author: SMITH, Justice. MURDOCK, Justice

text:
    Ex parte PAR PHARMACEUTICAL, INC. (In re State of Alabama v. Par Pharmaceutical, Inc.). Ex parte Mylan Inc., Mylan Pharmaceuticals Inc., and UDL Laboratories, Inc. (In re State of Alabama v. Mylan Inc., Mylan Pharmaceuticals Inc., and UDL Laboratories, Inc.).
    1090992 and 1090994.
    Supreme Court of Alabama.
    Sept. 30, 2010.

      Richard H. Gill and George W. Walker III of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Richard M. Cooper, Paul K. Dueffert, and Andrew T. Boone of William & Connolly LLP., Washington, D.C., for petitioner Par Pharmaceutical, Inc.
    M. Christian King and Nikaa Jordan of Lightfoot Franklin & White, LLC, Birmingham; William A. Escobar, Neil Merkl, and Christopher C. Palermo of Kelly Drye & Warren LLP, New York, New York; Donald R. Jones, Jr., Montgomery; and Joseph W. Letzer of Burr & Forman LLP, Birmingham, for petitioners Mylan Inc., Mylan Pharmaceuticals Inc., and UDL Laboratories, Inc.
    Troy King, atty. gen.; Caine J. O’Rear III, and Windy C. Bitzer of Hand Arendall LLCS Mobile; Roger L. Bates of Hand Arendall LLC, Birmingham; and Jere L. Beasley and W. Daniel Miles III of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent.
   SMITH, Justice.

In two separate petitions, Par Pharmaceutical, Inc., and Mylan Inc. (formerly known as Mylan Laboratories, Inc.), Mylan Pharmaceuticals Inc., and UDL Laboratories, Inc., petition this Court for a writ of mandamus, asking us to vacate an order of the Montgomery Circuit Court that consolidates for a single trial under Rule 42, Ala. R. Civ. P., the cases filed against the petitioners by the State of Alabama as a part of cases the State has filed against multiple pharmaceutical companies. See generally AstraZeneca LP v. State, 41 So.3d 15 (Ala.2009). We deny the petitions.

Facts and Procedural History

This opinion represents the fourth opinion from this Court addressing some aspect of the underlying litigation by the State against the pharmaceutical companies. See Ex parte Novartis Pharm. Corp., 975 So.2d 297 (Ala.2007) (“Novartis I ”); Ex parte Novartis Pharm. Corp., 991 So.2d 1263 (Ala.2008) (“Novartis //”); and AstraZeneca, supra. The following background as stated in Novartis II is relevant to the present petitions:

“This action is part of the Alabama Medicaid Pharmaceutical average wholesale price (‘AWP’) litigation, in which the State has sued 73 pharmaceutical companies, including AstraZeneca [AstraZ-eneca LP and AstraZeneca Pharmaceuticals LP], GSK [SmithKline Beecham Corporation d/b/a GlaxoSmithKline], and Novartis [Pharmaceuticals Corporation]. According to Novartis, the State alleges that each pharmaceutical company independently ‘engaged in false, misleading, wanton, unfair, and deceptive acts and practices in the pricing and marketing of their prescription drug products’ by reporting false pricing benchmarks and by failing to disclose to Alabama Medicaid the discounts or rebates made available by the pharmaceutical companies to Alabama physicians and pharmacies who dispensed the drugs (‘the providers’). Novartis’s petition at 2-3. The State asserts that [the] Alabama Medicaid [program] relied on these allegedly false disclosures and deceptive nondisclo-sures, and that, as a result, Alabama Medicaid compensated the providers more for the prescription drugs than the drugs actually cost the providers. Id. Thus, according to the State, these fraudulent practices by the pharmaceutical companies caused the State to overpay for Medicaid prescription drugs. The State alleges that each defendant pharmaceutical company marketed this profit margin or ‘spread’ (the difference between what the providers actually paid for the drugs and the amounts reimbursed to providers by Alabama Medicaid) to the providers to encourage them to use that company’s products rather than those of its competitors. See generally Novartis I, 975 So.2d 297.
“Originally, the State brought a single action against all 73 defendant pharmaceutical companies. Many of the defendant pharmaceutical companies moved to sever the claims against them from those of the other defendants; however, the trial court summarily denied the motions to sever. Forty-four defendant pharmaceutical companies filed mandamus petitions in this Court challenging the trial court’s ruling on the severance issue; those petitions resulted in the opinion in Novartis I. At issue in Novartis I was whether joinder of all 73 defendants in a single action was improper under Rule 20(a), Ala. R. Civ. P., which permits joinder of multiple defendants in a single action when the two requirements of Rule 20(a) are met. First, ‘the plaintiff must assert against each defendant a “right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences,” ’ and, second, ‘there will arise in the action “any question of law or fact common to all defendants.” ’ Novartis I, 975 So.2d at 299 (quoting Rule 20(a), Ala. R. Civ. P.). In Novartis I, this Court found that the joinder of all the defendants was improper because the facts of the case did not satisfy the first requirement of permissive joinder. We concluded that the State was not asserting a right to relief against all defendants arising out of the same transaction or occurrence; rather, the State was suing each defendant pharmaceutical company for independently committing logically unrelated, yet ‘coincidentally similar,’ fraudulent acts that were not part of a conspiracy or a series of coordinated transactions or occurrences. Novartis I. Because the State’s claims against the pharmaceutical companies did not satisfy the first requirement of permissive joinder, this Court did not reach the second requirement; thus, it did not decide in Novartis I whether ‘any question of law or fact common to all defendants [would] arise in the action.’ See Ala. R. Civ. P. 20(a).
“Justice Lyons concurred specially in Novartis I and was joined by Chief Justice Cobb; he noted that the Court’s finding of misjoinder in Novartis I did not preclude the prospect of consolidated trials under Rule 42(a), Ala. R. Civ. P. Rule 42(a) vests trial courts with the discretion to order a joint trial ‘of any or all the matters in issue’ in ‘actions involving a common question of law or fact,’ whether or not the right to relief asserted by the plaintiff against all defendants arises out of the same transaction or occurrence. Ex parte Flexible Prods. Co., 915 So.2d 34, 43 (2005). Justice Lyons encouraged the trial court to consider, in response to Novartis I, ‘the extent to which some number of trials less than 73 might be appropriate,’ 975 So.2d at 305, but cautioned the trial court against the opaque manner in which it had arrived at an earlier ‘consolidation’ order grouping the defendant pharmaceutical companies into four tracks for trial:
“ ‘In the proceedings that led to the present petitions, the trial court, as best I can determine, announced that there would be four trials consisting of four tracks of defendants. The trial court then sought the assistance of two special masters, placing them in what appears to be a Procrustean bed of four trials. The special masters’ report and any bases therein for selecting the parties for the four trials was not made available to the parties. The trial court entered an order based upon the report in which it created four tracks of defendants without identifying its rationale for clustering various defendants in the various tracks.
“ ‘The validity of the prior order of consolidation is not before us because we have found a misjoinder of parties, necessitating our setting aside the trial court’s order. I will not speculate on the result that might have been reached had it been necessary to address the order of consolidation. Suffice it to say that, upon remand, a more transparent proceeding not so ostensibly lacking in a principled basis would better serve the ends of justice. For example, if the trial court once again seeks the input of special masters, its announcement of the number of tracks without stating any basis therefor before the masters’ participation, its failure to disclose to the parties the recommendation of the masters, and its failure to identify the reasoning upon which any clusters of defendants are created for resolution of this proceeding in any order calling for fewer than 73 trials will substantially increase the State’s burden in sustaining its protestations against this Court’s micromanagement of the trial court’s exercise of discretion should there be a subsequent mandamus proceeding challenging consolidation.’
“Novartis I, 975 So.2d at 305 (Lyons, J., concurring specially).
“After this Court issued its opinion in Novartis I, the trial court ordered a joint trial of AstraZeneca LP and As-traZeneca Pharmaceuticals LP, to begin on February 11, 2008. AstraZeneca did not object to the order scheduling the joint trial of the State’s claims against it. Subsequently, the State moved the trial court to consolidate the AstraZeneca trial with 14 similar fraud cases against other defendant pharmaceutical companies, including GSK and Novartis. The various defendant pharmaceutical • companies opposed the State’s consolidation motion, and the trial court conducted a hearing on the motion. After the hearing, the trial court issued a nine-page order that granted the State’s motion in part and consolidated the trial of the State’s claims against AstraZeneca with the trials of the State’s claims against GSK and Novartis.... The trial court denied the State’s consolidation motion as to the remaining 12 pharmaceutical companies the State had sought to join in a single trial.
“AstraZeneca, GSK, and Novartis (collectively ‘the pharmaceutical manufacturers’) each petitioned this Court for the writ of mandamus directing the trial court to vacate its order consolidating the cases.... ”

Novartis II, 991 So.2d at 1267-70 (footnotes omitted).

