text:
    Eileen THOMPSON v. COLSA CORPORATION.
    2070403.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2008.
    Denny D. Henderson, Huntsville, for appellant.

      William L. Middleton and Carl A. Cole III of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellee.
   MOORE, Judge.

Eileen Thompson (“the employee”) appeals from a December 18, 2007, judgment entered by the Madison Circuit Court enforcing a May 30, 2006, settlement agreement between the employee and Colsa Corporation (“the employer”). We reverse and remand.

Facts and Procedural History

This is the second time this case has come before this court. In Thompson v. Colsa Corp., 979 So.2d 812 (Ala.Civ.App. 2007) (“Thompson I ”), this court reversed a November 14, 2006, judgment enforcing the May 30, 2006, settlement agreement between the employee and the employer. We remanded the case for the trial court to hold a hearing to determine whether Thompson had reached maximum medical improvement (“MMI”) and whether the settlement agreement was in her best interest. Thompson I, 979 So.2d at 816.

In Thompson I, this court set out the following pertinent facts: On August 12, 2005, the employee filed a complaint against the employer seeking workers’ compensation benefits due to a July 12, 2002, neck injury; on May 30, 2006, the date set for the trial of the claim, the parties orally submitted their settlement agreement to the court for approval; although the trial court held a hearing on the matter on May 30, 2006, the trial court did not enter.any written determination finding that the settlement was in the best interest of the employee and approving the settlement; the employer filed a “motion to enforce the settlement” on September 1, 2006; the employee responded that the settlement should not be enforced because her neck condition had worsened after May 30, 2006, and she required additional surgery; and, on November 14, 2006, the trial court conducted a second hearing and entered a written determination approving the settlement. 979 So.2d at 813-14.

This court reversed the trial court’s November 14, 2006, judgment. 979 So.2d at 816. We held that a judgment approving a settlement could not be affirmed unless the trial court had made an explicit finding that the settlement was in the employee’s best interest or the record affirmatively disclosed that the settlement was in the employee’s best interest. 979 So.2d at 815 (citing Ex parte Ford, 782 So.2d 185, 187 (Ala.2000)). The trial court had not entered any written determination finding that the settlement was in the employee’s best interest, so this court searched the record to determine if the settlement was in the employee’s best interest. 979 So.2d at 815-16. This court noted that, although the parties originally had submitted medical records from Dr. Kenneth Anderson stating that the employee had reached MMI prior to June 18, 2004, 979 So.2d at 813, the employee had submitted medical records from Dr. Thomas J. O’Brien dated after May 30, 2006, indicating that her neck condition had worsened due, in part, to a surgery necessitated by her July 12, 2002, neck injury. 979 So.2d at 814. In light of the employee’s evidence, this court reversed the judgment and remanded the case for the trial court to determine whether the employee had reached MMI, so that her permanent disability could be determined and for a decision on whether the settlement was in her best interest. 979 So.2d at 816. In reversing the judgment, this court specifically noted that Dr. O’Brien’s records were submitted to the trial court “[bjefore the trial court approved the [May 30, 2006,] settlement agreement” on November 14, 2006. 979 So.2d at 815.

On remand, the trial court conducted another hearing to determine the date the employee reached MMI and to determine whether the settlement was in the employee’s best interest. At that hearing, the employee indicated "that, at the time of the May 30, 2006, settlement agreement, she had believed that the settlement was in her best interest but that, soon thereafter, she had developed more severe pain and symptoms that eventually led her to undergo a third neck surgery in October 2006. The employee introduced medical records indicating that her permanent-impairment rating had increased from 15% to 25% following that surgery.

After the employee introduced that evidence, the trial court stated: “Well — and I appreciate all of this but what this relates to is on the date of the settlement agreement what the facts were at that time.” The trial court then clarified its understanding of this court’s remand order:

“My reading of this opinion was this on page ten: We reverse the trial court’s judgment and remand the case to the trial court to hold a hearing to determine whether [the employee] has reached MMI and whether its approval of the second settlement agreement is in her best interest.’
“Okay. At the time of the hearing all of the evidence before this Court was she had reached MMI. ... You know, if the issue is on the date that she entered into the agreement was she at MMI and was this in her best interest, she’s testified that she felt it was in her best interest. She just stated that when she came in here on the date that she entered into the settlement agreement and that she wasn’t threatened, forced or coerced into entering into any type of agreement.”

(Emphasis added.) After the employer’s attorney argued that all the evidence relating to events occurring after May 30, 2006, was irrelevant, the trial court further stated:

“The question is on the date you came in here and, you know, and entered into this agreement voluntarily what were the facts. And the facts were on that date that she felt like it was in her best interest to settle the case instead of trying it.”

(Emphasis added.)

Following the hearing, the trial court entered a judgment containing detailed findings of fact and conclusions of law. In that judgment, the trial court stated, in pertinent part:

“The Court finds that on May 30, 2006, this case was set for trial. On said date, the parties reached a settlement agreement, which was announced in open court. The parties agreed that the [employer] would pay the sum of FIFTEEN THOUSAND DOLLARS ($15,-000.00) to the plaintiff employee to settle all claims for compensation benefits. Vocational rehabilitation benefits and future medical benefits would remain open.
“Upon review of the evidence submitted by the parties, the Court makes the additional findings of fact and conclusions of law:
“The Court finds that as of May 30, 2006, the date the [employee] agreed to the second settlement agreement in open court, she had been placed at maximum medical improvement by Dr. Keith Anderson. The [employee] had also been placed at maximum medical improvement by Thomas J. O’Brien, M.D. on January 6, 2005. The notes from Dr. O’Brien further reflect that on that date, [the employee] was found to be capable of pursuing all activities without restriction.
“The Court further finds that [the employee] did not seek additional medical treatment between the date she was placed at maximum medical improvement by Dr. O’Brien and the May 30, 2006 settlement hearing.
“The Court therefore finds that as of the May 30, 2006 settlement hearing, the [employee] had reached maximum medical improvement.
“The [employee] testified that at the time she agreed to the settlement she felt that the settlement agreement was in her best interest. The Court further finds that the [employee] voluntarily left her employment with the [employer] in July of 2004. She further testified that her earnings with her new employer are in excess of her earnings with [the employer]. At the May 30, 2006 settlement hearing the [employee] was represented by counsel and testified that she was satisfied with the services of her attorney. She also testified that she understood the terms of the settlement agreement and was not coerced into entering into the agreement.
“The Court therefore finds that the approval of the [May 30, 2006,] settlement agreement is in the [employee’s] best interest.”

(Emphasis added.)

From the comments made by the trial court at the hearing and the contents of its judgment, it is apparent that the trial court misapprehended this court’s remand order. As we pointed out in Thompson I, the May 30, 2006, settlement agreement was not actually approved until November 14, 2006. Although not stated in Thompson I, that conclusion rests on § 25-5-56, Ala.Code 1975, which states, in pertinent part:

“Upon settlements being approved, judgment shall be entered thereon and duly entered on the records of the court in the same manner and have the same effect as other judgments or as an award if the settlement is not for a lump sum.”

Although the trial court held a hearing on May 30, 2006, the trial court did not enter a judgment approving the settlement until November 14, 2006.

Also as noted in Thompson I, in the interim between the May 30, 2006, hearing and the November 14, 2006, judgment, the employee submitted medical records indicating that her neck condition had deteriorated and that an additional surgery would be needed to correct her worsening condition. This court specifically remanded the case for the trial court to consider whether, in light of that evidence, which postdated May 30, 2006, the previous declaration of MMI “may have been premature.” 979 So.2d at 816.

In other words, on remand, the trial court was not limited to a consideration of the evidence as it existed on May 30, 2006. Rather, the trial court was to consider whether, as of November 14, 2006, based on all the evidence before it at that time, the employee had reached MMI and whether the settlement reached on May 30, 2006, was in her best interest.

“It is well established that on remand the issues decided by an appellate court become the ‘law of the case,’ and that the trial court must comply with the appellate court’s mandate. Walker v. Carolina Mills Lumber Co., 441 So.2d 980 (Ala.Civ.App.1983). See also Erbe v. Eady, 447 So.2d 778 (Ala.Civ.App.1984). The trial court’s duty is to comply with the mandate ‘according to its true intent and meaning,’ as determined by the directions given by the reviewing court. Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983). When the mandate is not clear, the opinion of the reviewing court should be consulted. Walker, supra, at 982.”

Gray v. Reynolds, 553 So.2d 79, 81 (Ala.1989). The record and the judgment clearly indicate that on remand the trial court considered only the evidence existing on or before May 30, 2006. In doing so, the trial court did not follow this court’s mandate when it analyzed the MMI and best-interest issues.

Because the trial court failed to comply with our remand instructions, we reverse the judgment and remand the case for reconsideration of the ruling based on all the relevant evidence. See Ex parte Dodson, 459 So.2d 884 (Ala.Civ.App.1984).

REVERSED AND REMANDED.

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

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


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Kenneth RAVENEL v. Frederick L. BURNETT.
    2070401.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2008.

      C. Scott Johnson, Homewood, for appellant.
    Joe N. Lampley, Huntsville, for appel-lee.
   MOORE, Judge.

Kenneth Ravenel appeals from a summary judgment entered by the Madison Circuit Court in favor of Frederick L. Burnett in Ravenel’s civil action alleging malicious prosecution against Burnett for charging Ravenel with criminal harassment. We reverse and remand.

Facts

The deposition testimony and affidavits submitted in support of or in opposition to the summary-judgment motion reflect the following. Burnett testified that, in late 2003 or early 2004, Ravenel’s wife, Shelly, asked Burnett, an independent business owner, to assist her with starting her own business. Burnett, who had known Shelly as a good friend of his wife’s for many years, agreed to act as her mentor. The two often communicated concerning the project, including by personal meetings, telephone calls, and e-mails. Although both Burnett and Shelly testified that they maintained a professional relationship, Ra-venel testified that he became convinced from their constant communication and the lack of any real progress regarding Shelly’s business that the two were having an extramarital affair. Ravenel testified that he told Shelly he believed her relationship with Burnett was inappropriate and detrimental to their three-year marriage.

