those jobs. He said that he trusted the opinion of the physical therapist to whom he had. referred Grund, Lydia Haynes. Haynes had actually visited the American Trim plant and had observed the jobs that Grund typically performed: the grinding job, the racking job, and the plugging job. Haynes stated in her affidavit and testified at trial that none of the jobs that Grund performed would have violated the weight, forcé, overhead, and repetition restrictions placed on Grund at the conclusion of Grund’s postoperative physical therapy. Based on this information, Dr. Songer indicated that he was not as sure he could relate the second rotator-cuff tear to Grund’s allegedly working outside her restrictions. However, Dr. Songer did state that Grund did not have a second rotator-cuff tear until some time after she had returned to work in August 2007.

Grund sought short-term-disability benefits for a second time in August 2007. On ■ the August 2007 application, she again indicated that the condition for which she was seeking disability was not work related and that she did not intend to file a workers’ compensation claim. As he had on the first attending physician’s statement, Dr. Songer indicated on the August 2007 statement that Grund’s condition was not related to her employment.

At trial, Grund admitted that, as an employee of American Trim, she paid at least a portion of her dental-, medical-, long-term-disability-, and life-insurance premiums. While Grund was on leave from her employment, American Trim paid her portion of those various insurance premiums. Grund testified that American Trim had contacted her and requested that she begin paying her portion of the premiums; Grund admitted that she had not done so because, she said, she could not afford to do so.

Lorri Lee, the health-services coordinator for American Trim, testified that, when an employee is on leave from his or her employment, American Trim pays the entire premiums for the various insurance coverages and that the employee then owes American Trim for the employee’s share of the premiums. If an employee does not pay American Trim while on leave, Lee explained, American Trim would, upon the employee’s return to work, withhold a portion of the employee’s wages until the premiums are repaid. Lee further explained that Grund should have been notified at the time she applied for family/medical leave under the Family and Medical Leave Act (“FMLA”), codified at 29 U.S.C. § 2601 et seq., that American Trim would pay the insurance premiums but that Grund would be required to reimburse American Trim. The record contains a form entitled “Employer Response to Employee” indicating that it was from Scott Dossey, the former health-services coordinator for American Trim, to Grund. This form further indicates that Grund’s request for FMLA leave had been approved. According to the form, Grund was required to pay her share of her health-insurance premium while she was on FMLÁ leave; however, the form also states that, if the premiums were not paid timely by Grund, American Trim would pay Grund’s share of the premiums due. In addition, the form states that American Trim would pay Grund’s share of insurance premiums other than for health insurance while she was on FMLA leave; furthermore, the form specifically states that, “KJf we do pay your premiums for other benefits, when you return from leave you [will] be expected to reimburse us for the payments made on your behalf.”

Procedural History

In May 2007, Grund sued American Trim, seeking workers’ compensation benefits. She alleged that she had suffered an injury to her shoulder arising out of and in the course of her employment on November 28, 2006. American Trim answered the complaint, denying that Grund was due compensation; it amended its answer to assert that Grund had not given proper notice of her injury. American Trim later filed a counterclaim seeking reimbursement of the health-insurance and other insurance premiums it had paid on Grund’s behalf to maintain certain insurance coverage while Grund was out of work on FMLA leave. Grund later amended her complaint to claim that she had suffered a second rotator-cuff tear after she returned to work in August 2007, that she had undergone a second surgery to repair the second rotator-cuff tear, and that the second rotator-cuff tear had resulted in further disability.

After a trial, the trial court entered a judgment denying Grund’s claim for workers’ compensation benefits and awarding American Trim a judgment in its favor for $7,176.49. In its judgment, the trial court determined that Grund had not given American Trim proper notice of the November 2006 injury and that Grund had not proven that her employment had caused either shoulder injury. Grund appeals, arguing that she did provide proper notice of both injuries, that she proved causation of those injuries, and that American Trim failed to prove that she had breached a contract to repay the insurance premiums it had paid on her behalf during her FMLA leave.

Analysis Regarding Grund’s Workers’ Compensation Claim

Our review of the judgment denying Grund’s workers’ - compensation claim is governed by the Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq., which states, in pertinent part: “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25-5-81(e)(2). Therefore, this court “will view the facts in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). Further, the trial court’s finding of fact is supported by substantial evidence if it is “supported by ‘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., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d)). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25-5-81(e)(l); see also Ex parte Trinity Indus., 680 So.2d at 268.

Because we find the resolution of the causation issue determinative, we will first address Grund’s contention on appeal that she presented sufficient evidence to establish that both of her rotator-cuff tears were caused by accidents occurring during her employment with American Trim. We are' mindful that “[w]hether the employment caused an injury is a question of fact to be resolved by the trial court.” Tenax Mfg. Alabama, LLC v. Holt, 979 So.2d 105, 112 (Ala.Civ.App.2007). As an appellate court, our role is “ ‘ “not to consider whether in [our] opinion the ‘substantial evidence’ before the trial court might have caused [this] court — if it had been the fact-finder — to find the facts to be different from what the trial court found them to be.” ’ ” Francis Powell Enters., Inc. v. Andrews, 21 So.3d 726, 736 (Ala.Civ.App.2009) (quoting Muhammad v. Laidlaw Transit, Inc., 917 So.2d 842, 846 (Ala.Civ.App.2005) (quoting in turn Ex parte Staggs, 825 So.2d 820 822 (Ala.2001))).

“For an injury to be compensable, it must be ‘caused by an accident arising out of and in the course of the employee’s employment. § 25-5-51, Ala.Code 1975. The phrase ‘arising out of an employee’s employment requires a causal connection between the injury and the employment. Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313 (Ala.Civ.App.1993). The phrase ‘in the course of the employee’s employment refers to the time, place, and circumstances under which the accident occurred. Id. In accidental cases, i.e., those involving a sudden and traumatic event, an employee must produce substantial evidence tending to show that the alleged accident occurred and must also establish medical causation by showing that the accident caused or was a contributing cause of the injury. Ex parte Trinity Indus., Inc., 680 So.2d [262,] 266 n. 3 [ (Ala.1996) ].”

Pair v. Jack’s Family Rests., Inc., 765 So.2d 678, 681 (Ala.Civ.App.2000). The trial court concluded that Grund had failed to establish a connection between her employment and either of her rotator-cuff tears; that is, the trial court determined that Grund had failed to establish medical causation of her rotator-cuff tears. We agree with the trial court’s conclusion.

Regarding Grund’s alleged November 28, 2006, accident and the rotator-cuff tear diagnosed by Dr. Songer in February 2007, the trial court had before it ample evidence supporting a conclusion that Grund had failed to establish a causal connection between the alleged accident and her rotator-cuff tear. Although Grund testified that she suffered an onset of pain on November 28, 2006, while she was racking door handles, Dr. Songer testified that, because he had not seen Grund until February 2007, he could not relate Grund’s injury to the alleged November 28, 2006, accident. Grund’s failure to indicate that the injury was work related on her short-term-disability application and Dr. Son-ger’s indication that the injury was not work related on the attending physician’s statement in support of Grund’s short-term-disability application also support the conclusion that Grund failed to present sufficient evidence demonstrating that the alleged November 28, 2006, accident resulted in the rotator-cuff tear diagnosed by Dr. Songer in February 2007. Thus, we cannot conclude that the trial court erred when it determined that Grund had failed to establish a causal connection between the alleged November 2006 accident and her first rotator-cuff tear.

