author: MOORE, Judge. BRYAN, Judge, THOMAS, Judge,

text:
    William McCULLOCH v. Jennifer McCulloch CAMPBELL.
    2090169.
    Court of Civil Appeals of Alabama.
    Sept. 17, 2010.

      J.R. Herring, Dothan, for appellant.
    Robert H. Brogden, Ozark, for appellee.
   MOORE, Judge.

William McCulloch (“the father”) appeals from a judgment transferring custody of B.M. and N.M. (hereinafter sometimes referred to collectively as “the children”) to Jennifer McCulloch Campbell (“the mother”). We reverse.

Background

The Dale Circuit Court (“the trial court”) entered a judgment divorcing the father and the mother on June 6, 2003. The trial court awarded the parties joint legal custody of the two children born of their marriage, with the father receiving primary physical custody of the children and the mother receiving specified visitation rights.

In February 2008, the father, who was an active-duty member of the United States Army, notified the mother he would be deploying to Iraq in May 2008. Shortly before the father’s deployment, the mother petitioned to modify custody of the children. On May 5, 2008, the trial court awarded the mother “pendente lite care, custody and control of the children pending further orders of the court.” The mother traveled to Michigan to gain custody of the children from the children’s paternal grandparents, with whom the father had left the children. The children returned with the mother to Alabama, where they attended the last two weeks of the 2007-2008 school year. The children remained in Alabama with the mother through the summer and into the following school year.

On February 11, 2009, the father moved to dissolve the pendente lite custody order, asserting that he was scheduled to return from his military tour on April 4, 2009. The trial court denied that motion. On April 30, 2009, the father again moved the trial court to dissolve the pendente lite custody order on the ground that his military service in Iraq had ended. The trial court denied that motion, noting that a final hearing on the mother’s modification petition was approximately one month away.

The trial court held a final hearing on the mother’s modification petition on June 10, 2009; the trial court received ore tenus evidence at that hearing. On August 10, 2009, the trial court entered its final judgment. In that judgment, the trial court acknowledged that the mother bore the burden of meeting the standard for modifying custody set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984). That standard requires

“ ‘the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child’s best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody.’ ”

C.D.K.S. v. K.W.K., 40 So.3d 736, 739 (Ala.Civ.App.2009) (quoting Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008)).

In its final judgment, the trial court found that, since the last custody determination, the mother’s life had significantly improved and that the parties’ son had developed “mental health concerns” that were previously unknown. The trial court held that the counseling and therapy the son had received while in the pendente lite custody of the mother had “greatly improved [the son’s] demeanor” and had diminished the physical manifestation of his mental-health problems and that it would be counterproductive to his progress to return the son to the custody of the father. The trial court further concluded that both children were excited about their new schools, that the mother’s work schedule allowed her more time to spend with the children than the father’s schedule would allow, and that there was no compelling reason to separate the children. In addressing whether the benefits of a change in custody would outweigh the disruptive effects resulting from the change, the trial court stated:

“In reviewing the mother’s standard of proof the court finds that the facts of this case are somewhat different from the usual custody modification case in that because of the father’s military deployment the children are presently in the home and under the care of the parent seeking to modify custody. Therefore it is the court’s belief that if the mother’s petition is granted ... there will be little, if any, disruptive effect of changing custody. Stated differently if the court finds that the mother has met her burden of proof there will be no change in the children’s physical residence or care and they will remain in the same care they have been in for the last fifteen months.”

The trial court ultimately concluded that the mother had met her burden of proof by demonstrating that “there has been a material change in circumstances; that the good of the change will offset any disruptive effect, if any, and that the change will materially promote the children’s best interests.”

On September 4, 2009, the father moved to alter, amend, or vacate the judgment; on that same date, the father separately moved for a new trial. On October 5, 2009, the trial court denied the father’s request for a new trial, but it granted in part the father’s motion to alter, amend, or vacate the judgment. The trial court amended the visitation awarded to the father and amended certain other rights and responsibilities set forth in the trial court’s August 10, 2009, judgment; the trial court denied all other aspects of the father’s motion to alter, amend or vacate. The father timely filed his notice of appeal to this court.

I. Rule 10(d), Ala. R.App. P., Statement of the Evidence

On his notice of appeal, the father indicated that a transcript of the proceedings in the trial court was unavailable and that a statement of the evidence would be provided, pursuant to Rule 10(d), Ala. R.App. P. The trial court ultimately filed a statement of the evidence with this court. However, the father asserts that the trial court did not substantially comply with Rule 10(d) in providing that statement of the evidence. Rule 10(d) provides:

“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. If the appellant prepares such a statement, the appellant shall serve it on the appellee within 28 days (4 weeks) after filing the notice of appeal; the appellee, within 14 days (2 weeks) after service, may serve on the appellant objections or proposed amendments to the statement. If the appellee serves no objection or proposed amendments then, within 21 days (3 weeks) after the statement was served on the appellee, the appellant shall file the statement with the trial court for approval. If the ap-pellee serves on the appellant any objections or proposed amendments, then, within 7 days (1 week) after service, the appellant shall file the statement and any objections or proposed amendments with the trial court for settlement and approval. Within 21 days (3 weeks) after the filing, the trial court shall rule, settling any questions regarding the objections and proposed amendments, and issuing an approved statement of the evidence or proceedings. The statement, either as approved by the court or as issued by the court after its ruling, shall be filed with the clerk of the trial court, who shall include it in the record on appeal.”

On December 7, 2009, the father served the mother with his statement of the evidence. On that same date, the father filed, by facsimile transmission, his statement of the evidence with the trial court. The following day, the father filed with the trial court, presumably by mail or by hand delivery, another copy of his statement of the evidence.

On December 22, 2009, the mother submitted her “Objections to Statement of Evidence Filed by Father.” In her filing, the mother indicated that she objected to the father’s entire statement of the evidence and that, because of the breadth of her objections, she could not provide a line-by-line objection to the father’s proposed statement. As a result, the mother provided her own 24-page version of the evidence.

On December 28, 2009, the father again filed his “Notice of Filing Statement of the Evidence” with the trial court. In his filing, the father stated that the mother,

“having failed to file objections or proposed amendments to [the father’s] statement of the evidence filed on December 7, 2009, as provided by ... Rule [10(d), Ala. R.App. P.], [the father] hereby submits said statement of the evidence for approval by the trial court.”

The father did not include in his statement any of the mother’s objections or her version of the evidence.

The mother moved to strike the father’s December 28, 2009, notice of filing, asserting that she had fully complied with Rule 10(d). The mother asserted that her response to the father’s statement of the evidence had been timely filed because the father’s facsimile filing on December 7, 2009, was not a valid filing.under the Alabama Rules of Civil Procedure and that the mother’s time for response ran from December 8, 2009, which, she asserted, was the date the father properly filed his statement of the evidence with the trial court.

In response to the parties’ multiple filings and their dispute as to the evidence presented at the trial, the trial court prepared its own statement of the evidence. On February 4, 2010, the father moved to supplement the trial court’s statement of the evidence, pursuant to Rule 10(f), Ala. R.App. P. Although the mother objected to that motion, the trial court, relying on Bobo v. Bobo, 585 So.2d 54 (Ala.Civ.App.1991) (implicitly recognizing that a trial court’s statement of the evidence, prepared pursuant to Rule 10(d), Ala. R.App. P., may be supplemented pursuant to Rule 10(f), Ala. R.App. P.), granted the father’s motion and ordered the mother to respond thereto.

On March 19, 2010, the trial court entered its “Supplemental and Final Statement of the Evidence.” In that supplemental statement, the trial court acknowledged that the. exhibits submitted by the father had been admitted into evidence at the trial and had been made a part of the record. Thus, the father’s exhibits are properly before this court. '

The father asserts that the trial court did not substantially comply with Rule 10(d) because, he says, it did not adopt his statement of the evidence, to which, he asserts, the mother had failed to object. In support of his argument, the father asserts that the mother failed to respond to his proposed statement within the 14-day period allowed by Rule 10(d) and, therefore, that his proposed statement should have been accepted in its entirety. The father also asserts that, even if the mother’s response was timely, she attempted to “initiate” the preparation of her own version of the statement of the evidence, in violation of Rule 10(d), and, thus, that her “amended statement of the evidence” should have been disregarded.

The record reveals the parties’ confusion as to the service and filing requirements of Rule 10(d). Rule 10(d) does not require the appellant — in this case, the father — to initially file the proposed statement of the evidence with the trial court. Rule 10(d) specifies that the appellant “shall serve it on the appellee within 28 days (4 weeks) after filing the notice of appeal.” Only after the specified time in which the appellee is required to respond with objections has elapsed is the appellant instructed to file the proposed statement of the evidence and any objections thereto with the trial court for settlement and approval. See Rule 10(d). Thus, whether the father filed his proposed statement of the evidence with the trial court on December 7 or December 8 has no bearing on when the father served the mother with the statement and when the mother’s time to object began to run.

The mother does not dispute that she or her legal counsel received the father’s proposed statement of the evidence on December 7, 2009. Thus, the mother had 14 days from December 7, i.e., until December 21, 2009, to respond with her objections or proposed amendments to the father’s proposed statement of the evidence. The mother responded on December 22, 2009; thus, her objections were one day late.

