text:
    Michael E. FOSTER, as executor of the estate of Harry Allan Foster, Sr., deceased v. Harry Allan FOSTER, Jr.
    2101000.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.

      Richard L. Watters, Mobile, for appellant.
    John W. Charles of The Anderson Law Firm, L.L.C., Montgomery, for appellee.
   THOMAS, Judge.

Michael E. Foster (“Michael”), the executor of the estate of his father, Harry Allan Foster, Sr. (“Harry”), appeals from a judgment of the Mobile Probate Court granting the motion for a judgment as a matter of law (“JML”) filed by Harry Allan Foster, Jr. (“Allan”), and denying Michael’s “Petition for Return of Personal Property,” which he filed on behalf of the estate. We affirm.

On September 3, 2009, Harry committed suicide. The following facts are undisputed. On September 1, 2009, Harry wrote a personal check on his Colonial Bank checking account paid to the order of Colonial Bank in the amount of $80,000 to purchase a certified check. The certified check he purchased is also dated September 1, 2009, with Colonial Bank listed as the drawer, Wachovia Bank listed as the drawee, and made payable to the order of H. Allan Foster in the amount of $80,000. Harry mailed the check by express mail on September 2, 2009; it arrived at Allan’s house on September 8, 2009. However, Harry had committed suicide on September 3, 2009, hours before the express-mail package containing the check was delivered to Allan’s house.

On November 4, 2009, Michael filed a “Petition for Letters of Testamentary,” and subsequently, on February 2, 2010, the probate court appointed Michael as executor of Harry’s estate. On September 30, 2010, Michael, as executor of Harry’s estate, filed a “Petition for Return of Personal Property” regarding the certified check in the amount of $80,000 Harry had sent to Allan before Harry’s death. Allan filed a motion to dismiss the petition on December 22, 2010, which the probate court denied on March 2, 2011.

On June 14, 2011, the probate court heard ore tenus testimony regarding the “Petition for Return of Personal Property” and the facts surrounding the issuance of the certified check Harry had sent to Allan, as well as Allan’s claim against the estate for reimbursement of expenses and Michael’s objection, on behalf of the estate, to the claim for reimbursement. Allan was the only party to testify at the trial. He testified that he had had three separate conversations with Harry in which Harry had stated that he was planning to give him a monetary gift and that, in two of those conversations, Harry had stated that the monetary gift would be in the amount of $80,000. Allan further testified that when he had asked Harry what he should spend the money on, Harry had replied that Allan should “spend it on that beautiful family of [his].” Additionally, Allan testified that Harry had known that Allan’s son suffered from myelodysplastic syndrome, a form of blood cancer, that Allan’s daughter was getting married on August 15, 2009, and that Allan had incurred numerous expenses related to his son’s medical care and his daughter’s wedding. At the end of his testimony, Allan moved the probate court for a JML, which the probate court orally granted. On June 15, 2011, the probate court entered a written judgment denying the “Petition for Return of Personal Property,” determining that the “official” check sent to Allan was a completed gift and not part of the estate, and approving only a portion of Allan’s claim for reimbursement of expenses. Michael, as executor of the estate, filed a timely notice of appeal to the Alabama Supreme Court on June 24, 2011, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, Michael argues that the probate court erred in granting a JML in favor of Allan and denying the “Petition for Return of Personal Property” because, he says, the certified check cannot be considered a valid gift, as it was not delivered before Harry’s death, and because, he says, there was insufficient proof that Harry intended the certified check to be a gift.

Our review of Michael’s argument that the trial court erred in granting a JML in favor of Allan and finding that the certified check in the amount of $80,000 was a completed gift and not an asset of the estate is governed by the following standard of review:

“In Delchamps, Inc. v. Bryant, 738 So.2d 824 (Ala.1999), our supreme court explained the standard of review applicable to a trial court’s ruling on a motion for a [JML]:
“ ‘When reviewing a ruling on a motion for a [JML], this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present “substantial evidence” in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’
738 So.2d at 830-31.”

Leonard v. Cunningham, 4 So.3d 1181, 1184 (Ala.Civ.App.2008).

On appeal, Michael first asserts that he presented substantial evidence demonstrating that the certified check had not been delivered at the time of Harry’s death; thus, he says, it was an uncompleted gift and the funds represented by the certified check should have devolved immediately to the estate, pursuant to Ala. Code 1975, § 43-2-830. We disagree.

It is well settled that the elements of a valid gift are: “[a]n intention to give and surrender title to, and dominion over, the property; delivery of the property to the donee; and acceptance by the donee.” Garrison v. Grayson, 284 Ala. 247, 249, 224 So.2d 606, 608 (1969) (citing Vinson v. Vinson, 262 Ala. 388, 79 So.2d 31 (1955); and Hudgens v. Tillman, 227 Ala. 672, 151 So. 863 (1934)). Michael relies upon Dial v. Dial, 603 So.2d 1020 (Ala.1992), to support his argument that the certified check was an uncompleted gift because it had not been delivered before Harry’s death. In Dial, our supreme court reversed the trial court’s judgment notwithstanding the verdict and concluded that the decedent’s son had presented sufficient evidence from which the jury could have concluded that a $50,000 check was a valid inter vivos gift. Id. at 1028. The evidence presented at trial indicated that the father had given the son a signed blank check in 1986 and that the son had cashed the check in 1990, approximately a month before the father died. Id. at 1022. Thus, Dial is unlike the present case because the check in Dial was a personal check and had been both delivered and cashed before the father died. Id.

However, although distinguishable, Dial does provide some guidance in the present case. Our supreme court stated in Dial:

‘In order to constitute an effectual delivery the donor must not only have parted with the possession of the property, but he must also have relinquished to the donee all present and future dominion and control over it, beyond any power on his part to recall.’
“38 C.J.S. Gifts § 20 at 799-800 (1943). See Hudgens v. Tillman, 227 Ala. 672, 151 So. 863 (1934); Davis v. Wachter, 224 Ala. 306, 140 So. 361 (1932). Until there is a delivery, the donor may revoke the intended gift, and the death of the donor is an automatic revocation. See 38 C.J.S. Gifts § 55 at 842-13.
“ ‘[T]he gift of the donor’s own check is but the promise of a gift and does not amount to a completed gift until payment or acceptance by the draw-ee.... [A]t any time prior thereto, the donor may revoke it by stopping payment, and it is ipso facto revoked by the death of the donor. The gift of a check becomes complete when, in the donor’s lifetime, it is paid, certified, or accepted by the drawee.... In short, any step which changes the transaction from a mere executory and voluntary promise by the donor into an executed transaction will validate it.’
“Id. See Smythe v. Sanders, 136 Miss. 382, 101 So. 435 (1924).”