ín Novartis II, this Court held that the trial court had not exceeded its discretion in consolidating for trial the claims against GSK and Novartis. We first held that there were common questions of law and fact in the State’s fraudulent-misrepresentation and fraudulent-suppression claims against GSK and Novartis. Specifically, we noted, as to the fraudulent-misrepresentation claim:

“The factual basis of the State’s fraudulent-misrepresentation claim against the pharmaceutical manufacturers is that they ‘reported or caused to be reported AWP [average wholesale price], WAC [wholesale acquisition cost], and Direct Price for their products ... for publication and dissemination to state Medicaid agencies such as Alabama Medicaid.’ State’s second amended complaint, Appendix, Vol. 1 at Exhibit 1, at 38. The State asserts that ‘Alabama Medicaid reasonably relied on the false pricing data in setting prescription drug reimbursement rates and making payment on such rates.’ State’s second amended complaint, Appendix, Vol. 1 at Exhibit 1, at 38. Thus, it appears that in this case there will be a common question of fact as to whether the pricing information published in the third-party publications was material and whether the State, in fact, relied on that information. Although the other elements of the State’s claim may ‘produce proof pertaining to individual actors and actions,’ Novartis’s petition at 11, whether the prices submitted to and published in the third-party publications were material and whether the State relied on the third-party publications in calculating the amounts to reimburse the providers appear to be questions common to both GSK and Novartis.”

991 So.2d at 1275.

As to the fraudulent-suppression claim, we stated:

“The State specifically alleges that the pharmaceutical manufacturers ‘voluntarily undertook to report or cause to be reported AWP, WAC, and Direct Price for their products ... for publication and dissemination to state Medicaid agencies including Alabama Medicaid’ and that they ‘had a duty under the particular circumstances to provide accurate and complete AWP, WAC, and Direct Price information.’ State’s second amended complaint, Appendix, Vol. 1 at Exhibit 1, at 39. In its answer, GSK admits that it ‘distributes, markets or sells certain prescription drugs that are reimbursed by Alabama Medicaid’ and that ‘from time to time, GSK provided price communications to third party publications which contained “WACs” [wholesale acquisition costs] or similar list prices for wholesalers for certain of its drugs.’ GSK’s answer, Appendix, Vol. 1 at Exhibit 4, pp. 7 and 19. Similarly, Novartis admits that ‘it distributes, markets or sells ... prescription drugs that are reimbursed by Alabama Medicaid’ and that ‘from time to time during the relevant period, Novartis provided price lists to third party publications which contained, inter alia, “AWPs” [average wholesale prices] and “WACs” [wholesale acquisition costs] for certain of its drugs-’ Novartis’s answer, Appendix, Vol. 1 at Exhibit 3, pp. 6 and 12.
“ ‘[T]he existence of a duty is a question of law to be determined by the trial judge. State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 839 (Ala.1998). Thus, it appears that there is a common question of law as to whether the pharmaceutical manufacturers, in participating in Alabama’s Medicaid program and reporting prescription drug prices to the third-party reporting services, had a duty to accurately disclose their prescription drug prices to the third-party publications.
“Similarly, it appears that common to both actions on this claim is the question whether the State, in fact, acted to its injury with regard to the information provided to the third-party publications.”

991 So.2d at 1276.

We rejected the pharmaceutical companies’ alternative argument that consolidation was “inappropriate because, they sa[id], the consolidation [would] prejudice the parties, confuse the jury, and waste judicial resources.” 991 So.2d at 1277. We concluded that under the particular circumstances, “any prejudice and/or confusion [could] be avoided or minimized by careful trial management.” 991 So.2d at 1280.

The present petitions involve the State’s claims against Par Pharmaceutical, Inc. (“Par”), and Mylan Inc. (formerly known as Mylan Laboratories, Inc.), Mylan Pharmaceuticals Inc., and UDL Laboratories, Inc. (“UDL”) (collectively “Mylan”). ' As noted above in Novartis II, the State’s second amended complaint sets forth the same basic allegations against the 73 pharmaceutical companies. Both Par and My-lan were named as defendants in that complaint; thus, the basic allegations against the defendants in Novartis II appear to be the same basic allegations against Par and Mylan.

On March 30, 2010, the trial court ordered, under Rule 42(a), Ala. R. Civ. P., consolidation of the actions against Par and Mylan. On April 15, 2010, Par and Mylan separately petitioned this Court for the writ of mandamus, asking us to vacate the trial court’s consolidation order and to stay all proceedings in this matter in the trial court. On April 27, 2010, Par and Mylan filed summary-judgment motions in the trial court. On May 12, 2010, the State filed a brief and materials in opposition to those motions, and on May 18, 2010, the trial court held a hearing on the pending summary-judgment motions. On May 25, 2010, this Court stayed all proceedings in the trial court.

Standard of Review
“““Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’
“Novartis I, 975 So.2d at 299 (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). ‘ “ ‘In cases involving the exercise of discretion by an inferior court, [the writ of] mandamus may issue to compel the exercise of that discretion. It may not, however, issue to control or review the exercise of discretion, except in a case [where the trial court exceeds its discretion].’ ” ’ Ex parte Monsanto Co., 794 So.2d 350, 351-52 (Ala.2001) (quoting Ex parte Auto-Owners Ins. Co., 548 So.2d 1029, 1030 (Ala.1989), quoting in turn Ex parte Edgar, 543 So.2d 682, 685 (Ala.1989)).”

Novartis II, 991 So.2d at 1270.

Discussion

I.

Par and Mylan argue first that based on this Court’s decision in AstraZ-eneca, a common question of law or fact no longer exists because AstraZeneca, they contend, considered the reliance and causation issues central to the State’s misrepresentation and fraudulent-suppression claims and found them without merit based on the documentary evidence in As-traZeneca detailing the State’s knowledge, policy decisions, surveys, and calculations. That evidence in AstraZeneca, this Court held, conclusively demonstrated that “the State determined for itself the appropriate reimbursement formulas based on its own surveys and calculations,” 41 So.3d at 33, and therefore “[t]he State failed to produce substantial evidence that it reasonably relied on the misrepresentations and/or fraudulent suppression it alleged AstraZeneca, GSK, and Novartis engaged in in these cases.” 41 So.3d at 33. Par and Mylan contend that the same evidence regarding the State’s conduct will be admissible in the underlying actions and will be dispositive of the State’s claims against them.

In response, the State asserts generally that AstraZeneca is limited to its particular facts. However, the State focuses its arguments primarily on whether Par’s and Mylan’s arguments — and the ultimate relief they seek of a declaration from this Court that the AstraZeneca decision disposes of the State’s claims against Par and Mylan — are properly reviewable on a petition for the writ of mandamus. The State contends that Par’s and Mylan’s arguments as to the applicability of the AstraZ-eneca decision are “summary-judgment arguments” — i.e., arguments that would be better addressed by the trial court when it rules on the pending summary-judgment motions. The State argues that the petitions in this Court are an attempt to perform “an end-run on the summary-judgment process and violate[] the rule that this Court will not review on mandamus the denial of summary judgment (which has not yet even occurred).” (State’s answer, p. 12.) Further, the State contends: “If the trial court ruled in favor of Mylan and Par on summary judgment, there would have been no need for a mandamus petition by them. If the trial court ruled against them, then they would have had no legal grounds to seek mandamus.” (State’s answer, p. 4.) In their petitions to this Court, Par and Mylan acknowledged that although they had not yet done so, they would file motions arguing that the decision in AstraZeneca entitles them to a summary judgment. As noted above, since petitioning this Court for mandamus but before this Court stayed the proceedings in the trial court, both Par and Mylan indeed have moved for a summary judgment. At the time this Court stayed the trial-court proceedings, the trial court had not yet ruled on those motions.

The parties in the present petitions have attached as exhibits the pending summary-judgment motions and the State’s responses, and we express no opinion as to the merits of the matters raised in those materials. We do note, however, that it is clear from those materials as well as the other materials before us that the parties vigorously dispute whether the AstraZeneca decision disposes of the State’s claims in the underlying cases.

The State correctly points out that a denial of a motion for a summary judgment is, with limited exceptions not applicable here, not reviewable on a petition for the writ of mandamus. In Ex parte Liberty National Life Insurance Co., 825 So.2d 758 (Ala.2002), we stated:

“Subject to certain narrow exceptions not applicable here, we have held that, because an ‘adequate remedy’ exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus. See Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998), quoting in turn Ex parte Central Bank of the South, 675 So.2d 403 (Ala. 1996), for the general rule that ‘ “ ‘a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment,’ ” ’ but noting that narrow exceptions exist, such as in cases involving governmental immunity); Ex parte Newco Mfg. Co., 481 So.2d 867, 870 (Ala.1985) (‘In its Mandamus petition as addressed to its motion for summary judgment based on the statute of repose contained in the Tennessee products liability act, Newco seeks “to do by mandamus that which can be done on appeal.” ’ (quoting Ex parte South Carolina Ins. Co., 412 So.2d 269 (Ala. 1982))); see also Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527 (Ala.2001) (issuing writ of mandamus to reverse an order denying a motion to dismiss asserting defense of immunity); Ex parte Alabama Dep’t of Forensic Sciences, 709 So.2d 455 (Ala.1997) (permitting review by petition for a writ of mandamus in case involving immunity). Because the relief Liberty National seeks in its mandamus petition can be adequately attained by an appeal, Liberty National is not entitled to a writ of mandamus to review the denial of its motion.”

