text:
    HATHCOCK ROOFING & REMODELING COMPANY, INC. v. COMPASS BANK.
    2090046.
    Court of Civil Appeals of Alabama.
    May 21, 2010.

      Russell N. Parrish of Farmer, Price, Hornsby & Weatherford, L.L.P., Dothan, for appellant.
    Gregory C. Cook of Balch & Bingham LLP, Birmingham; and C. Lane Knight of Balch & Bingham LLP, Montgomery, for appellee.
   BRYAN, Judge.

Hathcock Roofing & Remodeling Company, Inc. (“Hathcock Roofing”), appeals from a summary judgment entered in favor of Compass Bank. We reverse and remand.

In April 2006, Hathcock Roofing contracted with Larry Sample and his wife Mary Sample to perform repairs to the Samples’ house, which had' been damaged by fire. The Samples’ insurance company issued a check in the amount of $105,000 to pay for the repairs to the house. The check listed as payees the Samples; Hath-cock Roofing; Compass Bank, which held a first mortgage on the house; and a second mortgagee. Based on the record on appeal before us, it appears that, after obtaining the endorsement of the other payees, the Samples opened an account at Compass Bank and deposited the $105,000 check into that account. Shortly thereafter, Mary Sample gave Hathcock Roofing a check drawn from the bank account in the amount of $70,000, leaving $35,000 in the account. A dispute subsequently arose between the Samples and Hathcock Roofing regarding the repair work that Hath-cock Roofing had contracted to perform on the house. The Samples later withdrew the $35,000 from the bank account.

In October 2006, Hathcock Roofing sued the Samples and Compass Bank, seeking to recover the $35,000 that the Samples had withdrawn from the bank account. The complaint alleged claims of fraud and breach of contract against the Samples. The complaint also alleged a negligence claim against Compass Bank; that claim alleged that Compass Bank had “negligently paid to the ... Sample[s] the ... $35,000 without the consent of [Hathcock Roofing] ..., without obtaining a lien release[,] and without notifying [Hathcock Roofing].” The Samples later asserted counterclaims against Hathcock Roofing, alleging that it “[had] failed to furnish the goods and services specified, [had] failed to complete the job, [and had] further damaged the Samples’ property.”

Hathcock Roofing and the Samples subsequently entered into a pro tanto release and settlement agreement (“the release”). In the release, Hathcock Roofing agreed to dismiss its claims against the Samples, to remove its lien filed against the Samples’ property, and to pay $25,000 to the Samples. In exchange, the Samples agreed to dismiss their counterclaims against Hath-cock Roofing. The release also provided:

“It is understood and agreed by the Samples that this settlement is the compromise of disputed claims and that the payment is NOT to be construed as an admission of liability on the part of the RELEASED PARTIES who expressly deny that they breached any duty, or otherwise committed any wrongful act or omission, or were otherwise liable in any fashion....
“[A]ll claims made by Hathcock [Roofing] against Compass Bank shall be maintained and [are] not affected by the terms of this Release.
“[I]t is expressly understood and agreed that any and all claims Hathcock [Roofing] may have against Compass Bank shall remain in full force and effect and are in no way affected by the terms and conditions of this Release.”

(Capitalization in original; bold typeface omitted.)

Pursuant to a pro tanto joint stipulation of dismissal, the trial court subsequently dismissed all claims in this case other than Hathcock Roofing’s negligence claim against Compass Bank. Compass Bank filed a motion for a protective order seeking a stay of discovery, which the trial court granted. Compass Bank then moved for a summary judgment on the ground that the release between Hathcock Roofing and the Samples barred Hathcock Roofing’s negligence claim against Compass Bank as a matter of law. The summary-judgment motion asserted that, because Hathcock Roofing had resolved its dispute with the Samples by agreeing to pay the Samples $25,000, Hathcock Roofing could not establish that it was owed the $35,000 that it alleged Compass Bank had negligently released to the Samples. After Hathcock Roofing filed a response to the summary-judgment motion, the trial court entered a summary judgment in favor of Compass Bank. Hathcock Roofing appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999). ... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).