Burnett testified that, in January or February 2004, Ravenel unexpectedly appeared at Burnett’s office and requested that Burnett cease communications with his wife. Though insisting his relationship with Shelly was not improper, Burnett agreed to quit talking with her and telephoned Shelly that day to inform her of the situation. Burnett testified that Shelly was surprised that Ravenel had confronted Burnett and said that she would talk to Ravenel about the situation.

Shelly testified that, in the spring of 2004, she agreed to go on a shopping trip to Atlanta with Lynette Fife, her friend and coworker. Fife testified that they arranged to meet at the parking lot of the post office in Gurley at 7:30 a.m. and to drive together to Atlanta in Fife’s automobile. Shelly informed Fife that she could not stay overnight in Atlanta because she did not want to further arouse Ravenel’s suspicion that she was having an affair with Burnett. The two spent the day together in Atlanta shopping and returned to the Gurley post office between 9:00 p.m. and 11:00 p.m. At no time did they meet any men or have any men in Fife’s automobile. No man met them in Gurley when they returned. Nevertheless, Ravenel testified that between 4:00 p.m. and 8:00 p.m. he observed Shelly sitting in an automobile with Burnett in the Gurley post-office parking lot for about 30 seconds before they drove off together. Burnett testified that he was in Philadelphia on the day in question. Shelly denied that she had been in an automobile with Burnett as Ravenel claimed.

Shelly testified that, after arriving home that night, she unpacked her shopping bags and prepared for bed. Ravenel then sat on the edge of their bed and repeatedly stated, “I caught you.” Eventually, Ra-venel explained that he believed that she had spent the day with a man instead of going shopping. Shelly denied the accusation; she testified that Ravenel had simply become obsessed with his suspicion that she was having an affair with Burnett. According to Shelly, Ravenel kept her up all night badgering her and telling her he was going to church the next day and was going to tell the pastor and everyone who would listen that he had caught her in an affair. According to Ravenel, when he told her that he was going to tell the pastor, she replied, “What is he going to do?” Ravenel took her reply as an admission of the affair.

Ravenel testified that he spoke with his pastor about the situation. Burnett testified that the pastor had held a meeting with him in which the pastor informed him that Ravenel had accused him of spending the day with Shelly in Atlanta as part of their affair and that Ravenel had requested that Burnett be kicked out of the church. The pastor also told Burnett that Ravenel said he “saw Burnett lying dead in a casket,” which Burnett perceived as a threat. Ravenel denied he ever threatened Burnett’s life. Burnett testified that following his meeting with the pastor he telephoned Shelly for the first time since his meeting with Ravenel.

Burnett testified that, shortly after his conversation with the pastor, Ravenel attempted to start a fight with him in the church parking lot. Burnett testified that Ravenel approached him and “got in my face.” Valerie Britton testified that she witnessed the incident. According to Brit-ton, as she left the church service, she coincidentally met Burnett going in the same direction and they struck up a conversation. When they arrived at her automobile, they stopped to finish their talk. Ravenel was already sitting in his automobile just behind hers. Ravenel started talking angrily, then got out of his automobile and continued to talk in an upset and angry manner towards Burnett. Britton testified that she did not hear what Raven-el was saying but that his inappropriate conduct and behavior was such as to cause a person to be concerned for his or her safety. Burnett testified that another church member had intervened before the situation could escalate.

Ravenel testified that Britton had lied about the incident. Ravenel said that he saw Britton and Burnett walking together toward the church but that he did not say anything directed toward Burnett. Raven-el testified that he was conversing with another church member about observing Burnett with his wife in the Gurley post-office parking lot. The other member indicated he did not know who Burnett was. Ravenel then saw Burnett and pointed him out, saying: “There he is right there; that’s the guy.” Ravenel testified that he did not know why Britton would lie about what happened.

Burnett testified that the next day he contacted Shelly, who told him that Raven-el previously had placed a firearm in their automobile. Shelly testified that she had observed Ravenel place the gun in their automobile one morning before they left for church. Burnett testified that he did not see the gun during the confrontation in the parking lot. Burnett also testified that Shelly had told him that Ravenel had stated that he wanted to kill Burnett. Shelly testified that Ravenel said he was going to kill Burnett at some point before placing the gun in their automobile and that she felt concerned enough that she informed Burnett of the threat. Ravenel denied that he had placed a gun in his automobile or that he had ever threatened to kill Burnett. Ravenel could not explain why Shelly would lie about those events.

Burnett testified that, after Shelly’s warnings, he started sitting in the back of the church where he could observe Raven-el during services. On October 10, 2004, Burnett was sitting in one of the back pews next to Bonnie Banks, a fellow church member. Ravenel was sitting closer to the front next to Shelly. Banks testified that during “fellowship time,” a point at which the church members greeted one another, Ravenel “popped up” out of his pew some distance away and hurriedly approached the area where she and Burnett were seated. Ravenel briefly shook Banks’s hand in passing and then approached Burnett. The two men then had a conversation, which Banks did not overhear. Banks testified that Burnett later left the church before the sermon started.

Burnett testified that Ravenel had approached him and asked him to step outside so they could talk. Burnett declined the offer and told Ravenel to say whatever he needed to say. At that point, Ravenel told Burnett in vulgar terms to leave Shelly alone and that, if he did not, Ravenel would kill him. Burnett testified that he immediately informed an assistant pastor of the threat and that he and the pastor left the church together and did not return until they were sure Ravenel was gone. Shelly testified that she did not overhear the conversation between the two men, but, she said, Ravenel had stated to her in an angry and upset tone that he had spoken to Burnett, although he would not tell Shelly what he had said to Burnett. Ra-venel denied that he had threatened to kill Burnett; he testified that he merely told Burnett “[t]hat I felt that he needs to stop communicating to my wife because we were trying to get our relationship back on track, from her point of view.” Ravenel testified that he did not curse, scream, or talk to Burnett in an angry manner.

On October 11, 2004, Burnett signed an Alabama Uniform Incident Offense Report. In that report, Burnett set out the substance of the early 2004 meeting between him and Ravenel; the accusation that he had taken Shelly to Atlanta; the perceived threat that Ravenel had made about Burnett to the pastor; the report that Ravenel was carrying a gun to church; a brief description of the altercation in the church parking lot; and his version of the October 10, 2004, confrontation.

Four days later, on October 15, 2004, Burnett gave a statement to Will Culver, the chief magistrate of the Huntsville Municipal Court. Culver also interviewed Banks regarding the October 10, 2004, incident. Based on those interviews, Culver filled out a complaint form, which states:

“In the Municipal Court of the City of Huntsville, County of Madison, State of Alabama, and before me, magistrate of said court, personally appeared this day FREDERICK BURNETT who, upon first being duly sworn, states on oath that he/she has probable cause for believing and does believe that one KENNETH RAVENEL M, BL, 05/20/1957, whose name is otherwise unknown to the complainant, did, on to wit: October 10, 2004, within twelve months of making this complaint and within the City of Huntsville, Alabama, commit the offense of HARASSMENT-THREAT, at to wit: 2115 WINCHESTER RD. HUNTSVILLE AL located within the City of Huntsville, Alabama, in that he/she did, WITH THE INTENT TO HARASS, ANNOY, OR ALARM ANOTHER PERSON HE OR SHE MAKES A THREAT VERBAL OR NONVERBAL, MADE WITH THE INTENT TO CARRY OUT THE THREAT, THAT WOULD CAUSE A REASONABLE PERSON WHO IS THE TARGET OF THE THREAT TO FEAR FOR HIS OR HER SAFETY ... DID APPROACH VICTIM FREDERICK BURNETT DURING WORSHIP SERVICES AT CHURCH AND SAID ‘LEAVE MY F[* * ⅜ * * *] WIFE ALONE, I AM GOING TO KILL YOUR F[* * * * * *] A[* *],’ CAUSING HIM TO FEAR FOR HIS SAFETY.
“In violation of city ordinance 17-l(a) adopting code of Alabama, 13A-11-8(a)(2).”

Culver testified that, based on his interviews with Burnett and Banks, there was probable cause to issue a warrant for the arrest of Ravenel on the charge of harassment, as defined in the complaint. Accordingly, Culver signed a warrant for Ra-venel’s arrest and processed the warrant that day. Culver testified that the warrant was based solely on the comments Burnett alleged Ravenel had made to him on October 10, 2004, at their church and not on any other statements made at any other time. Ravenel testified that he did not make the statement Burnett attributed to him in the complaint.

On May 16, 2005, Ravenel was arrested based on the warrant issued by Culver. Ravenel paid a cash bond of $500 on May 17, 2005. Thereafter, the case was set for trial, but it was continued at least two times. The case was last set for trial on August 25, 2005. On that occasion, Burnett did not appear for the trial, and the criminal court entered a nolle prosequi on the motion of the prosecutor.

Procedural History

On May 8, 2006, Ravenel filed a civil action against Burnett alleging malicious prosecution. In the complaint, Ravenel alleged, among other things, that Burnett had no probable cause to make his complaint to Culver and that he had made the complaint out of malice against Ravenel. Burnett answered, denying the allegations in the complaint and asserting various affirmative defenses.

On July 9, 2007, Burnett filed a motion for a summary judgment, attaching evi-dentiary materials and a brief. The trial court set a hearing on the motion for August 16, 2007. Ravenel filed a response to the summary-judgment motion on August 14, 2007. On August 15, 2007, Raven-el requested a continuance of the hearing and filed a motion to compel discovery. The trial court set a hearing on the motion to compel discovery for September . 19, 2007, and reset the hearing on the summary-judgment motion for that same date. After holding the scheduled hearing, the trial court granted the summary-judgment motion on September 21, 2007.

Ravenel filed a motion to alter or amend the judgment on October 21, 2007. The trial court denied the motion on November 15, 2007. Ravenel filed his notice of appeal on December 19, 2007.

Issue

On appeal, Ravenel argues that the trial court erred in entering the summary judgment for Burnett because, he says, there are genuine issues of material fact as to whether Burnett had probable cause to file his criminal complaint against Ravenel and whether Burnett filed the complaint out of malice.