Regarding Grund’s second rotator-cuff tear, which was diagnosed by Dr. Son-ger on September 26, 2007, we reach the same conclusion. Dr. Songer testified that he believed that when Grund had returned to work she had worked outside her restrictions, resulting in a second rotator-cuff tear. However, Dr. Songer was not as certain of this fact once he was presented with information indicating that Grund’s return to employment had not required her to work outside the restrictions established by Grund’s physical therapist, Haynes, who had personally observed Grund’s job duties. Notably, it appears from his deposition testimony that Dr. Songer was under the impression that Grund had continued to work at American Trim through August and into September 2007. However, Grund’s last day at American Trim was August 6, 2007, the day before her August 7, 2007, appointment with Dr. Songer. Dr. Songer testified that he found no weakness when he checked Grund’s' rotator cuff at the August 7, 2007, office visit, indicating that it was possible that Grund did not, at that time, have a rotator-cuff tear. Although Grund continued to complain of pain and discomfort and developed popping in her shoulder over the next several weeks, she was no longer performing any work for American Trim. By the time Dr. Songer diagnosed the second rotator-cuff tear on September 26, 2007, Grund had not worked at American Trim for seven weeks.

The trial court could have discounted Dr. Songer’s conclusion that the second rotator-cuff tear resulted from Grund’s return to employment in light of the evidence indicating that Grund’s employment activities did not violate her restrictions. The trial court could also have considered the fact that Grund had not actually worked at American Trim after August 6, 2007, and the fact that Dr. Songer had found no weakness in the rotator cuff during his August 7, 2007, exam as support for a conclusion that Grund had not suffered the second rotator-cuff tear at work, seven weeks before. Thus, we cannot conclude that the trial court erred in determining that Grund’s second rotator-cuff tear was not related to the activities of her employment.

The trial court’s conclusion that Grund had failed to establish that her rotator-cuff tears were caused by an accident or activity related to her employment is supported by substantial evidence. Because we have determined that the trial court could have properly concluded that Grund did not present sufficient evidence of medical causation, we pretermit discussion of Grund’s argument regarding whether she provided proper notice of her November 2006 injury to American Trim. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this- court would pretermit discussion of further issues in light of the dispositive nature of another issue). The trial court’s judgment, insofar as it denied Grund workers’ compensation benefits, is affirmed.

Analysis Regarding American Trim’s Reimbursement Claim

Grund further argues that the trial court incorrectly determined that she had breached a contract with American Trim to reimburse any insurance premiums paid on her behalf while she was out of work on short-term-disability leave. Grand argues that American Trim did not establish mutual assent to the terms of any alleged contract for reimbursement. See Whorton v. Bruce, 17 So.3d 661, 665 (Ala.Civ.App.2009) (quoting Board of Comm’rs of Alabama State Bar v. Jones, 291 Ala. 371, 378, 281 So.2d 267, 273 (1973)) (“ Tt has long been the law in Alabama (and indeed it is elementary) that the mutual assent of the parties to the same thing, and in the same sense, is an essential element to every contract.’ ”). However, although American Trim did state in its counterclaim that it was pursuing reimbursement under the terms of the employee handbook, which, in certain eases, could serve as a contract between an employer and an employee, see, e.g., Amoco Fabrics & Fibers Co. v. Hilson, 669 So.2d 832, 834-35 (Ala.1995) (affirming a summary judgment concluding that Amoco’s vacation policy, contained within its employee handbook, created a unilateral contract), at trial American Trim presented an FMLA “Employer Response to Employee” form provided to Grand pursuant to 29 C.F.R. § 825.300(c). As noted above, that form indicates that Grund’s request for FMLA leave was approved; that Grand was expected to pay her share of her health-insurance premiums while she was on FMLA leave; that American Trim would pay her other insurance premiums for her during her FMLA leave; that, if Grand failed to pay her share of the health-insurance premiums, American Trim would pay those premiums for her; and that Grand would be required to reimburse American Trim for her share of the other insurance premiums it had paid on her behalf once she returned from FMLA leave. Thus, we will consider whether, under the FMLA, American Trim was entitled to the $7,176.49 reimbursement awarded to it by the trial court.

Under the FMLA, an employer is required to maintain group-health-insurance benefits for an employee on FMLA leave. 29 C.F.R. § 825.209(a). Any portion of the premium for group health insurance that was borne by the employee before the employee took FMLA leave must still be borne by the employee while on FMLA leave. 29 C.F.R. § 825.210(a). When FMLA leave is taken as unpaid leave, the employer has a choice of several methods of obtaining payment of the employee’s share of the health-insurance premium from the employee, including requiring payment to be made to the employer or the insurance carrier at the same time that a payroll deduction would be made or requiring prepayment of the premiums if FMLA leave is preplanned. 29 C.F.R. § 825.210(c). If an employee fails to make the premium payments, the employer is entitled to recover the employee’s share of the premium payments the employee failed to make, provided that the employer maintained the employee’s health-insurance coverage by paying the employee’s share of the premium. 29 C.F.R. § 825.212(b). If an employee does not return to work after the expiration of his or her FMLA leave, an employer may recover its portion of the group-health-insurance premium only in certain circumstances. 29 C.F.R. § 825.213(a). However, if an employer has elected to maintain other benefits for the employee while the employee is on FMLA leave the employer is entitled to “recover only the costs incurred for paying the employee’s share of any premiums whether or not the emploijee returns to work.” 29 C.F.R. § 825.213(b) (emphasis added). The employer may recover any of the amounts to which it is entitled by appropriate payroll deduction or by instituting legal action against the employee. 29 C.F.R. § 825.213(f).

Because American Trim paid Grund’s share of the health-insurance premiums when Grand failed to do so while she was on FMLA leave, American Trim is entitled to be reimbursed for Grand’s share of the health-insurance premiums that American Trim paid. § 825.212(b). In addition, because American Trim paid Grund’s share of the other insurance premiums while she was on FMLA leave, American Trim is entitled to be reimbursed for the amount of Grund’s share of those premiums as well. § 825.213(b). Although the trial court may have based its determination that American Trim was due $7,176.49 in reimbursement from Grand on a breach-of-contact theory based on a provision allegedly contained in the employee handbook, we are not constrained to consider only whether American Trim established that Grand breached a contract requiring her to reimburse American Trim. See Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1081 (Ala.2006) (quoting Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1082 (Ala.2004) (quoting in turn Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala.2003))) (noting that an appellate court “ ‘ “may affirm a trial court’s judgment on ‘any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court’ ” ’ ”). Because the evidence established that American Trim is entitled to reimbursement under the FMLA, and because we may affirm a trial court’s judgment provided that it is supported by any valid legal ground, see Sys-trends, 959 So.2d at 1081, we affirm the trial court’s judgment insofar as it awarded American Trim $7,176.49 for reimbursement of Grund’s share of the insurance premiums paid by American Trim while Grand was on FMLA leave.