603 So.2d at 1022-23 (emphasis added). Thus, under Alabama law, the determining principle of when the gift of a check becomes complete hinges on the moment when the donor surrenders all possibility of stopping payment on the check because, at that moment, the check is no longer a promise to pay but, instead, is payable because the donor has given up all right, title, and interest in the funds represented by the check.

In this case, the record is clear that the bank certified the check. The exhibits admitted at trial establish that when Harry purchased the certified check from Colonial Bank, Harry’s personal account was debited in the amount of $80,000, that money was transferred to Colonial Bank, and Colonial Bank became primarily liable for the payment of the certified check. Moreover, Alabama courts have long observed the distinction between a personal check and a certified check. Specifically, as our supreme court stated in Walker v. Sellers, 201 Ala. 189, 189, 77 So. 715, 715 (1918):

“As between the bank and the payee a cashier’s check is, in legal effect, the same as a certificate of deposit or a certified check. Clark v. Chicago, etc., Co., [186 Ill. 440 57 N.E. 1061 (1900) ]; Lummus Cotton Gin Co. v. Walker, 195 Ala. 552, 70 South. 754 [ (1916) ].
“Certainly the purpose in each case is the same, that is, to enable the holder to use the check as money; and when a check is certified it ceases to possess the character, or to perform the functions, of a check, but represents so much money on deposit, payable to the holder on demand. National Com. Bank v. Miller, 77 Ala. 168, 175, 54 Am. Rep. 50 [(1884)]. ‘Such a deposit stands upon exactly the same ground as any other.’ Id.”

Therefore, in this case, the death of Harry did not affect his gift to Allan, because the check was certified, the funds had already been debited from Harry’s account, and Harry had relinquished all control and right over the certified check before his death by sending it by express mail to Allan on September 2, 2009. Therefore, we conclude that there was a completed gift from Harry to Allan, although Allan had not received the certified check or collected the funds represented by the certified check before Harry’s death.

Next, Michael contends that the certified check was not a gift because, he says, Allan failed to provide sufficient proof that Harry had intended the certified check to be a gift. It is well settled that “[t]he party alleging that a gift was made has the 1... burden of establishing the fact of gift by clear and convincing proof.’ ” First Alabama Bank of Montgomery v. Adams, 382 So.2d 1104, 1111 (Ala.1980) (quoting Walker v. Amason, 369 So.2d 786, 791 (Ala.1979)). Therefore, Allan was required to present clear and convincing evidence indicating that the certified check was a gift. We cannot conclude that the probate court erred in determining that the certified check was intended to be a gift because the record reflects that Allan provided evidence indicating that the certified check was a gift that Harry intended to be used for the benefit of Allan’s family.

In its judgment, the probate court concluded:

“[Harry] had a positive relationship with Allan and Allan’s children.
“On three (3) different occasions during the weeks immediately preceding [Harry]’s death, [Harry] made statements which indicated that he was contemplating making a gift to Allan.
“In the instant matter, Allan was the natural object of [Harry]’s beneficence. [Harry]’s acts of causing the Check to be prepared by Colonial Bank and mailing the Check to Allan by express mail clearly reflect [Harry]’s intent to unequivocally give and surrender title to the funds represented by the Check to Allan. Further, it is clear that Allan received possession of the check and accepted the Check. Given the totality of the facts in this case, the Court is of the opinion, and therefore concludes that the Check (and the funds represented thereby) belong to Allan and do not constitute an asset of [Harry]’s estate.”

Under Alabama law, “[t]he existence of an intention to give is to be determined from a consideration of the conduct and declarations of the alleged donor and the relationship and circumstances of the parties.” Garrison, 284 Ala. at 249, 224 So.2d at 608. As noted above, Allan was the only person to testify at the trial. He testified that he had had three conversations with Harry regarding Harry’s intention to give him a monetary gift to spend on his family and that Harry had stated twice that the monetary gift would be in the amount of $80,000. On cross-examination, Allan testified that he had not disclosed the three conversations with Harry regarding the gift in his responses to interrogatories because he had believed that the interrogatories were asking whether he had had any conversations regarding the gift with any third parties. The probate court heard Allan’s testimony on direct examination and on cross-examination, and, thus, it had the opportunity to evaluate Allan’s credibility and demeanor. Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986) (“The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.”).

Allan further testified that he had become closer to Harry in the recent years before Harry’s death and that Harry had visited with Allan’s family on several occasions. He also testified that he had asked Harry how he was to use the money and that Harry had responded that Allan was to use it on his family. Allan also presented evidence indicating that Harry had taken the time to secure a certified check payable to the order of Allan in the amount of $80,000 and had decided to express mail the check to ensure that Allan received the check and the funds it represented. Michael did not present any evidence to contradict Allan’s testimony or to establish that the certified check was not a gift to Allan to use for the benefit of his family.

Therefore, because all the evidence presented supported the conclusion that Harry had intended that the certified check made payable to the order of Allan in the amount of $80,000 and sent by express mail to Allan’s home be a gift to Allan to use for the benefit of his family, we cannot conclude that the probate court erred in determining that the certified check was a gift.

Accordingly, for all the aforementioned reasons, we affirm the probate court’s judgment.

AFFIRMED.

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

      . Harry was suffering from prostate cancer at the time of his death.

      . A judgment notwithstanding the verdict' is now denominated a renewed motion for a JML. See Vaughan v. Oliver, 822 So.2d 1163, 1170 (Ala.2001) (“Rule 50(a), Ala. R. Civ. P., now designates a motion for a directed verdict as a motion for a judgment as a matter of law, and Rule 50(b) now designates a motion for [a judgment notwithstanding the verdict] as a renewed motion for a judgment as a matter of law.”).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Quentin Lamar HALE v. HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC.
    2100991.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.

      Roger D. Burton of The Burton Law Firm, P.C., Birmingham, for appellant.
    David J. Middlebrooks and Michael G. Green II of Lehr Middlebrooks & Vree-land, P.C., Birmingham, for appellant.
   THOMAS, Judge.

In 2006, Quentin Lamar Hale was employed by Hyundai Motor Manufacturing Alabama, LLC (“HMMA”), in the painting department. When Hale became employed by HMMA, he was provided an employee handbook, which outlined HMMA’s policies on various employment-related issues, including attendance and bereavement leave. Hale acknowledges receipt of the handbook.