825 So.2d at 761-62 (emphasis added). See also Ex parte Griffin, 4 So.3d 430, 435 (Ala.2008) (“Generally, the denial of a motion for a summary judgment is not reviewable by a petition for a writ of mandamus.”).

We agree with the State that the instant petitions are analogous to a petition for the writ of mandamus seeking review of the denial of a motion for a summary judgment. If the AstraZeneca decision indeed is dispositive of the State’s claims against Par and Mylan — a question as to which we express no opinion here — and the trial court rules erroneously on that issue, Par and Mylan will be able to obtain adequate relief by an appeal. To the extent that Par and Mylan are asking us to create a new exception to the rule that we do not review such questions on a petition for the writ of mandamus, we decline the request. Moreover, the underlying proceedings have not progressed to the procedural stage at which such a review on the merits would be possible, nor is the evidentiary record in the present petitions developed sufficiently for us to review the substantive merits of Par’s and Mylan’s contentions regarding the applicability of AstraZeneca to the underlying eases.

Thus, Par and Mylan have not demonstrated that they are entitled to the writ of mandamus on the alleged basis that AstraZeneca is dispositive of the State’s claims against them. See Ex parte Liberty Nat’l, supra; Ex parte Griffin, supra. See also Novartis II, 991 So.2d at 1280 (“ ‘ “This Court does not issue the writ of mandamus based on mere speculation as to the possible occurrence of future events.” ’ ” (quoting Ex parte Flexible Prods. Co., 915 So.2d 34, 41 (Ala.2005), quoting in turn Ex parte Vance, 900 So.2d 394, 398-99 (Ala.2004))).

II.

Par and Mylan contend that the trial court exceeded its discretion in finding the existence of a common issue of law or fact. In Novartis II, we stated:

“Rule 42(a), Ala. R. Civ. P., provides: “‘When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.’
‘“We have said that “[cjircuit judges have broad powers under the Alabama Rules of Civil Procedure ... to order actions consolidated.” ’ Ex parte Flexible Prods. Co., 915 So.2d at 39 (quoting State v. Reynolds, 887 So.2d 848, 854 (Ala.2004)). ‘[Rule 42(a) ] specifically recognizes the propriety of consolidation, as well as the trial court’s discretion to order consolidation as necessary to reduce costs or delay.’ Owens-Coming Fiberglass Corp. v. James, 646 So.2d 669, 674 (Ala.1994).”

991 So.2d at 1274. We then stated the following regarding the existence of a common question of law or fact:

“Rule 42(a) permits joint trials when the cases share ‘a common question of law or fact.’ Ala. R. Civ. P. 42(a). One of either — law or fact — will suffice as the basis for invoking the rule. See also 33 Fed. Proc., L.Ed. § 77:44 (1995) (‘Actions involving the same parties are likely candidates for consolidation, but a common question of law or fact is enough; if a common question exists, courts often consolidate actions despite differences in parties.’); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2382 (3d ed. 2008) (‘The existence of a common question by itself is enough to permit consolidation under Rule 42(a), [Fed. R.Civ.P.,], even if the claims arise out of independent transactions.’). Further, consolidation under Rule 42 does not require that common issues predominate over other issues. See Ex parte Flexible Prods. Co., 915 So.2d at 42 (‘Moreover, we reject the argument presented by the defendants that the propriety of the [case-management order] rests upon a determination of whether any common issues “predominate” over the other issues in the actions to be consolidated. A weighing of the relative dominance of the particular issues presented by actions to be consolidated (an exercise that would be speculative in actions such as this where the common issues have yet to be framed) is not required by Rule 42.’).”

991 So.2d at 1277.

In its consolidation order, the trial court found the following common issues of fact and law in the actions against Par and Mylan:

“• That each defendant allegedly participates in Alabama’s Medicaid program;
“• That each defendant allegedly reported the prices for its drug(s) at issue to First DataBank (‘Blue Book’) and Medical Economics, Inc. (‘Red Book’);
“•That each defendant allegedly knew that Alabama Medicaid relied upon and utilized the prices reported by such defendant to Blue Book and Red Book as the basis to reimburse providers making Medicaid claims;
“•That each defendant allegedly gave undisclosed discounts, rebates, and other inducements to medical providers (which had the effect of lowering the actual wholesale or sale price charged to its customers);
“• That each defendant allegedly falsely reported inflated prices to Blue Book and Red Book and allegedly concealed its actual, lower prices;
“•That each defendant allegedly knew that its price reporting would result in Alabama Medicaid paying excessive amounts for reimbursement of those drugs;
“• That Alabama Medicaid allegedly relied upon each defendant to report its prices in a truthful manner to the price reporting services used by Alabama Medicaid to reimburse providers;
“• That each defendant’s alleged wrongful reporting of price information resulted in monetary damages to the State.”

Par and Mylan focus primarily on Par’s contention that it did not routinely report its wholesale acquisition costs (“WACs”) to third-party publishers. Par and Mylan point out that in Novartis II both GSK and Novartis admitted that they provided information to third-party publishers. See Novartis II, 991 So.2d at 1276 (“GSK admits that .... ‘from time to time, GSK provided price communications to third party publications which contained “WACs” [wholesale acquisition costs] or similar list prices for wholesalers for certain of its drugs.’ ... Similarly, Novartis admits that .... ‘from time to time during the relevant period, Novartis provided price lists to third party publications which contained, inter alia, “AWPs” [average wholesale prices] and ‘WACs” [wholesale acquisition costs] for certain of its drugs....’”). If indeed this difference between the reporting practices of Mylan and Par exists, we disagree that it means that the trial court exceeded its discretion in finding a common issue of law or fact under Rule 42(a), Ala. R. Civ. P., at this stage in the proceedings.

In addition to the above-listed common issues of law or fact, the trial court in another part of its order noted:

“Evidence concerning the reimbursement formulas and the State’s purported use and/or reliance on defendants’ reported prices will not differ among [My-lan and Par] as each defendant either reported, caused to be reported or engaged in conduct with a reckless disregard to the truth of the prices allowed to be published for its drugs to First DataBank, which, in turn, transmitted the prices to Alabama Medicaid for its use.”

(Emphasis added.) The trial court’s order also states that the State plans to present as to all defendants (1) the same expert testimony at trial and (2) the same model and methodology for proving its alleged damage. Further, the trial court’s order notes that both Par and Mylan have asserted common affirmative defenses to the State’s claims. The trial court also found it particularly significant that both Par and Mylan “manufacture!!], distributee], market!! ], and/or offer[ ] for sale almost exclusively generic prescription drugs” (emphasis added). Based on the foregoing, the trial court did not exceed its discretion in finding the existence of a common issue of law or fact under Rule 42(a), Ala. R. Civ. P.

Par and Mylan contend alternatively that even if the State’s cases against them present a common question of law or fact, consolidation is inappropriate because, they say, the consolidation will prejudice the parties, confuse the jury, and waste judicial resources. In support of their contentions, Par and Mylan make the following contentions:

— “The State’s claims against Par and its separate claims against Mylan would take multiple weeks to try, and it is likely that the volume of evidence presented during that time would overwhelm the jury’s ability to give full and fair consideration to the evidence presented against and by each defendant.” (Par’s petition, p. 24.)
— The State’s allegations against Par relate to the pricing and marketing of 23 drugs associated with 158 unique “National Drug Code” numbers (“NDCs”). According to Par, each of its drugs “was priced and marketed in light of competitive pressures and other variables in each individual product market.” (Par’s petition, p. 8.) Thus, the number of distinct NDCs for drugs Par priced and marketed represents roughly 20% of the NDCs involved in the State’s claims against Par and Mylan.
— The State’s allegations against My-lan relate to 153 separate drugs, associated with 633 distinct NDCs. Thus, the number of distinct NDCs for drugs that Mylan priced and marketed represents about 80% of the NDCs involved in the State’s claims against Par and Mylan. Par asserts that “the presentation of the vastly larger body of evidence against or for Mylan would unfairly dominate the jury’s time and attention. ... Par’s story would be lost in this deluge of evidence.” (Par’s petition, p. 26.)
— As noted above, Par contends that its policy and practice was to not submit WAC pricing for its generic drugs to industry publishers. My-lan, however, supplied the WAC prices for its generic drugs to such publishers.
— Par asserts that “at least seven of the generic drugs at issue in this case were independently marketed and sold by both Par and Mylan. These overlapping drugs — each pair of which shares the same generic name — aggravate the likelihood that the jury would become confused and fail to recall the distinctions between the defendants. No such problem was present when this Court upheld [in Novartis II \ the consolidation of Novartis and GSK — who had no product overlap.” (Par’s petition, p. 27; cf. Mylan’s petition, p. 19.)