On appeal, Hathcock Roofing argues that the trial court erred in entering a summary judgment in favor of Compass Bank on Hathcock Roofing’s negligence claim. Compass Bank argues, as it did in moving for a summary judgment, that Hathcock Roofing’s claim against it is barred as a matter of law. In moving for a summary judgment, Compass Bank argued that, because Hathcock Roofing paid the Samples $25,000 pursuant to the release, Hathcock Roofing cannot prove that the Samples owed it the $35,000 that Hath-cock Roofing alleged Compass Bank negligently released to the Samples. Compass Bank argued:

“[I]n the battle between the principal parties in this dispute over the $35,000, Hathcock Roofing voluntarily agreed that the Samples did not owe it this money and that, instead, it owed money to the Samples. In such a situation, it is legally impossible for Hathcock Roofing to maintain its claim against Compass [Bank] for having allowed the Samples to withdraw those funds in the first place.
“[The release] between Hathcock Roofing and the Samples conclusively establishes that Hathcock Roofing can never prove the Samples owed it the $35,000.”

Therefore, Compass Bank argued, the terms of the release indicate that Hath-cock Roofing’s negligence claim against Compass Bank is barred as a matter of law.

However, we do not read Hathcock Roofing’s agreeing, pursuant to the release, to pay the Samples as being tantamount to Hathcock Roofing’s agreeing that it was not owed the $35,000. Instead, the release provided that “the payment is NOT to be construed as an admission of liability on the part of the RELEASED PARTIES who expressly deny that they breached any duty, or otherwise committed any wrongful act or omission, or were otherwise liable in any fashion.” (Capitalization in original; bold typeface omitted.) The release further stated that “all claims made by Hathcock [Roofing] against Compass Bank shall be maintained and [are] not affected by the terms of this Release.” Section 12-21-109, Ala.Code 1975, provides: “All receipts, releases and discharges in writing, whether of a debt of record, a contract under seal or otherwise, and all judgments entered pursuant to pro tanto settlements, must have effect according to their terms and the intentions of the parties thereto.” In the release, Hathcock Roofing expressly denied any liability and expressly reserved its claim against Compass Bank. Consequently, we do not view Hathcock Roofing’s agreeing in the release to pay the Samples as precluding its negligence claim against Compass Bank. The release should be given effect according to its terms and the intent of the parties to the release. § 12-21-109. In this case, the release preserves Hathcock Roofing’s claim against Compass Bank; it does not extinguish that claim. See Daugherty v. M-Earth of Alabama, Inc., 519 So.2d 467, 469 (Ala.1987) (applying § 12-21-109 in favor of a plaintiff when, pursuant to a pro tanto release, the plaintiff released claims against some alleged tortfeasors but expressly retained a claim against another alleged tortfeasor); Salter v. A. Fraser Pattitto, Jr., Inc., 519 So.2d 930 (Ala.1988) (presenting a situation analogous to Daugherty and stating that, pursuant to § 12-21-109, a pro tanto release reserving claims must be given effect according to its terms); and Johnson v. Collier, 567 So.2d 1311 (Ala.1990) (same).

In moving for a summary judgment, Compass Bank argued only that Hathcock Roofing’s claim against it is barred as a matter of law because Hathcock Roofing paid the Samples $25,000, pursuant to the terms of the release. It does not appear that Compass Bank argued that Hathcock Roofing failed to present evidence establishing any essential element of its negligence claim. Indeed, such an argument would have been premature considering that discovery had been stayed in order for Compass Bank to move for a summary judgment on the ground that it asserted. Compass Bank explained its strategy in the brief supporting its summary-judgment motion:

“As explained in its motion for protective order [seeking a stay of discovery], Compass [Bank] asserts this ground for summary judgment first because it can be decided as a matter of law without any further discovery.
“By moving for summary judgment on this ‘settlement’ issue, Compass [Bank] does not waive, but specifically reserves, its right to move for summary judgment on other issues in this case, including the issue of whether Compass [Bank] owed a duty to Hathcock Roofing not to release the funds. For the present, and pursuant to its motion for protective order, Compass [Bank] is not moving for summary judgment on this issue or any others because Hathcock Roofing has requested deposition discovery on the duty issue. If the Court determines that summary judgment is not due on the ‘settlement’ issue, Compass [Bank] intends to file for summary judgment based upon these additional grounds after allowing whatever discovery is appropriate.”