The attendance policy reads, in pertinent part:

“Regular attendance is the cornerstone for the success of HMMA, a Team Member’s absenteeism can reduce the quality and effect of the overall efficiency of HMMA’s operations, as well as cause hardship on fellow Team Members who report to work regularly. Regular attendance is every Team Member’s responsibility, and every Team Member is expected to be on the job, on time, every scheduled workday.
“The minimum acceptable standard of attendance is 98%.
“Any scheduled workday missed is considered an absence. However, work time missed due to holidays, scheduled vacations, catastrophic event, jury duty, military duty, bereavement leave, short-term disability, work-related injury or illness, personal leave of absence and FMLA leave shall not be counted as an absence and are not cause for corrective action.
“When a Team Member’s attendance falls below 98% at any time during the first year or subsequent years of employment during any rolling twelvemonth period, corrective action will be considered....
“Accumulative absences that result in a Team Member’s attendance percentage falling below [the acceptable standard] may be cause for corrective action.
“The following will be considered:
“• Cause
“• Frequency
“• Patterns
“• Failure to report
“• Time pattern of reporting
“The corrective action process is intended to help Team Members correct any attendance problems. However, if the Team Member’s attendance continues to be unacceptable it could result in further corrective action up to and including termination.
“When a Team Member’s attendance percentage falls below the acceptable standard, corrective action may be considered. Corrective action is not automatic. Each Team Member’s attendance record will be reviewed based on its own merit, and the circumstances in each case are considered.
“However, when corrective action is taken, the following steps must be followed:
“1 Informal Discussion
“2 Formal Discussion
“3 Commitment Discussion
“4 Decision Leave
“When corrective action is required beyond the four steps above, the Team Member’s group leader and/or manager will contact the team relations manager and request a review of the Team Member’s record for termination. No termination will take place unless the action is reviewed and approved by the team relations manager, section manager, and director of Human Resources.”

The bereavement-leave policy in the HMMA handbook permits one day of bereavement leave to an employee if an employee’s aunt dies. Because of issues that arose regarding improper use of bereavement leave, HMMA circulated to its employees in March 2008 a document regarding the policy (“the bereavement-leave policy addendum”). In that document, HMMA states that “[a]ll Team Members are responsible for ensuring the relationship, as stated on their bereavement request, is accurate and true as it applies to the eligibility as stated above.... HMMA may request documentation to verify relationship of the deceased to the Team Member.” Furthermore, the bereavement-leave policy addendum warns that “[c]ompleting a request for bereavement for a person that is not eligible would be considered falsification. Falsification is considered a violation of the Serious Misconduct Policy and could result in corrective action up to and including termination.”

The serious-misconduct policy in the handbook reads, in pertinent part:

“HMMA requires a high degree of personal integrity from its Team Members. There are certain things a person can do that by nature are so serious that they place him/her outside of the ‘Corrective Action Policy.’ When a person commits one of those actions against HMMA and/or his/her fellow Team Members, he/she may be terminated from employment immediately.
“Listed below are some examples of activities that constitute serious misconduct at HMMA:
“•Serious and/or excessive violations of HMMA’s attendance program.
“• Intentionally misrepresenting or falsifying any information concerning employment or any report or HMMA record.”

Hale developed carpal tunnel syndrome, and he had surgery on his left arm in February 2008 and on his right arm in March 2008. Hale returned to work in April 2008, and he complained of continued symptoms in his right arm in June 2008. Hale underwent a second surgery on his right arm in September 2008. His physician, Dr. Stephen A. Samuelson, approved Hale’s return to light-duty work on October 6, 2008. Between October 6, 2008, and November 2, 2008, Hale missed nine days of work and took one day of bereavement leave. Hale then took short-term disability leave for the period between October 27, 2008, through February 16, 2009.

On February 20, 2009, HMMA’s medical-leave specialist, Jamie Spaulding, sent Hale a letter explaining that HMMA required him to provide documentation showing that his nine work absences in October 2008 were covered by an approved medical leave, to complete a bereavement-leave form for his absence on October 23, 2008, and to contact Spaulding within three days after receipt of the letter to arrange to return to work or to take action to seek further medical leave because Hale’s short-term disability leave had expired. Hale returned to work on February 24, 2009. On that same day, Hale met with manager Shane Brown, team-relations specialist Gabby Smith, and group leader Kyle Waites regarding his attendance.

According to Smith’s affidavit, Hale was informed at that meeting that he needed to provide documentation that the nine days he had missed in October 2008 were covered by an approved form of leave or that the days would count against him and lower his attendance percentage. Smith’s memorandum memorializing the February 24, 2009, meeting, which was attached as an exhibit to her affidavit, indicates that Brown informed Hale that Hale “had to bring documentation by Monday, March 2, 2009, that showed the relationship between him and his aunt” to verify his one day of bereavement leave. Hale testified in his deposition that at the February 24, 2009, meeting, he was informed that if he did not provide the necessary documentation for his absences, he would be discharged from his employment.

On March 5, 2009, Spaulding sent a second letter to Hale, again requesting documentation that the October absences were covered by an approved form of leave and requesting documentation to prove Hale’s familial relationship to support his bereavement leave. The letter stated that Hale had been informed at the February 24, 2009, meeting that all documentation was due to HMMA by March 2, 2009. Instead of providing the requested documentation, the letter recounted, Hale had taken a vacation day on March 2, 2009, and had called in sick on March 3 and March 4, 2009. The letter noted that Hale had no remaining personal days and that, unless appropriate documentation was provided, the March 3 and March 4 absences would be counted against Hale under the attendance policy. The letter demanded that Hale provide the requested documentation for his October absences, for his bereavement leave, and for the March absences by March 12, 2009. The letter further informed Hale that “HMMA’s Serious Misconduct Policy provides that a Team Member may be terminated for ‘serious and/or excessive violations of HMMA’s attendance program’ ” and that his failure to provide the requested documentation “may result in HMMA terminating your employment.”

On March 13, 2009, Sheron Rose, the Senior Manager of HMMA’s human-resources department, sent a final letter to Hale, in which she discharged Hale from his employment with HMMA. In the letter, Rose explained that Hale’s failure, after repeated requests, to provide documentation that the October absences were for HMMA-approved leave mandated that the absences be counted against Hale in determining his attendance percentage. Rose stated that she was discharging Hale from employment “pursuant to HMMA’s Attendance Policy, which requires the minimum acceptable standard for attendance of 98 percent, and pursuant to HMMA’s Serious Misconduct Policy, which provides that a Team Member may be terminated for ‘serious and/or excessive violation of HMMA’s attendance program.’ ” Rose further explained that Hale’s failure to provide proof of a familial relationship to support his bereavement leave was considered by HMMA “to be falsification, which is also a Serious Misconduct offense for which a Team Member is subject to termination of employment.”

After Hale was discharged from employment, he sought unemployment-compensation benefits. Although he was first denied benefits, Hale appealed the decision and sought an administrative hearing, at which HMMA did not appear. After the hearing, the administrative hearing officer awarded Hale unemployment-compensation benefits. In her September 2009 decision, the administrative hearing officer explained that, for purposes of the unemployment-compensation statute, “misconduct” had been defined as “a deliberate, willful, or wanton disregard of the employer’s interests or of standards of behavior which the employer has the right to expect of his employees.” The hearing officer concluded that “[t]he acts for which the claimant was discharged for [sic] was due to compelling reasons.” Thus, she determined that Hale’s violation of HMMA’s attendance policy was not “misconduct” in connection with his employment such that he should be disqualified from receiving unemployment-compensation benefits.