Conclusion

The trial court’s judgment, insofar as it denied Grand’s claim for workers’ compensation, is supported by 'substantial evidence. Likewise, the trial court’s judgment, insofar as it awarded American Trim a judgment in its favor for $7,176.49 for reimbursement for Grund’s portion of insurance premiums American Trim paid on her behalf while she was on FMLA leave, is in accordance with the law governing FMLA leave and an employer’s right to reimbursement. Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

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

      . Grand is not seeking workers’ compensation benefits for her carpal tunnel surgery.

      . The sentence actually contains the terms "will" and "will not,” each accompanied by a box; the box denoting "will” is checked on the form.

      . Grund argues on appeal that the trial court used the wrong legal standard in evaluating her second rotator-cuff tear because, she says, the trial court should not have considered the first rotator-cuff tear to be a preexisting con-ditioh. Because the trial court could well have determined that the second rotator-cuff tear did not occur as a result of Grund’s work activities, as is discussed infra, we preclude discussion of her argument that she did not suffer from a preexisting condition at the time she suffered the second rotator-cuff tear.

      . Grund does not argue that the second rota-tor-cuff tear should be treated as a compen-sable injury under the successive-compensa-ble-injury rule as set out by our supreme court in Ex parte Pike County Commission, 740 So.2d 1080, 1084 (Ala.1999) (quoting 1 Arthur Larson & Lex K. Larson, Larson's Workers’ Compensation Law § 13.00 (1998)) ("When determining whether a successive injury is compensable, the general rule is that ‘[wjhen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant’s own intentional conduct.’ ”).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Dana B. DEES v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY and Roy D. Nichols, in his official capacity as Superintendent of the Mobile County Public School System.
    2090730.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2010.

      Gregory B. Stein of Stein & Pilcher, L.L.C., Mobile; and Henry H. Caddell of Thiry & Caddell, Mobile, for appellant.
    Edgar P. Walsh of The Atchison Firm, P.C., Mobile, for appellees.
   THOMPSON, Presiding Judge.

Dana B. Dees appeals from a summary judgment entered by the Mobile Circuit Court in favor of the Board of School Commissioners of Mobile County (“the Board”) and Roy D. Nichols, in his official capacity as Superintendent of the Mobile County Public School System. For the reasons set forth herein, we reverse the summary judgment.

. Considered in the light most favorable to Dees, see Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990), the record reveals the following pertinent facts. In January 2006, the Board hired Dees to replace a teacher who had retired after the.conclusion of the first semester of the 2005-2006 school year. Dees was classified as a “substitute teacher” and was compensated at a rate of $65 per day. On March 28, 2006, she was reclassified as a “Category II Substitute” and began being compensated at a rate of $120 per day. A “Category. II Substitute” is an individual who serves as a substitute teacher in the Mobile County school system for more than 20 days. Category II Substitutes are required to hold, a valid Alabama teaching certificate. The record does not reflect whether Dees entered into a contract with the Board at any point during the 2005-2006 school year. Dees performed the duties and functions of a regular teacher during that period of employment.

The Board hired Dees as a fifth-grade teacher for the 2006-2007 school year and as a kindergarten teacher for the 2007-2008 school year.

The Board did not hire Dees at the beginning of the 2008-2009 school year. However, on October 20, 2008, she was hired as a fifth-grade teacher to fill a vacancy, and she remained throughout the 2008-2009 school year. She again was titled a Category II Substitute, and she was compensated accordingly. During this period, Dees performed all the duties and functions of a regular teacher. The record does not reflect whether Dees entered into a contract with the Board during the 2008-2009 school year.

On May 12, 2009, Dees filed an action against the Board and Nichols. She alleged that, based on her service, she had obtained “continuing-service status,” or tenure. In spite of this, she asserted, during the 2008-2009 school year she had been paid' as a Category II Substitute rather than as a teacher and had not received any of the employment benefits provided to teachers. She alleged that she had requested that the Board and Nichols recognize that she had attained tenure, that they pay her and provide her benefits as a teacher in her fourth year of service, and that they provide her with backpay and benefits from October 20, 2008. She asserted that the Board and Nichols had refused to do so. She sought “appropriate declaratory, mandamus, and injunctive relief’ requiring the defendants to recognize her as a tenured teacher, to pay her and provide her benefits as a teacher in her fourth year of service rather than as a Category II Substitute, and to provide her with backpay and benefits from October 20, 2008. The Board and Nichols filed an answer in which they denied that Dees had become a tenured teacher.

On July 15, 2009, Dees filed a motion for a summary judgment. In her supporting brief, she argued that, although the Board had titled her a “substitute teacher” during her time of service during the'2005-2006 and 2008-2009 school years, she had performed all the duties of a teacher during those times, and, as a result, that those periods of service should have been counted toward the three consecutive years of service necessary to attain tenure. She cited this court’s decision in Springfield v. Talladega City Board of Education, 628 So.2d 704 (Ala.Civ.App.1993), in which this court held that the period during which a teacher held the title “instructional assistant” counted toward the time necessary to attain tenure because, during that time, she had performed the duties and functions of a teacher. 628 So.2d at 706. Dees filed an affidavit in support of her summary-judgment motion.

The Board and Nichols filed a response to Dees’s summary-judgment motion, and, on September 18, 2009, they filed a cross-motion for a summary judgment. They argued that it was without dispute that Dees’s employment during the 2005-2006 and the 2008-2009 school years was as a substitute teacher. They contended that, pursuant to this court’s decision in Lawrence v. Birmingham Board of Education, 669 So.2d 910 (Ala.Civ.App.1995), a teacher’s service as a substitute teacher does not count toward the three years of service necessary to attain tenure.

After the trial court held oral argument on the cross-motions for a summary judgment, the parties submitted additional briefs and materials in support of their respective motions. In particular, Dees filed a supplemental affidavit in which she described, in substantial detail, all the duties she had had and all the work she had performed during the 2005-2006 and 2008-2009 school years that, according to her testimony, indicated that she had worked as a regular teacher during those times rather than as a substitute teacher. The Board and Nichols filed a motion to strike Dees’s supplemental affidavit, but the trial court did not rule on that motion.

On March 22, 2010, the trial court granted the Board’s and Nichols’s motion for a summary judgment and denied Dees’s motion. Relying on Lawrence, supra, the trial court held that Dees’s service as a substitute teacher did not count toward attaining tenure, and, as a result, that she had not acquired tenure. Dees appealed to the supreme court, which transferred the appeal to this court for lack of appellate jurisdiction.

The standard by which this court reviews a summary judgment is well settled:

“ ‘ “To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the non-movant to present ‘substantial evidence’ creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d)[,] Ala.Code 1975. Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘ “In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the non-movant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).” ’
“Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).”

Maciasz v. Fireman’s Fund Ins. Co., 988 So.2d 991, 994-95 (Ala.2008).

Dees contends, among other things, that the trial court erred when it concluded that the time she served as a Category II Substitute could not be credited toward the service time necessary to attain tenure. She argues that, although the Board gave her the title of “Category II Substitute,” she was, in actuality, a regular teacher performing the tasks a regular teacher, rather than a substitute teacher, would perform. Thus, she argues, she has served as a teacher for the time necessary to attain tenure.