Standard of Revietv
“ ‘ “On appeal, this Court reviews a summary judgment de novo.” DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So.2d 454, 459 (Ala.2008) (citing Ex parte Essary, 992 So.2d 5, 8 (Ala.2007)). In order to uphold a summary judgment, we must determine that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. “When the movant makes a prima facie showing that those two conditions have been satisfied, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact.” Blue Cross & Blue Shield of Alabama v. Hodurslci, 899 So.2d 949, 952 (Ala.2004). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12 — 21—12(d), Ala.Code 1975. In reviewing a summary judgment, we must view the evidence in the light most favorable to the nonmovant. Johnny Ray Sports, Inc. v. Wachovia Bank, 982 So.2d 1067, 1071 (Ala.2007). “Finally, this Court does not afford any presumption of correctness to the trial court’s ruling on questions of law or its conclusion as to the appropriate legal standard to be applied.” DiBiasi, 988 So.2d at 459.’
“Catrett v. Baldwin County Elec. Membership Corp., 996 So.2d 196, 199 (Ala.2008).”

Moon v. Pillion, 2 So.3d 842, 845 (Ala.2008).

Legal Analysis

The elements of a claim of malicious prosecution are: (1) institution of a prior judicial proceeding by the present defendant, (2) a lack of probable cause, (3) malice on the defendant’s part, (4) termination of the prior proceeding in favor of the present plaintiff, and (5) damage. Delchamps, Inc. v. Bryant, 738 So.2d 824, 831-33 (Ala.1999). The parties agree that there is no dispute that Burnett instituted a criminal proceeding against Ravenel; that the criminal proceeding was terminated in favor of Ravenel, see Chatman v. Pizitz, Inc., 429 So.2d 969 (Ala.1983) (holding that the entry of a nolle prosequi generally suffices as a termination of a criminal proceeding in favor of the plaintiff in a malicious-prosecution action); and that Ravenel sustained damages. “In this case, only the second and third elements — lack of probable cause and malice — are at issue.” Favorite Market Store v. Waldrop, 924 So.2d 719, 722 (Ala.Civ.App.2005).

“Probable cause is defined as ‘ “[a] reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.” ’ ” Eidson v. Olin Corp., 527 So.2d 1288, 1285 (Ala.1988) (quoting Parisian Co. v. Williams, 203 Ala. 378, 383, 83 So. 122, 127 (1919)). “ ‘The question is not whether the [malicious prosecution] plaintiff was guilty of the thing charged, but whether the [malicious prosecution] defendant acted in good faith on the appearance of things.’ Eidson, 527 So.2d at 1285 (quoting Birwood Paper Co. v. Damsky, 285 Ala. 127, 134-35, 229 So.2d 514, 521 (1969)). Our supreme court has stated:

“The test that this Court must apply when reviewing the lack-of-probable-cause element in a malicious prosecution case in which summary judgment has been granted to a defendant is as follows: Can one or more undisputed facts be found in the record below establishing that the defendant acted in good faith on the appearance of things as they existed when suit was filed, based upon direct evidence, or upon circumstantial evidence and inferences that can reasonably be drawn therefrom? If so, then summary judgment in favor of the defendant on plaintiffs malicious prosecution count would be appropriate.”

Eidson, 527 So.2d at 1285-86. In other words, “[i]f there are any undisputed facts of record establishing that [the defendant] had probable cause to bring the former action ... against [the plaintiff], then [the plaintiff] cannot recover for malicious prosecution and summary judgment is appropriate.” Eidson, 527 So.2d at 1285.

In his brief to this court, Ravenel points out that the harassment warrant was based solely on Ravenel’s alleged direct threat to Burnett made on October 10, 2004, and not on any prior statements or events. Ravenel argues that summary judgment is inappropriate in this case because there is a factual dispute as to whether Ravenel made the October 10, 2004, threat, as Burnett claims. As Raven-el puts it, because no independent witness can testify as to the content of his and Burnett’s conversation, “[t]he current case is essentially a case of one person’s ‘word’ versus another.” Appellant’s brief, p. 6.

We agree that the warrant charged Ravenel with harassment, as defined in § 13A-ll-8(a)(2), solely on the basis of the alleged October 10, 2004, statement and not based on any of the preceding events or prior statements allegedly made by Ravenel. In Lee v. Minute Stop, Inc., 874 So.2d 505 (Ala.2003), the Alabama Supreme Court stated:

“Alabama law protects those who, in good faith, assist law-enforcement officials in identifying persons who may have committed a crime. In Crown Central Petroleum Corp. v. Williams, 679 So.2d 651, 654 (Ala.1996), this Court, quoting Wofford Oil Co. v. Stauter, 26 Ala.App. 112, 154 So. 124 (1934), stated:
“ ‘In Wofford Oil Co. v. Stauter, 26 Ala.App. [112] at 114, 154 So. [124] at 126 [ (1934) ], the Court of Appeals noted the general rule:
“ ‘ “If [the defendant’s agent] merely reported to the police officers what he had seen and the arrest and imprisonment of plaintiff followed from an investigation subsequently made by the officers, the act complained of would be the act of the officers and not of [the agent], although [the agent] had furnished the information leading to the investigation and arrest....’”

“In Cutts [v. American United Life Ins. Co.], 505 So.2d [1211] at 1215 [(Ala.1987) ], this Court, quoting Alabama Power Co. v. Neighbors, 402 So.2d 958, 964 (Ala.1981), quoting in turn Dismukes v. Trivers Clothing Co., 221 Ala. 29, 32, 127 So. 188, 190 (1930), stated:

“ ‘ “Giving information of a crime to officers, or a request that the officers investigate a crime is not aiding or abetting or instigating a prosecution, unless such information was a misrepresentation of the facts in order to induce action, or there ivas a suppression of known material facts.”

“In Cutts, this Court stated that ‘Merely giving or negligently failing to give information to law enforcement officials is not enough’ to sustain a malicious-prosecution claim. 505 So.2d at 1215. See also Pannell v. Reynolds, 655 So.2d 935, 938 (Ala.1994), where this Court said, ‘The [Alabama Power Co. v.] Neighbors [, 402 So.2d 958 (Ala.1981),] rule allows a citizen to fulfill one’s civic duty to come forth in good faith with information concerning a suspected crime, without fear of repercussions if the information later leads to a wrongful arrest.’ The Court, citing Ritch v. Waldrop, 428 So.2d 1 (Ala.1982), added a caveat, however, stating, ‘The rule, however, presupposes that the citizen has stated all material facts within his or her knowledge regarding the alleged crime and has not brought about the indictment by fraud, by suppressing facts, or by other misconduct.’ 655 So.2d at 938.”

874 So.2d at 512-13.

Based on Lee, if Ravenel has presented substantial evidence indicating that Burnett misrepresented the content of their October 10, 2004, conversation so as to have brought about the warrant through fraud, then the summary judgment would be inappropriate. We find that there is substantial evidence from which a reasonable jury could infer that Burnett falsely accused Ravenel of threatening him on October 10, 2004. Ravenel testified under oath that he did not threaten Burnett, as alleged in the October 15, 2004, complaint, but merely asked him to stop communicating with Shelly. Although Burnett argues in his brief to this court that Shelly and Banks corroborated his testimony, both witnesses testified that they did not hear the conversation between Burnett and Ra-venel on October 10, 2004.

Burnett essentially argues that no reasonable jury could believe Ravenel’s denial based on the pattern of abusive conduct committed by Ravenel against Burnett before October 10, 2004. However, we note that almost all the evidence regarding Ra-venel’s past conduct was also in conflict. Ravenel testified that he saw “with his own eyes” Burnett and Shelly together at a time when she was supposed to be in Atlanta or on her way back from Atlanta and he was supposed to be in Philadelphia. Ravenel also stated that Shelly had tacitly admitted to the affair. Thereafter, Raven-el talked with his pastor about the situation, but he denies he ever threatened to kill Burnett. Ravenel disputes Britton’s version of the church-parking-lot incident. Burnett does not claim that Ravenel threatened his life at the time of that incident, and Britton testified that, although Ravenel was obviously angry and upset, she did not hear what Ravenel said to Burnett. Ravenel also denies that he carried a concealed weapon to church, as Shelly testified.

Basically, in order to accept Burnett’s argument, we would have to determine that the testimony of all the witnesses against Ravenel was credible but that all Ravenel’s testimony disputing their statements was not credible. However, “the Alabama Supreme Court has admonished that neither the trial court nor a reviewing court ‘may undertake credibility assessments in reviewing testimonial evidence submitted in favor of, and in opposition to, a motion for a summary judgment.’ Lyons v. Walker Reg’l Med. Ctr., 868 So.2d 1071, 1077 (Ala.2003).” Alpine Assoc. Indus. Servs., Inc. v. Smitherman, 897 So.2d 391, 397 (Ala.Civ.App.2004). A jury may very well determine that Ravenel is not telling the truth, or that Burnett’s witnesses are more believable, but that decision may not be made by the court on a motion for a summary judgment.

The existence of probable cause is solely an issue for the court, and not the jury, only if the facts relating to the issue of probable cause are undisputed. Lee, 874 So.2d at 511 (Ala.2003) (citing Schwabacher v. Herring, 35 Ala.App. 496, 500, 48 So.2d 574, 577 (1950); Glidden Co. v. Laney, 234 Ala. 475, 175 So. 296 (1937); and Dodson v. Ford Motor Credit Co., 46 Ala. App. 387, 243 So.2d 43 (Civ.App.1971)). Because the facts regarding the content of Ravenel’s statement to Burnett on October 10, 2004, are in dispute, summary judgment was not appropriate.

Burnett denies that he instituted the criminal-harassment proceeding with malice. However, malice may “ ‘be inferred from circumstances surrounding and attending prosecution[,] ... because malice is incapable of positive, direct proof and must out of necessity be rested on inferences and deductions from facts which are heard by the trier of fact.’ ” Thompson v. Harris, 603 So.2d 1086, 1088-89 (Ala.Civ.App.1992) (quoting Thompson v. Kinney, 486 So.2d 442, 445 (Ala.Civ.App. 1986)). Ravenel testified that he inferred that Burnett had falsely accused him of threatening his life because Ravenel had caught him and Shelly in their affair. If a jury accepts Ravenel’s version of events, and not the version presented by Shelly and Burnett, the jury could reach that same inference.