Hale sued HMMA in October 2009, seeking workers’ compensation benefits (“the workers’ compensation claim”) and alleging that HMMA had discharged him in retaliation for filing a workers’ compensation claim in violation of Ala.Code 1975, § 25-5-11.1 (“the retaliatory-discharge claim”). Hale and HMMA settled Hale’s workers’ compensation claim, and HMMA then moved for a summary judgment on Hale’s retaliatory-discharge claim. Hale opposed HMMA’s motion, arguing, among other things, that HMMA was collaterally estopped from arguing that it had discharged Hale for “misconduct” on the basis of the unemployment-compensation decision, which had determined that Hale had not committed misconduct in connection with his employment. The trial court entered a summary judgment in favor of HMMA on June 7, 2011, and Hale appealed to this court. This court transferred the appeal to the supreme court because we lacked jurisdiction, and the supreme court transferred the appeal back to this court pursuant to Ala.Code 1975, § 12-2-7(6).

We explained our review of a summary judgment in a retaliatory-discharge case in Hatch, v. NTW Inc., 35 So.3d 623, 627-28 (Ala.Civ.App.2009):

“We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing ‘that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.’ Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, ‘the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by “substantial evidence.” ’ Lee, 592 So.2d at 1038 (footnote omitted). ‘[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).
“To establish a prima facie case of retaliatory discharge, a discharged employee must establish that the employee and the employer had an employment relationship, that the employee suffered a work-related injury, that the employer knew that the employee had suffered a work-related injury, and that the employee was subsequently discharged based solely on the employee’s having filed a workers’ compensation claim arising from the work-related injury. See Massey v. Krispy Kreme Doughnut Corp., 917 So.2d 833, 836-37 (Ala.Civ.App.2005) (quoting Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002)). Because direct evidence demonstrating that an employer has discharged an employee solely because the employee has filed a workers’ compensation claim is not often easily obtained, an employee ... may establish by circumstantial evidence that the actual reason for the discharge was the employee’s filing of a workers’ compensation claim. Alabama Power Co. v. Aldridge, 854 So.2d 554, 564-65 (Ala.2002). In Al-dridge, our supreme court discussed seven factors that a court may consider in determining whether the necessary causal relationship between the employee’s workers’ compensation claim and that employee’s discharge exists; evidence indicating the existence of those factors is circumstantial evidence indicating that the discharge was in retaliation for filing a worker’s compensation claim. Aldridge, 854 So.2d at 564-65. In addition to proximity of time between the filing of a claim and the discharge, id. at 566, the Aldridge court identified the following six factors:
“ ‘ “1) knowledge of the compensation claim by those making the decision on [discharge], 2) expression of a negative attitude toward the employee’s injured condition, 3) failure to adhere to established company policy, 4) discriminatory treatment in comparison to similarly situated employees, 5) sudden changes in an employee’s work performance evaluations following a workers’ compensation claim, and 6) evidence that the stated reason for the discharge was false.” ’
“Id. at 564-65 (quoting Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex.Ct.App.2002)).
“Once a discharged employee has demonstrated a prima facie case of retaliatory discharge, the burden shifts to the employer to establish a legitimate reason for the employee’s discharge. Ford v. Carylon Corp., 937 So.2d 491, 501 (Ala.2006). Once the employer has advanced a legitimate reason for the discharge, the burden again shifts to the discharged employee, who must present evidence demonstrating that the legitimate reason advanced by the employer is a mere pretext. Flint Constr. Co. v. Hall, 904 So.2d 236, 250 (Ala.2004). If the employer is able to establish a legitimate reason for the discharge and that reason is uncontradicted, the employer is entitled to a judgment as a matter of law in its favor. Aldridge, 854 So.2d at 568.
‘“An employer’s stated basis for a discharge is sufficient as a matter of law when the underlying facts surrounding the stated basis for the discharge are undisputed and there is no substantial evidence indicating (a) that the stated basis has been applied in a discriminatory manner to employees who have filed workers’ compensation claims, (b) that the stated basis conflicts with express company policy on grounds for discharge, or (c) that the employer has disavowed the stated reason or has otherwise acknowledged its pretextual status.’
“Id.”

Hale testified by deposition regarding the events of October 2008 and February and March 2009. He said that when he returned to work on October 5, 2008, after his surgery, he had continued to experience pain and swelling in his hands. He explained that the pain and swelling would increase through the day and that he could not work with the pain. Hale also noted that he had been restricted to using only his left hand and arm, which, he said, caused him difficulty while driving his automobile. According to Hale, he was also taking a prescribed narcotic pain reliever, which, he said, raised concerns in his mind about driving from his home in Sylacauga to HMMA, which is located south of Montgomery. Hale testified that he was also suffering from depression during this time. He said that he had called in each day that he had missed work.

According to Hale, his depression worsened and he became suicidal in early March 2009, after the February 24, 2009, meeting at which he was threatened with termination from his employment and the March 5, 2009, letter demanding documentation for his October 2008 and March 2009 absences and his October 2008 bereavement leave. In fact, Hale was hospitalized by his psychiatrist on March 8, 2009. He remained in the hospital until March 15, 2009. His depression, Hale said, was the result of the stress of his injury coupled with work-related stress caused by being treated differently by coworkers because of his injuries and resulting absences and by being under the threat of being discharged from his employment.

Hale admitted that he had received and had read the employee handbook. According to Hale, he had been subjected to an informal discussion regarding his attendance rate in March 2006; at that time, he said, the attendance policy was fully explained to him. Hale admitted that he understood the attendance policy and explained that he understood that even if he called in to work because of illness, his absence could be considered “unexcused” and could count against his attendance percentage. Hale said that he understood that any absence counted against him if no approved leave covered the absence. Hale also admitted having had another informal discussion regarding his attendance issues in May 2008.

Hale admitted in his deposition that he had not provided any “support” for his absences in October. In fact, he admitted that he had no documentation to prove that the absences were covered by any approved form of leave. In his affidavit, Hale states that Dr. Samuelson had “told me that he could not change the return to work form he had sent to [HMMA] in early October 2008.” Because Dr. Samuelson refused to give Hale an excuse to cover the October 2008 absences, Hale states in his affidavit, “it was impossible for me to get any such documentation or form.” Hale testified in his deposition that he had completed the bereavement-leave form at the February 24, 2009, meeting, but he said that “I just didn’t turn the obituary in on time,” despite having had the obituary since October 23, 2008.