Relying on Ray v. Ray, 339 So.2d 82 (Ala.Civ.App.1976), the father argues that the untimeliness of the mother’s objections required the trial court to disregard those objections in their entirety. We disagree. In Ray, the appellant wholly failed to submit a statement of the evidence, and this court had no evidence upon which to review the issues raised on appeal. See Ray, 339 So.2d at 84. In this case, this court is presented with a statement of the evidence on appeal. Thus, Ray is inapposite to this case.

Further, the father fails to articulate how the mother’s technical violation of Rule 10(d) or the trial court’s consideration of the mother’s untimely objections has substantially harmed him. The trial court did not adopt verbatim the mother’s amended version of the evidence; rather, it merely considered it, along with the father’s version, in drafting its own statement of the evidence. Thus, even had the trial court stricken the mother’s objections from consideration, the trial court might still have prepared the same final statement of the evidence, based upon its own recollection of the evidence.

Rule 45, Ala. R. Ala. P., provides:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground or misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Because the father has failed to explain how the trial court’s consideration of the mother’s untimely filed objections resulted in substantial injury to him, we need not address the father’s argument on this issue further. See Rule 45, Ala. R.App. P.; see also Edwards v. Allied Home Mortgage Capital Corp., 962 So.2d 194, 213 (Ala.2007) (concluding that, when the appellant could not show substantial injury resulting from the trial court’s ruling allowing certain cross-examination, which the appellant alleged to be in violation of the Alabama Rules of Evidence, the trial court’s ruling did not constitute reversible error); and Costarides v. Miller, 374 So.2d 1335, 1337 (Ala.1979) (discussing the “harmless error” rule, under which an appellant must not only show error, but also must demonstrate that the error resulted in a substantial injury to the appellant’s rights in order to warrant a reversal).

The father also relies on Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976), in arguing that the mother improperly “initiated” the preparation of her own proposed statement of the evidence by objecting to the entirety of the father’s proposed statement and submitting her own version of the evidence. We conclude that Adams is not controlling as to the issue raised on appeal. In Adams, no transcript or statement of the evidence was provided to the court on appeal, and the issue considered in that case on appeal was whether the appellee had had an equal opportunity to provide the appellate court with a transcript or a statement of the evidence, pursuant to Rule 10(d). 335 So.2d at 176-77. The court in Adams concluded that, pursuant to Rule 10(d), the appellee had no right to initiate the preparation of a proposed statement of the evidence and was allowed only to respond if such a statement was filed by the appellant. Id. Thus, the court in Adams concluded that the lack of a statement of the evidence was chargeable only against the appellant. Id. at 177.

Whether the appellant or the appellee should be charged with the responsibility of obtaining the transcript or preparing the statement of the evidence is not at issue in this case. At issue is whether the manner in which the mother objected to the father’s proposed statement of the evidence should be deemed improper. Rule 10(d) expressly allows the appellee to file objections to the appellant’s proposed statement of the evidence and amendments thereto. The rule, however, contains no language limiting the manner in which the appellee may object or the manner in which the appellee may submit his or her amendments. Because the mother was merely responding to the father’s proposed statement of the evidence, she did not “initiate” the preparation of her proposed statement of the evidence and she did not act improperly under Rule 10(d).

The father next challenges the substance of the trial court’s final statement of the evidence, asserting that the trial court failed to properly resolve the conflict between the mother’s and the father’s versions of the evidence. The father also asserts that the trial court’s statement failed to incorporate certain testimony set forth in the father’s statement that did not conflict with the mother’s statement.

In Pickett v. Pickett, 792 So.2d 1124, 1126 (Ala.Civ.App.2001), this court stated:

“ ‘On review, [this court] will accept the approved statement of the evidence as true.’ Mobley v. Turner, 346 So.2d 427, 428 (Ala.1977). No Alabama caselaw addresses whether a party to an appeal may challenge a trial court’s approved statement of the evidence. Alabama’s Rule 10(d), Ala. R.App. P., is equivalent to Rule 10(c), Fed. R.App. P. See Mobley v. Turner, 346 So.2d at 428. There is authority in the federal courts for a challenge of the approved statement of the evidence and for remanding the case for a new trial. See Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210 (9th Cir.1990).
“The federal courts allow a challenge to a statement of the evidence. Bergerco, 896 F.2d at 1214-15. If a federal court is faced with such a challenge, it determines ‘whether a resolution of the disputed factual issues is essential to allow ... meaningful appellate review of the [trial] court’s decision.’ Bergerco, 896 F.2d at 1215. The Bergerco court, after discussing other federal cases involving requests for a new trial based on the lack of an original transcript, explained that an appellant seeking a new trial so that a complete record can be developed must: 1) make a specific allegation of error; 2) show that the defect in the record materially affects the ability of the appeals court to review the alleged error; and 3) show that a Rule 10(c) [Fed. R.App. P.] proceeding has failed or would fail to produce an adequate substitute for the evidence.’ Bergerco, 896 F.2d at 1217. After setting forth these factors, the Bergerco court stated, ‘We believe these factors would be presented only in rare circumstances.’ Id.
“In this case, the mother’s complaint that the statement of the evidence is incomplete and inadequate does not sufficiently demonstrate how the defect materially affects this court’s ability to review the case. We decline, based on the lack of authority in the mother’s brief and on the requirements set forth in Bergerco, to remand this case for a new trial.”

In this case, the father proffered the evidence he believed had been improperly omitted from the trial court’s approved statement of the evidence. He failed, however, to articulate in his brief how any of the purportedly omitted evidence prevents this court from reviewing the issues raised on appeal. Because the father failed to sufficiently demonstrate how the trial court’s purported omission of certain evidence impacts this court’s review of his appeal, we find no reversible error. See Rule 10(d); and Pickett, supra.

II. The McLendon Burden of Proof

Under Ex parte McLendon, a final judgment awarding one parent primary physical custody of a child creates a “rule of repose” by which it is presumed that the child should remain in the custody of that parent unless and until a material change of circumstances indicates that the positive good to the child resulting from a transfer of physical custody would outweigh the inherently disruptive effects of such a change. 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)). The noncustodial parent, as defined by the last “final” custody judgment, bears the burden of meeting the McLendon standard, even if that parent has gained temporary custody of the child pursuant to a pendente lite order. It is reversible error for a trial court to relieve the noncustodial parent of that burden based on its pendente lite custody award. See Ex parte R.C.L., 627 So.2d 920, 921-22 (Ala.1993) (recognizing that McLendon, supra, does not apply to a pendente lite order transferring custody of a child during the pendency of custody litigation, and, as a result, the presumption in favor of a natural parent over a nonparent is not defeated by such an order); and Sims v. Sims, 515 So.2d 1, 3 (Ala.Civ.App.1987) (recognizing in a custody-modification action that the entry of a pendente lite order transferring custody of a child during the pendency of that litigation did not shift the burden of proof under McLendon, supra, to the parent seeking to retain custody; the burden of proof remained on the noncustodial parent as it had been before entry of the pendente lite order).

The father asserts that, after the entry of the May 5, 2008, pendente lite order, the trial court impermissibly relieved the mother of her burden of proof under Ex parte McLendon, supra. The father points out that, when the trial court ordered that the children’s custody be transferred to the mother while the father was stationed in Iraq, the children had been residing with him for close to five years pursuant to the parties’ 2008 divorce judgment. The father argues that, under McLendon, the mother could gain permanent physical custody only by proving that the benefits to the children from transferring custody to her would outweigh the disruption to the children’s lives caused by their removal from the father’s custody. The father maintains, however, that the trial court did not require the mother to carry that burden because it erroneously considered only the disruptive effects of transforming the pendente lite custody order, under which the children had been living with the mother for over a year, into a final custody judgment.

In B.S.L. v. S.E., 849 So.2d 182 (Ala.Civ.App.2002), this court considered a judgment similar to the judgment at issue in the present case. In B.S.L., after awarding the father pendente lite custody, the trial court entered a judgment concluding that the father had met his burden under McLendon, supra. In its judgment, the trial court stated: “ ‘The court ... find[s] that because of the length of time the child lived with the father under the pendente lite order, the inherent disruption presumed by law, in fact, does not exist....’” 849 So.2d at 185. From that judgment, the mother appealed. This court concluded that the trial court had improperly absolved the father of his burden to prove the second prong of the McLendon standard, i.e., that the benefits of a change in custody of the child outweighed the inherent disruption to the child, on the sole basis that the child was already living with the father as a result of the pendente lite order. Id. at 185-86. This court reversed the trial court’s judgment and remanded the cause for the trial court to properly apply the McLendon standard. Id. at 186.