The teacher-tenure law is set out at Chapter 24 of Title 16 of the Alabama Code. Section 16-24-2(a) provides:

“Any teacher in the public schools who shall meet the following requirements shall attain continuing service status [ (tenure) ]: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system the succeeding school year.”

The basis of the Board’s and Nichols’s summary-judgment motion was that time served as a “substitute teacher” does not count toward the three consecutive years of service necessary for a teacher to attain tenure. In entering a summary judgment in favor of the Board and Nichols on the basis of that argument, the trial court relied on this court’s decision in Lawrence.

In Lawrence, a teacher had served as a substitute teacher during the 1990-1991 school year and then, under contract, had taught at the school for the next three school years. Before the third school year ended, the teacher received a notice that her contract would not be renewed for the following school year. She filed an action against the board of education, arguing that her year spent as a substitute teacher counted toward attaining tenure and, as a result, that she had become tenured once she began teaching the third of the three years that she taught under contract. She argued that, during the year she taught as a substitute teacher, she was a certified teacher, she was paid the same salary as a beginning teacher under contract, she was a long-term substitute teacher who was present for the whole school year, and she performed all the duties of a regular teacher under contract. Thus, she contended, the termination of her employment violated the statutory protections to which she was entitled under the teacher-tenure law. The board disagreed, arguing that the year the teacher had served as a substitute did not count toward her attaining tenure.

The trial court in Lawrence agreed with the school board and held that the year the teacher taught as a substitute teacher did not count toward attaining tenure. In pertinent part, the trial court wrote:

“ T. The Court finds that [the teacher] was not a “regular” teacher under the Alabama Teacher Tenure Act, [that] is, a teacher employed under contract. § 16-24-2(a), Ala.Code (1975). By contrast, [the teacher] was not under contract during this period but rather was a “substitute” teacher, i.e., a teacher not under contract serving in place of a regular teacher out on sick, maternity or other leave.
“ ‘2. [The teacher]’s service as a substitute teacher cannot be counted toward tenure. Ex parte Hayes, 405 So.2d 366 (Ala.1981). Under the Teacher Tenure Act, only teachers who are under contract for three consecutive years acquire continuing service .status or tenure. James v. Board of School Commissioners of Mobile County, 484 F.Supp. 705 (S.D.Ala.1979).’”

Laivrence, 669 So.2d at 911. This court held that the trial court’s findings and conclusions were fully supported by the record, and it affirmed the trial court’s judgment in favor of the board of education.

In Lawrence, it was undisputed that the teacher, during the year she served as a substitute teacher, was not “under contract” as required by § 16-24-2(a), and it was the failure of the teacher to be under a contract that caused the trial court to conclude that her year of service as a substitute teacher did not count toward the three years of service necessary for attaining tenure. We do not read Lawrence as holding that a year a teacher serves under the title “substitute teacher” cannot count toward attaining tenure simply because of the teacher’s title.

Our conclusion in this regard is supported by this court’s decision in Springfield, supra, on which Dees relies. In Springfield,, the teacher accepted a position in January of the 1988-1989 school year as an “instructional assistant,” or a teacher’s aide. She served as a regular classroom teacher for the next three school years. Before the end of the 1992-1993 school year, she was informed that her contract would not be renewed for the following school year. She sued the school board, arguing that she had attained tenure and, as a result, that her employment had been terminated improperly. After the trial court denied her claim for reinstatement, she appealed to this court.

-On appeal, the teacher contended that the semester she spent as an instructional assistant should have counted as the beginning of the three years necessary for attaining tenure, and, as a result, that she had attained tenure before the termination of her employment. She pointed out that, although she was titled an “instructional assistant” during that semester, she had performed all the duties and functions of a regular teacher. This court agreed, concluding that the, teacher’s time spent as an instructional assistant should count toward her attaining tenure. Explaining that conclusion, the court wrote:

“Our holding that [the teacherj’s time of service as an instructional assistant qualifies as time serving as a teacher for purposes of earning tenure is based on three factors: she was regularly certified by the State, she performed responsibilities, duties, and activities which were essentially similar to what teachers did, and she exercised a great deal of discretion in her teaching methods.”

Springfield, 628 So.2d at 706. Importantly, in Springfield, no question appears to have been raised regarding whether the teacher had been “under contract” during the semester she worked as an instructional assistant.

In the present case, Dees presented substantial evidence indicating that, during her service as a “Category II Substitute,” she performed the duties and functions of a regular teacher. Thus, based on Springfield, we do not consider the sole fact that Dees was classified as a “substitute teacher” to necessarily preclude that service from counting toward the three years of service necessary for her to attain tenure. The trial court erred when it concluded otherwise.

In their appellate brief, the Board and Nichols argue that Dees was not under contract during the times she served as a substitute teacher. However, neither the Board nor Nichols made this argument to the trial court, and, as a result, the burden never shifted to Dees to present evidence indicating that she was, in fact, under contract during those times. See Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001). Instead, the Board and Nichols argued only, and the trial court concluded, that a teacher who has been classified as a “substitute teacher” does not accrue time toward attaining tenure. As discussed, we reject that proposition as too broad and not in keeping with this court’s opinions in Lawrence and Springfield.

Based on the foregoing, we conclude that the trial court erred to reversal when it held that Dees’s service under the title “Category II Substitute” could not count toward attaining tenure based simply on the fact of the title. Thus, we reverse the trial court’s summary judgment in favor of the Board and Nichols, and we remand the cause for further proceedings.

REVERSED AND REMANDED.

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

      . We note that, in Springfield, one of the facts this court found dispositive on the issue pre- ' sented was that the teacher had been certified as a teacher by the State during the time she served as a teacher's aide. In the present case, although there is substantial evidence indicating that, before her first stint as a Category II substitute, Dees had completed all the necessary requirements to obtain her teacher certification from the State and had applied for that certification, it appears that she did not receive her certification until the summer following the 2005-2006 school year. The Board and Nichols did not seek a summary judgment on this basis, however, and, even after the question apparently was raised in oral argument on the cross-motions for a summary judgment, the Board and Nichols filed a supplemental brief in which they stated that the question whether Dees was certified as a teacher during the 2005-2006 school year was not "the important fact to be considered by [the trial] court.” Although, as a general rule, this court can affirm a trial court’s judgment on any valid legal ground, that general rule fails in application with regard to a summary judgment when the ground is based on a lack of evidence as to a particular element of a claim, and the moving party did not assert such a lack of evidence in support of its summary-judgment motion. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). In the present case, because the Board and Nichols did not seek a summary judgment on the question whether Dees was certified as a teacher during the 2005-2006 school year, and because we are not convinced that all the factual issues bearing on that question have been resolved, we will not affirm the trial court’s judgment on that basis.


text:
    Paul Murphy BRANTLEY v. Gerald P. SCRUSHY and Kimberly B. Scrushy. Paul Murphy Brantley v. Carl O. Meeks and Patricia Meeks.
    2090706 and 2090778.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2010.
    Ralph E. Coleman, Birmingham, for appellant.
    E. Luckett Robinson II of Hand Aren-dall LLC, Mobile, for appellees Gerald P. Scrushy and Kimberly B. Scrushy.