The trial court found that consolidation of the trials against Par and Mylan would be “the most efficient and economical disposition of this action.” The trial court rejected as “premature and without merit” Par’s and Mylan’s claims that they would be prejudiced by the consolidation. The trial court cited its own experience in trying the consolidated cases against GSK and Novartis, and it stated that during that the trial of the GSK and Novartis cases

“the jury repeatedly was made aware, from the outset, that there were two separate cases for its consideration. Special notebooks were prepared, special jury instructions were given, exhibits were separately marked, and numerous other precautionary measures were taken to avoid juror confusion.”

The trial court further found that

“not granting the State’s motion to consolidate will prejudice the State in that multiple, individual trials will require the State to present its witnesses and evidence in staggering repetition. Separate trials for each Defendant could take years to complete, would impose tremendous economic burden on the State, and would constitute an onerous and unnecessary burden on the State’s witnesses, as well as third-party witnesses who would be forced to testify repeatedly. Additionally, the Court finds that multiple trials greatly increase the risk of inconsistent rulings on common issues regarding common questions of law and fact.”

The trial court’s stated reasons supporting consolidation are similar to and expand upon the reasons the trial court identified in Novartis II as supporting consolidation. Moreover, in Novartis II the pharmaceutical companies’ contentions were similar to those outlined above; in that case, the pharmaceutical companies argued:

“[T]he trial court exceeded its discretion in ordering a joint trial because ‘a joint trial of claims against [two] individual manufacturers, each of which, over a 15 year period, sold hundreds of different products that were priced, marketed, and reimbursed in different ways will numb jurors to key distinctions among the defendants, their products, and their marketing practices.’ Novartis’s petition at 18. Specifically, the pharmaceutical manufacturers argue that their cases involve hundreds of drugs and that the State’s claims necessitate demonstrating proof regarding intent, falsity, and reliance as to each defendant that will create an inordinately complex evi-dentiary record. They further argue that ‘paralyzed by confusion, jurors will, by default, treat all of the disparate evidence as if it were relevant to all of the defendants. The inevitable prejudice will be substantial.’ Novartis’s petition at 18.
“In support of their argument, the pharmaceutical manufacturers point to statements made by Judge Patti B. Sar-dis, the Boston-based federal district judge handling the multidistrict aspects of the AWP litigation. The pharmaceutical manufacturers note that Judge Sar-dis’s experience ‘led her to conclude that the evidentiary records in [AWP litigation] are simply too complex and confusing for multi-defendant jury trials.’ Novartis’s petition at 14. Similarly, the pharmaceutical manufacturers point to statements of Circuit Court Judge Richard G. Niess of Dance County, Wisconsin, who noted:
“ ‘[I]t is not at all apparent ... that any defendant could have its case fairly considered by the jury if not in a separate trial. Defendants present a compelling argument for insurmountable jury confusion with their proof on differing corporate practices among the defendants, multiple claims against each defendant each consisting of multiple elements and each portending multiple verdict questions both on these claims and defendants’ affirmative defenses.’
“Novartis’s petition at 17. Finally, the pharmaceutical manufacturers note that ‘ “[t]he very purpose of consolidation is to expedite litigation and save money.” ’ Novartis’s petition at 26 (quoting Teague v. Motes, 57 Ala.App. 609, 613, 330 So.2d 434, 439 (Ala.Civ.App.1976)). However, they argue that a consolidated trial does not promote judicial economy because, the pharmaceutical manufacturers say, consolidation will require the trial court and the defense attorneys to spend an inordinate amount of time keeping separate the claims and evidence attributable to the respective defendants and claims. Novartis’s petition at 27. The pharmaceutical manufacturers further argue that ‘separate trials also minimize the threat of long-term inefficiencies in the form of appellate reversals and retrials.’ Novartis’s petition at 28.”

991 So.2d at 1278-80.

We held that these contentions did not demonstrate that the pharmaceutical companies were entitled to the writ of mandamus. We stated:

“In Quintet Corp., N.V. v. Citibank, N.A., 100 F.R.D. 695, 697 (D.C.N.Y. 1983), the federal district court in New York recognized:
“ ‘This type of danger [jury confusion] exists, of course, in many multidefen-dant, multicount trials. It is a tenet of the jury system that jurors follow the court’s instructions and can apply different standards to several defendants. There is nothing extraordinary about these cases, such as inevitably conflicting findings, that would make the danger of confusion paramount.’
“As the Eleventh Circuit Court of Appeals noted in Hendrix [v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir.1985) ], the Court must keep in mind ‘the extent to which the risks of prejudice and confusion that might attend a consolidated trial can be alleviated by utilizing cautionary instructions to the jury during the trial and controlling the manner in which the plaintiffs’ claims (including the defenses thereto) are submitted to the jury for deliberation.’ Hendrix, 776 F.2d at 1495.
“Although this Court recognizes that the facts and evidentiary record in these cases may be complex, we cannot conclude that the trial court exceeded its discretion when it consolidated these cases for trial. With the trial of AstraZ-eneca already having concluded, the remaining consolidated action has only two defendants, Novartis and GSK, and the State has asserted only four claims against each defendant. Under these circumstances, we agree with the State that any prejudice and/or confusion can be avoided or minimized by careful trial management.”

991 So.2d at 1279-80.

The primary difference between the present petitions and the petitions in No vartis II is that, as discussed above, Par contends that it did not routinely report pricing information to third-party publishers. However, Par concedes that there were at least isolated instances in which its employees provided that information or confirmed its existence. See supra note 5. At this juncture in the proceedings below, we see no reason why the trial court through careful management will not be able to avoid or minimize any prejudice or confusion that might result from the alleged differences in Par’s and Mylan’s reporting policies and practices.

As noted above, the trial court cited, in support of consolidation, its experience in managing the previous trials related to this litigation. Par and Mylan attempt to discredit the trial court’s experience, however, with arguments like the following:

“Previous [average wholesale price] trials have demonstrated that the cases are too complex for case-management tools to mitigate adequately these prospects of jury confusion and prejudice.... In [the GSK/Novartis joint trial] and in the separate AstraZeneca trial, however, the two juries both returned verdicts for the State that this Court later held erroneous as a matter of law.... Thus, two separate juries failed to weigh the evidence properly.”

(Par’s petition, pp. 28-29.) This argument, however, misapprehends what the AstraZeneca decision held. AstraZeneca did not hold, as the petitioners suggest, that the juries “failed to weigh the evidence properly.” Rather, AstraZeneca held that “the State failed to produce substantial evidence that it reasonably relied on the misrepresentations and/or fraudulent suppression it alleged AstraZeneca, GSK, and Novartis engaged in in these cases.” 41 So.3d at 33. Thus, this Court held that the trial court in AstraZeneca should have granted the defendants’ motions for a judgment as a matter of law and that the cases should not have been submitted to the jury for consideration. Id.

Finally, Par asserts that in January 2001 Mylan settled a lawsuit brought against it relating to its version of the drug lorazep-am. Par contends that “if evidence about the settlement were admitted at a consolidated trial involving Par, it would create a substantial risk of ‘guilt by association,’ and work to Par’s prejudice.” (Par’s petition, p. 28.) However, Par concedes that the trial court has not yet even addressed the admissibility of that alleged settlement. Consequently, Par’s argument that it will be prejudiced by evidence of the alleged settlement is speculative at best.

Ill

Both Par and Mylan suggest that this Court should stay the proceedings against them in the trial court pending this Court’s resolution of the appeal that has been filed in this Court in Sandoz, Inc. v. State (No. 1081402). Sandoz, Inc., is one of the defendants named in the State’s second amended complaint. Par and Mylan contend “[a]ny even arguable questions about the applicability of [the evidence in As-traZeneca regarding Alabama Medicaid’s knowledge of drug pricing] to [Alabama Medicaid’s] knowledge of generic drug pricing will be resolved when this Court rules on the pending appeal in” Sandoz. The State contends that this aspect of the trial court’s ruling — i.e., the denial of My-lan’s motion to stay the proceedings pending resolution of the appeal in San- doz — is not reviewable on a petition for the writ of mandamus. For the reasons expressed in Part I of this opinion, we agree with the State that under these circumstances this issue is not appropriate for review on a petition for the writ of mandamus. The stay of the trial court proceedings that this Court ordered on May 25, 2010, is hei-eby lifted.

Conclusion

The petitions for the writ of mandamus are denied.

1090992 — PETITION DENIED; STAY LIFTED.

1090994 — PETITION DENIED; STAY LIFTED.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

I respectfully dissent for the same reasons I dissented in Ex parte Novartis Pharmaceuticals Corp., 991 So.2d 1263 (Ala.2008), upon which the main opinion relies. That is, “because of the factual complexity of the claims and defenses of the parties and the likelihood of substantial confusion on the part of the jury and of prejudice to the defendants as a result of the consolidation, I respectfully dissent.” Novartis, 991 So.2d at 1280 (Murdock, J., concurring in case no. 1070312 and dissenting in cases no. 1070310 and no. 1070311).

      . • AstraZeneca’s petition was dismissed as moot because after AstraZeneca filed its petition but before this Court issued the opinion in Novartis II "the trial court proceeded ... with a trial of the State's claims against As-traZeneca alone, without consolidating that trial with the trials of GSK and Novartis and without awaiting this Court’s resolution of these petitions for the writ of mandamus.” 991 So.2d at 1271.