On appeal, Hale first argues that HMMA should be barred from arguing that it discharged him from his employment for violating the attendance, bereavement-leave, and serious-misconduct policies because that issue was decided adversely to HMMA by the administrative hearing officer in Hale’s unemployment-compensation appeal. Hale relies on Wal-Mart Stores, Inc. v. Hepp, 882 So.2d 329, 331 (Ala.2003), overruled on other grounds by Ex parte Rogers, 68 So.3d 773 (Ala.2010), and Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 444-45 (Ala.1999), overruled on other grounds by Ex parte Rogers, 68 So.3d 773 (Ala.2010). In both Smitherman and Hepp, our supreme court determined that collateral estoppel could be used to bar a retaliatory-discharge plaintiff from arguing that he or she was discharged for a reason other than “misconduct connected with his [or her] work” when that plaintiff had been denied full unemployment-compensation benefits under Ala.Code 1975, § 25-4-78(3)c., because of “misconduct connected with his [or her] work.”

The Smitherman court began its analysis of the issue whether an administrative decision could serve as a basis for the application of the doctrine of collateral es-toppel by discussing the elements necessary for the doctrine to apply:

“In order for the doctrine of collateral estoppel to apply to an issue raised in an administrative proceeding, the following elements must be present:
“ ‘ “ ‘(1) there is identity of the parties or their privies; (2) there is identity of issues; (3) the parties had an adequate opportunity to litigate the issues in the administrative proceeding; (4) the issues to be es-topped were actually litigated and determined in the administrative proceeding; and (5) the findings on the issues to be estopped were necessary to the administrative decision.’ ” ’
“Ex parte Smith, 683 So.2d 431, 433 (Ala.1996) (quoting Ex parte Shelby Med. Ctr., Inc., 564 So.2d 63, 68 (Ala.1990) (quoting Pantex Towing Corp. v. Glidewell, 763 F.2d 1241, 1245 (11th Cir.1985))).”

Smitherman, 743 So.2d at 445.

According to the Smitherman court, each of the elements required for the application of the doctrine was present. Id. at 445-47. The parties agreed that the identity-of-parties element was satisfied. Id. at 445. The identity-of-issues element was satisfied, the court determined, because in Smitherman the employer was proffering as its legitimate reason for discharging the employee that she had committed misconduct in connection with her work, specifically, that she had made a profane and derogatory remark about a superior. Id. In the unemployment-compensation proceeding, the same issue— whether the employee had committed misconduct by making that remark — was the basis for the determination as to whether the employee was disqualified from receiving full unemployment-compensation benefits under Ala.Code 1975, § 25-4-78(3)c. Id. The unemployment-compensation proceeding had resolved that issue adversely to the employee by finding that she had committed misconduct in connection with her employment by making the derogatory and profane remark. Id. at 447. Additionally, the Smitherman court concluded that the employee had had an adequate opportunity to argue the issue, that the issue was actually litigated and determined in the unemployment-compensation proceeding, and that the findings on the issue were necessary to the result of the administrative proceeding. Id. at 446-47.

The Hepp court applied the doctrine of collateral estoppel in a nearly identical situation to that presented in Smitherman. In Hepp, like in Smitherman, the employee had been discharged from his employment for performing work that was not permitted, specifically, dispensing freon into his personal vehicle and the vehicle of an acquaintance without preparing a service order for either vehicle. Hepp, 882 So.2d at 330. The employee sought unemployment-compensation benefits, which were denied; the employee appealed the original denial, and, after a hearing, the referee denied the employee full benefits, determining that he had been discharged from his employment for violating his employer’s policies and had therefore committed misconduct in connection with his work, which disqualified him from receiving full unemployment-compensation benefits under § 25-4-78(3)c. Id. at 330-31. Relying on Smitherman, the Hepp court concluded that all the elements of collateral estoppel were satisfied and that the employee was precluded from relitigating the reason for the discharge from his employment. Id. at 335.

Based on the holdings in both Smither-man and Hepp, Hale argues that “the reverse argument is also true” — that the doctrine of collateral estoppel operates as a bar to an employer’s argument that it discharged an employee for a legitimate reason if that reason has been determined not to be misconduct that would disqualify the employee from receiving unemployment-compensation benefits in an administrative proceeding. We disagree. The reverse argument is not also true because, we conclude, the issues are not identical as a result of the posture of the parties.

The issue presented in Hale’s unemployment-compensation proceeding was whether he had been discharged from his employment for “misconduct committed in connection with his work ... repeated after previous warning.” § 25-4-78(3)b. To that end, HMMA presented to the Department of Industrial Relations its position that Hale had violated HMMA’s attendance, bereavement-leave, and serious-misconduct policies after being warned about his attendance issues. Although Hale was originally denied unemployment-compensation benefits, he was awarded those benefits after a hearing before an administrative hearing officer, who determined that Hale had not committed “misconduct,” as defined for purposes of the unemployment-compensation statute, in connection with his work. Notably, the hearing officer defined “misconduct” for purposes of the unemployment-compensation statute as being “deliberate, willful, or wanton disregard of the employer’s interests or of the standards of behavior which the employer has a right to expect of his employee.” That definition was taken almost verbatim from the definition given to the term “misconduct” in § 25-4-78(3)b. by this court in Davis v. Department of Industrial Relations, 465 So.2d 1140, 1142 (Ala.Civ.App.1984). Thus, the hearing officer in Hale’s unemployment-compensation proceeding was tasked with determining— and, in fact, did determine — whether Hale’s failure to comply -with HMMA’s policies was a “deliberate, willful, or wanton disregard” of the employer’s policies or interests.

It is imperative that we understand what the unemployment-compensation determination in favor of Hale was not. That determination was not a determination that the reason for Hale’s discharge from employment was not valid under HMMA’s policies, that HMMA’s proffered reasons were not legitimate or were pre-textual, or that HMMA terminated Hale’s employment for the sole reason that he had filed a workers’ compensation claim. Instead, that determination was a determination that Hale had not deliberately, willfully, or wantonly disregarded HMMA’s policies or interests because of compelling reasons that prevented his compliance and that Hale was therefore not disqualified from receiving unemployment-compensation benefits.

Unlike the posture of the appeals in Smitherman and Hepp, in which the unemployment-compensation proceeding had resulted in a determination that the employee had engaged in misconduct connected with his work, thus necessarily compelling the conclusion that the employer had a legitimate reason to terminate the employee’s employment, Hale was found not to have committed misconduct of the degree that would disqualify him from unemployment-compensation benefits. Because Alabama is an employment-at-will state, an employer can terminate an employee’s employment for any number of reasons — “ ‘a good reason, a wrong reason, or no reason at all.’ ” Ex parte Usrey, 777 So.2d 66, 68 (Ala.2000) (quoting Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1121 (Ala.1992)). Thus, an employer may discharge an employee for nearly any reason, even if the reason does not amount to misconduct as that term is defined in the unemployment-compensation context.