      Patrick R. Norris of McDaniel, Bains & Norris, P.C., Birmingham, for appellees Carl 0. Meeks and Patricia Meeks.
   THOMPSON, Presiding Judge.

Paul Murphy Brantley appeals from the judgment of the Shelby Circuit Court in favor of Prudential Relocation, Inc. (“Prudential”), for whom Gerald P. Scrushy and Kimberly B. Scrushy have been substituted on appeal. Brantley also appeals from a separate judgment of the trial court entered in favor of Carl 0. Meeks and Patricia 'Meeks in the same litigation. This court consolidated the appeals, and, for the reasons set forth herein, we dismiss them.

Generally, when resolving an appeal involving multiple parcels of real property, it is somewhat difficult to describe the relative locations of the various parcels of property at issue. For purposes of these appeals, we will simplify the present matter by stating that the appeals involve two parcels of property, an easement, and a road. Parcel A lies to the north of parcel B. Parcel B is bordered on the south by a county highway. A 60-foot easement connects Parcel A to the highway. The easement runs the length of parcel B along its western boundary.

Brantley’s predecessors in interest owned parcel A and parcel B. Those predecessors conveyed parcel B to Guy Burns, Sr., and Guy Burns, Jr., reserving to themselves a 20-foot easement" across parcel B to access the highway. The location of the easement was not defined.

In February 1982, the Burnses conveyed parcel B to J.C. White and Carol White, subject to the undefined easement. In 1983, the Whites conveyed to Brantley’s predecessors the presently existing 60-foot easement. The deed conveying the easement reads, in part: “Grantors grant herein an easement across [parcel B] only for the purpose of gaining access to grantee’s property [ (parcel A) ]. Grantees herein agree to abandon any other means of access to said property heretofore reserved across [parcel B].”

In 1984, Paul Brantley and one of his family members, Billy Brantley, purchased parcel A. In 1998, they subdivided it into multiple lots. At some point, Brantley built a 10-foot-wide asphalt driveway through the easement from parcel A to the county highway.

In January 2006, the Whites conveyed parcel B to Maverick Enterprises, LLC (“Maverick”). In April 2006, Maverick conveyed a portion of parcel B to Ronald Walker and Katherine Walker. Thereafter, Maverick began constructing a house for the Walkers on their lot. Maverick subdivided the portion of parcel B that it continued to own. In May 2006, Maverick sold two of the newly divided portions of parcel B to Carl Dewayne Meeks and Sandra Meeks and two other newly divided portions of parcel B to Carl O. Meeks and Patricia Meeks.

On January 22, 2007, the Walkers filed an action against Brantley. They alleged that in November 2006 Brantley entered their property and cut down three large trees located on the easement, despite the fact that the trees did not impair his access to his property.

Brantley filed an answer and a counterclaim. In the counterclaim, Brantley added Maverick and Kenneth Carter, Maverick’s managing member, as counterclaim defendants. Brantley alleged that, in retaliation for Brantley’s cutting down the three trees located in the easement, Carter shot several holes in Brantley’s water line, destroying it. On March 30, 2007, the Walkers filed a motion to dismiss Brant-ley’s counterclaim, arguing that Brantley’s counterclaim did not seek relief against them.

On June 21, 2007, Brantley filed an amendment to his answer and his counterclaim. In it, he alleged that Carter had begun subdividing parcel B-. Brantley asserted that he and his attorney had notified Carter of his objection to Carter’s planned use of the driveway on the easement and to Carter’s advertising to others a right to use that driveway. Brantley alleged that he had been harassed and intimidated by the Walkers, Carter, and Maverick and that they had damaged and destroyed portions of the- driveway Brant-ley had constructed.

On June 26, 2007, the parties filed a stipulation of dismissal with prejudice as to all the claims between the Walkers and Brantley, and they requested that the remaining parties be realigned to show Brantley as the plaintiff and Carter and Maverick as defendants. On August 5, 2007, the trial court entered an order dismissing with prejudice the claims between the Walkers and Brantley and realigning the remaining parties as they had requested.

On November 13, 2007, the Walkers sold their property to Prudential.

On August 27, 2009, Brantley filed an amended complaint in which he added Carl O. Meeks, Patricia Meeks, and Prudential as defendants. He alleged that the driveway he had constructed through the easement was a “private road,” that he had maintained the easement for more than 20 years, that he had posted “no trespassing” signs on the road on the easement, and that he had placed a locked gate across the road on the easement. He asserted that he had a “prescriptive right” to the easement and the road across it. Brantley alleged that the Meekses were trying to sell their property and that they had been advising others that the road on the easement 'was available to access their property. Brantley alleged that Carl O. Meeks had removed and damaged Brantley’s signs indicating that the road in the easement was private. Brantley asserted the allegations in his previous amended counterclaim regarding Carter and Maverick. He alleged that Carter, • Maverick, and Carl O. Meeks had harassed and intimidated him and that they had damaged and destroyed portions of the road on. the easement. He sought a declaration that the road on the easement was a “private road” and that the 60-foot easement was “an exclusive easement of Plaintiff Paul Brant-ley for the Brantley Family Subdivision.” He also sought .an award of damages against Carter, Maverick, and the Meeks: es.

On September 28, 2009, Carl O. Meeks filed a separate action against Brantley. That action was assigned case number CV-09-900726. In his complaint, Meeks sought a declaratory judgment defining the easement as permissive in nature, defining it as solely for ingress and egress, prohibiting Brantley from asserting exclusive control over the easement, and ordering- Brantley to cease and desist from harassing Meeks and others who used the easement and to remove all of the signage Brantley had placed on - the easement. Meeks also sought an order from the court enjoining Brantley from harassing him and others using the easement, from placing signs on the easement without Meeks’s written permission, and from exercising any control over the easement beyond the mere use of the easement for ingress and egress.

On October 13,- 2009, Brantley filed a motion to dismiss Meeks’s action on the basis that Brantley’s action had been pending before Meeks’s action was initiated and should therefore cause Meeks’s action to abate. Alternatively, he argued . that Meeks’s action should be consolidated with his action. Meeks filed a response in' which he indicated that, at the time he filed his action, he- was unaware that Brantley had added him as a party in Brantley’s amended complaint. He agreed that his action should be consolidated with Brantley’s action. Subsequently, the trial court consolidated Brantley’s action with Meeks’s, action and indicated that Brant-ley’s motion to dismiss Meeks’s action was moot.

On October 22, 2009, Prudential filed a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P., and a supporting brief. Prudential argued that the amended complaint made no claims against Prudential and that it did not demand a judgment against Prudential. Prudential also argued that Brantley could not state facts sufficient to convert his “express, permissive easement from 1983” into an “exclusive easement by prescription.” Finally, Prudential asserted that Brantley’s claims against it were barred by the doctrine of res judicata based on the dismissal with prejudice of Brantley’s claims against the Walkers, Prudential’s predecessors in interest. To its supporting brief, Prudential attached deeds in its chain of title.