Moreover, “ ‘[mjalice, for purposes of a malicious prosecution action, may be inferred from want of probable cause.’ ” Harris, 603 So.2d at 1088 (quoting Kinney, 486 So.2d at 445). Because we find that there is a genuine issue of material fact regarding the probable-cause element, the jury could find that Burnett had no probable cause for accusing Ravenel of threatening his life on October 10, 2004. Therefore, we find that there is also a question of material fact regarding the malice element.

For the foregoing reasons, the summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BRYAN and THOMAS, JJ., concur in the result, without writings.

      . Section 13A-11 — 8(a)(2) defines "harassment” as
      "a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety.”


text:
    ALABAMA DEPARTMENT OF PUBLIC SAFETY v. Robert BARBOUR.
    2070306.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2008.

      J. Haran Lowe, Jr., and Lindsey W. Clements, asst, attys. gen., Department of Public Safety, for appellant.
    Patrick Mahaney, Montgomery, for ap-pellee.
   MOORE, Judge.

The Alabama Department of Public Safety (“the Department”) appeals from a judgment entered by the Montgomery Circuit Court on December 18, 2007. In that judgment, the court ordered the Department to accept the application of Robert Barbour for reinstatement of his Alabama driver’s license after a period of revocation.

Facts

Since the 1970s, Barbour has been convicted of the offense of driving under the influence of a controlled substance or alcohol (“DUI”) or similar infractions 12 times. See § 32-5A-191, Ala.Code 1975. Barbour was last convicted of DUI in 2001. In addition, Barbour has been convicted of driving with a suspended or revoked license on numerous occasions. See § 32-6-19, Ala.Code 1975. His last conviction for a traffic violation other than DUI was in 2004.

Barbour’s Alabama driver’s license has been considered revoked by the Department since 1979. On March 14, 2007, Barbour filed documents with the Department seeking reinstatement of his driver’s license. The Department rejected his application in a form notice, setting out its position that Barbour would not become eligible for reinstatement until December 9, 2011. Barbour immediately filed a petition for an administrative hearing. In that petition, Barbour challenged the method by which the Department had calculated his revocation period. The Department summarily rejected the petition.

After his request for reconsideration was denied by the Department, Barbour filed an appeal to the Elmore Circuit Court, the circuit court in the county in which Barbour resides, on April 13, 2007. The Department filed a motion to dismiss that appeal. On July 17, 2007, without ruling on the Department’s motion to dismiss, the Elmore Circuit Court transferred the case to the Montgomery Circuit Court (hereinafter sometimes referred to as “the trial court”). After reviewing briefs filed by the parties and hearing oral argument, the trial court entered a judgment containing findings of facts and conclusions of law. In that judgment, the trial court basically concluded that Barbour’s revocation period expired five years after his last DUI conviction in 2001 and ordered the Department to accept Barbour’s application for reinstatement and to process that application in accordance with the Department’s own internal rules and regulations. The Department timely appealed that judgment on January 8, 2008.

Issues

The Department argues (1) that the trial court erred in failing to dismiss Barbour’s appeal because, it says, Alabama law does not allow an appeal under these circumstances, (2) that the trial court erred in requiring the Department to grant Barbour a hearing on the issue of the proper calculation of his revocation period, and (3) that the trial court erred in concluding that Barbour’s revocation period ended five years after his last conviction for DUI.

Barbour’s Right to Appeal

Both parties agree that after the Department denied his request for an administrative hearing, Barbour filed an appeal to the Elmore Circuit Court, asserting that the appeal was authorized under § 32-5A-195(q), Ala.Code 1975. However, the Department contends that § 32-5A-195(q) does not allow appeals to the circuit court from the mandatory revocation of a driver’s license or from the denial of an application for reinstatement of a driver’s license.

Section 32-5A-195(q) provides, in pertinent part:

“Any person denied a license or whose license has been cancelled, suspended or revoked by the Director of Public Safety except where such cancellation or revocation is mandatory under the provisions of this article shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the circuit court in the county wherein such person resides, ... and such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 30 days’ written notice to the Director of Public Safety, and thereupon to take testimony and examine into the facts of the case and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this section.”

By its express language, § 32-5A-195(q) prohibits appeals from mandatory cancellations or revocations of driver’s licenses. See Dothard v. Forbus, 57 Ala.App. 670, 331 So.2d 685 (Civ.App.1975). However, Barbour is not appealing from the revocation of his driver’s license. Barbour admits that his license was properly revoked. He is appealing from the Department’s refusal to reinstate his driver’s license based on his position that the revocation period has expired. Therefore, § 32-5A-195(q), insofar as it prohibits appeals of mandatory revocations, as recognized in Dothard, does not apply.

Although § 32-5A-195(q) does not expressly state that a person has a right to appeal from the denial of an application for reinstatement of a driver’s license, the statute does state that “[a]ny person denied a license ... shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the circuit court in the county wherein such person resides.” In this case, Barbour filed his petition in the circuit court of his home county within 30 days from the denial of his application for reinstatement of his driver’s license. In that petition, Barbour sought review of the Department’s decision to deny him reinstatement of his driver’s license. In rejecting Barbour’s application for reinstatement of his driver’s license, the Department essentially “denied a license” within the meaning of § 32-5A-195(q). Therefore, Barbour had the right to appeal that denial under § 32-5A-195(q).

For the foregoing reasons, we reject the Department’s argument that § 32-5A-195(q) did not provide Barbour an avenue for appeal in this ease.

Subject-Matter Jurisdiction

In its motion to dismiss, the Department argued to the Elmore Circuit Court that “the sole permissible method of reviewing the mandatory action by the Director [of the Department] is a petition for a mandamus, which must be filed in Montgomery County where the Department of Public Safety maintains its headquarters.” In its brief to this court, the Department again cites Dothard, swpra, for the proposition that Barbour’s only remedy was to petition for a writ of mandamus. However, Dothard held that, because the statute in effect at the time did not allow for appeals from mandatory revocations, a petition for a writ of mandamus was the only vehicle to obtain review of a decision to revoke a driver’s license. However, as we have held in this case, § 32-5A-195(q) allows an appeal from the denial of an application for reinstatement of a driver’s license. Therefore, Dothard is not on point, and the Department’s argument that Barbour could seek review of its decision only via a petition for a writ of mandamus is not supported by any legal authority.

It appears from the record that the El-more Circuit Court transferred the case to the Montgomery Circuit Court based on the Department’s argument that the case should be reviewed in the Montgomery Circuit Court as a petition for a writ of mandamus. The record discloses no other reason for the transfer other than the Department’s argument that Barbour had no right to appeal but, instead, had a right to file a petition for a writ of mandamus in the Montgomery Circuit Court. In light of our prior ruling, the reasoning of the El-more Circuit Court was in error; Barbour had a right to an appeal, that court had jurisdiction to hear the appeal, and there was no valid ground for transferring the appeal to the Montgomery Circuit Court.

Although neither party has raised the issue of subject-matter jurisdiction, “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Singleton v. Graham, 716 So.2d 224, 225 (Ala.Civ.App.1998) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ. App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “ ‘[I]t is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.’ ” Singleton, 716 So.2d at 225 (quoting Smith v. Saint, 438 So.2d 766, 768 (Ala.1983)). Based on our conclusion that the Elmore Circuit Court improperly transferred the case to the Montgomery Circuit Court, we must consider whether the latter court had jurisdiction to hear Barbour’s appeal.

In Ex parte General Motors Corp., 800 So.2d 159 (AIa.2000), the supreme court considered the question whether § 25-4-95, Ala.Code 1975, established the court having subject-matter jurisdiction over an appeal from the State Board of Appeals concerning claims for unemployment compensation or merely declared the appropriate venue for such appeals. At that time, § 25-4-95 provided:

“Within 30 days after the decision of the Board of Appeals has become final, any party to the proceeding including the director who claims to be aggrieved by the decision may secure a judicial review thereof by filing a notice of appeal in the circuit court of the county of the residence of the claimant ....”

(Emphasis added.) See Hilley v. General Motors Corp., 800 So.2d 150, 151 (Ala.Civ. App.1999), rev’d, Ex parte General Motors Corp., supra. This court had determined, based on a long line of cases, that the above-emphasized language in § 25-4-95 indicated that the only court with subject-matter jurisdiction over an appeal from the State Board of Appeals was the circuit court in the county in which the claimant resided. Hilley, supra (citing Tyson Foods, Inc. v. Thompson, 719 So.2d 847 (Ala.Civ.App.1998); Pate v. Rasco, 656 So.2d 855, 856-57 (Ala.Civ.App.1995); Security Eng’rs, Inc. v. Anderson, 421 So.2d 1298, 1298-99 (Ala.Civ.App.1982); Cruce v. Demarco Concrete & Block Co., 380 So.2d 900 (Ala.Civ.App.1980); and Director of State Dep’t of Indus. Relations v. Nolin, 374 So.2d 903 (Ala.Civ.App.1979)). The supreme court overruled that line of cases and held that the statute does not confer jurisdiction but, “instead, directs the proper venue for an appeal under that statute.” Ex parte General Motors Corp., 800 So.2d at 163.

The operative language in § 32A-5-195(q) is essentially identical to the language employed in § 25-4-95. Therefore, § 32-5A-195(q) does not confer subject-matter jurisdiction but merely directs the proper venue for appeals from the denial of a license. The only proper venue in this ease was the Elmore Circuit Court because that is the circuit court of the county in which Barbour was residing at the time of his appeal. Barbour could have compelled the case to be transferred back to Elmore Circuit Court; however, Barbour did not file any motion in the Montgomery Circuit Court contesting venue, and the erroneous transfer did not deprive the Montgomery Circuit Court of subject-matter jurisdiction over the appeal. See Ex parte General Motors Corp., supra. Accordingly, we find that the Montgomery Circuit Court properly had subject-matter jurisdiction to enter a judgment in the case.

Propriety of the Trial Court’s Judgment

In its December 18, 2007, judgment, the trial court determined that Barbour’s revocation period had ended five years after his last conviction for DUI, which would have been in 2006, and ordered the Department to process Barbour’s application for reinstatement of his license “subject to conditions and restrictions as are consis-' tent with the driver license reissuance.” The trial court directed the Department “to accept [Barbour’s] written application and to process the application in the same manner and procedure as any other person [seeking reinstatement of a revoked license].”