In accord with B.S.L., this court concludes that the trial court committed error by absolving the mother of her burden of proving that the positive good brought about by changing custody to her outweighs the disruptive effects of removing the children from the custody of the father. In fact, the trial court did not even consider those disruptive effects in transferring custody to the mother, but, as the trial court did in B.S.L., the trial court impermissibly focused exclusively on the period after the pendente lite order was entered in determining whether any disruption would, or, more precisely, did, occur. Based on that error, the judgment is reversed and the cause is remanded for the trial court to reconsider its judgment in light of the appropriate burden of proof. On remand, the trial court is instructed to determine whether the benefits to the children of transferring their custody to the mother will outweigh the disruptive effects caused by their removal from the custody of the father.

The father also argues that, on remand, the trial court should not be allowed to consider the circumstances existing since the pendente lite change of custody, citing Barber v. Moore, 897 So.2d 1150 (Ala.Civ.App.2004), and C.D.E.S. v. K.W.K., supra.

In Barber, the trial court removed custody of two children from their mother and awarded their father pendente lite custody for 100 days, essentially to determine whether a “permanent” change of custody would be in the best interests of the children at issue. Following the 100-day period, the trial court conducted a “follow-up” hearing at which it heard evidence of how the children had responded to the change of custody, and, based on that evidence, it awarded “permanent” custody to the father. On appeal, this court reversed the judgment, stating: .

“The supreme court’s holding in Ex parte McLendon[, 455 So.2d 863 (Ala.1984),] does not allow a trial court to modify custody on a trial basis or, as the mother argues occurred in this case, allow the trial court to experiment with an award of custody. We conclude that, under the facts of this case, the presumption favoring the mother as the custodial parent as stated in Ex parte McLendon eroded after the trial court entered its June 4, 2003, pendente lite order and allowed the father to return to court to present evidence that was based on the 100 days the children were in his custody in support of his contention that he was the more suitable parent to have custody. Accordingly, we must conclude that the June 4, 2003, order of the trial court impermissibly shifted the burden of meeting the McLendon standard to the mother. Accordingly, the judgment of the trial court is reversed.”

897 So.2d at 1155.

Based primarily on Barber, this court in C.D.K.S. reversed a judgment awarding custody of a child to his father following the entry of an earlier pendente lite order that had transferred custody to the father for “ ‘a trial period.’ ” 40 So.3d at 746. This court held that the trial court had erred in experimenting with the custody of the child and that, on remand, the trial court could not consider any evidence of the circumstances occurring during the trial period. Id.

Both Barber and C.D.K.S. concern the impermissible use of pendente lite orders by a trial court to assist in gathering evidence regarding the effects of a change of custody on a child. This court has held that custody may not be changed on a pendente lite basis solely to experiment with custody, and, as a means of enforcing that holding, this court, in Barber and C.D.K.S., concluded that any evidence produced as a result of such an impermissible pendente lite order shall not be considered in deciding whether the noncustodial parent has met the McLendon standard. In this case, the trial court did not change custody on a pendente lite basis merely to determine how the children would react to such a change; rather, it did so in order to provide the children with a parental custodian during the father’s military assignment to Iraq. Therefore, the entire basis for our holdings in Barber and C.D.K.S. is absent.

In dissenting to the instructions on remand, Judge Thomas argues that this court should instruct the trial court on remand to exclude from its consideration any evidence of the circumstances occurring while the mother exercised pendente lite custody of the children. Judge Thomas asserts that it would be inequitable to the father to consider those circumstances because the father had temporarily lost custody of the children based solely on his military assignment. 60 So.3d at 920 (Thomas, J., concurring in the result but dissenting as to the instructions on remand). We reject that position for at least two reasons.

First and foremost,

“[in] all [child-custody] proceedings the question of custody rests at last upon the determination of wherein lies the best interest of the children, the conflicting parental rights being secondary in importance.”

Ex parte Ingalls, 256 Ala. 305, 309, 54 So.2d 288, 291 (1951). In this case, the trial court explicitly found that the parties’ son had developed mental-health problems before the father’s assignment to Iraq. The trial court also concluded that the parties’ son, while living with the mother pursuant to the pendente lite order, underwent treatment designed to address the son’s mental-health issues. As a result of that intervention, according to the evidence presented by the mother and the express findings of the trial court, the son had overcome his mental-health issues and had become a friendly, well-adjusted child with an improved level of self-esteem. The trial court further heard evidence from which it could have reasonably determined, as it did, that the son’s recovery would be imperiled if he were removed from the mother’s custody and returned to the father’s custody in New York. To prevent the trial court from considering the foregoing evidence would essentially compel the trial court to overlook the impact a change of custody to the mother would have on the mental and emotional welfare of the parties’ son. An order excluding evidence of the circumstances occurring during the mother’s exercise of pendente lite custody definitely would not serve the best interests of the children.

Secondly, the father does not argue the point raised in the dissent. See note 1, supra. Perhaps recognizing that the paramount consideration is the best interests of the children, and not his parental rights, the father does not assert on appeal that it would be unfair to him for the trial court to consider evidence existing solely because of his military assignment. Rather, the father argues that the trial court should not consider that evidence because it would conflict with our holdings in Barber and C.D.K.S. and impermissibly relieve the mother of her burden of proving the McLendon standard, a standard enunciated for the benefit of the children. As

pointed out above, it would not benefit the children to exclude evidence as to the emotional welfare of the son simply because consideration of such evidence exists as a result of the father’s military assignment. “It is not the function of an appellate court to advocate a position on behalf of an appellant.” J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34, 42 (Ala.Civ.App.2008). Thus, we are not permitted to even consider the point raised by the dissent as a ground for reversing the trial court’s judgment.

Based upon our disposition, we preter-mit consideration of the father’s remaining arguments.

Both the father’s and the mother’s requests for the award of attorney’s fees on appeal are denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BRYAN, J., concurs in part and concurs in the result, with writing.

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

THOMAS, J., concurs in the result but dissents as to the instructions on remand, with writing, which PITTMAN, J., joins.

BRYAN, Judge,

concurring in part and concurring in the result.

I concur with the main opinion’s analysis of the father’s Rule 10(d), Ala. R.App. P., argument, and I concur with the main opinion insofar as it concludes that the trial court erroneously “absolv[ed] the mother of her burden of proving that the positive good brought about by changing custody to her outweighs the disruptive effects of removing the children from the custody of the father.” 60 So.3d at 917.

I agree with Judge Thomas’s special writing to the extent that the father, as an active-duty member of the United States Army, should not be punished by having custody of the children modified solely because of his deployment to Iraq, However, in this particular case, circumstances existed before the father’s deployment to Iraq that could have served as a basis for a change in custody even if the father had not been deployed. The mother presented evidence indicating that she had addressed those issues, which were not connected to the father’s deployment, while the children were in her custody. Because of the unique procedural and factual circumstances of this case, I think a full consideration of the best interests of the children is possible only by considering the evidence that accumulated both before and after the mother was awarded pendente lite custody of the children. See Tims v. Tims, 519 So.2d 558, 559 (Ala.Civ.App.1987) (“The best interests of the child are always of paramount importance in child custody cases.”). Nonetheless, the mother is still required to meet the burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984); thus, she must demonstrate that a material change in circumstances (other than the father’s deployment) has occurred since the entry of the last custody determination, that the change in custody materially promotes the best interests of the children, and that the positive good brought about by the change in custody would more than offset the disruptive effect of removing the children from the father’s custody.

THOMAS, Judge,

concurring in the result but dissenting as to the instructions on remand.

I concur with the main opinion that the trial court erred when it focused on the period during which the mother had pen-dente lite custody of the children when it considered the disruptive effect of transferring custody of the children from the father to the mother. I dissent, however, from the main opinion insofar as it holds that, on remand, the trial court can consider the circumstances surrounding the mother’s custody of the children pursuant to the pendente lite award.

The mother was awarded pendente lite custody of the children while the father, who was an active-duty member of the United States Army, was deployed to Iraq; the father’s military deployment served as the basis for the trial court’s pendente lite custody order. Allowing the trial court to use the circumstances surrounding the mother’s pendente lite custody of the children while the father was deployed oversees would disadvantage the father solely because of his military service — a result that I find inequitable. Thus, I would instruct the trial court on remand to exclude the evidence from the period when the mother was exercising pendente lite custody of the children.

The main opinion holds that, because the father did not argue that the trial court could not consider the circumstances surrounding the mother’s pendente lite custody of the children because it would be inequitable to the father, “we are not permitted to even consider the point raised by the dissent as a ground for reversing the trial court’s judgment.” 60 So.3d at 919. However, I do not raise this argument as an alternate basis for reversing the trial court’s judgment; I raise it only as a clarification of what action the trial court should take on remand. This court is not always limited strictly to the precise legal arguments of the appellant in crafting our instructions on remand. See, e.g., Self v. Self, 685 So.2d 732, 736 (Ala.Civ.App.1996) (instructing the trial court on remand to take the father’s expenditures for medical bills or insurance into consideration when fashioning its award of child support, as required by Rule 32(C), Ala. R. Jud. Admin., despite the lack of any mention that an argument concerning that specific issue was raised). Indeed, following the logic of the main opinion, this court would be constrained to expressly instruct the trial court to take an action that we know to be in error because the father — the appellant in this case — did not make a specific legal argument concerning that issue.