Brantley filed a response to Prudential’s motion to dismiss in which he appeared to argue that the easement was private and reserved for his exclusive use and that the owners of the subservient properties were not entitled to use the easement and the road that ran through the easement. Brantley argued that his claims against Prudential were not barred by the doctrine of res judicata because the dismissal as to the Walkers related only to their claim that Brantley had cut down some trees in the easement, because there had not been a final judgment in the matter, and because there was no identity of the parties. In support of his response to the motion to dismiss, Brantley attached an affidavit, executed by Billy Brantley, David Eiland, and himself. In part, that affidavit read:

“Our names are Paul Brantley, Billy Brantley, and David Eiland. Paul Brantley and Billy. Brantley are the owners of the Brantley Family Subdivision and have been since 1984. The property was- purchased at that time from Paul Brantley, Ralph E. Coleman, and J. Sherrill Hancock. The property consisted of 41.7 acres. We had our homes built and located on the family subdivision and have lived there from 1985 forward and have been in possession of the property since that time. David Eiland purchased lot 3 which is 5.43 acres in 1998 and had lived on the property and been in possession of the same since that time. In order to access the property, we built a 60 foot right of way with a personal 10 foot asphalt drive way along, with a 3 inch water line for utility purposes and power lines for personal use. The county required the 60 foot right of way to establish the Family Subdivision in 1998....
“.... The County accepted the subdivision with the private drive being privately maintained and the County to have no responsibility for its maintenance and upkeep.
“Since that time and prior thereto, access has been by private road and maintained by the affiants. The private 60 foot right of way has a ten foot asphalt drive which was built and paid for by affiant, Paul Brantley, and had been taken care [of] by the affiants and their families.
“The property has been posted at all times as a private road and access has been controlled at various times by a cabled entrance and video surveillance. Our mailboxes are located on County Road 22 and our garbage collection is at County Road 22. We have no public traffic and have had none for these 22 years of our sole ownership. Affiant Paul Brantley is familiar with the previous usage of said road and prior to this time the road has been private as his family has owned the property since the 1930s. The right of way and private road was designated 60 feet to the west side of the property in the 1980s.”

Brantley also attached to the response several pictures of the road on the easement and deeds indicating how the properties at issue had been transferred over time.

Prudential filed a reply in support of its motion to dismiss in which it argued, among other things, that, in deciding the motion to dismiss, “the Court can simply review the express easement, note its clarity and determine as a matter of law that the easement is not exclusive which will dispose of the matter.” It argued that “[t]he easement is clear and unambiguous on its face and gives no one — including Brantley — an exclusive right of access.”

On January 12, 2010, the Meekses filed a motion to dismiss or, in the alternative, for a summary judgment. They adopted Prudential’s arguments in support of its motion to dismiss as well as the material Prudential submitted in support of that motion. The Meekses argued that, based on the evidence Prudential and Brantley had submitted, Brantley did not have an exclusive easement over the servient property.

Brantley filed a response to the Meeks-es’ motion in which he adopted the response he had filed to Prudential’s motion. To his response, Brantley attached a copy of a subdivision plat that, when considered in conjunction with other evidence the parties had submitted, demonstrated that only Prudential and the Meekses owned portions of the original servient estate through which the easement ran and that Maverick no longer owned any portion of the original servient estate.

On February 19, 2010, the trial court entered an order granting Prudential’s motion and dismissing Brantley’s action against it. The trial court certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Brantley filed an appeal to the supreme court of that order; that court transferred Brantléy’s appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On April 30, 2010, the trial court granted the Meekses’ motion and entered a summary judgment in their favor as to all Brantley’s claims against them. The trial court certified the summary judgment as final pursuant to Rule 54(b). The trial court indicated that Carl O. Meeks’s claims against Brantley, which the trial court referred to as a counterclaim, were stayed pending any appeal of the summary judgment. Brantley filed an appeal of the trial court’s judgment to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6). This court consolidated Brantley’s appeals.

Although no party has raised the question whether this court has jurisdiction over these appeals, “we may take notice of a- lack of jurisdiction ex mero motu.” Laney v. Garmon, 25 So.3d 478, 480 (Ala.Civ.App.2009). Generally, this court’s appellate jurisdiction extends only to final judgments. § 12-22-2, Ala.Code 1975.

“A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. R.”

Laney v. Garmon, 25 So.3d at 480.

With regard to a trial court’s certification of a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., our supreme court has written:

“This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘It bears repeating, here, that “.‘[cjertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.’ ” State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). “ ‘ “Appellate review in a piecemeal fashion is not favored.” ’ ” Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003) ] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis added).’
“Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004). Aso, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)).”

Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006).

The partial summary judgment in favor of the Meekses resolved Brantley’s claim against them seeking damages and seeking, in effect, a declaration that he was entitled to the exclusive use of the easement. The partial summary judgment did not, however, resolve Carl O. Meeks’s claims against Brantley. Those claims involve, in large part, virtually identical facts and issues underlying Brantley’s claims against the Meekses, i.e., the parties’ ownership interests in the easement and whether Brantley was entitled to exercise exclusive control over the easement. Brantley’s claims are closely intertwined with Carl O. Meeks’s unresolved claims against Brantley, and the piecemeal resolution of those claims does not advance judicial economy; therefore, we conclude that the trial court erred when it directed the entry of a final judgment, pursuant to Rule 54(b), in favor of the Meekses on Brantley’s claims. See Gregory v. Ferguson, 10 So.3d 596, 598 (Ala.Civ.App.2008). As a result, Brantley’s appeal is from a nonfinal judgment and is due to be dismissed. See id.

Brantley’s appeal from the trial court’s order dismissing his claims against Prudential, for whom the Scrushys have been substituted on appeal, is likewise due to be dismissed. Brantley’s claims against Prudential were virtually identical to its claims against the Meekses, who owned property adjacent to Prudential. Specifically, Brantley sought against Prudential a declaration that he was entitled to the exclusive use of the easement.

Because a separate adjudication of the claims against Prudential would pose an unreasonable risk of inconsistent results relative to an adjudication of the claims against the Meekses, Brantley’s claims against Prudential and the Meekses are too tightly intertwined to allow for a certification of finality of the dismissal of the claims against Prudential pursuant to Rule 54(b). See Wheeler v. Bice, 51 So.3d 1077, 1081 (Ma.Civ.App.2010) (holding that claims against two parties were too tightly intertwined to allow certification of finality as to claims against only one of the parties). Moreover, as with the other appeal, we fail to see how review of this case in piecemeal fashion would promote judicial economy in reaching a complete resolution of the present litigation. As a result, the trial court erred when certifying the judgment in favor of Prudential as final, and, for that reason, Brantley’s appeal from that judgment must be dismissed.

Separately, we note that our supreme court has stated that “in cases where the final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined.” Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala.1991). Although not conclusive on this point, the record indicates that there may be other individuals whose ownership interests in the easement could be impacted by a final judgment in this litigation. On remand, the trial court and the parties should consider whether, if such is the case, those parties should be joined to the action as indispensable parties. See Allbritton v. Dawkins, 19 So.3d 241 (Ala.Civ.App.2009).

Based on the foregoing, we conclude that the judgments from which Brantley appeals are not final judgments and do not support the present appeals. Accordingly, the appeals are dismissed. The motion filed by the Meekses to file a surreply brief is denied.