The Department initially argues that the trial court erred in directing it to grant Barbour a hearing on his reinstatement application. The Department argues that “[t]here is no statutory right to a hearing before the Director [of the Department] except as provided by statute.” Section 32-5A-195(i), Ala.Code 1975, provides for a hearing before the director of the Department only in the cases of suspensions. However, the trial court did not explicitly order the Department to conduct a hearing; it ordered the Department to accept and process Barbour’s application for reinstatement of his driver’s license. Rule 760-X-1-.02, Ala. Admin. Code (Dep’t of Pub. Safety), provides the procedure for reinstatement of a driver’s license after mandatory revocation. That rule states:

“(a) The Director, upon investigation of such person and satisfactorily showing that an applicant is deserving of reinstatement of his driving privilege, may permit such person to be examined by the Driver License Examiner.
“(b) Upon successful passage of such examination, the applicant shall present his certificate of examination to the Judge of Probate or License Commissioner’s Office with the required fee and the operator’s license shall be issued.”

The rule contemplates that the Department will investigate the applicant to determine whether he or she deserves reinstatement, but it does not require the Department to conduct a hearing on the matter. Thus, the trial court’s order requiring the Department to receive and process the application cannot reasonably be construed as an implicit order for the Department to conduct a hearing. Therefore, we need not address the Department’s argument on this point.

The Department last argues that the trial court erred in finding that Barbour’s revocation period had expired five years after his final DUI conviction. Section 32-5A-191(h), Ala.Code 1975, provides that “[o]n a fourth or subsequent conviction” of DUI, “[i]n addition to the other penalties authorized, the Director of Public Safety shall revoke the driving privilege or driver’s license of the person convicted for a period of five years.” The Department points out that Barbour’s license was revoked for five years, pursuant to the mandatory provisions of § 32-5A-191(h), twice in 1997 due to two separate DUI convictions and again in 2001 due to another DUI conviction. The Department argues that those revocation periods should have run consecutively so that Barbour would not be eligible for reinstatement until some time in 2011.

In rejecting the Department’s argument, the trial court relied on an attorney general’s opinion. In 1993, the attorney general issued an opinion concluding that “[t]he maximum length of time a license holder may be revoked for multiple DUI convictions is three years from the date of his last DUI conviction.” Op. Att’y Gen. No. 94-00069 (Nov. 30, 1993). The question before the attorney general was: “Does a second or subsequent revocation period of a driver license, mandated by Section 32-5A-191 of the Code of Alabama 1975, run concurrently or consecutively with prior revocation periods required under Section 32-5A-191?” Id. In answering that question, the attorney general stated:

“Section 32-5A-191(d) provides as a result of a second DUI conviction within a five-year period ‘... the director of public safety shall revoke the driving privileges or driver license of the person so convicted for a period of one year.’ Section 32-5A-191(e) provides that a third or subsequent conviction within a five-year period should result in a three-year revocation.
“Whether revocation periods should be computed consecutively or concurrently is a question of statutory construction. When examining legislative statutes that may be subject to differing interpretation, the Alabama Supreme Court in Shelton v. Wright, 439 So.2d 55 (Ala.1983) stated:
“ ‘The fundamental rule of statutory construction is that a court is under a duty to ascertain and effectuate legislative intent as expressed in the statute, see e.g., Gundy v. Ozier, 409 So.2d 764, 765, 766 (Ala.1981), which may be gleaned from the language used, the reason and necessity for the act and the purpose sought to be obtained. See Rinehart v. Reliance Ins. Co., 273 Ala. 535, 538, 142 So.2d 254, 256 (1962).’
“In an earlier driver license case requiring judicial interpretation of a statute, the Court held there is an inherent duty of the reviewing court in cases involving statutory construction to give effect to legislative intent, and it should look not only to the language of the statute but also to its purpose and object as well. Shoemaker v. Atchison, 406 So.2d 986 (Ala.[Civ.]App.l981).
“The Alabama appellate courts have already resolved three cases regarding the correct duration of suspension or revocation. In Loftin v. City of Montgomery, 480 So.2d 606 (Ala.Crim.App. 1985), the Court held the date of conviction, not the date of offense, would control the determination of enhancement of sentence in a DUI punishment. In Loyd v. Director, DPS, 480 So.2d 577 (Ala.Civ.App.1985), the Court held the Director had a nondiscretionary duty to revoke a driver license for three years upon the third DUI conviction, even though the District Court imposed punishment as a first offender due to nonre-presentation by counsel in the previous offenses. Finally, in Ex Parte Welch, 519 So.2d 517 (Ala.1987), the Court held the Driver License Compact, Sections 36-6-30 through 36-6-36, could not be utilized to deny a new resident the opportunity to apply for an Alabama driver license when such new resident was revoked in his previous state, so long as the individual met the minimum revocation period set by Alabama statutes. In the Welch decision, there is some language which bears upon our original question when Justice Almon, writing for the Court, stated: ‘... the legislatively declared policy of this State is that two convictions for DUI result in no more than a one-year revocation, and a longer revocation is contrary to that policy.’ (at 522.) Consequently, it may be inferred that a third DUI conviction would only result in a three-year period of revocation, even though the second DUI conviction, one-year revocation has not yet expired when the third DUI conviction resulted.
“Corpus Juris Secundum states, in deciding computation of a period of suspension or revocation:
“ ‘The date when a revocation begins and the manner in which it is computed depend on the provisions of the governing statutes. The effective date of a revocation based on a conviction or convictions must be from a date not earlier than the conviction or last operative conviction, and is generally from such date.’ 60 C.J.S. § 164.24 Motor Vehicles.
“With regard to consecutive or concurrent treatment of multiple revocation or suspension periods, C.J.S. states:
“ ‘A motorist whose operator’s license has been suspended in one matter and revoked in another is not entitled to serve the penalties concurrently but must serve them consecutively.’ 60 C.J.S., supra.
“In Commonwealth v. Morin, 373 A.2d 1170 (Pa.Cmwlth.1977), the Court held a multiple violator cannot expect the sanction equivalent to that imposed on a unitary violation, and the suspension and revocation of a driver license based on multiple traffic offenses occurring during a continuous series of events was proper.
“In Commonwealth v. Martin, 517 A.2d 217 (Pa.Cmwlth.1986), the Court held that a motorist whose license was suspended for refusal to submit to a breath test and revoked for unrelated violations was not entitled to serve penalties concurrently.
“In a similar vein, the Alaska Supreme Court held that multiple DWI [driving-while-intoxicated] convictions entered on the same day should be counted individually for sentencing purposes. To do otherwise would only encourage habitual drunk drivers to plead guilty to accumulated DWI charges on the same day, thus reducing the length of their future driver license revocations, at the expense of public safety. Wik v. State of Alaska, Dept. of Public Safety, 786 P.2d 384 (Ak.1990).
“My research has failed to develop a single case where this exact question regarding time computation has been subjected to judicial review. I believe that Alabama appellate courts, if faced with this question, would hold the maximum period for DUI revocation to be three years, regardless of previous convictions. This opinion is based both on equity and the legislative intent of the DUI statute. For example, an individual could go on a week-long drinking binge and be arrested and convicted of three, four, or five DUI’s in a very short period yet successfully complete rehabilitation and never again consume another drop of alcohol, but still be ineligible for reinstatement for ten years if the revocation period was computed consecutively-
“This harsh result defeats the underlying purpose of driver licensing which is to ensure a minimum of competence and skill on part of drivers of motor vehicles generally, yet prohibit those who are irresponsible or unfit to operate a motor vehicle. If the above example is used, there becomes a point in time where a consecutive revocation period no longer serves a useful purpose and becomes unduly harsh and oppressive.
“Based on language used in the Welch decision — ‘the legislatively declared policy of this state .. \ [and] longer revocation is contrary to that policy ’ — indicates that the maximum length of time an individual license holder who is convicted of three or more DUI’s may remain revoked by operation of law is three years, regardless of the total number of prior DUI convictions. This opinion is supported by the wording of § 32-5A-191(e) that ‘On a third or subsequent conviction ... the director of public safety shall revoke ... for a period of three years.’ (Emphasis added.)”

Id.

The Department correctly notes that since the issuance of the attorney general’s opinion, the legislature has amended § 32-5A-191. The statute now requires that a driver’s license be revoked for five years upon a “fourth or subsequent conviction” for DUI, not three years for a “third or subsequent conviction within a five-year period.” However, those changes do not affect the reasoning of the attorney general’s opinion. The Department also correctly notes that an attorney general’s opinion is not binding on this court, although it can be persuasive authority. See Anderson v. Fayette County Bd. of Educ., 738 So.2d 854, 858 (Ala.1999), and Alabama-Tennessee Natural Gas Co. v. Southern Natural Gas Co., 694 So.2d 1344, 1346 (Ala.1997) (citing Poe v. Grove Hill Mem’l Hosp. Bd., 441 So.2d 861, 863 (Ala.1983)). Whether this court will follow that opinion depends upon our own view of the soundness of its reasoning and the correctness of its conclusion.

We agree with the attorney-general that the resolution of this issue depends on the meaning of § 82-5A-191. “In determining the meaning of a statute, we must begin by analyzing the language of the statute itself.” Holcomb v. Carraway, 945 So.2d 1009, 1018 (Ala.2006).

“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”

IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). “When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says ....” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).

The plain language of § 32-5A-191(h) declares that upon the “fourth or subsequent conviction” the director of the Department, “[i]n addition to the other penalties authorized, ... shall revoke the driving privilege or driver’s license of the person convicted for a period of five years.”

“The word ‘shall’ is clear and unambiguous and is imperative and mandatory. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa [County, 589 So.2d 687 (Ala.1991) ]; Taylor v. Cox, 710 So.2d 406 (Ala.1998) .... The word ‘shall’ has been defined as follows:
“ ‘As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means “must” and is inconsistent with a concept of discretion.’
“Black’s Law Dictionary 1375 (6th ed. [1990]).”

Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998). By the plain language of the statute, a driver’s license must be revoked for a period of five years for each conviction beginning with the fourth conviction. In other words, the revocation periods for the fourth and all subsequent convictions must run consecutively.