Moreover, I do not agree that the father did not sufficiently raise the argument in his brief to this court. The sum and substance of the father’s argument concerning this issue is that the trial court had improperly considered the circumstances surrounding the mother’s pendente lite custody of the children, as part of his broader argument that the trial court had improperly relieved the mother of proving her burden under Ex parte McLendon, 455 So.2d 863 (Ala.1984) The main opinion would narrow that argument to the specific cases cited and whether the pendente lite order awarded a trial custody period, without any consideration of the surrounding equities of the case. I find this approach excessively narrow.

      . At the trial-court level, the father maintained that, because the mother had gained custody of the children solely on the basis of his military assignment to Iraq, their custody should automatically be returned to him once that assignment ended. However, the father does not make that argument on appeal. Hence, we consider that issue waived, and we do not address whether a custodial parent’s call to active military duty constitutes a material change of circumstances that would support a change of custody or whether a custodial parent's return from active military duty requires a return to the prior custody arrangement. We note, however, that, at the 2010 Regular Session of the Alabama Legislature, HB-408 was introduced; although that bill did not pass, it would have maintained custody in a parent called to active duty in the military.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Robert POWELL v. PIGGLY WIGGLY ALABAMA DISTRIBUTING COMPANY, INC.
    2090267.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2010.

      Derrick Collins, Birmingham, for appellant.
    Robert M. Girardeau and Michelle K. Pieroni of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee.
   MOORE, Judge.

Robert Powell appeals from a summary judgment entered by the Bessemer Division of the Jefferson Circuit Court (“the trial court”) in favor of Piggly Wiggly Alabama Distributing Company, Inc. (“Piggly Wiggly”). We affirm in part and reverse in part.

Procedural History

Powell filed a complaint in the trial court against Piggly Wiggly on November 8, 2006. Powell asserted that, on November 24, 2004, Piggly Wiggly had negligently and/or wantonly caused or allowed a motor vehicle to collide with Powell at Piggly Wiggly’s warehouse in Bessemer, causing injury to Powell. Powell requested, among other things, compensatory damages, special damages, and punitive damages; he also requested a trial by jury. Piggly Wiggly filed an answer on January 4, 2007.

On September 15, 2009, Piggly Wiggly filed a motion for a summary judgment. In that motion, Piggly Wiggly argued, among other things, that Powell could not recover on any premises-liability theory raised in the complaint, that Powell could not present substantial evidence of wantonness, and that Powell’s prayer for punitive damages should be stricken. Powell filed a response to Piggly Wiggly’s summary-judgment motion on October 20, 2009.

On October 21, 2009, the trial court rendered the following judgment by making the following notation on the case-action-summary sheet:

“Motion for summary judgment is argued by the parties and the Court finds that there is no genuine issue as to any material facts and [Piggly Wiggly] is entitled to a judgment as a matter of law. There is no just reason for delay in making this a final order due to [these] being the only parties and this the only issue. Costs taxed as paid.”

Like the parties, we construe that judgment as granting all the relief requested by Piggly Wiggly, including striking the prayer for punitive damages. The trial court entered its judgment in the State Judicial Information System on November 23, 2009. See Rule 58(c), Ala. R. Civ. P. Powell filed his notice of appeal to this court on December 9, 2009.

Facts

According to Powell’s deposition testimony, on November 24, 2004, he accompanied a friend, Derrick Jones, an employee of Piggly Wiggly, to the building where Jones worked in order to pick up Jones’s paycheck. To obtain access to the Piggly Wiggly building, Jones, but not Powell, signed in at a guard station at the entrance to the parking lot of the building. Once parked, Jones proceeded inside while Powell initially waited in Jones’s automobile. Powell quickly changed his mind and decided to accompany Jones inside the building. Enough time lapsed, however, that, by the time Powell entered the building, Jones was out of his sight.

Powell testified that, not knowing which direction to go, he followed a group of men, eventually ending up in the warehouse part of the building. Powell stopped at a “little yellow line,” which Powell surmised was intended to regulate visitor traffic. Powell observed pallet jacks or forklifts operating on the warehouse floor some distance from him, as well as men loading trucks. At that point, Powell realized he was in the wrong part of the building. Powell testified that he heard Jones call him from behind, he turned to his left, and, at that moment, a pallet jack “came out of nowhere.” The forks of the pallet jack, which was being operated by an employee of Piggly Wiggly, Austin Tubbs, struck and trapped Powell’s right foot. Powell testified that Tubbs immediately jumped off the forklift, ran over to Powell, and apologized, stating he had not seen Powell.

David Bullard, the director of human resources at Piggly Wiggly, testified in his deposition that its employees could, and did, bring visitors with them when picking up their paychecks. Bullard did not recall anyone ever taking a visitor into the warehouse area, but he admitted that Piggly Wiggly did not post any signs or take any other precautions to restrict visitors from accessing the warehouse area while on the premises. Bullard stated that Powell had been injured in the returns area of the warehouse, an area in which five or six employees, including Tubbs, routinely operated pallet jacks to unload trailers. Bul-lard did not recall any yellow line marking the floor in the returns area. Bullard testified that Tubbs had been properly trained on the safe operation of the pallet jack and had not violated any Piggly Wiggly policies while operating the pallet jack that struck Powell. Bullard stated that the accident occurred in an area where visitors would not be expected and that Powell’s presence did not benefit Piggly Wiggly in any way. Norman Decker, a warehouse supervisor for Piggly Wiggly, who concurred with Bullard’s testimony in many respects, testified that no other visitor had entered the returns area before.

Standard of Review

“A party is entitled to a summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. ‘Our standard of review in cases involving summary judgments is de novo.’ Lee v. Burdette, 715 So.2d 804, 806 (Ala.Civ.App.1998). ‘In reviewing the disposition of a motion for [a] summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the movant ‘is entitled to a judgment as a matter of law.’ Bussey v. John Deere Co., 581 So.2d 860, 862 (Ala.1988); Rule 56(c)(3), Ala. R. Civ. P. ‘[I]f the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden ... shifts to the non-movant; ... the non-movant must show “substantial evidence” in support of his position.’ Bass v. SouthTrust Bank, 538 So.2d 794, 798 (Ala.1989). Evidence is ‘substantial’ if it is ‘of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this court must review the record in a light that is most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Prince v. Wal-Mart Stores, Inc., 804 So.2d 1102, 1103-04 (Ala.Civ.App.2001).

Discussion

Powell argues on appeal that the trial court erred in entering a summary judgment in favor of Piggly Wiggly because, he says, Piggly Wiggly failed to make a prima facie showing that no genuine issue of material fact exists. Citing Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049 (Ala.2003), and Orr v. Turney, 535 So.2d 150 (Ala.1988), Powell asserts that general negligence principles, rather than those applicable to premises liability, on which Piggly Wiggly’s summary-judgment motion was based, are applicable in this case because, he says, the negligence count asserted in his complaint was based on Tubbs’s active conduct as an employee of Piggly Wiggly rather than on a condition of the land.

In Lilya, like in the present case, the parties disputed “the nature of the claim involved and, accordingly, whether the duty owed ... should be extracted from general principles of negligence or of premises liability.” 855 So.2d at 1053. The Alabama Supreme Court then outlined the applicable law regarding that issue:

“The key to this question is whether the injury was caused by some affirmative conduct of the landowner or by a condition of the premises. Baldwin v. Gartman, 604 So.2d 347, 349 (Ala.1992).
“In Baldwin, we held that an injury to a landowner’s friend, Baldwin, caused by a concrete slab that fell on Baldwin’s leg after it was left upright on a dolly by the landowner, Gartman, was caused by a condition of the premises and was to be evaluated under premises-liability principles:
“ ‘Baldwin argues that Gartmaris duty toward Baldwin is governed not by the standards of premises liability, but rather by traditional negligence standards. This Court recognized in Orr v. Turney, 535 So.2d 150 (Ala.1988), that negligence principles are applicable when the landowner’s active conduct, rather than the condition of the land, causes the injury:
“ ‘ “Historically, landowners have enjoyed isolation from traditional negligence standards relative to their ownership or possession of land. Instead, graduated classes, each to whom a separate duty was owed, based upon their relationship to the landowner, became determinative of the landowner’s liability....
“ ‘ “This special classification privilege is not generally regarded as applicable, however, when it is the affirmative conduct of the landowner, rather than the condition of his premises, that causes the injury. In this context, the justifications for determining liability based upon the classification of the injured party ... do not attach. Where the injury is caused by some distinct act of the landowner, rather than by the mere condition of the premises, a different standard for determining liability may arise.
. We reaffirm today the rule set out in W.S. Fowler Rental Equip. Co. v. Skipper, [276 Ala. 593, 165 So.2d 375 (1963) ]. A landowner, if he undertakes any affirmative conduct creating a danger to an unwitting licensee, independent and distinct from the condition of the premises, must give reasonable notice or warning of the danger or exercise reasonable or ordinary care to safeguard against the danger.”
“‘535 So.2d at 151-54. In Orr the landowner injured a licensee when, while running with a pan of burning grease, she spilled some on the licensee. That conduct had nothing to do with the condition of the premises. Rather, the injury came from an affirmative act.
“‘The dangerous condition caused by the precarious position of the slab on the dolly is not “independent and distinct from the condition of the premises.” Gartman left the slab unattended, it was bumped by his son Steven, and it fell on Baldwin. The balanced slab was a condition of the premises, no matter how briefly it was balanced. Baldwin contends that Gartman’s negligent affirmative conduct, qualifying for the Orr exception to premises liability standards, was in leaving the balanced slab on the dolly unattended. In Orr the defendant’s conduct was the immediate cause of the injury. Gartman’s leaving the slab unattended did not, in and of itself, cause the injury; rather, it produced a dangerous condition. Had Gartman, rather than his son, bumped the slab and caused it to fall, his conduct, distinct from his status as landowner, could then be said to have caused the injury and could be evaluated by an ordinary negligence standard.’
“Baldwin, 604 So.2d at 348-49 (footnote omitted).”