2090706 — APPEAL DISMISSED.

.2090778 — APPEAL DISMISSED.

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

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

      . The Scrushys are successors in interest to property that Prudential had owned that had formed the basis of Brantley’s claims against Prudential.


author: WISE, Presiding Judge. MAIN, Judge, WELCH, Judge,

text:
    Ralph TUCKER v. STATE of Alabama.
    CR-07-0434.
    Court of Criminal Appeals of Alabama.
    June 26, 2009.
    Rehearing Denied Aug. 14, 2009.
    Certiorari Quashed Sept. 17, 2010 Alabama Supreme Court 1081697.
    William K. Bradford, Birmingham; and Robert B. Sanford, Jr., Birmingham, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM, J., concurs. MAIN, J., concurs specially, with opinion." WELCH, J., dissents, with opinion, which KELLUM, J., joins.

MAIN, Judge,

concurring specially.

Although the dissent correctly notes that T.D.T. v. State, 745 So.2d 885 (Ala.Crim.App.1998), and Robitaille v. State, 971 So.2d 43 (Ala.Crim.App.2005), differ from the present case with regard to the type of evidence at issue, I do not agree that those cases are inapplicable in this case.

Like the dissent, I too find cause for concern with the admission of the complained-of testimony in this case. The decision to introduce or admit evidence of offenses other than those an accused is called to defend should not be made lightly, regardless of how or why that evidence is elicited at trial. However, after careful review of the record before this Court and the applicable legal authority, I agree with the majority that the admission of the evidence did not constitute reversible error in this case. Therefore, I concur with the majority to affirm the trial court’s judgment of conviction.

WELCH, Judge,

dissenting.

The majority holds in its unpublished memorandum that no reversible error occurred when the trial court permitted Detective Ed McGuffie to testify regarding allegations of Ralph Tucker’s molestation of two other minor victims, V.N. and C.C., even though those allegations bore no relevance to the case being tried here, which involves allegations that Tucker had sexual intercourse with KM. before K.M. was 12 years old. The majority holds, first, that “the State elicited the testimony from McGuffie to establish what led to the investigation of [Tucker] and how law-enforcement officers subsequently identified K.M. as a victim,” so the testimony did not violate Rule 404(b), Ala. R. Evid. The majority also holds that because the statements were offered to show how Det. McGuffie developed Tucker as a suspect and how K.M. was discovered as a victim in this case, the statements were also admissible because they were not hearsay. I disagree with both of those reasons. The detective’s testimony was clearly hearsay and was not admissible under Rule 404(b). The trial court should have sustained Tucker’s objections; the prejudice that resulted from the admission of the testimony about additional incidents of molestation involving Tucker was substantial. Tucker’s conviction should be reversed, and I dissent from the unpublished memorandum affirming it.

The majority describes Det. McGuffie’s testimony about the other minor victims, as follows:

“The State presented evidence indicating that, on June 30, 1992, V.N. and C.C. were brought to the Center Point substation of the Jefferson County Sheriffs Department by their mothers and their mothers filed reports alleging that their daughters had been molested. Lieutenant Ed McGuffie testified that, in 1992, he was in charge of the Youth Services division of the Jefferson County Sheriffs Department; that V.N., C.C., and their mothers were referred to him; that V.N. and C.C. were interviewed at the Prescott House; that he was present during the interview; that the incidents involving V.N. and C.C. occurred a couple of weeks before the interview; that there was an indication that photographs had been taken during the incidents; that C.C. indicated that the person who molested her was known as ‘Fred’; that his investigation indicated that the person who molested C.C. lived next door to her; and that he was able to determine that the incidents involving V.N. and C.C. occurred at [address redacted]. He also testified that the went to that address; that he ran a tag registration on a vehicle at the residence, and it came back to [Tucker]; that he also determined that the electricity at the residence was in the [Tucker’s] name; that he determined that [Tucker’s] date of birth was December 18, 1943; that, based on the information he received during the interview at the Prescott House, he obtained a search warrant for the [Tucker’s] house to look for pictures and tapes that had been described by V.N. and C.C. ...”

I note that Tucker did not object when Det. McGuffie testified that Y.N.’s mother and C.C.’s mother had reported that the girls had been molested, and I further note that the girls were interviewed. Tucker objected on hearsay grounds when the State sought to elicit testimony regarding the substance of the interviews involving V.N. and C.C. Tucker’s failure to object to the detective’s initial testimony did not result in a waiver of this issue, however, because that initial testimony did not indicate that Tucker was involved with V.N. and C.C., or that he was a perpetrator of any crimes against them. The detective’s subsequent testimony, to which Tucker did object, linked Tucker to the allegations involving V.N. and C.C. Therefore, Tucker’s objections to Det. McGuffie’s subsequent testimony should have been sustained, and the testimony was erroneously admitted.

The State initially argued to the trial court at a pretrial hearing that testimony about V.N. and C.C. was proper because, it said, “the facts that surround those cases we feel are admissible in this case to show motive; an unnatural sexual desire for children by this defendant” (R. 12), and it argued that there was “no way to get to our case without explaining the fact scenario that led up to the discovery of the videotape” involving other victims (R. 11). Although testimony about allegations of sexual abuse involving other minor victims might have been admissible under Rule 404(b), the majority finds:

“[Vjiewing the arguments of counsel in context of the entire trial, it is obvious that the State actually offered McGuf-fie’s testimony regarding the allegations to show how [Tucker] was developed as a suspect and how the victim was discovered in this case rather than to show that the allegations of V.N. and C.C. were in fact true and that those allegations showed his motive for committing the offense against K.M.”

If the State did not offer the detective’s testimony about the collateral acts involving V.N. and C.C. as evidence of motive— and I agree with the majority that it appears that the State did not do so — then the testimony was not admissible under Rule 404(b) as an exception to the general rule excluding evidence of collateral conduct. The testimony of Det. McGuffie consisted of hearsay and was inadmissible for the purpose of proving collateral misconduct.

Because the testimony was not admitted as Rule 404(b) evidence regarding motive, the trial court’s instruction to the jury about Rule 404(b) evidence was irrelevant and did not in any way minimize or eliminate the trial court’s error in allowing the testimony about V.N. and C.C. Tucker did not object to the jury instruction, however, so this cannot serve as an additional ground of error for reversal here.

The testimony about V.N.’s and C.C.’s allegations of molestation was clearly hearsay and was inadmissible. Rule 801(c), Ala. R. Evid., defines hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The majority holds that the testimony was definitionally not hearsay because, it reasons, the testimony was offered for a purpose other than the truth of the matter asserted, that is, it was offered to show how Det. McGuffie developed Tucker as a suspect and how K.M. was discovered as a victim in this case. The majority cites T.D.T. v. State, 745 So.2d 885, 894 (Ala.Crim.App.1998), and Robitaille v. State, 971 So.2d 43, 59 (Ala.Crim.App.2005), in support of its holding. Those cases are distinguishable, however, because the collateral-act testimony in those cases did not introduce evidence of other crimes involving other victims in other cases. I do not believe that the caselaw allowing the. admission of testimony about actions taken as part of an investigation was ever intended to be so broad and permissive as to allow the admission of unnecessary testimony about crimes against other victims.