In his opinion, the attorney general erroneously relied on an excerpt from Ex parte Welch, 519 So.2d 517 (Ala.1987). In stating that “the legislatively declared policy of this state is that two convictions for DUI result in no more than a one-year revocation,” 519 So.2d at 522, the Welch court relied on § 32-5A-191(d), now § 32-5A-191(f), which stated that upon a second conviction for DUI within a five-year period, “the Director shall revoke the ... driver’s license of the person convicted for one year.” The Welch court did not even address § 32-5A-191(e), the precursor to present-day § 32-5A-191(h). The fact that a second conviction for DUI is legislatively mandated to result in no more than a one-year revocation period in no way impacts on the question whether a fourth conviction and subsequent convictions result in consecutive five-year revocation periods. The language in Welch is pertinent only to the extent that it recognizes that the plain language of the appropriate statute states the legislative policy that must be given effect by this court.

The attorney general cited several jurisdictions that had concluded that their statutes required consecutive revocation periods for multiple DUI convictions beyond a certain legislatively declared number. In addition, the Department points us to several other cases from other states with similar holdings. See Thompson v. South Carolina Dep’t of Pub. Safety, 335 S.C. 52, 56, 515 S.E.2d 761, 763 (1999); Yeargin v. South Carolina Dep’t of Highways & Pub. Transp., 313 S.C. 387, 390, 438 S.E.2d 234, 236 (1993); Calamia v. Louisiana Dep’t of Pub. Safety & Corr., 706 So.2d 152, 155-156 (La.Ct.App.1997); and Williamson v. State Dep’t of Pub. Safety, Div. of Motor Vehicles, 779 P.2d 1238, 1240 (Alaska 1989). We agree with the reasoning of those cases and, accordingly, hold that the legislature intended that each conviction from the fourth conviction forward would result in a corresponding five-year revocation period in order to provide the utmost protection of the public’s safety and that it is not inequitable to run the revocation periods consecutively, although, by doing so, the revocation period will extend for a substantial period beyond five years. The driver can always avoid an extensive revocation period by complying with the law and not driving while under the influence.

In response, Barbour has not cited a single case from this or any other jurisdiction supporting the position advanced in the attorney general’s opinion. Barbour discusses Hankins v. State, 989 So.2d 610 (Ala.Crim.App.2007), at length. However, Hankins dealt exclusively with “a single issue of first impression: whether § 32-5A-191(o)[, Ala.Code 1975,] requires a defendant’s prior DUI convictions to have occurred within a five-year period preceding the latest conviction before the felony sentencing provision in § 32-5A-191(h)[, Ala.Code 1975,] can be applied.” 989 So.2d at 612. Hankins does not have any bearing on the issue in this case.

For the foregoing reasons, we conclude that the trial court erred in relying on the attorney general’s opinion, and we hold that the Department is required to revoke a driver’s license for consecutive five-year periods upon the fourth conviction and subsequent convictions for DUI. Because Barbour was convicted of DUI twice in 1997 and once in 2001, his revocation period runs for 15 years from the date of his first conviction. Because that time has not expired, Barbour is not entitled to apply for reinstatement of his driver’s license. The trial court’s judgment is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The Department cites pages 51-52 of the record to support its contention that the trial court ordered a hearing. Those pages contain two pages of the trial court’s December 18, 2007, judgment. Neither of those two pages contains an order requiring the Department to grant Barbour a hearing. We note that the first page of the judgment ends abruptly in mid-sentence and the next page begins a new paragraph. It is the appellant’s duty to check the record and to ensure that a complete record is presented on appeal. Tarver v. State, 940 So.2d 312, 316 (Ala.Crim. App.2004). An appellate court cannot place a trial court in error for a ruling that does not appear in the record. Ex parte Howell, 974 So.2d 304, 306 (Ala.2007).

      . The record does not contain any document explaining how the Department determined the starting and ending dates of Barbour’s revocation period; however, that omission does not affect the disposition of the case.


author: MOORE, Judge. THOMAS, Judge,

text:
    Mark Arthur VERREN v. Jennifer Lea VERREN. Jennifer Lea Verren v. Mark Arthur Verren.
    2061054.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2008.

      Bill G. Hall and Wiliiam C. Avant of Abies, Baxter, Parker & Hall, P.C., Huntsville, for appellant/cross-appellee Mark Arthur Verren.
    Amy S. Creech and Sreekanth B. Ravi of Rhodes & Creech, Huntsville, for appel-lee/cross-appellant Jennifer Lea Verren.
   MOORE, Judge.

Mark Arthur Verren (“the husband”) appeals from a judgment entered by the Madison Circuit Court on May 18, 2007, as amended on July 11, 2007, divorcing him from Jennifer Lea Verren (“the wife”). The wife cross-appeals from the trial court’s order granting the husband’s motion to amend the May 18, 2007, judgment. We dismiss the appeal and the cross-appeal as being from a nonfinal judgment.

The underlying divorce action began when the wife filed a complaint on April 13, 2006, seeking, among other things, an end to the parties’ 14-year marriage and an equitable division of their marital property. During the trial of the matter, the parties identified the husband’s retirement plan as one of the assets of the marriage. On May 18, 2007, the trial court entered a judgment divorcing the parties. That judgment recited as follows:

“2. The Wife shall have as her sole, own, and exclusive properties the following:
“(g) One-half (1/2) of that portion of the Husband’s disposable retirement benefits which have been accumulated from the date of the parties’ marriage on December 6,1991, up to the date of filing of this action by the Wife on April 13, 2006. Said transfer shall be effectuated by entry of a Qualified Domestic Relations Order to be prepared by the attorney for the Wife, and submitted to this Court in proper form for entry. A copy of the proposed Qualified Domestic Relations Order shall be provided in advance of its submission to this Court to the attorney for the Husband, and if any dispute arises with regard to the form thereof, counsel for both parties shall confer with this Court with regard to any such dispute. This Court retains the power to modify this provision and/or any Qualified Domestic Relations Order necessary to effectuate the order of division herein made.
“This Court has not made any provision for an election to be made by the Husband for the Wife as beneficiary under the Survivor’s Benefit Plan on said military retirement benefit. This Court has not been provided with any evidence of evaluation of said Survivor’s Benefit Plan, and is unable to determine from the evidence submitted whether or not the ordering of such a designation of the Wife as beneficiary under the Survivor’s Benefit Plan would violate the fifty percent (50%) maximum benefit allowed to be awarded by this Court in Sec. 30-2-51, Code of Alabama (1975).
“3. The Husband shall have as his sole, own, and exclusive properties the following:
“(g) The remaining disposable retirement benefits payable to him as a result of his service in the United States Army, after effectuation of the award therefrom made to the Wife above.”

The husband filed a motion to alter, amend, or vacate the judgment on June 12, 2007, arguing, among other things, that the wife had failed to prove that he had any vested interest in the retirement benefits awarded. See Ala.Code 1975, § 30-2-51(b) (authorizing circuit court judges to award only vested retirement benefits); see also Walker v. Walker, 695 So.2d 58 (Ala.Civ.App.1997) (holding that circuit court cannot award spouse a portion of other spouse’s retirement benefits when the evidence fails to show that those benefits have vested). The husband also argued that the wife had failed to present any credible evidence as to the present value of the retirement benefits. See Ala. Code 1975, § 30-2-51(b) (authorizing circuit court to award only present value of vested retirement benefits); see also Brattmiller v. Brattmiller, 975 So.2d 359 (Ala.Civ.App.2007) (holding that circuit court commits reversible error in awarding retirement benefits without evidence of their present value).

After a hearing on the motion, the trial court amended its earlier judgment on July 11, 2007, to award the wife:

“(g) One-half (1/2) of that portion of the Husband’s disposable retirement benefits which has been accumulated as a result of his military service from the date of the parties’ marriage on December 6, 1991, to the date of filing of this action by the Wife on April 13, 2006; provided, however, that this award of a portion of the Husband’s future military retirement benefits is limited to those retirement benefits in which he had a vested interest as of the date of filing of this case by the Wife on April 13, 2006, as determined by applicable Federal law and/or military rules and/or regulations in effect on the date of the filing of this case.
“The governmental department and/or agency of the United States which is appropriate to do so shall make the necessary calculations as to what specific amount, if any, is to be payable to the Wife pursuant to this award.
“Said transfer shall be effectuated by entry of a Qualified Domestic Relations Order to be prepared by the attorney for the Wife, and submitted to this Court in proper form for entry. A copy of the proposed Qualified Domestic Relations Order shall be provided in advance of its submission to this Court to the attorney for the Husband, and if any dispute arises with regard to the form thereof, counsel for both parties shall confer with this Court with regard to any such dispute. This Court retains the power to modify this provision and/or any Qualified Domestic Relations Order necessary to effectuate the award to the Wife herein made.
“This Court has not made any provision for an election to be made by the Husband for the Wife as beneficiary under the Survivor’s Benefit Plan on said military retirement benefits. This Court is unable to determine from the evidence submitted whether or not the ordering of such a designation of the Wife as beneficiary under the Survivor’s Benefit Plan would result in an award in excess of the maximum amount of fifty percent (50%) of said retirement benefits allowed to be awarded to the Wife in Sec. 30-2-51, Code of Alabama (1975).”

The husband filed his notice of appeal on August 17, 2007; the wife filed her cross-appeal on August 31, 2007.

On appeal the husband argues, among other issues, that the trial court erred (1) by awarding the wife retirement benefits without evidence that those benefits had vested and (2) by delegating its judicial duty to another governmental agency to decide whether the husband had any vested retirement benefits and to calculate the amount of benefits due the wife. The wife counters that the trial court awarded her only a marital fraction of those retirement benefits that were vested and correctly gave the “appropriate” governmental agency guidance as to how to determine the amount of vested benefits to be awarded. In her cross-appeal, the wife argues that the trial court erred in amending the May 18, 2007, judgment.

Although the issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. “Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.” McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004). “[T]he question whether a judgment is final is a jurisdictional question.” Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala.Civ.App. 2002).

Rule 58(b), Ala. R. Civ. P., states: “An order or a judgment need not be phrased in formal language nor bear particular words of adjudication. A written order or a judgment will be sufficient if it is signed or initialed by the judge... and indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication.”