      . In its materials opposing the summary-judgment motions, a copy of which the State has provided with its answer to this Court, the State more extensively addresses Par's and Mylan's substantive arguments regarding the applicability of the AstraZeneca decision and cites evidence that it contends distinguishes AstraZeneca. In sum, the State's position as to the applicability of the AstraZeneca decision is that
      "[t]he AstraZeneca opinion turned on the factual issue of reasonable reliance based on the specific evidence in that case. Short of trial or a ruling on summary judgment, the evidence against Mylan has yet to be presented or established. Mylan’s petition requests the impossible: that this Court speculate on the evidence to be admitted at trial against Mylan and then hold in advance of trial that the AstraZeneca opinion disposes of any factual issues against My-lan.”

      . The State contends, for example, that Par and Mylan are taking inconsistent positions by arguing "on the one hand, that [the cases against them] are separate and distinct cases which cannot be consolidated” but arguing "on the other hand that [the cases] should be considered exactly the same as AstraZeneca and SandozL Inc. v. State (No. 1081402)] for the purposes of claim preclusion.” (State’s answer, p. 19.) In the trial court, the State cited Mylan's earlier contention that there are “significant, substantive differences between the Medicaid reimbursement of brand and generic pharmaceutical products under the rules of die Alabama Medicaid Program.” State’s Opposition to Defendants’ Motion to Vacate or Stay Order Setting Mylan Defendants for Trial on June 14, 2010. Additionally, the State contended that
      ”[b]ecause Mylan’s drugs are almost entirely generic and not brands, there is no mathematical relationship between the AWP and WAC prices reported by Mylan and used by [Alabama Medicaid] to reimburse pharmacies. Unlike brand drugs where reported AWP prices generally exceed reported WAC prices by either 20% or 25%, there is no such connection between AWP and WAC for generic drugs. That is, there was no rhyme or reason to the percentage markup of AWP over WAC for any particular Mylan drug, and there was certainly no mathematical relationship between Mylan’s AWP and WAC prices across the board. Therefore, even assuming that the State knew that Mylan's reported AWP prices were inflated (which the State did not), it would be absolutely impossible for the State to conclude from such knowledge alone that Mylan's WAC prices were also inflated or to estimate the amount of such inflation.”

        Id.

      . Mylan admits that it reported its WACs to third-party publishers.

      . Par concedes in its petition that it “is aware of isolated occasions on which a Par employee mistakenly provided WACs to, or verified WACs already possessed by, a publisher.” (Par’s petition, p. 9 n. 3.) However, Par contends that its
      "evidence would show that, upon learning of such instances, Par would contact the relevant publisher and ask it to remove the Par WAC from its publication. Moreover, such isolated mistakes were irrelevant to [Alabama Medicaid’s] standard, continuously applied reimbursement methodology.”
      (Par’s petition, p. 9 n. 3 (emphasis added).)

      . This statement from the trial court’s order is consistent with, as Par states in its petition, "the State['s] suggestion] [that] it would seek to hold Par responsible for WACs supplied to First DataBank not by Par, but by ‘somebody else.’ " (Par’s petition, p. 23.)

      . The trial court cited the following affirmative defenses: the statute of limitations, the statute of repose, laches, estoppel, waiver, standing, the failure to satisfy federal regulatory requirements, federal preemption, the political-question doctrine, and the filed-rate doctrine.

      . In Novartis II, the trial court’s consolidation order stated:
      " 'The Court further finds that consolidation of these actions promotes effective case management and avoids needlessly duplica-tive trials. Consolidation of these actions will conserve judicial resources, alleviate unnecessary delay and expense, reduce the burden on witnesses and the parties, and result in the most efficient and economical disposition of these actions. Moreover, the Court finds that the parties will not suffer prejudice as a result of consolidation of the trials of the Consolidated Defendants as these defendants are members of the "Track 1” grouping of cases for trial, originally set for trial in November 2007, and for which the discovery deadline has expired. Finally, the logical grouping of the Consolidated Defendants — all of which manufacture, market and sell brand-name drugs and similarly report prices — minimizes the risk of any prejudice or confusion which could potentially result from consolidation.' ”
      991 So.2d at 1278.

      . Nothing before us indicates that Par has requested the trial court to stay the proceedings pending resolution of Sandoz.


source: Caselaw Access Project

author: BRYAN, Judge. MOORE, Judge,

license: Public Domain

text:
    J.W. v. T.D. and B.D.
    2090042 and 2090043.
    Court of Civil Appeals of Alabama.
    May 28, 2010.
    Rehearing Denied July 16, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091484.

      Benjamin J. Freeman, Dothan, for appellant.
    Matthew C. Lamere, Dothan, for appel-lees.
   BRYAN, Judge.

J.W. (“the father”) appeals from a judgment of the Houston Juvenile Court (“the juvenile court”) insofar as it found his two children, Ba.R.W. and Br.R.W. (“the children”), to be dependent and awarded custody of the children to T.D., the maternal uncle of the children (“the uncle”), and B.D., the uncle’s wife (“the aunt”).

The father and K.W. (“the mother”) were married in 2000. The mother had a daughter, Br.D., from a previous relationship, and she gave birth to the children, who are fraternal twins, in November 2003. The mother died on October 28, 2008, and on October 29, 2008, the father presented himself to his therapist for crisis intervention. The same day, C.D., the maternal grandfather of the children (“the grandfather”) filed a petition in the juvenile court, in case nos. JU-08-68S.01 and JU-08-684.01, alleging that the children were dependent, and the juvenile court awarded pendente lite custody of the children to the grandfather.

On March 10, 2009, the uncle filed a petition in the present actions, case nos. JU-08-683.02 and JU-08-684.02, that alleged that the children were dependent, and he requested custody of the children. The uncle alleged that the grandfather could not adequately care for the children because of his age, and he further alleged that the father was verbally and mentally abusive to the children. The juvenile court conducted a hearing on March 27, 2009. At that hearing, the grandfather withdrew his petition for custody. After taking some testimony, the juvenile court recessed the hearing, and pendente lite custody of the children was awarded to the uncle and the aunt pending further orders from the juvenile court. The father was allowed only supervised visitation with the children. On May 28, 2009, the juvenile court granted a motion of the Alabama Department of Human Resources (“DHR”) that requested relief from its obligation to supervise visitation between the father and the children because, DHR alleged, the father had completed parenting classes and anger-management classes and had otherwise completed everything requested of him by DHR. On September 22, 2009, the juvenile court resumed the hearing that had begun in March 2009, and it entered a final judgment in case nos. JU-08-683.02 and JU-08-684.02 on October 2, 2009. The juvenile court found the children dependent, awarded custody of the children to the uncle and the aunt, and awarded the father unsupervised visitation with the children. Without filing a post-judgment motion, the father timely appealed. We have consolidated the father’s appeals.

The record reveals the following pertinent facts. The uncle, who was 35 years old at the time of the final hearing, testified that he and the aunt live in Columbia in a five-bedroom mobile home. The uncle testified that the aunt had three children from a previous relationship that lived with the uncle and the aunt: a boy who was 17 years old, a girl who was 15 years old, and a girl who was 12 years old. Br.D., the mother’s oldest child and the half sister of the children, also lived with the uncle and the aunt; she was 11 years old at the time of the final hearing. The uncle testified that the children, who were five years old at the time of the hearing, shared a bedroom, that Br.D. and his 15-year-old stepdaughter shared a bedroom, and that his 17-year-old stepson and 12-year-old stepdaughter each had their own bedroom. He stated that the children often spent the night at his house before the mother passed away and that all the children living in his household got along well.

The uncle testified that both of the children are enrolled in school at Head Start. However, Br.R.W. had demonstrated significant behavioral problems at school, including threatening to break his teacher’s arm. Br.R.W. had been diagnosed with attention deficit/hyperactivity disorder (“ADHD”), mild autism, pervasive developmental disorder, overanxious disorder, mood disorder, sleep disorder, and seizure episodes. The aunt testified that Br.R.W. took three types of prescription medication, including Ritalin three times a day to treat ADHD. The aunt testified that Br.R.W.’s behavior had improved after the grandfather took custody of him following the mother’s death, and, according to the aunt, Br.R.W.’s behavior had further improved since he had moved into her home.

Both the uncle and the aunt work, and the uncle stated that the children would be eligible for insurance coverage under the aunt’s insurance plan provided through her employer. The children originally had health insurance through Medicaid, but the father had gotten the children insurance through a program called AllKids; the aunt testified that the counselor of the children did not accept AllKids insurance.

The uncle stated that he had strived to get along with the father because he had married the uncle’s sister, the mother. He stated that he had not had any contact with the father since the mother passed away. The uncle stated that the father had not supported his family, that he had not maintained a stable job, and that he would often “scream and holler” at the children. The uncle admitted that his whole family “intensely disliked” the father. However, the uncle also testified that he could set his personal feelings about the father aside in order to facilitate a relationship between the father and the children. The uncle testified that the children were thriving in his home and that the children attended Sunday School at a Baptist church in Columbia.