Lilya, 855 So.2d at 1053-54.

In Lilya, Lilya was injured when he fell off a mechanical bull ride operated by a lessee on premises owned by The Greater Gulf State Fair. 855 So.2d at 1051-52. The Alabama Supreme Court determined that, like in Baldwin, the dangerous condition created by the bull ride itself, and not Gulf State Fair’s conduct in allowing the lessee to operate the bull ride, directly caused Lilya’s injury, and, thus, the claim was governed by principles of premises liability rather than by general negligence principles. Id. at 1054.

We agree with Powell that the circumstances of this case are more similar to those in Orr than to those in Baldwin or Lilya. In this case, it was the alleged negligent actions of Tubbs in operating the forklift that ultimately caused Powell’s injury, rather than any dangerous condition existing within the warehouse. Compare Shelley v. White, [Case No. 1:09cv-662-WHA, May 5, 2010] — F.Supp.2d - (M.D.Ala.2010) (where driver of a delivery truck pulled away from loading dock as plaintiff, who had entered trailer of truck, was attempting to move boxes from trailer of truck to loading dock, and the plaintiffs injury was caused by driver’s movement of the truck, not by a condition of the truck itself, duty comes from traditional principles of negligence, not premises liability). We conclude, therefore, that, like in Shelley, Piggly Wiggly’s duty comes from traditional negligence principles, rather than principles of premises liability.

Piggly Wiggly argues on appeal that, even if general negligence principles apply, summary judgment was still proper because Powell was not a foreseeable plaintiff and because the danger was open and obvious. With regard to Piggly Wiggly’s argument that Powell was not a foreseeable plaintiff, we note that Piggly Wiggly relied on principles of premises liability in its summary-judgment motion and it did not argue that Powell was not a foreseeable plaintiff for negligence purposes. Thus, Piggly Wiggly failed to make a pri-ma facie showing that no genuine issue of material fact existed as to whether it owed a duty to Powell under general negligence principles, and, therefore, the burden never shifted to Powell to present substantial evidence that he was, in fact, a foreseeable plaintiff.

Piggly Wiggly further argues that summary judgment was proper based on its assertion that the danger to Powell was open and obvious.

“ A condition is “open and obvious” when it is “known to the [plaintiff] or should have been observed by the [plaintiff] in the exercise of reasonable care.” Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980). “The entire basis of [a store owner’s] liability rests upon [its] superi- or knowledge of the danger which causes the [customer’s] injuries. Therefore, if that superior knowledge is lacking, as when the danger is obvious, the [store owner] cannot be held liable.” Id. (citation omitted).’ ”

Horne v. Gregerson's Foods, Inc., 849 So.2d 173, 176 (Ala.Civ.App.2002) (quoting Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala.2002)). As the foregoing excerpt shows, the “open and obvious defect” defense applies to premises-liability claims. Although some cases apply similar analysis in failure-to-warn or products-liability cases, see Abney v. Crosman Corp., 919 So.2d 289 (Ala.2005); and Griffin v. Summit Specialties, Inc., 622 So.2d 1299 (Ala.1993), the defense has not been extended to negligence actions based on affirmative conduct committed by the alleged tortfeasor. Moreover, even if the defense could be applied in this type case, we note that Powell testified that the pallet jack that struck him “came out of nowhere.” Based on that testimony, we are not prepared to hold that Powell’s observance of other pallet jacks operating at a distance beyond the yellow line described by Powell would have made the existence of the pallet jack operated by Tubbs open and obvious as a matter of law. See Ford v. Bynum Livestock & Comm’n Co., 674 So.2d 600, 603 (Ala.Civ.App.1995) (holding that the openness and obviousness of a defect ordinarily is a question for the jury). Therefore, we reverse the summary judgment entered in favor of Piggly Wiggly as to the negligence claim.

We, however, affirm the summary judgment as to the wantonness claim filed by Powell. In Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)), our supreme court held that “ ‘[i]f the burden of proof at trial is on the nonmov-ant, the movant may satisfy the Rule 56[, Ala. R. Civ. P.,] burden of production ... by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the non-movant’s claim....’” Piggly Wiggly asserted in its summary-judgment motion that Powell could not present evidence indicating that Piggly Wiggly knew that injury would likely or probably result to Powell. In response, Powell filed testimonial evidence indicating that Tubbs had struck him accidentally because he did not see Powell. That evidence does not show the requisite state of mind to sustain a wantonness claim. See Ex parte Essary, 992 So.2d 5, 12 (Ala.2007) (equating wantonness to “reckless indifference to a known danger likely to inflict injury”). Hence, the trial court did not err in entering a summary judgment in favor of Piggly Wiggly as to the wantonness claim. Because the wantonness claim constitutes the sole basis for Powell’s request for punitive damages, see Ala.Code 1975, § 6 — 11—20(a) (providing that punitive damages may only be awarded in tort actions based upon clear and convincing evidence indicating that the defendant “consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff’), the trial court acted properly in granting the motion to strike the prayer for punitive damages.

Conclusion

Based on the above-stated reasoning, we reverse the summary judgment in favor of Piggly Wiggly as to the negligence claim, we affirm the summary judgment as to the wantonness claim, we affirm the summary judgment insofar as it struck the prayer for punitive damages, and we remand the cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . It is undisputed that the pallet jack involved in this incident has a cockpit with 8-foot forks behind it and weighs approximately 1,500 pounds.


author: BRYAN, Judge.

text:
    Johnnie HALL, Sr. v. Calvin E. REYNOLDS et al.
    2090582.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2010.

      W. Eric Pitts, Alabaster, for appellant.
    Christmas Y. Green, Selma, for appel-lees.
   BRYAN, Judge.

The defendant, Johnnie Hall, Sr., appeals from a judgment in favor of the plaintiffs, Calvin E. Reynolds, James C. Reynolds, Annie Reynolds Perry, and Gwendolwyn Reynolds Amamoo (“the Moorer heirs”) in this boundary-line dispute. Because we conclude that the trial court did not have before it necessary parties who should have been joined if feasible, we reverse and remand.

Hall’s father, David Hall, owned a tract of property (“the Hall property”). In his will, David Hall devised a life estate in the Hall property to his wife, Rosabelle Hall, and he devised a remainder interest in that property in equal shares to his eight children. David Hall died in 1972, and Rosabelle Hall died in 2003. Therefore, the record on appeal indicates that Hall and the other heirs of David Hall each received an undivided one-eighth ownership interest in the Hall property. The Hall property is bordered on the south by a tract of property owned by the Moorer heirs (“the Moorer property”).

A dispute arose concerning the location of the boundary line between the Moorer property and the Hall property. In April 2004, the Moorer heirs sued Hall, seeking a judgment establishing the boundary line between the Moorer property and the Hall property. The complaint also alleged a trespass claim against Hall and sought a preliminary and a permanent injunction enjoining Hall from trespassing on property allegedly owned by the Moorer heirs. Hall answered and asserted, among other things, that the Moorer heirs had failed to join all necessary parties in this case. Following a bench trial, the trial court entered an order purporting to be a final judgment in favor of the Moorer heirs. Hall subsequently filed a motion asserting that the trial court had failed to join all David Hall’s heirs as necessary parties. The trial court denied that motion, and Hall filed a notice of appeal to the supreme court. The supreme court concluded that the appeal had been taken from a nonfinal judgment, and, consequently, the supreme court dismissed the appeal. Hall v. Reynolds, 27 So.3d 479 (Ala.2009).

The trial court subsequently entered a final judgment that, among other things, established the location of the boundary line between the Moorer property and the Hall property and denied the Moorer heirs’ claim for damages for trespass. The trial court’s establishment of the boundary line was favorable to the Moorer heirs. Hall filed a postjudgment motion asserting, among other things, that the trial court had failed to join all David Hall’s heirs as necessary parties in the action. The trial court denied the postjudgment motion, and Hall appealed to the supreme court. The supreme court then transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Hall first argues that the trial court erred by failing to join all David Hall’s heirs, ie., all the owners of the Hall property, as parties pursuant to Rule 19, Ala. R. Civ. P. Rule 19 provides:

“(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
“(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoin-der.”