Because Compass Bank did not move for a summary judgment on the ground that Hathcock Roofing’s evidence was insufficient to establish an essential element of its negligence claim, the burden never shifted to Hathcock Roofing to offer substantial evidence in support of those elements. Therefore, we cannot consider affirming the trial court’s judgment on the basis of this unasserted ground at this time. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (“[An appellate court] will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.... This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an af-firmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment ... or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element....”).

For the foregoing reasons, we reverse the summary judgment, and we remand the case to the trial court.

REVERSED AND REMANDED.

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

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

      . Hathcock Roofing had filed a lien against the Samples' property to secure the $35,000 allegedly owed by the Samples to Hathcock Roofing.


source: Caselaw Access Project

author: PER CURIAM. BRYAN, Judge,

license: Public Domain

text:
    Ex parte Alesia G. HARTLEY. (In re Alesia G. Hartley v. Jeffrey J. Hartley).
    2080898.
    Court of Civil Appeals of Alabama.
    May 21, 2010.

      Claude D. Boone, Mobile; and Thomas H. Nolan, Jr., of Wright Green, P.C., Mobile, for petitioner.
    Donald M. Briskman of Briskman & Binion, P.C., Mobile, for respondent.
   PER CURIAM.

This extraordinary-writ petition arising from a divorce action in the Mobile Circuit Court involves the scope of discovery as to a spouse’s interest in a professional corporation.

In June 2008, Alesia G. Hartley (“the wife”) sued Jeffrey J. Hartley (“the husband”), seeking a divorce and requesting, among other things, “an equitable division of the assets and liabilities acquired during the marriage” and awards of periodic alimony and alimony in gross. During the course of those proceedings, the wife caused to be issued a subpoena directed to the managing partner of the law firm of which the husband was a member, Helms-ing, Leach, Herlong, Newman & Rouse, P.C. (“the law firm”); that subpoena, as amended, sought the production of “all personnel records, payroll records, and copies of contracts of employment” involving the husband, including information regarding any retirement plan in which the husband had participated and “records evidencing the ownership by [the husband] of any interest in the [law] firm.” The law firm then filed a motion to intervene as a party, asserting that the wife had sought discovery of information that was, the law firm said, “confidential and proprietary in nature”; the wife filed a response in opposition to that motion. The trial court entered an order denying the motion to intervene; in that order, the trial court directed that certain documents were to be made available to the wife’s attorney and were otherwise to be kept absolutely confidential, including “any records of monies that are due to [the husband] and a reasonable amount of the partnership records so that [the wife’s attorney] may have an idea of what the [husband’s] partnership interest may be worth for purposes of this divorce.”

Among the documents produced in response to the wife’s subpoena and the trial court’s order denying intervention was a “buy-sell agreement” adopted by the law firm in 1997 that, in pertinent part, provided (1) that no shareholder in the law firm was to convey any shares of the law firm to any person not connected to the law firm; (2) that, upon the death, retirement, or termination of the employment by the firm of any shareholder, the shareholder would be required to sell his or her shares to the law firm for $10 each; and (3) that all future shareholders of the law firm would be bound by the agreement. The wife’s attorney subsequently sought the issuance of a second subpoena to the law firm directing the production of documents showing, for example, the husband’s hours worked, the law firm’s principal clients, the law firm’s accounts receivable and unbilled work, the law firm’s financial statements and records of bonus payments, and details of shareholder buybacks for the preceding 10 years. The husband objected to the second subpoena on the basis that the buy-sell agreement rendered irrelevant, as an evidentiary matter, the materials sought from the law firm. After a hearing, the trial court received written briefs from the parties; the husband contended that “valuation of a professional spouse’s interest in a law firm must be based on the formula or calculation set forth in the stock purchase agreement,” whereas the wife posited that the value of an interest in a closely held business, such as the law firm, is not limited to the value stated in a buy-sell agreement, and she argued that all evidence concerning the value of the husband’s interest in the law firm was relevant.