“A final judgment that will support an appeal is one that puts an end to the proceedings between the parties to a case and leaves nothing for further adjudication.” Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). It is apparent from the pleadings and briefs that the parties were at issue over whether any of the husband’s retirement benefits were vested and, if so, the exact amount of those benefits to which the wife was entitled. Rather than conclusively decide those issues, the trial court authorized the “appropriate” governmental agency to make those determinations. In doing so, the trial court failed to adjudicate either issue. As it now stands, there has been no judicial determination as to whether the husband has any vested retirement benefits and, if so, the amount of those vested retirement benefits the wife is entitled to receive.

Additionally, we note that Alabama law requires an “equitable” distribution of marital property upon termination of the marriage, which may include a division of retirement benefits. See Wilkinson v. Wilkinson, 905 So.2d 1, 9-10 (Ala.Civ.App. 2004). The fairness of the property division cannot be properly assessed without knowing the exact amount of the retirement benefits, if any, the wife will receive. Id.

Because the trial court has failed to resolve the outstanding issues regarding the husband’s retirement benefits, we conclude that its judgment is nonfinal. A nonfinal judgment will not support an appeal. See Reid v. Reid, 844 So.2d 1212, 1214 (Ala.Civ.App.2002). This court must dismiss an appeal from a nonfinal judgment. Id.

APPEAL DISMISSED; CROSS-APPEAL DISMISSED.

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

THOMAS, J., dissents, with writing.

THOMAS, Judge,

dissenting.

I dissent from the majority’s dismissal of this appeal because I believe that the trial court awarded the wife a portion of the husband’s military retirement benefits in the absence of any evidence of record that those benefits were, in fact, vested, in contravention of § 30-2-51(b), Ala.Code 1975. I would, therefore, reverse the judgment and remand the case on that basis.


author: THOMPSON, Presiding Judge.

text:
    C. Wayland BLAKE v. John L. STINSON.
    2070398.
    Court of Civil Appeals of Alabama.
    Oct. 3, 2008.

      Robert A. Wills of Wills & Simon, Bay Minette, for appellant.
    L.P. Sutley, Summerdale, for appellee.
   THOMPSON, Presiding Judge.

C. Wayland Blake appeals the trial court’s judgment dismissing his lawsuit against John L. Stinson for want of prosecution. We reverse and remand.

On February 17, 2004, Blake filed a complaint against Stinson, Donald T. Gos-nay, and S & G Custom Classics, Inc. (“S & G”), alleging fraud claims against Stin-son and Gosnay and breach-of-contract claims against S & G and Gosnay. The details of Blake’s allegations are not material to our decision in this case. The defendants were each served with a copy of the complaint.

On April 14, 2004, Gosnay moved to stay Blake’s action against him, notifying the trial court that he had filed a petition in bankruptcy on January 6, 2004, in the United States District Court for the Southern District of Alabama (“the bankruptcy court”). On April 21, 2004, the trial court granted the motion to stay and transferred the case to the court’s administrative docket “pending bankruptcy.” On October 19, 2004, Blake amended his complaint to remove his claims against Gosnay. The remaining parties were served with a copy of the amended complaint.

On July 17, 2007, Blake filed a motion to remove the case from the trial court’s administrative docket and to place the case on the active docket. In his motion, Blake stated that Gosnay had been discharged from his bankruptcy on December 8, 2004. Blake attached to his motion a copy of the discharge order from the bankruptcy court. The record does not reveal the actual date that Blake learned that Gosnay had been discharged from his bankruptcy. On July 19, 2007, the trial court granted Blake’s motion and placed the case on the active docket.

On August 1, 2007, Blake filed a motion seeking a default judgment against S & G. Blake alleged in his motion that S & G was served with a copy of the complaint on March 3, 2004, and had failed to answer the complaint. On August 22, 2007, the trial court entered a default judgment against S & G and ordered S & G to pay Blake $25,000 in compensatory damages.

On September 21, 2007, Stinson filed a motion to dismiss Blake’s claims against him for want of prosecution or, in the alternative, on the basis of laches. Blake opposed the motion. On November 14, 2007, the trial court granted Stinson’s motion and dismissed the case pursuant to Rule 41(b), Ala. R. Civ. P., for want of prosecution. The trial court did not state in its November 14, 2007, judgment that it was dismissing the case with prejudice. However, this court has previously held that “[a] dismissal for want of prosecution is clearly Vith prejudice.’” S.C.G. v. J.G.Y, 794 So.2d 399, 404 (Ala.Civ.App. 2000). “ ‘[T]he failure of the trial court to address the preclusive effect of an order of dismissal for want of prosecution compels a determination that it operates as an adjudication on the merits.’” S.C.G. v. J.G.Y, 794 So.2d at 404 (quoting Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated 723 (3d ed.1996)). Thus, we consider the trial court’s judgment to be a dismissal with prejudice.

On December 13, 2007, Blake filed a motion to alter, amend, or vacate the trial court’s judgment. On December 21, 2007, the trial court denied Blake’s post-judgment motion. Blake timely appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

Blake contends on appeal that the trial court erred by dismissing his complaint for want of prosecution. Rule 41(b), Ala. R. Civ. P., provides, in pertinent part: “For failure of the plaintiff to prosecute or to comply with [the Alabama Rules of Civil Procedure] or any order of [the] court, a defendant may move for dismissal of an action or of any claim against the defendant.” It is well settled that the decision whether to enter a Rule 41(b) dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990); Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987); State ex rel. S.M. v. A.H., 832 So.2d 79, 80 (AIa.Civ.App.2002); and Coulter v. Stewart, 726 So.2d 726, 728 (Ala.Civ.App.1999). However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala.1978). Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. Id. In reviewing the trial court’s dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record. Nash v. Cosby, 597 So.2d 209, 210 (Ala.1992); Atkins v. Shirley, 561 So.2d at 1077; and Riddlesprigger v. Ervin, 519 So.2d at 487.

“ ‘In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Smith v. Wilcox County Board of Education, 365 So.2d [659] at 661 [ (Ala.1978) ]. See, e.g., Boazman v. Economics Laboratory, Inc., 587 F.2d 210 (5th Cir.1976); Pond v. Braniff Airways[, Inc.], 453 F.2d 347 (5th Cir.1972). Willful default or conduct is a conscious or intentional failure to act. Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95 (8th Cir. 1971). “Willful” is used in contradistinction to accidental or involuntary noncompliance. No wrongful motive or intent is necessary to show willful conduct.’
“Selby v. Money, 403 So.2d 218, 220-21 (Ala.1981); see also Burton v. Allen, 628 So.2d 814, 815 (Ala.Civ.App.1993).”

HICA Educ. Loan Corp. v. Fielding, 953 So .2d 1261,1263 (Ala.Civ.App.2006).

In Smith v. Wilcox County Board of Education, supra, a case relied on by Blake on appeal, the plaintiff filed a petition for a writ of mandamus in the trial court in May 1966 requesting, among other things, that the trial court order the defendants to reinstate his employment. 365 So.2d at 660. No action was taken in the case from June 1966 until April 1973, when interrogatories were served on the plaintiff. In July 1973, the record of the case, which had been previously lost or misplaced, was reconstructed. In early 1974, the plaintiff requested a hearing in the case, and in March 1974 the trial court dismissed the case for want of prosecution. Counsel for the plaintiff received no notice of the trial court’s action dismissing the case until sometime in 1977. In February 1978, the plaintiff instituted an action “essentially requesting the resurrection of the earlier case.” Smith, 365 So.2d at 660. On motion of the defendants, the trial court dismissed the case, and the plaintiff appealed.

On appeal, the defendants contended that a lengthy period of inactivity may be sufficient to justify dismissal. In addressing the defendants’ contention, our supreme court stated:

“First, as noted before, there was activity in this case preceding the dismissal: even where there has been a period of inactivity, present diligence has barred dismissal. Raab v. Taber Instrument Corp., 546 F.2d 522 (2d Cir.1976); Morales v. Lionel Corp., 439 F.Supp. 53 (S.D.N.Y.1977); United States v. Myers, 38 F.R.D. 194 (N.D.Cal.1964). Second, the rule is that a lengthy period of inactivity may justify dismissal in the circumstances of a particular case. Thus, a period of inactivity is generally coupled with some other act to warrant the severe penalty of dismissal. See, e.g., Link v. Wabash R. Co., [370 U.S. 626 (1962) ] (inactivity coupled with counsel’s failure to appear at a pre-trial conference); Forest Nursery Co. v. Crete Carrier Corp., 319 F.Supp. 213 (E.D.Tenn.1970)(failure of defendant to answer a summons 6 months after required by statute); Delta Theatres, Inc. v. Paramount Pictures, Inc., 398 F.2d 323 (5th Cir.[1968]) cert. den. 393 U.S. 1050, 89 S.Ct. 688, 21 L.Ed.2d 692 (196[9]) (failure to obey court order coupled with lapse of activity for 14 years).”

Smith, 365 So.2d at 661-62 (some emphasis in original; some emphasis added). The court held that the lengthy period of inactivity was not, in and of itself, sufficient to warrant a dismissal. 365 So.2d at 661-62.

Citing Brown v. Thompson, 430 F.2d 1214 (5th Cir.1970), the court in Smith recognized that the plaintiffs conduct must also mandate the dismissal. 365 So.2d at 661. Our supreme court acknowledged the long period of inactivity in the case from 1966 to 1973, but it recognized that 11 months before the dismissal the defendants had filed interrogatories, had reconstructed the record, and had moved to set a date for a hearing in the case. 365 So.2d at 661. The court concluded that the record did not reveal “ ‘contumacious conduct,’ or any ‘serious showing of willful default,’ or a ‘clear record of delay’ ” on the part of the plaintiff, and it reversed the trial court’s dismissal of the case. Smith, 365 So.2d at 661.

In Burdeshaw v. White, 585 So.2d 842 (Ala.1991), another case cited by Blake, the trial court granted the defendants’ summary-judgment motions after counsel for the plaintiffs failed to appear at a December 4, 1989, hearing and took no further action in the case until September 20, 1990. In its order granting the summary-judgment motions, the trial court noted the 9- to 10-month period during which the plaintiffs did not file anything in opposition to the defendants’ summary-judgment motions. The plaintiffs appealed. On appeal, our supreme court considered whether the summary judgment was proper under Rule 41(b), Ala. R. Civ. P. Quoting extensively from its decision in Smith, the court held that the record did not show that the plaintiffs’ conduct warranted the entry of a summary judgment for the defendants. The court reasoned, “[h]ere, as in Smith, there was activity on the part of the plaintiff within the approximately 11-month period prior to the entry of the judgment.” Burdeshaw, 585 So.2d at 849.