Although a conclusion that an employee committed misconduct necessarily compels the conclusion that a legitimate reason for discharge exists, the reverse is not also true. Because Alabama law does not require that an employer have a “good” reason for discharging an employee, the fact than an employee was not discharged for misconduct does not compel the conclusion that the employer had no valid reason to discharge him or her or that the employer wrongfully discharged the employee. Thus, the conclusion that Hale had not committed misconduct sufficient to disqualify him from receiving benefits under the unemployment-compensation statute cannot be used to compel the conclusion that HMMA is unable to proffer Hale’s violation of the attendance, bereavement-leave, and serious-misconduct policies as legitimate reasons for Hale’s discharge. That is, even if Hale’s violation of those policies does not rise to the level of misconduct under the unemployment-compensation statute, that fact does not compel the conclusion that HMMA’s reliance on Hale’s violation of those policies does not form a legitimate reason for the termination of Hale’s employment and most assuredly does not compel the conclusion that HMMA’s proffered reason is a pretext for an otherwise impermissible discharge of Hale from HMMA’s employment in retaliation for filing a workers’ compensation claim. We therefore reject Hale’s argument that HMMA is collaterally estopped from proffering Hale’s violation of the attendance, bereavement-leave, and serious-misconduct policies as a legitimate reason for his discharge.

We now turn to an analysis of the summary judgment in favor of HMMA on its merits. As explained above, analysis of a summary judgment in a retaliatory-discharge case utilizes a burden-shifting analysis. Hale, as the plaintiff, was required to present evidence of a prima facie case of retaliatory discharge, after which HMMA assumed the burden of coming forward with a legitimate reason for Hale’s discharge; once HMMA presented evidence of a legitimate reason for Hale’s discharge, Hale was required to present substantial evidence indicating that the proffered reason for his discharge was mere pretext for HMMA’s decision to discharge him in retaliation for filing a workers’ compensation claim. Hatch, 35 So.3d at 628.

For purposes of our analysis of the summary judgment in favor of HMMA, we will assume, without deciding, that Hale presented substantial evidence of a prima facie case of retaliatory discharge. Thus, we will consider next whether HMMA proffered a legitimate reason for Hale’s discharge. If HMMA’s evidence of a legitimate reason for Hale’s discharge was un-contradicted, HMMA was entitled to the summary judgment the trial court entered in its favor. Our supreme court has explained that

“[a]n employer’s stated basis for a discharge is sufficient as a matter of law when the underlying facts surrounding the stated basis for the discharge are undisputed and there is no substantial evidence indicating (a) that the stated basis has been applied in a discriminatory manner to employees who have filed workers’ compensation claims, (b) that the stated basis conflicts with express company policy on grounds for discharge, or (c) that the employer has disavowed the stated reason or has otherwise acknowledged its pretextual status.”

Alabama Power Co. v. Aldridge, 854 So.2d 554, 568 (Ala.2002); see also Hatch, 35 So.3d at 628. We further note that “ ‘[a] company is not liable for retaliatory discharge when it [discharges] a worker based on the neutral application of an attendance policy.’ ” Walker v. DCH Reg’l Med. Ctr., 858 So.2d 221, 226 (Ala.Civ.App.2002) (quoting Syncro Corp. v. Suttles, 814 So.2d 873, 876 (Ala.Civ.App.2000)); see also Smith v. Dunlop Tire Corp., 663 So.2d 914 (Ala.1995); Hiatt v. Standard Furniture Mfg. Co., 741 So.2d 407 (Ala.Civ.App.1998).

The facts surrounding Hale’s discharge are largely undisputed. Hale was released to return to work by his doctor on October 6, 2008. Hale missed nine days in the two-week period following his release to return to work. Hale also took a bereavement day during that two-week period. Hale was then out of work on short-term disability until February 16, 2009.

When Hale did not return to work at the end of his short-term-disability leave, Spaulding contacted him by letter to request that he contact Spaulding and immediately return to work or apply for further approved medical leave and to request that he provide documentation for his absences in October 2008 because, otherwise, those absences would be counted against, and negatively affect, his attendance percentage. As requested, Hale contacted Spaulding and returned to work on February 24, 2009; Hale did not, however, provide any documentation relating to his October 2008 absences to Spaulding or to HMMA. On the day he returned to work, Hale was called into a formal discussion with Waites, Brown, and Smith about his absences. At that meeting, Hale was informed that HMMA required documentation regarding his October 2008 absences, a bereavement-leave form, and proof of a familial relationship between him and his “aunt” to verify that Hale qualified for bereavement leave. Hale completed, with Smith’s assistance, a bereavement-leave form at the meeting. Hale was informed that the remaining documentation was required to be provided by March 2, 2009.

Hale failed to provided any of the requested documentation by March 2, 2009. Spaulding sent a second letter on March 5, 2009, demanding the documentation by March 12, 2009. In that letter, Spaulding warned Hale that Hale would be subject to discharge if he failed to provide the requested documentation by March 12, 2009. When Hale failed to present any of the requested documentation by March 12, Rose sent Hale a final letter, in which she discharged him from his employment.

Hale admits that he never provided any documentation that his October 2008 absences were covered by any form of approved leave and that he never provided an obituary or other proof that he had a familial relationship with his “aunt” that would entitle him to bereavement leave. He argues that he could not have provided documentation that he was approved for leave in October 2008 because Dr. Samuelson had refused to change the date on his return-to-work authorization. He also argues that he testified that he did not violate the bereavement-leave policy because he attended the funeral of his aunt, who was a relative for whom such leave is permitted, and that such testimony is sufficient to at least create a question of fact regarding whether he violated the bereavement-leave policy.

Hale’s “impossibility” defense regarding his October 2008 absences misses the mark. Hale had been cleared to return to light-duty work at HMMA on October 6, 2008. At that point, he was no longer on an approved form of leave for a work-related injury. The fact that he continued to suffer pain and swelling as a result of his work-related injury, while unfortunate, is not sufficient to establish that his absences should not be counted against him under the attendance policy. In fact, Hale admits that his October 2008 absences were not covered by any approved form of leave and that they could be counted against him under the attendance policy.

Although Hale testified that he used bereavement leave for an approved relative — his “aunt” — he misunderstands the consequences of his failure to provide supporting documentation of the relationship when such was requested by HMMA. The bereavement-leave policy addendum states that HMMA may request documentation to verify a familial relationship in order to determine whether an employee qualifies for bereavement leave under the policy. Despite HMMA’s request for such documentation, Hale failed to provide it although he admitted that he had had access to the obituary since October 2008. The only excuse for failing to provide the requested documentation Hale offered in his testimony was that he had not had time to provide the obituary. However, Hale was first informed of the need to provide documentation to verify a familial relationship, at the latest, on February 24, 2009, more than two weeks before HMMA discharged him from his employment. Although Hale testified that he was, in fact, related to his “aunt,” HMMA had the right to insist on proof of a familial relationship to prevent abuse of its bereavement-leave policy. Hale admittedly failed to provide the documentation at any time before he was discharged.