The trial court entered an order on May 22, 2009, sustaining the husband’s objection to the second subpoena except as to the matter of “the financial compensation of the husband,” indicating its agreement with the husband’s view. That order provided, in pertinent part:

“For purposes of the trial, the Court does note that the relevant information for a fair division of assets is the husband’s compensation from the firm. If he stays at the firm, the husband has no significant benefit in being a partner beyond his monetary compensation, benefits which will be reflected in his tax returns and job security. If he leaves the firm, he has contractually agreed to get $1000.00. If the firm dissolves in the future, the speculative value of any profit or loss cannot be determined at this point.”

The wife sought mandamus review of that order in this court within a presumptively reasonable time (see Rule 21(a)(3), Ala. R.App. P.), and we directed the filing of answers and briefs.

“Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ [An appellate court] will not issue the writ of mandamus where the petitioner has ‘ “full and adequate relief’ ’ by appeal.
“Discovery matters are within the trial court’s sound discretion, and [an appellate court] will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.
“... In certain exceptional cases, however, review by appeal of a discovery order may be inadequate, for example, ... when the trial court ... denies discovery going to a party’s entire action or defense so that ... the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal. ... The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy.”

Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813-14 (Ala.2003) (citations omitted).

The husband contends that mandamus is not an appropriate vehicle for review of the trial court’s order, and he suggests that the wife should be required to await an appeal from a final judgment of divorce. We believe, however, that the trial court’s order essentially forecloses any further discovery, as well as any further presentation of evidence at trial, concerning the issue of the value of the husband’s interest in the law firm. Because one of the principal components of the relief sought by the wife in her divorce action was, as is true in many divorce actions, an equitable distribution of property acquired by the parties during the marriage, and because the trial court’s order, in essence, refused to acknowledge the existence of any potential grounds for dispute as to the value of what may prove to be a significant marital asset, we conclude that the order challenged by the wife falls within the exception noted in Ocwen pertaining to “discovery going to a party’s entire action or defense so that ... the outcome has been all but determined.” 872 So.2d at 813-14.

Under Rule 26(b)(1), Ala. R. Civ. P., a party to a civil action, such as the wife in the divorce action pending in the trial court, “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and a discovery request is not generally due to be refused simply because “the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” As noted by our Supreme Court in Ex parte AMI West Alabama General Hospital, 582 So.2d 484, 485-86 (Ala.1991), “[djiscovery should be permitted if there is any likelihood that the information sought will aid the party seeking discovery in the pursuit of his claim or defense,” and trial judges should “incline toward permitting the broadest discovery and utiliz[ing their] discretion to issue protective orders to protect the interests of parties opposing discovery.” In this regard, we note that the trial court, before issuing its May 22, 2009, order, had previously indicated agreement with the course of action recommended in AMI, directing the law firm to produce numerous documents sought in the wife’s first subpoena, as amended, but directing that those documents were to be deemed absolutely confidential.

However, it remains to be decided whether the material sought by the wife falls within the scope of discovery permitted under Rule 26(b)(1). The husband’s submissions to this court reiterate his position that because, in his view, the value of the husband’s partnership interest in the law firm is limited by the buy-sell agreement to $1,000, no evidence sought by the wife can be relevant to any material issue at trial. The wife counters by invoking what she terms the “majority rule” prevailing in American jurisdictions to the effect that the value set forth in a shareholder’s buy-sell agreement is not conclusive as to the ultimate issue of the value of the shareholder’s interest and that, therefore, other discoverable evidence may rebut any presumption that may apply that such an agreement states the true value of the pertinent shareholder’s interest.