In Stephenson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 940 So.2d 307 (Ala. Civ.App.2006), the plaintiff sued the defendant on March 21, 2002, and on June 4, 2002, the trial court granted a motion to stay the proceeding pending arbitration. No other motions and no other actions were taken in the case until almost three years later when, on February 16, 2005, the trial court, sua sponte, entered an order dismissing the case for lack of prosecution. 940 So.2d at 308. The plaintiff timely appealed. On appeal, this court reversed the decision of the trial court, stating:

“If there is a clear record indicating that [the plaintiff] caused a delay or committed contumacious conduct, then it would appear that such conduct would mandate a dismissal. Smith, 365 So.2d at 661. However, there is no such evidence in the record. Although there were no new filings in the case following the trial court’s order compelling arbitration, that fact alone does not constitute a record of delay or contumacious conduct.”

Stephenson, 940 So.2d at 308-09.

In his brief on appeal, Stinson, apparently referring to our supreme court’s decision in Smith, although incorrectly citing its decision in Burdeshaw, argues that Smith is distinguishable because in that case, unlike this case, the defendants filed interrogatories after approximately four years of inactivity in the case. Stinson contends that the defendants’ participation with the “dilatory litigant” warranted reversal in Smith, unlike in this case, in which Stinson limited his participation to filing only a motion to dismiss. The distinction Stinson attempts to draw between cases in which the defendant participated in litigation after the period of inactivity and those in which the defendant did not is not supported by the analysis set forth in those cases. Simply put, the propriety of dismissal for failure to prosecute does not turn on the involvement or noninvolvement of the defendant in the litigation.

The evidence in the record reflects that shortly after Blake filed a complaint in February 2004, Gosnay filed a suggestion of bankruptcy and a motion to stay and the case was transferred to the trial court’s administrative docket. Approximately six months later, Blake amended his complaint to remove Gosnay as a named defendant and realleged the claims against Stinson and S & G. The record reveals that Blake served Stinson and S & G with a copy of the amended complaint, but neither defendant answered the amended complaint. Approximately two and a half years after Gosnay was discharged from his bankruptcy, Blake moved to reinstate the case to the trial court’s active docket. Less than one month after the trial court granted Blake’s motion to place the case on the active docket, Blake moved for a default judgment against S & G. Less than one month after the trial court entered a default judgment in favor of Blake and against S & G, Stinson, who until that point had not filed any pleadings in the trial court, filed a motion to dismiss.

The record in this case reveals an almost three-year delay between Blake’s filing his amended complaint and his filing the motion to reinstate the case to the trial court’s active docket. Although the record clearly indicates a lengthy period of inactivity on the part of Blake in prosecuting his case against Stinson, the record does not indicate contumacious conduct or willful default by Blake in failing to prosecute the case. As our supreme court noted in Smith, although a lengthy period of inactivity may justify a dismissal, such “a period of inactivity is generally coupled with some other act to warrant the severe penalty of dismissal.” Smith, 365 So.2d at 662. The period of inactivity in this case alone, without evidence of contumacious conduct or willful default, is insufficient to justify the harsh sanction of dismissal with prejudice. Cf. Cassady v. Montgomery County Bd. of Educ., 496 So.2d 764 (Ala.1986)(affirming a dismissal for want of prosecution when there was evidence of inactivity in the case along with the plaintiff’s requests for continuances over a period of 20 months, the plaintiffs failure to appear at 2 pretrial conferences, and the plaintiffs failure to appear on the date set for trial); Selby v. Money, 403 So.2d 218 (Ala.1981)(upholding a dismissal for want of prosecution when trial date was postponed twice on the motion of the plaintiffs and plaintiffs’ counsel refused to proceed with the trial despite several warnings from the trial judge); and Bellew v. Grady, 744 So.2d 913 (Ala.Civ.App.1999)(af-firming a dismissal for want of prosecution when plaintiffs waited two years after learning that the defendant could not be served at the address shown on the summons before taking further action). We find that our supreme court’s decision in Smith, and its subsequent decisions relying on Smith, mandate reversal of the trial court’s judgment of dismissal for want of prosecution in this case. The judgment of dismissal is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . There is no indication in the record that the parties were served a copy of this order; however, neither party to this appeal asserts that he did not receive a copy of the order.


text:
    MATTHEW’S MASONRY COMPANY v. Edward ALDRIDGE, Jr.
    2070485.
    Court of Civil Appeals of Alabama.
    Oct. 3, 2008.
    Charles H. Clark, Jr., David M. Fleming, and Lauren E. Davis of Huie, Fer-nambucq & Stewart, LLP, Birmingham, for appellant.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.
   MOORE, Judge.

Matthew’s Masonry Company (“the employer”) appeals from a judgment entered by the Etowah Circuit Court awarding Edward Aldridge, Jr. (“the employee”), medical benefits for treatment of his right knee pursuant to Ala.Code 1975, § 25-5-77, a part of the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Because we find that the trial court failed to enter appropriate findings of fact and conclusions of law, we reverse and remand.

In 2007, a controversy arose regarding the employer’s liability to cover the medical costs associated with the treatment of the employee’s right-knee condition. The controversy stems from a settlement agreement reached between the parties and approved by the trial court on December 22, 2000. That settlement agreement provides, in pertinent part:

“The parties have made known to the court that they have reached a compromise settlement agreement, subject to the approval of this Court, for the sum of Eighty Thousand and No/100 ($80,-000.00) Dollars as a full and complete settlement of any and all claims for workmen’s compensation benefits under the Workmen’s Compensation Act of Alabama, or otherwise, including temporary total disability, permanent partial disability benefits and vocational rehabilitation benefits. The [employee’s] rights to future medical benefits for treatment of his back injury are hereby preserved and said benefits shall remain open. As further consideration for this settlement the [employee] waives any claim to future medical treatment for psychiatric disorders and also waives any claim for medical expenses in connection with his left knee and his right knee. The employer is hereby discharged for any further liability for psychiatric medical expenses and medical expenses incurred by the [employee] for treatment of either of his knees.”

(Emphasis added.) The employee contends that the employer was responsible for providing treatment for his right-knee condition based on the opinions of his treating physicians that over time the employee’s lower-back injury had led the employee to alter his gait, which, in turn, injured the employee’s right knee. The employee maintains that that part of the settlement agreement leaving open “future medical benefits for treatment of his back injury” left open treatment of any subsequently arising knee injury found to be a direct and natural consequence of the back injury. See, e.g., Romine v. McDuffie, 341 So.2d 952 (Ala.Civ.App.1977). The employer maintains that that part of the settlement agreement by which the employee waived and discharged the employer from any claim “for medical expenses in connection with his left knee and his right knee” unambiguously releases the employer from liability for medical expenses relating to the treatment of the right knee arising in the future. See, e.g., Wix Corp. v. Davis, 945 So.2d 1040 (Ala.Civ.App.2005). The employer further maintains that the judgment approving the settlement agreement adopted the terms of the settlement agreement and bars the employee from relitigat-ing the issue of the employer’s liability for future medical expenses relating to the treatment of his right knee. See, e.g., Shop-A-Snak Food Mart, Inc. v. Penhale, 693 So.2d 479, 480-81 (Ala.Civ.App.1997) (recognizing that res judicata applies to judgments approving workers’ compensation settlements).

In October 2007, the employee filed a motion to compel the employer to cover the medical expenses relating to the treatment of the employee’s right-knee injury. The employer filed a response to that motion in November 2007. The trial court held a hearing on the matter at which it accepted certain medical records and the oral testimony of the employee. Based on that evidence, the trial court entered the following judgment:

“ORDER ON [EMPLOYEE’S] MOTION TO COMPEL MEDICAL CARE AND TREATMENT
“This matter is before the Court on the motion of the [employee] to compel medical care and treatment for the [employee’s] right knee condition.
“The Court having heard argument of counsel and having considered the evidence offered, including dictated medical notes from authorized treating physician Carter Harsh (neurosurgeon) and authorized treating physician Rex Harris, and the testimony offered by the [employee], the Court is of the opinion that there is substantial competent evidence supporting the assertion made by the [employee] that the [employee’s] need for investigation and treatment of the right knee is related to his accepted back injury.
“From all that appears, the [employee’s] knee condition has developed as a result of an altered gait or problems associated with sciatica and his lower back condition. There is no dispute that the lower back condition is an injury for which the [employer] has accepted responsibility under the [Workers’ Compensation] Act.
“Therefore, consistent with the statutory responsibility imposed by the Act on the employer for the provision of medical care and treatment under the terms and provisions of the Act, it is hereby ORDERED that treatment being recommended by Dr. Rex Harris is and should continue to be the responsibility of the [employer] so long as Dr. Harris continues to confirm that the conditions requiring treatment have manifested themselves, at least in part as a result of problems associated with the [employee’s] accepted lower back condition.”

Under § 25-5-88, Ala.Code 1975, the trial court is required to “decide the controversy” submitted to it by the parties. That “determination shall be filed in writing with the clerk of [the] court ... and [the] judgment ... shall contain a statement of the law and facts and conclusions as determined by said judge.” Id. The findings of fact should include a conclusive finding of every fact responsive to the issues presented to and litigated in the trial court, and there should be a finding of every fact necessary to sustain the judgment of the trial court. See Addison Fabricators, Inc. v. Davis, 892 So.2d 440, 443 (Ala.Civ.App.2004) (quoting United Tel. & Tel. Co. v. Culiver, 271 Ala. 568, 570, 126 So.2d 119, 120-21 (1961)). In this case, by finding only that the knee injury was related to the back injury, and that the employer accepted liability for future medical treatment relating to the back injury, the trial court did not address the remaining issue litigated by the parties — the effect of the specific language releasing the employer from liability for medical expenses relating to the right knee. Therefore, we have no choice but to reverse the trial court’s judgment and to remand the case for the trial court to make findings of fact and conclusions of law relating to that issue.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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