The Alabama Supreme Court has, in fact, urged caution when admitting such testimony. In Ex parte Melson, 775 So.2d 904 (Ala.2000), the Court examined testimony of a police officer regarding a statement from Melson’s codefendant, Peraita. The Court stated:

“The State' argues that the answer regarding [the codefendant’s] statement was elicited from Officer Ragan in order to explain why the police officer seized Melson’s shoes, not to prove that Melson was wearing a particular pair of shoes. We disagree with the State’s argument, but, based on the facts presented in this case, we find no reversible error. We believe [the codefendant’s] statement, elicited from Officer Ragan, falls within the definition of ‘hearsay’ at Rule 801(c), Ala. R. Evid., and that it was, therefore, inadmissible; we nevertheless conclude that the circuit court’s ruling sustaining Melson’s objection, followed by its instructing the jury to disregard the answer and its questioning the jurors to ascertain if any of them would have a problem- following the court’s instructions, removed any possible prejudice suffered by Melson.

Ex parte Melson, 775 So.2d at 906-07.

Although the State argued to the trial court that there was “no way to get to our case without explaining the fact scenario that led up to the discovery of the videotape” (R. 11), this is certainly not true. The prosecutor here could have asked Det. McGuffie questions like many prosecutors have asked other officers, that is, whether based on certain investigative leads, he had developed Tucker as a suspect. Det. McGuffie could have then testified that he had obtained a search warrant for Tucker’s residence and found a videotape portraying the victim, and found the victim’s address.

In this case, the prosecutor sought to admit details of the interviews with V.N. and C.C. at Prescott House without calling those victims to testify. When the trial court initially refused to allow testimony about details of the interviews, the prosecutor then sought to admit the same testimony on the ground that it explained how Det. McGuffie developed Tucker as a suspect. As the Alabama Supreme Court found in Ex parte Melson, that testimony was hearsay and was inadmissible. Det. McGuffie’s testimony about how Tucker became a suspect was not at issue in the case, and even if it were at issue, the prosecutor could have asked other questions to get the same information — questions that did not implicate Tucker in crimes against other minor victims. The Melson Court found no reversible error because the trial court sustained Melson’s objections and it instructed the jury to disregard the answer, then questioned the jurors to determine whether any of them could not follow the court’s instructions, thus removing any possible prejudice to Melson. The trial court here did not sustain Tucker’s objections and it did not issue a cautionary instruction to the jury to disregard the testimony. The jury instruction involving collateral-act evidence and Rule 404(b) was not sufficient to eliminate the error here.

Finally, and contrary to the majority’s assertion, the error in the admission of Det. McGuffie’s testimony cannot be considered harmless. Rule 45, Ala. R.App. P. In holding that any error in the admission of the testimony about Tucker’s alleged sexual abuse of two other minor victims was harmless, thé majority’s own discussion highlights the conflicting evidence presented at trial and demonstrates that the harmless-error rule does not apply here.

Tucker was convicted of first-degree rape, § 13A-6-61(a)(3), Ala.Code 1975, and that charge required proof that K.M. was below the age of 12 years when K.M. and Tucker had sexual intercourse. K.M.’s age at the time she and Tucker had intercourse was therefore crucial to Tucker’s conviction. The majority notes that Tucker admitted that he had intercourse with K.M., but the majority also notes that Tucker testified that he did not have intercourse with K.M. until after she had reached the age of 13 years. K.M. testified that Tucker had sexual intercourse with her hundreds of times before she was 13 years old. Thus, the conflicting testimony about K.M.’s age presented a credibility question for the jury. If the jury believed Tucker’s testimony, an acquittal would have been in order because Tucker was not charged with second-degree rape, which would have required proof that Tucker had sexual intercourse with K.M. while she was more than 12 years old but less than 16 years old. § 13A-6-62(a)(l), Ala.Code 1975. The majority also discusses a videotape admitted into evidence and played for the jury; that videotape depicted a variety of images of K.M. and Tucker and some of the images included the two having sexual intercourse. The majority acknowledges, however, that “[t]he victim’s exact age at the time of each of the various incidents is not completely clear.” KM.’s age — an element of the crime for which Tucker was convicted — was clearly disputed throughout trial and was an issue properly placed before the jury for its resolution. I believe that there is a reasonable possibility that testimony that Tucker had previously sexually abused young girls could have contributed to Tucker’s conviction.

Det. McGuffie testified that on June 30, 1992, V.N. and C.C. were brought' to the Center Point substation of the Jefferson County Sheriffs Department 'by their mothers; he testified that their mothers filed reports alleging that their daughters had been molested. He also testified that at that time C.C. was 7 years old, and V.N. was 11 years old. This testimony from Det. McGuffie about Tucker’s alleged sexual abuse of two minor victims — particularly when the testimony included their ages and details about the victims’ mothers reporting the alleged crimes to the police and the investigation that then followed— would have seriously undermined Tucker’s credibility, and the admission of that testimony cannot be deemed harmless. Although the majority has acknowledged the conflict in the evidence, it has essentially determined that the victim’s testimony was more credible and that Tucker would have been convicted even if the testimony had not been admitted. I believe that the majority has failed to properly analyze the issue under Rule 45, Ala. RApp. P. Even if the evidence against Tucker had been overwhelming — and as noted above, it was not — overwhelming evidence of guilt does not render prejudicial error harmless. See, e.g., Ex parte Phillips, 962 So.2d 159 (Ala.2006). The relevant question in determining whether the error in the admission of the testimony was harmless is whether Tucker’s substantial rights were probably injuriously affected by the admission of the improper testimony.

When the Alabama Supreme Court in Ex parte Baker, 906 So.2d 277 (Ala.2004), reversed a capital-murder conviction and sentence of death based on its determination that this Court erred when it held that the harmless-error rule excused the admission of hearsay evidence about a prior incident of domestic abuse, the Alabama Supreme Court stated, in part:

“The issue before us is the existence or nonexistence of a reasonable possibility that the erroneously admitted hearsay might have ¡prompted the jurors to find intent to terrorize, and thus to find guilt of kidnapping in the first degree, and thus to find guilt of capital kidnap-murder.
“‘We are not concerned here with whether there was sufficient evidence on which the [defendant] could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’
“Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963).
“ ‘[T]he original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment. There is little, if any, difference between our statement in Fahy v. State of Connecticut about “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.’
“Chapman v. California, 386 U.S. 18, 24 (1967) (footnote omitted).”

906 So.2d at 287-88.

For all the foregoing reasons, I disagree with the majority’s determination that admission of hearsay testimony regarding Tucker’s collateral acts of sexual abuse against other minors was, at most, harmless error. I believe that Tucker’s conviction and sentence should be reversed. Therefore, I respectfully dissent.

      “2 We urge vigilance in evaluating any offer of testimony about an out-of-court declaration 'not for the truth of the matter asserted.' The admissibility of such testimony depends on its being relevant to a proper issue in the case. The first inquiry should be: 'if the out-of-court declaration is not offered for its truth, is whatever the declaration does tend to prove really at issue in the particular proceeding?’ ”