Rule 19(a) defines who is a necessary party to an action. Prime Lithotripter Operations, Inc. v. LithoMedTech of Alabama, LLC, 855 So.2d 1085, 1092 (Ala.Civ.App.2001); Adams v. Boyles, 610 So.2d 1156, 1157 (Ala.1992). See also Committee Comments on 1973 Adoption of Rule 19. Certain necessary parties are also indispensable parties under Rule 19(b):

“A party is an indispensable party pursuant to Rule 19(b), Ala. R; Civ. P., if: (1) he is a necessary party under the definition of Rule 19(a); (2) he cannot be made a party to the action; and (3) the trial court concludes that in equity and good conscience the action cannot proceed without the absent party.”

855 So.2d at 1092.

Our supreme court discussed the application of Rule 19 in Liberty National Life Insurance Co. v. University of Alabama Health Services Foundation, P.C., 881 So.2d 1013 (Ala.2003):

“We have discussed the application of Rule 19 as follows:
“‘“Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Hooper v. Huey, 293 Ala. 63, 69, 300 So.2d 100, 105 (1974), overruled on other grounds, Bardin v. Jones, 371 So.2d 23 (Ala.1979).” ’

“Dawkins v. Walker, 794 So.2d 333, 336 (Ala.2001) (quoting Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala.1991)).

“ ‘Rule 19, [Ala.] R. Civ. P., provides a two-step process for the trial court to follow in determining whether a party is necessary or indispensable. Ross v. Luton, 456 So.2d 249, 256 (Ala.1984), citing Note, Rule 19 in Alabama, 33 Ada. L.Rev. 439, 446 (1982). First, the court must determine whether the absentee is one who should be joined if feasible under subdivision (a). If the court determines that the absentee should be joined but cannot be made a party, the provisions of (b) are used to determine whether an action can proceed in the absence of such a person. Loving v. Wilson, 494 So.2d 68 (Ala.1986); Ross v. Luton, 456 So.2d 249 (Ala.1984)., It is the plaintiffs duty under this rule to join as a party anyone required to be joined. J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981).
“ ‘ “If such persons are not joined, the plaintiff must, under subsection (c) of Rule 19, [Ala. R. Civ. P.], state their names and the reasons why they are not joined. If there is a failure to join a person needed for just adjudication by a litigant then under subsection (a) of Rule 19, the trial court shall order that he be made a party.”
“ ‘406 So.2d at 849-50....
“ ‘We note that the interest to be protected must be a legally protected interest, not just a financial interest. Ross, supra; see Realty Growth Investors v. Commercial & Indus. Bank, 370 So.2d 297 (Ala.Civ.App.1979), cert. denied, 370 So.2d 306 (Ala.1979). There is no prescribed formula for determining whether a party is a necessary one or an indispensable one. This question is to be decided in the context of each particular case. J.R. McClenney & Son v. Reimer, 435 So.2d 50 (Ala.1983), citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968).’
“Holland v. City of Alabaster, 566 So.2d 224, 226-27 (Ala.1990) (emphasis omitted). ‘The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment.’ J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala.1981). See also Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 (Ala.1994) (Al-mon, J., concurring in part and dissenting in part).”

881 So.2d at 1021-22.

“ ‘There is no prescribed formula to be mechanically applied in every case to determine whether a party is an indispensable party or merely a proper or necessary one. This is a question to be decided in the context of the particular case.’ ” Melton v. Harbor Pointe, LLC, 57 So.3d 695, 700 (Ala.2010) (quoting J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50, 52 (Ala.1983)). “[M]atters concerning Rule 19, Ala. R. Civ. P., and its joinder provisions may be raised for the first time on appeal or may be raised by [an appellate court] ex mero motu.” Jamison, Money, Farmer & Co. v. Standeffer, 678 So.2d 1061, 1067 (Ala.1996).

As noted, the record indicates that Hall and the other heirs of David Hall each own, as tenants in common, an undivided one-eighth interest in the Hall property. Hall argues that the trial court, pursuant to Rule 19, should have joined the other heirs of David Hall as parties in this action seeking to establish the boundary line between the Hall property and the Moorer property. In Bryan v. W.T. Smith Lumber Co., 278 Ala. 538, 543, 179 So.2d 287, 291 (1965), our supreme court stated that “tenants in common are necessary parties in [a suit to settle a disputed boundary].” Although Bryan was decided before Rule 19 was adopted in 1973, “[t]he Committee Comments to Rule 19, Ala. R. Civ. P., note that this rule, in pragmatic terms, embodies the preexisting common law governing the joinder of necessary or indispensable parties.” Neal v. Neal, 856 So.2d 766, 780 (Ala.2002). See Committee Comments on 1978 Adoption of Rule 19 (“General principles developed from the terminology of indispensable, proper and necessary, remain applicable”). Thus, Bryan is applicable to this case.

In Morris v. Owens, 292 Ala. 159, 290 So.2d 646 (1974), our supreme court addressed whether a joint tenant with a right of survivorship should be joined in an action to establish a boundary line. In determining that the joint tenant in Morris was a necessary and indispensable party, the supreme court stated:

“To determine a disputed boundary all joint tenants with the right of survivor-ship, as well as all parties who own an interest in involved lands, should be parties to the proceedings in order for the court to have before it the title to the property which is sought to be affected by the decree.”

292 Ala. at 160-61, 290 So.2d at 648. The supreme court further stated:

“In holding that a mortgagee was a necessary party to a disputed boundary line suit this court in Rollan v. Posey, 271 Ala. 640, [645-46,] 126 So.2d 464, [469] (1961) stated:
“Tn a suit to settle a disputed boundary, this court said: “The Court must have before it title to the property which is sought to be affected by the decree.” Easterling v. Cleckler, 269 Ala. 660, [662,] 115 So.2d 516, 517 [ (1959) ]. Other courts have said that in a boundary suit necessary parties included: all persons who have a direct interest in the result of the proceedings, Atkins v. Hatton, (Eng.), 2 Anstr. 386, 145 Reprint 911; Watkins v. Childs, 80 Vt. 99, 66 A. 805 [ (1907) ]; Hazard Coal Corp. v. Getaz, 234 Ky. 817, 29 S.W.2d 573 [ (1930) ]; McDonald v. Humble Oil & Refining Co., Tex.Civ.App., 78 S.W.2d 1068 [(1935)]; Cady v. Kerr, 11 Wash.2d 1, 118 P.2d 182 [ (1941) ][;] 137 A.L.R. 713; tenants in common, Pope v. Melone, 2 A.K. Marsh. 239, 9 Ky. 239 [ (1820) ]; and remaindem-men and revisioners, Bayley v. Best, 5 Eng.Ch. 659, 39 Reprint 253.’ (Emphasis supplied)
“In Bryan v. W.T. Smith Lumber Company, 278 Ala. 538, 179 So.2d 287 (1965), this court held that tenants in common are necessary parties in a suit to settle a disputed boundary.”

Morris, 292 Ala. at 160, 290 So.2d at 647-48. See also Davis v. Burnette, 341 So.2d 118 (Ala.1976) (stating that a joint tenant should have been joined in an action seeking reformation of a deed to certain property); and 7 Charles A. Wright et al., Federal Practice and Procedure § 1621 (3d ed. 2001) (stating that, under Rule 19, Fed.R.Civ.P., which is substantially similar to Alabama’s Rule 19, generally “when all eotenants will be affected by the judgment or when the absence of some of them will prevent complete justice from being rendered to everyone interested in the land, all the cotenants must be joined”).

Because the record indicates that Hall and the other heirs of David Hall share an ownership interest in the Hall property, the other heirs of David Hall should have been joined in the action if it was feasible. That is, the other heirs of David Hall are at least necessary parties under Rule 19(a). However, the other heirs of David Hall were not joined and no determination was made regarding whether it was feasible to join them or, if it was not feasible, whether the action should proceed in their absence. Therefore, we reverse the trial court’s judgment, and we remand the case for the trial court to conduct further proceedings consistent with this opinion and the procedure proscribed by Rule 19. See Willis v. Coe, 991 So.2d 259 (Ala.Civ.App.2008). This holding pretermits discussion of the other arguments made by Hall.

REVERSED AND REMANDED.

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


author: THOMAS, Judge. MOORE, Judge,

text:
    Larence Joseph MOORE v. ALABAMA DEPARTMENT OF CORRECTIONS.
    2090607.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.
    Larence Joseph Moore, pro se.
    Scott L. Rouse, asst. gen. counsel, Alabama Department of Corrections, for ap-pellee.
   THOMAS, Judge.

Larence Joseph Moore appeals from the trial court’s judgment dismissing his petition for a writ of habeas corpus because of his failure to effectuate service on the Alabama Department of Corrections (“DOC”). Moore filed his petition on July 16, 2009. The case-action-summary sheet does not reflect that DOC was ever served with the petition; however, that document reflects that Kim Thomas, who is listed as the attorney representing DOC, was sent a copy of the case-action-summary sheet after the trial court granted Moore’s request to proceed in forma pauperis.