Hale further argues that HMMA’s proffered reason for his discharge should be rejected as pretextual because HMMA failed to comply with its attendance policy, which mandates progressive discipline for attendance issues. The attendance policy does state that four steps must be followed when corrective action must be taken because of an employee’s attendance problems. However, although it is apparent that, at best, HMMA complied with only the first two steps — informal discussion and formal discussion — HMMA points out that its serious-misconduct policy permits HMMA to forgo the corrective-action steps in situations that are considered serious enough to require the immediate discharge of an employee. The serious-misconduct policy covers, among other things, “serious and/or excessive violations of HMMA’s attendance [policy]” and “intentionally misrepresenting or falsifying any information concerning employment....” HMMA argues that Rose’s letter stated clearly that Hale was discharged based on his attendance percentage both for violating the attendance policy and for violating the serious-misconduct policy. In addition, Rose relied on the serious-misconduct policy as a basis for discharging Hale for violating the bereavement-leave policy because he failed to provide documentation of his familial relationship with his “aunt”; as the bereavement-leave policy addendum stated, HMMA considered use of bereavement leave for a noneligible relative to be an act of falsification and, therefore, a violation of the serious-misconduct policy.

The facts surrounding Hale’s discharge support the conclusion that HMMA discharged him for the proffered reason— violations of HMMA’s attendance, bereavement-leave, and serious-misconduct policies. Hale admitted that he had never provided the requested • documentation regarding either his October 2008 absences or his bereavement leave to HMMA, despite repeated requests. Hale provided no evidence indicating that the proffered reason was “applied in a discriminatory manner to employees who ha[d] filed workers’ compensation claims.” Hatch, 35 So.3d at 628. Furthermore, Hale provided no evidence indicating that HMMA either “disavowed the [proffered] reason or otherwise acknowledged its pre-textual status.” Id. The evidence Hale presented regarding whether the proffered reason “conflicts with expressed company policy on grounds for discharge,” id. — that HMMA did not follow the four-step corrective-action policy set out in its attendance policy — is not substantial evidence indicating that HMMA violated its own policies because HMMA discharged Hale under its serious-misconduct policy, which permits HMMA to forgo the corrective-action policy in certain circumstances, including serious violations of the attendance policy and situations involving the falsification of employment records like bereavement-leave requests. The evidence supporting HMMA’s proffered reason for discharging Hale was “uncontradicted evidence of an independently sufficient basis for the discharge,” and HMMA was entitled to a summary judgment in its favor. Aldridge, 854 So.2d at 568; see also Hatch, 35 So.3d at 628.

AFFIRMED.

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

      . Section 25-4-78(3)c. disqualifies an employee from receiving full unemployment-compensation benefits when an employee is discharged for misconduct connected with his or her work but permits an award of partial benefits. Section 25-4-78(3)b., however, disqualifies an employee from receiving any unemployment-compensation benefits because of misconduct connected with his or her work repeated after previous warning regarding that misconduct.

      . That is not to say that some immaterial facts are not disputed. However, although there are some discrepancies in the testimony regarding, for example, whether Spaulding informed Hale of the need for documentation some time before February 2009, we have viewed the facts in the light most favorable to Hale, as required by the standard of review, and the material facts relating to Hale’s absences and the process by which Hale was discharged are not a matter of dispute.


author: THOMAS, Judge. MOORE, Judge,

text:
    J.H. v. A.J.
    2100900.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.

      Wendy Allison Reese, Birmingham, for appellant.
    William T. Fortune, Jr., Birmingham, for appellee.
   THOMAS, Judge.

J.H. (“the mother”) and A.J. (“the father”) are the parents of J.J. (“the child”). The mother and the father were never married; however, the father exercised visitation and paid child support, apparently pursuant to a judgment resulting from a paternity case. In June 2009, the father exercised his visitation with the child. Because the mother had problems with her automobile at that time and because the child had exhibited several behavioral issues during the 2008-2009 school year, including being suspended from kindergarten, the mother and the father agreed that the child should spend the entire summer with the father. In addition, because the school that the child had attended during the 2008-2009 school year had closed, the mother agreed that the child should be enrolled the following year in the Huey-town school district by the father. Although she testified that the original agreement was for the child to attend only one semester at the Hueytown school, the mother said that she and the father had discussed the fact that moving the child in the middle of the school year would be disruptive to him and had concluded that the child should finish the year at the Hueytown school.

In September 2009, the father filed a petition in the Jefferson Juvenile Court seeking to have the child declared dependent and seeking custody of the child. He alleged that the mother did not have a stable residence, that the child slept on the floor at the mother’s residence, and that the mother provided the child only one meal per day. On October 15, 2009, the father sought an immediate hearing requesting that he be given temporary custody of the child because the Hueytown school system was requiring that the father prove that he had legal custody of the child. His motion was denied.

In January 2010, the father was awarded pendente lite custody. The mother filed a motion to reconsider the pendente lite order, which was denied on February 8, 2010, after a hearing. The mother’s motion indicated that she had not been served with the dependency petition at any time before she learned that the father had been awarded pendente lite custody by the juvenile court.

On September 1, 2010, after a hearing at which the juvenile court did not take testimony, the juvenile court entered a judgment declaring the child to be dependent and awarding custody of the child to the father. The mother was awarded specified visitation. The judgment indicated that the parents had agreed to the provisions of the judgment. The judgment further indicated that the case was set for a “Compliance/Dispositional Hearing” on November 30, 2010.

On November 30, 2010, the parties appeared for the review hearing. The order entered as a result of that hearing states: “Case was set for review this date. There being no agreement, the case must be reset for dispositional trial.” The case was set for a pretrial hearing to be held on April 26, 2011. The order entered after the pretrial hearing stated again that the parties had not reached an agreement, and the juvenile court set the case for trial to be held on May 11, 2011.

After the May 11, 2011, trial, the juvenile court entered a judgment awarding the father custody of the child, awarding the mother specific visitation rights, and ordering the mother to pay child support. The juvenile court’s judgment stated that the case was closed. The mother filed a timely postjudgment motion, which was denied, and she now appeals the judgment awarding the father custody.

On appeal, the mother argues that the father failed to meet his burden of proving that a material change in circumstances had occurred and that a change in custody would materially promote the welfare of the child. See Ex parte McLendon, 455 So.2d 863 (Ala.1984). Although she admits in her brief that the father filed a dependency petition regarding the child, she states that the juvenile court should have treated the dependency petition as a petition to modify custody. She relies on cases in which this court had previously stated that a juvenile court should consider an action to be a custody-modification action and not a dependency action if the record reflected “ ‘that the hearing relate[d] to custody rather than to dependency, or that the determination of dependency [was] only incidental to a custody determination.’” S.G. v. P.C., 853 So.2d 246, 248 (Ala.Civ.App.2002) (quoting B.S.L. v. S.E., 826 So.2d 890, 893 (Ala.Civ.App.2002)).