The aunt testified that she got along fine with the father but that she feared that he would not return the children after his visitation. The aunt testified that she had seen the father discipline the children and that, in the aunt’s opinion, the father spanked Ba.R.W. too often and that he did not spank Br.R.W. enough. She agreed that the children seem to miss the father.

The father testified that he had a history of mental illness, including anger issues since his childhood that manifested in a verbally abusive way. He agreed that he often “screamed and hollered” at the children and that the problem was so severe that he sought professional treatment in April 2008. The father was diagnosed with bipolar disorder. The father took four different prescription medications to treat his mental illness: Depakote, for mood instability; hydroxyzine, for anxiety; Effexor, for depression; and trazadone, a sedative antidepressant, for disturbed sleep.

The father testified that he had attempted suicide on September 2, 2008, because he had gone off of his medication for several days in order to have a myelogram. He was hospitalized for three days following that incident. The father admitted that Br.D. had been afraid of both him and the mother “in the last month or so,” apparently referring to the last month that the mother was alive. He stated that he knew that two knives had been found in Br.D.’s bedroom after the mother died, but the father denied that the knives had been there because Br.D. was afraid of him. The father testified that a steak knife had been in BrD.’s bedroom because he and the mother had been sleeping in that room and he had used the knife to “cut some wires.” He stated also that there had been a butter knife on the headboard, but he did not explain why it had been there.

The father admitted that he had a history of alcohol abuse and drug abuse and that it had been several years since he had used cocaine, marijuana, or methamphetamine. The father sought treatment for alcoholism in November 2008, after what Dr. David Ghostley, a licensed clinical psychologist, described as “20 years of heavy drinking.” The father admitted that he had “relapsed” in December 2008, but he testified that he had not consumed alcohol since that time. The father testified that he had successfully completed anger-management classes through SpectraCare and the Wise Center and that he was still regularly seeing his psychologist in addition to his psychiatrist.

Dr. Ghostley testified that he had performed a psychological evaluation of the father on January 19, 2009, at the request of the juvenile court. Dr. Ghostley testified that, in his opinion, the father was capable of caring for the children so long as he took his prescribed medication. However, some of the statements made by the father to Dr. Ghostley were inconsistent with the father’s psychiatric records. For example, the father reported to Dr. Ghostley that he had not consumed alcohol in the two months before his suicide attempt. However, his records from Spec-traCare revealed that the father had been mixing alcohol and pain medication two weeks before his suicide attempt. After being informed of this inconsistency, Dr. Ghostley stated that he still believed that the father could care for the children if he remained on his medication. However, he also stated that, hypothetically, he could change his opinion regarding his recommendation if the father were to begin consuming alcohol again.

Pictures of the father’s home that were taken by the grandfather the week before the final hearing were admitted into evidence; the pictures showed the condition of the inside of father’s home. The father stated that the room that was messiest was caused by a “busted” water heater that leaked water into a bedroom and the dining room and that that was the reason that “stuff’ was “everywhere.” The pictures showed prescription medication bottles that were left on surfaces that could be reached by the children, and there was a handwritten note taped to the father’s front door that asked the power company not to turn his power off. The father testified that he had paid his power bill by the time of the hearing.

Most concerning to the trial court, however, was one picture that showed a display of beer bottles and liquor bottles on top of the father’s refrigerator. The father testified that one bottle of liquor contained hot sauce and that the beer bottles, which were “Bud Lime Ice,” were allegedly kept by the father as collector’s items and were mementos of the kind of beer he used to drink. The father also testified that the liquor bottles that were behind the beer bottles only contained water and that he kept those bottles of liquor as mementos as well.

The father also introduced pictures of his home that he had taken the night before the final hearing; those pictures showed that his home had been cleaned. The father stated that he had let the mess in his home remain until the night before the final hearing. The father cleaned his home so that he could bring pictures of his home to court. The father admitted that parts of his home were still messy and that he did not bring any pictures of the rooms that were still messy.

The father stated that he lived in a three-bedroom trailer but that one of the bedrooms was uninhabitable because of the leak in his water heater. The father had been unemployed since March 14, 2008, as a result of a disabling injury. He said that he received a short-term and long-term disability check from his former employer and that he had applied for Social Security disability benefits.

Bernice Chambers, a contract worker with DHR, testified that she had observed some of the visits between the father and the children, that the children had appeared to have a bond with the father, and that the father had not acted inappropriately with the children. The father began exercising overnight unsupervised visitation with the children approximately three weeks before the final hearing. The aunt testified that the children had been returned to her custody wearing the same clothing that they had been wearing two days earlier and that they had been dirty and had smelled like they had not been bathed. The father testified that he had not noticed any improvement in Br.R.W.’s behavior after he had moved into the uncle’s home, and the aunt testified that Br. R.W. misbehaved after visiting the father. However, the aunt also testified that Br. R.W.’s behavior had significantly improved since she had received custody of him in March 2009 and that he had even been taken off of his ADHD medication by his doctor in June 2009.

Ashley Wright, the father’s caseworker with DHR, testified that the father had completed every condition that DHR had required him to complete, including attending parenting classes, anger-management classes, and individual and group therapy. She stated that the father would be eligible for “FOCUS,” which is a service offered by DHR that would send workers to the father’s home to help the father transition to the role of a full-time caretaker of the children. Based only on the fact that the father had completed all the conditions that DHR had required him to complete, Wright testified that she was comfortable returning custody of the children to the father. However, she stated that she had not been in contact with the father since the spring of 2009 and that she was not qualified to gauge his mental stability.

The father presents three issues for review on appeal: (1) whether the juvenile court erred in determining that the children were dependant; (2) whether the juvenile court erred in awarding custody of the children to a nonparent; and (3) whether the juvenile court erred in failing to consider the dispositional options set forth in Ala.Code 1975, former § 12-15-71(a) (which was amended and renumbered, effective January 1, 2009, as § 12-15-314(a), Ala.Code 1975, a part of the Alabama Juvenile Justice Act).

“The Alabama juvenile statutes were rewritten by sweeping amendments made effective January 1, 2009, in the Alabama Juvenile Justice Act of 2008. As these proceedings were initiated by the [uncle] in March 2009, the new Act governs this case. Remaining in place in the new Act are two essential principles. First, clear and convincing evidence, as discussed in, for example, J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34, 40 (Ala.Civ.App. 2008), still is required to support a finding of dependency. See Ala.Code 1975, §§ 12-15-310(b) and 12-15-311(a). Second, the best interests of the child remain the standard for a juvenile court’s determination that a child should be removed from its family. See Ala.Code 1975, § 12-15-101(b)(2)-(3); G.L. v. State Dep’t of Human Res., 646 So.2d 81, 84 (Ala.Civ.App.1994).”

L.H. v. Lee County Dep’t of Human Res., 40 So.3d 747, 749 (Ala.Civ.App.2009).

The father first challenges the juvenile court’s determination that the children were dependent. The father’s argument on appeal is based on his belief that the uncle was required to prove that he was unfit, pursuant to Ex parte Terry, 494 So.2d 628, 632 (Ala.1986) (in which our supreme court held that a nonparent seeking custody of a child must prove that the child’s parent is unfit), before the children could be found to be dependent and before custody of the children could be awarded to the uncle and the aunt. Thus, he argues, the judgment of the juvenile court is due to be reversed because, he says, the uncle failed to offer any evidence to support a finding that the father was unfit to care for the children.

However, a finding of parental “unfitness,” as contemplated in Ex parte Terry, is not the standard that a petitioner in a dependency case is required to prove. Instead, the petitioner must present clear and convincing evidence that a child is dependent pursuant to § 12 — 15—102(8)(a), Ala.Code 1975. See L.H., supra; § 12-15 — 310(b); and § 12-15-311(a). The father cites no authority in his brief other than Ex parte Terry, supra, and former § 12-15-1(10), Ala.Code 1975 (the former code section defining dependency), for the general statement that that section provides the criteria under which a child may be deemed dependent.

This court’s deferential standard of reviewing a dependency determination is well settled. As stated above, a finding of dependency must be based on clear and convincing evidence. See L.H., supra.

‘“However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App. 1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).’ ”

A.L.D. v. Calhoun County Dep’t of Human Res., 2 So.3d 855, 859 (Ala.Civ.App. 2008) (quoting J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004)).

A “dependent child” is defined in § 12-15-102(8)a. as a child “in need of care or supervision” that meets at least one of the circumstances listed in subsections 1. through 8. of that section. Section 12-15-102(8)a.2. states that a child may be found dependent if he or she “is -without a parent ... willing and able to provide for the care, support, or education of the child.” There was no question that the father had completed everything required of him by DHR, and we are hesitant to deny the father custody of the children under these circumstances, although this court has done so before. See R.T.B. v. Calhoun County Dep’t of Human Res., 19 So.3d 198 (Ala.Civ.App.2009) (in which this court affirmed a judgment finding the child dependent even though the mother had completed the conditions outlined in her individualized service plan, because we determined that the mother’s conduct, condition, or circumstances that had required the initial separation had not been satisfactorily eliminated).