On November 6, 2009, Moore filed an application for an entry of default. On December 18, 2009, the trial court entered an order requiring DOC to respond to Moore’s filings within 30 days. DOC filed a motion to dismiss Moore’s petition on January 19, 2010. In its motion, DOC argued that -Moore’s petition was due to be dismissed pursuant to Rule 12(b)(5) and Rule 4(b), Ala. R. Civ. P., because Moore had not served DOC with a copy of the petition within 120 days, as required by Rule 4(b): Moore filed a response to DOC’s motion on January 27, 2010, in which Moore argued that he had personally mailed a copy of the petition to Thomas and that “the medical staff’ had mentioned the petition to Thomas. On February 9, 2010, the trial court dismissed Moore’s petition. Moore appealed to the Alabama Court of Criminal Appeals, which transferred the appeal to this court. We affirm.

Moore argues that the trial court erred by dismissing his petition for his failure to serve DOC within 120 days, as required by Rule 4. Moore asserts that, before the trial court could dismiss his petition, it was required to give him 14 days notice. The text of the rule does require notice of a dismissal for a failure to timely serve a defendant; however, the rule does not specifically prescribe a method by which such notice must be given. The text of the rule, in pertinent part, reads:

“(b) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative, after at least fourteen (14) days’ notice to the plaintiff, may dismiss the action without prejudice as to the defendant upon whom service was not made or direct that service be effected within a specified time; provided, however, that if the plaintiff shows good cause for the failure to serve the defendant, the court shall extend the time for service for an appropriate period.”

Rule 4(b).

Although most of subsection (b) was “borrowed” from Rule 4(m), Fed.R.Civ.P., see Moffett v. Stevenson, 909 So.2d 824, 826 (Ala.Civ.App.2005), the 14-day notice requirement contained in Rule 4(b) does not appear in the federal rule. Only one Alabama case, Moffett, has construed the 14-day notice requirement, and that case, although instructive, does not compel reversal of the dismissal of Moore’s petition.

In Moffett, this court concluded that a trial court must give a plaintiff 14 days’ notice before dismissing an action for lack of service on the defendant. Moffett, 909 So.2d at 826. We explained that the obvious reason for the 14-day notice requirement was to permit the plaintiff time to demonstrate good cause for an extension of the time for service. Id. at 826-27. Thus, in Moffett, we reversed the dismissal of the plaintiffs action because the trial court had not given the plaintiff the requisite 14-day notice. Id. at 827.

However, as noted above, Rule 4(b) does not require that the trial court give notice of an intent to dismiss an action for the failure to timely serve a defendant. Instead, the rule requires only that the plaintiff have 14 days’ notice before a trial court dismisses an action for a failure to timely serve a defendant. As DOC argues, its motion, in which it specifically referenced Rule 4(b) and argued that it had not been served with Moore’s petition, put Moore on notice, as of January 19, 2010, that his petition was subject to dismissal for a failure to serve DOC. Before the trial court ruled on DOC’s motion, Moore responded to that motion; however, he neither requested additional time to serve DOC nor asserted good cause for the failure to timely perfect service.

The basis for the reversal in Moffett is simply not present here. Unlike the plaintiff in Moffett, whose action was dismissed without' any notice that a dismissal was being considered, id. at 825, Moore was placed on notice more than 14 days before the entry of the trial court’s dismissal order that the petition might be subject to dismissal under Rule 4(b). The plaintiff in Moffett had no opportunity to present good cause for the failure to perfect service on the defendants and no opportunity to request additional time in which to perfect service. Id. In contrast, despite his quick response to DOC’s motion to dismiss, Moore failed to take advantage of his opportunity to demonstrate good cause for the failure of service or to request additional time in order to perfect service. Thus, we conclude that the trial court did not err when it dismissed Moore’s petition because Moore had received the requisite notice in the form of DOC’s motion to dismiss.

AFFIRMED.

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

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

I agree that the judgment of the trial court is due to be affirmed, but I do so for reasons different than those set out in the main opinion.

The only issue raised by Moore on appeal is that the trial court erred by dismissing his habeas corpus petition without giving him at least 14 days’ notice as required by Rule 4(b), Ala. R. Civ. P. Moore failed to file a postjudgment motion and failed to otherwise raise that issue before the trial court. “ ‘[I]t is a well-settled rule that an appellate court’s review is limited to only those issues that were raised before the trial court. Issues raised for the first time on appeal cannot be considered.’ ” Neal v. Neal, 856 So.2d 766, 778 (Ala.2002) (quoting Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994)).

Moreover, because Moore was denied proper notice of the trial court’s intention to dismiss his petition, his argument is properly interpreted as a procedural-due-process claim. See Hosey v. Lowery, 911 So.2d 15, 18 (Ala.Civ.App.2005) (“the dismissal of the plaintiffs’ claims against Lowery, without notice or a hearing, violated the plaintiffs’ due-process rights”); and Alabama Republican Party v. McGinley, 893 So.2d 337, 344 (Ala.2004) (defining “procedural due process” as “assuring, regardless of the outcome, that a state actor fairly followed a particular procedure”).

“ ‘The rule is well settled that a constitutional issue must be raised at the trial level and that the trial court must be given an opportunity to rule on the issue, or' some objection must be made to the failure of the court to issue a ruling, in order to properly preserve that issue for appellate review.’ ”

Yeager v. Lucy, 998 So.2d 460, 463 (Ala.2008) (quoting Cooley v. Knapp, 607 So.2d 146, 148 (Ala.1992)). Because Moore failed to raise before the trial court the trial court’s failure to provide him proper notice before dismissing his habeas corpus petition, I conclude that Moore failed to preserve that argument for appeal. See Wu v. Wu, 37 So.3d 792, 796-97 (Ala.Civ.App.2009) (issue was not preserved for appellate review because husband failed to raise before the trial court his argument that trial court’s failure to conduct a hearing within 14 days of the filing of the wife’s petition for protection from abuse violated his right to due process). I would, therefore, affirm the trial court’s judgment without reaching the merits of Moore’s argument. Because I agree that the trial court’s judgment is due to be affirmed, I concur in the result.


author: McMILLAN, Presiding Judge. McMILLAN, Presiding Judge.

text:
    James Henry BORDEN, Jr. v. STATE.
    CR-02-1314.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2004.
    Opinion on Return to Remand Jan. 7, 2005.
    Angela L. Setzer and Bryan A. Stevenson, Montgomery, for appellant.
    William H. Pryor, Jr., and Troy King, attys. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On December 1, 1994, the appellant, James Henry Borden, Jr., was found guilty of the capital offense of murder, for intentionally causing the death of Nellie Ledbetter after he had been convicted of another murder within the 20 years preceding this offense. See § 13A-5-40(a)(13), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended a sentence of death. The trial court accepted the jury’s recommendation and sentenced Borden to death by electrocution. After the case was remanded for specific findings regarding the existence of aggravating and mitigating circumstances, see Borden v. State, 769 So.2d 935 (Ala.Crim.App.1997), this court affirmed Borden’s conviction. See Borden v. State, 769 So.2d 935 (Ala.Crim.App.1997). The Alabama Supreme Court affirmed our judgment, see Ex parte Borden, 769 So.2d 950 (Ala.2000), and the United States Supreme Court denied Borden’s petition for certiorari review. See Borden v. Alabama, 531 U.S. 961, 121 S.Ct. 389, 148 L.Ed.2d 299 (2000). The relevant facts are set out in this court’s opinion on direct appeal.

On October 18, 2001, Borden timely filed a Rule 32 petition, challenging his conviction and sentence of death. The State filed its initial response and supporting affidavits on December 27, 2001. The State then filed additional affidavits and a motion to dismiss the petition on January 22, 2002. On July 31, 2002, the trial court permitted the State to amend its response and motion to reflect two changes in the law. In the amendment, the State withdrew its reliance on procedural bars regarding Borden’s claim that he was mentally retarded and that, in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), he should not be executed, provided that Borden amended the claim to comply with Rule 32.6(b), Ala. R.Crim. P. The State also argued that Borden’s challenge to the constitutionality of electrocution as a method of carrying out the death penalty had been rendered moot on July 1, 2002, when the primary method of execution in Alabama was changed to lethal injection. On August 22, 2002, Borden filed a response to the State’s motion to dismiss and a motion to vacate his death sentence, in which he set out specific facts supporting his mental-retardation claim. He also filed an amended petition and a motion to amend three claims, including the Atkins claim, and add a new claim under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). On September 30, 2002, the State filed a motion stating its opposition to any changes other than the amendment of the Atkins claim. On March 14, 2003, the circuit court dismissed Borden’s petition. In its order of dismissal, the court instructed Borden to amend his Atkins claim within 21 days to comply with Rule 32.6(b) and to file his notice of appeal within 42 days of the date of the order. On April 4, 2003, Borden filed a motion for reconsideration, in which he argued that his August 22, 2002, filings contained sufficient facts to support the Atkins claim. He filed his notice of appeal on April 17, 2003, before the circuit court had ruled on his motion.

The State has asked this court to remand this case for a hearing on the merits of Borden’s claim of mental retardation under Atkins. In Atkins, the United States Supreme Court held:

“We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.”

536 U.S. at 321, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). This court has held that Atkins applies retroactively to cases that are on collateral review. Clemons v. State, 55 So.3d 314 (Ala.Crim.App.2003).