However, in light of the enactment of the current Alabama Juvenile Justice Act, Ala.Code 1975, § 12-15-101 et seq. (“the AJJA”), effective January 1, 2009, the continued viability of those decisions is in doubt. We have held that the legislature purposefully limited the continuing jurisdiction of the juvenile court over custody judgments not entered pursuant to a juvenile court’s delinquency, dependency, or child-in-need-of-supervision jurisdiction when it enacted the AJJA. See R.T. v. B.N.H., 66 So.3d 807, 811 (Ala.Civ.App.2011) (determining that a juvenile court lacks continuing jurisdiction to modify a custody determination entered in conjunction with a paternity determination); Ex parte T.C., 63 So.3d 627, 631 (Ala.Civ.App.2010) (construing the continuing jurisdiction of juvenile courts as being limited to those situations involving delinquent children, dependent children, or children in need of supervision); Ala.Code 1975, § 12-15-117(a) (stating that a juvenile court has continuing jurisdiction over a child if the child has been declared dependent, delinquent, or in need of supervision). Thus, had the father initiated the present action by filing a petition to modify custody instead of a dependency petition, the juvenile court would have lacked jurisdiction over the action.

Instead, the father filed a dependency petition, and the juvenile court clearly proceeded under its dependency jurisdiction. The allegations of the father’s petition were that the mother was unable to provide a stable home for the child, that the child did not have a bed to sleep in at the- mother’s home, and that the child was not being properly fed. Those allegations, if proven, were sufficient to establish the dependency of the child. “ ‘Once the dependency jurisdiction of a juvenile court has been properly invoked, the juvenile court has an imperative statutory duty to conduct an evidentiary hearing to determine the dependency of the child.’ ” T.K. v. M.G., 82 So.3d 1, 4 (Ala.Civ.App.2011) (quoting K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala.Civ.App.2010)), cert. quashed, Ex parte T.K., 82 So.3d 8 (Ala.2011).

The mother’s brief is devoted to her arguments that the juvenile court should have applied the custody-modification standard set out in Ex parte McLendon and that the father failed to meet his burden of proving that the child’s best interests would be materially promoted by a change in custody. She does not make any alternative argument regarding the dependency determination or the disposition of the child by the juvenile court. In fact, she states that “[t]he evidence presented ... could possibly support the decision of the trial court if this case were simply the disposition of a case involving a dependent child.” A juvenile court has discretion to make any custodial disposition of a dependent child that best serves the interest of that child. See Ala.Code 1975, § 12-15-314(a); K.F. v. Cleburne Cnty. Dep’t of Human Res., 78 So.3d 983, 989 (Ala.Civ.App.2011). Thus, because we have concluded that the father’s action was properly treated as a dependency action and because the mother makes no challenge to the juvenile court’s dependency determination or the disposition of the child pursuant to the juvenile court’s dependency jurisdiction, we affirm the judgment of the juvenile court determining that the child was dependent and awarding custody of the child to the father.

AFFIRMED.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent. I agree that the juvenile court did not have continuing jurisdiction to modify the custody of the child. See R.T. v. B.N.H., 66 So.3d 807, 811 (Ala.Civ.App.2011). However, I do not agree that the juvenile court properly exercised its dependency jurisdiction to modify the custody of the child. As I set out at length in my dissent in T.K. v. M.G., 82 So.3d 1, 5 (Ala.Civ.App.2011), cert. quashed, Ex parte T.K., 82 So.3d 8 (Ala.2011), under Ala.Code 1975, § 12-15-114(a), a custody dispute between parents can no longer be decided under the dependency jurisdiction of the juvenile courts. By specifically declaring in § 12-15-114(a) that “[a] dependency action shall not include a custody dispute between parents,” the legislature plainly

“intended that a noncustodial parent cannot invoke the dependency jurisdiction of a juvenile court by filing a petition naming the custodial parent as a defendant, asserting the dependency of the child, and requesting a transfer of the custody of the child to the noncustodial parent.”

T.K, 82 So.3d at 7 (Moore, J., dissenting).

Moreover, although the petition filed by A.J., the father, formally alleged the dependency of the child, in that same petition the father asserted that he had been exercising physical custody of the child since June 2009 and that he was seeking legal custody of the child in order to assure that continued care. The father at least impliedly averred that, at the time he filed his petition, the child was receiving adequate care through him. That allegation, which was later proven to the satisfaction of the juvenile court, effectively negated any contention that the child was dependent because, in my opinion, as a matter of law, a child can be dependent only if neither parent can provide proper care. T.K., 82 So.3d at 6 (Moore, J., dissenting). I totally disagree with any statement in the main opinion suggesting that a child’s dependency may be established solely upon evidence that the parent with legal custody is not able or willing to provide proper care for the child. 86 So.3d at 1029-31. When a parent without legal custody can and, in fact, is providing proper care for a child, that child cannot be considered dependent because that child is not “in need of care or supervision” within the meaning of Ala. Code 1975, § 12-15-102(8).

J.H., the mother, argues that the juvenile court should have recognized that the father, in substance, was seeking to modify custody of the child and, therefore, that the court should have applied the custody-modification standai'd established in Ex parte McLendon, 455 So.2d 863 (Ala.1984). However, as I explained in my dissent in T.K, supra, the legislature has “overruled” prior caselaw upon which the mother relies that allowed juvenile courts to apply the McLendon standard to custody disputes disguised as dependency cases. 82 So.3d at 7 (Moore, J., dissenting). Under the new law, “the legislature has further clarified that such a dispute can no longer be decided by juvenile courts because the dispute lies outside their jurisdiction.” T.K., 82 So.3d at 7 (Moore, J., dissenting). Thus, this court cannot, as the mother requests, properly remand the case for application of the McLendon standard; instead, this court should dismiss the appeal as arising from a void judgment. T.K., 82 So.3d at 8 (Moore, J., dissenting).

I recognize that the majority of this court rejected my reasoning in T.K. and that the supreme court quashed the writ of certiorari filed in that case. However, the supreme court evidently followed that path because the parties did not provide a transcript of the trial and did not file briefs with the supreme court on the issue. Ex parte T.K., 82 So.3d at 9 (Murdock, J., concurring specially). Nothing in the supreme court’s action in quashing the writ of certiorari evidences any approval by that court of this court’s decision in T.K. Thus, until the supreme court declares otherwise, I will maintain my position that a juvenile court cannot exercise dependency jurisdiction over a custody dispute between parents, like the one at issue here.