The record is unclear about what caused the initial separation between the father and the children, because neither the grandfather’s initial dependency petition nor the order that awarded custody of the children to the grandfather is in the record on appeal. However, evidence of the father’s history of mental illness and alcohol abuse and his attempted suicide in early September 2008 gives some indication of why custody of the children was awarded to the grandfather. In its final judgment, the juvenile court specifically found that, although the father had

“made significant efforts toward rehabilitation, the court continues to have concerns [about the father’s] ability to parent two small children, one of whom has exhibited behavioral problems in the past. The court is particularly concerned with the condition of the home the children would live in and finds that the father’s photographic evidence of the home’s interior was prepared primarily for court and does not reflect the true living conditions into which the children would be permanently placed should the father have custody of these children. Additionally, any confidence the court may place in the father’s claim that he abstains from alcohol is shaken by the evidence of the father’s retention and display of beer bottles on his refrigerator .... ”

This court is similarly concerned about the fact that the father maintains bottles of alcohol, empty or not, in his home after 20 years of heavy drinking. Even Dr. Ghost-ley stated that he would not recommend that the father have the alcohol bottles in his home if he was trying to abstain from alcohol. Although the father claimed that certain bottles of liquor were filled with water as a memento of his former drinking days, the juvenile court could have concluded from the evidence that the father’s testimony regarding his reasons for maintaining the alcohol bottles in his home was unbelievable. Moreover, Dr. Ghostley testified that his recommendation regarding the father’s ability to care for the children could be different if the father began drinking alcohol again. Although the father maintained that he had not consumed alcohol since his relapse in December 2008, the juvenile court was in the best position to determine the credibility of the father’s testimony. See Dunn v. Dunn, 972 So.2d 810, 815 (Ala.Civ.App.2007) (“The trial court observed the parties as they testified and was in the best position to evaluate their demeanor and credibility; accordingly, we must defer to the trial court’s factual findings and its rulings based on those findings.”).

We are also concerned about evidence regarding Br.R.W. and the father’s ability to manage his behavioral problems, as the juvenile court referenced in its judgment quoted above. The aunt testified that Br.R.W. had been able to go off of his ADHD medication after only three months in her custody, but the father testified that Br.R.W.’s behavioral issues had not improved around him and the aunt noted that Br.R.W. misbehaved after visitation with the father. There was also evidence indicating that the father was neglectful to some degree regarding the hygiene of the children. The juvenile court could have considered all of that evidence, in light of its factual conclusion that the father was not abstaining from alcohol, and found that the father, at this point in his life, is unable to care for the children. Although the juvenile court did not specifically cite all of these reasons to support its determination of dependency, this court may affirm a judgment that is correct for any reason, even one not cited by the juvenile court. Boykin v. Magnolia Bay, Inc., 570 So.2d 639, 642 (Ala.1990). See also T.T.T. v. R.H., 999 So.2d 544, 557-58 (Ala.Civ.App.2008). Accordingly, we conclude that clear and convincing evidence supports a determination that the children are dependent.

The father argues that it was inconsistent for the juvenile court to adjudicate the children dependent and, at the same time, award him unsupervised weekend visitation with the children. We note that nothing in the Alabama Juvenile Justice Act prohibits a juvenile court from awarding unsupervised visitation between a parent and their child after the child has been adjudicated dependent. Cf § 12-15-314(a)(1) (which allows a juvenile court to find a child dependent and return custody of the child to a parent or other legal custodian, subject to conditions or limitations that the juvenile court may prescribe). We cannot conclude that an award of unsupervised visitation following an adjudication of dependency requires this court to reverse a juvenile court’s judgment on the basis that the judgment is internally inconsistent, as the dissent argues. A finding that a parent is capable of caring for a child during a weekend visit is not equivalent to a finding that the parent is capable, on a, day-to-day basis, of providing for the care, support, and education of the child. Thus, we cannot conclude that the juvenile court’s award of unsupervised weekend visitation requires this court to reverse the juvenile court’s judgment finding the children dependent.

It is unclear from the father’s brief as to whether he has challenged the juvenile court’s judgment as to the disposition of the children. See § 12-15-311(a). However, we elect to address that issue out of an abundance of caution. As stated above, the father has only cited Ex parte Terry, supra, in support of his argument. In J.P. v. S.S., 989 So.2d 591, 600 (Ala.Civ. App.2008), a father argued that Ex parte Terry applied to the dispositional phase of a dependency action. In response, this court in J.P. stated:

“The father is correct that parents typically have the benefit of the presumption stated in Ex parte Terry in custody disputes with nonparents. However, that presumption does not apply in the dispositional phase of a dependency proceeding. W.T.H. v. M.M.M., 915 So.2d 64, 70-71 (Ala.Civ.App.2005). Once the trial court has made a finding of dependency, § 12-15-71 (a),[] Ala. Code 1975, empowers the trial court to make various dispositions of the child, including ‘any ... order as the [juvenile] court in its discretion shall deem to be for the welfare and best interests of the child.’ § 12-15-71(a)(4). Alabama courts have interpreted that provision to mean that, in the dispositional phase of a dependency proceeding, the presumption discussed in Ex parte Terry does not apply and that a subsequent transfer of custody is determined by the ‘best interest of the child’ standard. W.T.H. v. M.M.M., 915 So.2d at 70-71; F.G.W. v. S.W., 911 So.2d 1, 3 (Ala.Civ.App.2004).”

989 So.2d at 600. Accordingly, because we have concluded that clear and convincing evidence supported the juvenile court’s determination that the children were dependent, “the ‘best interest of the child’ standard applied to the [juvenile] court’s determination that custody of the child[ren] should be transferred to the aunt and uncle.” Id.

The record reveals that sufficient evidence was presented to the juvenile court to support its award of custody to the uncle and the aunt under the best-interest standard. The evidence reflected that the children were generally well cared for and thriving in the custody of the uncle and the aunt, that the uncle and the aunt are both employed, and that they live in a home large enough to comfortably accommodate the children. The children were enrolled in school, the children attended Sunday School, and Br.R.W.’s behavioral problems had improved so much while in the uncle and the aunt’s custody that he no longer needed to take his ADHD medication. Furthermore, the children were able to remain living in the same home with Br.D., their older half sister. Thus, we cannot conclude that the juvenile court’s decision to award custody of the children to the uncle and the aunt was unsupported by the evidence.

Finally, the father argues that the juvenile court did not properly consider its options concerning the disposition of the children after it determined that the children were dependent. The father’s argument is based on the following statement made by the juvenile court at the conclusion of the final hearing:

“It’s not an issue as to whether, you know, the children are in a better home or a worse home, you know, with [the father] or with the [uncle and the aunt]. It may be that the [uncle and the aunt] have a nicer home, nicer car, nicer facility. That’s not the issue. It’s just a legal issue as to whether the children are dependent under the meaning of the law. And if they’re not, then I don’t have the authority to do anything further. I can’t order FOCUS in the home. I can’t order him to go to counseling. I can’t order him to do anything because once I find no dependency, my authority over the case and the parties ends right there. I could order that. I could, you know, slap it in an order if I find the children are not dependent, but it’s all void, to tell you the truth. And he’s under no obligation if I find the children are, you know, not dependent, he’s under no obligation to abide by any further orders I issue.”

On appeal, the father argues that the juvenile court overlooked the provisions in § 12-15-71(a), during the dispositional phase of the dependency hearing. As stated above, § 12-15-71 (a) was amended and renumbered as § 12-15-S14(a), which states, in pertinent part:

“If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child:
“(1) Permit the child to remain with the parent, legal guardian, or other legal custodian of the child, subject to conditions and limitations as the juvenile court may prescribe.
“(3) Transfer legal custody to any of the following:
“c. A relative or other individual who, after study by the Department of Human Resources, is found by the juvenile court to be qualified to receive and care for the child. Unless the juvenile court finds it not in the best interests of the child, a willing, fit, and able relative shall have priority for placement or custody over a non-relative.”

The father argues that the statement made by the juvenile court reflects the juvenile court’s belief that it did not have the authority to do what is stated in § 12-15 — 314(a)(1), that is, return custody of the children to the father and set further “conditions or limitations” on that award of custody as the juvenile court found to be appropriate. However, § 12-15-314(a) refers to dispositional options after a child is found to be dependent, and the statement by the juvenile court was made in reference to the juvenile court’s limitations if the children were not found to be dependent. We agree with the juvenile court’s statement, quoted above, that the juvenile court would not have had any further authority over the father if it had found that the children were not dependent. Section 12-15-310(b) states that “[i]f the juvenile court finds that the allegations in the [dependency] petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.” There is no provision in the Alabama Juvenile Justice Act for the disposition of a child if the child is not proven to be dependent, and, in fact, the Act requires the juvenile court to dismiss the petition.