In his original petition, Borden failed to state a factual basis for his claim that carrying out the death-penalty sentence in his case constituted cruel and unusual punishment. However, in his August 22, 2002, response and in his amended petition, Borden set out approximately nine pages of facts underlying the Atkins claim. Because this claim was sufficiently pleaded, the circuit court erred in finding that Borden failed to meet the specificity requirements of Rule 32. Therefore, we remand this cause to the circuit court with instructions for that court to conduct an evidentiary hearing and make specific, written findings of fact as to Borden’s claim that he is mentally retarded and that his sentence of death is unauthorized as a matter of law. In determining whether Borden is mentally retarded, the court should consider the standards set forth in Ex parte Smith, [Ms. 1010267, March 14, 2003] — So.3d - (Ala.2003); Ex parte Perkins, 851 So.2d 453 (Ala.2002); McGowan v. State, 990 So.2d 931 (Ala.Crim.App.2003); and Stallworth v. State, 868 So.2d 1128, 1178 (Ala.Crim.App.2001) (opinion on return to second remand). The circuit court shall file its return, including its specific, written findings of fact and a transcript of the evidentiary hearing, with this court within 98 days after the release of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

On Return to Remand

McMILLAN, Presiding Judge.

On February 27, 2004, we remanded this cause, following the appellant’s Rule 32 petition, for the circuit court to conduct an evidentiary hearing and to make specific, written findings of fact as to whether Borden is mentally retarded and whether, therefore, in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), his sentence of death is unauthorized as a matter of law. The circuit court has now filed its return, which states, in pertinent part:

“On August 12, 2004, this Court held a status conference at which the State of Alabama stipulated that Mr. Borden is mentally retarded and that his death sentence is prohibited as a matter of law pursuant to Atkins v. Virginia, 536 U.S. 304[, 122 S.Ct. 2242, 153 L.Ed.2d 335] (2002). Both parties agreed during the status conference that this Court should find that Mr. Borden is a person with mental retardation and in accordance with Atkins his sentence should be reduced to life imprisonment without parole.
“Pursuant to the opinion of the Alabama Court of Criminal Appeals, this Court has reviewed the evidence in light of the standards for determining mental retardation articulated in Atkins v. Virginia, 536 U.S. 304[, 122 S.Ct. 2242, 153 L.Ed.2d 335] (2002); Ex parte Smith, [(No. 1010267, Mar. 14, 2003) - So.3d -(Ala.2002)]; Ex parte Perkins, 851 So.2d 453 (Ala.2002); McGowan v. State, 990 So.2d 931 (Ala.Crim.App.2003)]; and Stallworth v. State, [868 So.2d 1128 (Ala.Crim.App.2001)], and finds that Mr. Borden meets the definition of mental retardation set forth in Atkins and Perkins and therefore cannot be sentenced to death pursuant to Atkins v. Virginia, 536 U.S. 304[, 122 S.Ct. 2242, 153 L.Ed.2d 335] (2002). In support of this determination, this Court specifically finds the following:
“Mr. Borden suffers from significantly subaverage general intellectual functioning. Dr. King administered the Wech-sler Adult Intelligence Scale III (WAIS-III) to Mr. Borden, who generated a Verbal IQ of 59, a Performance IQ of 55, and a Full Scale IQ of 53. Forensic Evaluation Report of Dr. Glen King dated April 7, 2004, at 5, attached at Appendix A (hereinafter ‘King’s Report’). Dr. King opined that Mr. Borden ‘has always functioned in the retarded range of intellectual ability and this is confirmed again by previous testing completed some years ago.’ Id. Dr. King concluded that Mr. Borden functions at ‘an extremely low level intellectually.’ Id.
“Mr. Borden suffers from significant or substantial deficits in adaptive behavior. Dr. King reported that he administered the Independent Living Scale Test to Mr. Borden ‘in order to further assess his adaptive functioning.’ King’s Report at 5. This test is ‘designed to rate an individual’s ability to function independently as an adult.’ Id. Mr. Borden’s performance on this test was ‘extremely impaired.’ Id. Dr. King reported that Mr. Borden functions slightly below average with regard to memory and orientation and the remainder of his scores were all at the lowest possible level. He is extremely impaired in his ability to manage money, manage home and transportation, manage health and safety and in his social adjustment. He also has a full scale standard score which is at 55, commensurate with his overall IQ score and at the lowest possible level assessed by this instrument. King’s Report at 5. In addition, Dr. King found that Mr. Borden scored extremely low in ‘problem solving and performance/information.’ King’s Report at 5. Mr. Borden was unable to accomplish ‘even the rudiments’ of filling out a sample check, he ‘did not know what information could be obtained from a bus schedule,’ and ‘because of his inability to read, he was unable to locate a name in the telephone book in order to make a phone call.’ King’s Report at 5. Additionally, Mr. Borden cannot read or write. King’s Report at 4.
“The onset of Mr. Borden’s mental retardation occurred before the age of 18. Dr. King concluded that ‘[a]t the time of the evaluation, and for his lifetime, since at least the age of 16, Mr. Borden has functioned in the mild to moderate range of mental retardation with poor adaptive skills.’ King’s Report at 6. Dr. King noted that Mr. Borden may suffer from ‘generalized cerebral damage’ as a result of a high fever and coma, and reported that in addition to congenital retardation, this individual probably has some dementia associated with high fever as the result of an infectious disease.’ King’s Report at 3, 5.
“Dr. King reported that Mr. Borden ‘generated a protocol that is exactly what I would expect based on my extensive experience and training in assessing mentally retarded individuals,’ and he found no evidence of malingering or faking during the evaluation. King’s Report at 6. Dr. King diagnosed Mr. Borden as ‘moderately mentally retarded.’ King’s Report at 6.
“Dr. King’s findings are confirmed by other experts who have consistently diagnosed Mr. Borden with mental retardation. These experts include the following:
“Dr. William Beidleman, the defense expert at Mr. Borden’s 1994 trial, administered the Wechsler Adult Intelligence Scale Revised (WAIS-R) and determined that Mr. Borden has a ‘full scale IQ score of 66,’ which falls within the mild mental retardation range.’ (R. 952-53.) Dr. Beidleman testified that these scores were ‘consistent with the past records [he] reviewed.’ (R. 953.)
“Dr. Lawrence Maier, the court-appointed expert at Mr. Borden’s 1994 trialt,] agreed that an IQ score of 65-66 for Mr. Borden would be accurate, (R. 912), and diagnosed Mr. Borden as ‘mentally retarded, degree mild.’ (R. 921.)
“Both Dr. Beidleman and Dr. Maier agreed that Mr. Borden is illiterate. (R. 902, 953-54). Both Dr. Beidleman and Dr. Maier agreed that Mr. Borden’s judgment, insight and behavior control are impaired. (R. 916, 978). Both Dr. Maier and Dr. Beidleman found evidence of brain damage from a fever suffered by Mr. Borden in 1966, which may have resulted in an organic mental or brain disorder. (R. 919-20, 956-58, 969).
“The Forensic Evaluation Board of Bryce Psychiatric Hospital diagnosed Mr. Borden as ‘mildly mentally retarded’ in 1975. (C. 000054, 000055, 000121). As noted in the Forensic Unit Psycho-diagnostic Assessment, two Bryce psychologists concluded that Mr. Borden functioned in the ‘moderately retarded range.’ (C. 000077, 000078), which they concluded may be a reflection of brain trauma associated with infection and high fever. (C. 000078.)
“Dr. Garland Hall treated Mr. Borden for a tetanus infection and encephalitis in 1966 and noted that he had always had some difficulty in talking and was somewhat retarded. (C. 000099; R. 936, 956).
“In light of these consistent findings of Mr. Borden’s mental retardation over the past thirty years, and the stipulation of the parties, this Court finds that Mr. Borden is mentally retarded and that his sentence of death is prohibited by the Eighth and Fourteenth Amendments to the United States Constitution as determined by the United States supreme Court in Atkins v. Virginia, 536 U.S. 304[, 122 S.Ct. 2242, 153 L.Ed.2d 335] (2002), and that he must now be sentenced to life without the possibility of parole.”

After reviewing the record and the findings of the circuit court, we find that Borden is mentally retarded and therefore that he cannot be sentenced to death. Accordingly, this cause is remanded to the circuit court, with directions to resentence Borden to life imprisonment without the possibility of parole. Due return to be made to this Court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . The State noted in its filings on July 18, 2002, and September 30, 2002, that Borden would be entitled to an evidentiary hearing if he properly amended his claim.

      . Borden also claimed that his trial counsel were ineffective for failing to "marshal evidence” in support of the Atkins claim. Because he failed to make the requisite showing of prejudice, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court need not address this claim on remand. We pretermit discussion of Borden’s remaining arguments at this time.

      .The Alabama Legislature has not yet enacted legislation addressing the issue raised by Atkins.

      . Dr. Glen King is the State's expert.

      . The Court in Atkins recognized that the WAIS-III is the “standard instrument in the United States for assessing intellectual functioning." Atkins, 536 U.S. at 309 n. 5, 122 S.Ct. 2242 (citation omitted).