The statement made by the juvenile court does not, in and of itself, demonstrate that the provisions of § 12-15-314(a) were overlooked by the juvenile court. “Trial court judges are presumed to know the law.” J.F.S. v. Mobile County Dep’t of Human Res., 38 So.3d 75, 78 (Ala.Civ.App.2009) (citing Ex parte Atch-ley, 936 So.2d 513, 516 (Ala.2006)). We will not reverse the juvenile court’s judgment based on an alleged error that was not affirmatively demonstrated in the record. Tucker v. Nichols, 431 So.2d 1263, 1264-65 (Ala.1983) (discussing the “well-established rule that the appellant has an affirmative duty of showing error upon the record” and explaining that “[t]his rule is premised upon the fundamental proposition that an appellate court will not presume error and will affirm the judgment appealed from if supported on any valid legal ground”).

Because the father has failed to demonstrate error on appeal, we affirm the judgment of the juvenile court.

2090042 — AFFIRMED.

2090043 — AFFIRMED.

PITTMAN and THOMAS, JJ„ concur.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

In this appeal, J.W. (“the father”) argues that the Houston Juvenile Court erred in separating his family by awarding custody of his five-year-old twins, Ba.R.W. and Br.R.W. (“the children”), to T.D. and B.D. (“the maternal uncle and aunt”) on the ground that the children are dependent. The father maintains that the record does not contain clear and convincing evidence of the dependency of the children, that the juvenile court could not have been clearly convinced of their dependency because the juvenile court awarded the father unsupervised visitation with the children, and that the juvenile court failed to consider returning the children to the father with oversight by the Houston County Department of Human Resources (“DHR”). I find the second argument dis-positive of the appeal.

On October 2, 2009, the juvenile court entered a final judgment adjudicating the children to be dependent and awarding their custody to the maternal uncle and aunt. Section 12-15-102(8), Ala.Code 1975, defines a “dependent child” as:

“a. A child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:

“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301 or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
“6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
“7. Who has been placed for care or adoption in violation of the law.
“8. Who, for any other cause, is in need of the care and protection of the state.
“b. The commission of one or more status offenses as defined in subdivision (4) of Section 12-15-201 is not a sufficient basis for an adjudication of dependency.”

The juvenile court did not specify upon which subsection of § 12-15-102(8) it was relying, but it stated in its judgment that it considered the children to be dependent because of the condition of the father’s home, the father’s continuing alcohol problem, and the father’s questionable ability to adequately deal with one of the children’s special behavioral problems. Those reasons suggest that the juvenile court found that the children needed additional care or supervision because the father could not discharge his responsibilities to and for the children. See § 12-15-102(8)a.6., Ala.Code 1975.

A finding that a father cannot discharge parental responsibilities to and for his children equates to a finding of unfitness as that term has been traditionally applied in child-custody cases. See K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 390 n. 5 (Ala.Civ.App.2004) (Murdock, J., concurring in the result) (explaining that the dependency statute at least partially encompasses the concept of unfitness found in Ex parte Terry, 494 So.2d 628 (Ala.1986)). In Striplin v. Ware, 36 Ala. 87 (1860), the case that introduced the concept of unfitness in child-custody cases, the court agreed that a mother was not unfit because “[t]he evidence in this case is wholly insufficient to show that the mother is, either physically or mentally, incapable of taking proper care of these children.” 36 Ala. at 90. Since Striplin, the appellate courts of this state have consistently considered “unfitness” in the child-custody context as a shorthand way of referring to the parent’s inability to discharge the basic parental responsibilities of properly providing children food, clothing, shelter, medical care, education, nurturing, and protection. See, e.g., Ex parte A.R.S., 980 So.2d 401, 404 (Ala.2007); Ex parte Terry, supra; and Chandler v. Whatley, 238 Ala. 206, 208-09, 189 So. 751, 753-54 (1939). Thus, to say that a father cannot discharge parental responsibilities to and for his children is synonymous with stating that the father is unfit.

However, when a court awards a parent unsupervised visitation on weekends, that award implies that the parent is fit to properly care for the children during that period. As this court noted in Slaton v. Slaton, 682 So.2d 1056, 1058 (Ala.Civ.App. 1996), “[d]uring a period of unsupervised visitation, the noncustodial parent becomes the person solely responsible for the child’s safety and welfare.” Therefore, by law, in fashioning a visitation award, “the trial court should consider whether the noncustodial parent is fit to care for the child during visitation.” Id. Accordingly, if a lower court awards a parent unsupervised visitation, this court must assume that the lower court determined as a matter of fact that the parent is fit to care for the children during the visitation period. See City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002) (“When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court ‘will assume that the trial judge made those findings necessary to support the judgment.’ ”) (quoting Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala. 1992))). By definition, if a parent is fit to assume such care, then the parent is capable of discharging his or her parental responsibilities to and for the child during the visitation period.

Does the fact that the father was found to be unable to discharge his parental responsibilities to and for the children conflict with its award of unsupervised visitation? No prior case has directly addressed that question. The majority reasons that it does not because it concludes that a parent can be able to properly exercise parental responsibilities on weekends and yet remain unable to properly exercise parental responsibilities during the weekdays. 58 So.3d at 790. I do not necessarily disagree that it is possible that a child may need additional care or supervision due to a parent’s inability to properly exercise parental responsibilities at all times; however, I find no evidence in this record that would support a conclusion that the father is less able to care for the children on the weekdays than he is on the weekends. The father does not work, so he is present throughout the weekdays; the condition of his home is the same on weekdays as on weekends; the evidence does not disclose that the father consumes alcohol differently on weekdays than on weekends; and the children have the same behavioral problems on the weekdays as' they do on the weekends. Hence, by finding the children dependent due to the inability of the father to discharge his parental responsibilities, yet awarding the father unsupervised weekend visitation, based on this record, the juvenile court has yielded an internally inconsistent judgment.

Because this is an issue of first impression, the court has no mandate on how to redress an inconsistent judgment finding dependency but awarding a parent unsupervised visitation. In analogous cases in which a trial court has found a parent unfit but awarded that parent joint custody, the court has either reversed the judgment, see G.H.W. v. A.W.C., 792 So.2d 1098 (Ala. Civ.App.2000), or remanded the case for the trial court to clarify its judgment. See Lawrence v. Cannon, 998 So.2d 1070 (Ala. Civ.App.2008). I agree with the father that the award to him of recurring unsupervised visitation, which ultimately could give the father custody of the children for 104 days out of the year, contradicts any finding that the maternal uncle and aunt presented clear and convincing evidence of the inability of the father to properly parent the children, which, in this case, is a necessary component of the juvenile court’s dependency determination. Therefore, I believe that this court should reverse the judgment of the juvenile court and remand the case with instructions for the juvenile court to render a judgment finding that the children are not dependent and dismiss the dependency petition. See § 12-15-310(b), Ala.Code 1975 (“If the juvenile court finds that the allegations in the petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.”). However, even if the majority disagrees with that approach, I still do not believe that we can affirm the judgment; rather, I believe that, at a minimum, we would have to remand the case for resolution of the inconsistent findings. Because the majority affirms the judgment, I respectfully dissent.

      . According to the father, the grandfather told the father that he had a court order to take pictures of his home. There was some indication that the grandfather took pictures in order to inventory the mother’s estate. There was no indication that the grandfather actually had a court order to take pictures of the father's home.

      . The case-action-summary sheet only contains a notation that the grandfather was awarded pendente lite custody pending the final hearing.

      . J.P. v. S.S., supra, was written before the enactment of the Alabama Juvenile Justice Act. Section 12-15-314 has replaced former § 12-15-71. However, the provisions of § 12-15-314(a)(4) and former § 12 — 15— 71(a)(4) are substantially the same.

      . By focusing on this one aspect of the case I do not intend to imply my agreement with the other parts of the majority opinion. I simply find no need to address the other points raised by the father based on my conclusion that the juvenile court committed reversible error by finding the father fit to exercise recurring unsupervised visitation but, nevertheless, concluding that the children are dependent.

      . This case does not concern a “trial” award of unsupervised visitation to determine whether the father is capable of assuming unsupervised visitation as a step towards reuniting with the children. Rather, the juvenile court awarded the father indefinite unsupervised weekend visitation as part of its ultimate custody determination. Hence, I conclude that the juvenile court decided that the father was fit for unsupervised visitation.

      . The majority points out that the maternal aunt testified that the children appeared unkempt and more unruly after visits with the father; however, the juvenile court considered that testimony and determined that the father was fit to exercise unsupervised weekend visitation. The juvenile court either discounted the maternal aunt’s testimony or determined that her complaints did not render the father unfit to care for the children without assistance or supervision on the weekends. In either case, we are bound by that factual determination.

      .The majority points out that § 12-15-314(a)(1), Ala.Code 1975, grants juvenile courts the power to return dependent children to parents subject to certain restrictions or limitations. However, that subsection only applies if the child is, in fact, dependent. An award of unsupervised visitation implies that the child is not dependent due to the inability of the parent to discharge parental responsibilities to and for the child. Moreover, unsupervised visitation is not a return of the child to the custody of the parent with restrictions or limitations. I do not believe that § 12 — 15— 314(a)(1) applies to this case.