After the parties had filed in this court their briefs in support of their competing positions, this court issued its opinion on application for rehearing in Grelier v. Grelier, 44 So.3d 1092 (Ala.Civ.App.2009). In Grelier, this court considered the correctness of a trial court’s imposition of “minority” and “marketability” discounts upon the value of a divorcing spouse’s interests in a number of closely held business entities; we held that the trial court had erred in so ruling. Of particular importance to this case was our determination that valuation in divorce actions is to be based upon a “fair value” concept and not necessarily a “fair-market value” principle:

“Alabama law has not adopted a ‘fair market value’ standard for assessing marital property. Rather, under Alabama law, a trial court must determine the value of property with the only limitation being that the value must be equitable under the circumstances of the particular case. See generally Yohey v. Yohey, 890 So.2d 160 (Ala.Civ.App.2004). That standard implies that the valuation must be fair to all parties concerned. See generally Blank’s Law Dictionary 578 (8th ed.2004) (defining ‘equitable distribution’ as the ‘fair ... allocation’ of marital property). In cases in which a divorce court does not contemplate the sale of a business in which one of the spouses holds a minority interest but, instead, intends that the business shall remain a going concern, it makes little sense to determine fair value by the measuring stick of a hypothetical sales pnce. That methodology would artificially reduce the value of the marital asset in almost every case, which would be unfair, i.e., inequitable, to the party receiving only a portion of the reduced value or the property equivalent to that reduced value but would be advantageous to the party retaining the business interest, including its actual value to him or her as the holder.”

Grelier, 44 So.3d at 1097 (emphasis added).

We then quoted from and discussed at length Brown v. Brown, 348 N.J.Super. 466, 792 A.2d 463 (App.Div.2002), a leading New Jersey appellate opinion applying that state’s precedents construing “fair value” in the context of awarding compensation of dissenting shareholders to a situation involving a dispute concerning the value of a divorcing spouse’s ownership of a closely held business. Grelier, 44 So.3d at 1098. We further noted that, after Brown had been decided, our Supreme Court, in Ex parte Baron Services, Inc., 874 So.2d 545 (Ala.2003), had recognized a similar distinction between “fan* value” and “fair-market value” in the dissenting-shareholder context based upon the same line of New Jersey cases that had been relied upon by Brown. Grelier, 44 So.3d at 1098. We concluded that, “[b]ecause the Alabama Supreme Court has adopted the same reasoning that is applied in New Jersey in dissenting-shareholder cases, it seems reasonable to conclude that it would follow the same reasoning in divorce cases involving minority ownership of closely held business organizations.” 44 So.3d at 1098.

We need not, in order to evaluate the correctness of the trial court’s order, conclusively determine for all cases the proper valuation of an ownership share of a partnership of legal-service providers. Rather, we hold that because the crucial inquiry to be undertaken by a trial court in a divorce action is to determine the fair value of the parties’ assets rather than to adhere in all cases to their “fair-market value,” i.e., to the price that the general market might assign to them, discovery that is propounded by a party to such an action that is reasonably calculated to obtain information that would inform a particular witness’s opinion concerning an asset’s “fair value” is within the scope of Rule 26(b)(1). In the words of Grelier, the trial court’s May 22, 2009, order erroneously prevented the wife from obtaining discoverable materials because that order, in effect, determined the “fair value” of the husband’s partnership interest in the law firm solely “by the measuring stick of a hypothetical sales price” provided in the buy-sell agreement, even though the law firm will almost certainly “remain a going concern” for an extended period after a final judgment is rendered in this particular case. That is the very position that we noted, in our decision on rehearing in Gre-lier, “makes little sense.” 44 So.3d at 1097.

The wife’s petition for a writ of mandamus is granted. The writ is issued to direct the trial court to vacate its May 22, 2009, order and to further direct that court to overrule the husband’s objection to the wife’s second subpoena directed to the law firm.

PETITION GRANTED; WRIT ISSUED.

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

BRYAN, J., concurs specially, joined by THOMAS, J.

MOORE, J., recuses himself.

BRYAN, Judge,

concurring specially.

Because this petition for a writ of mandamus regards a discovery issue and because the main opinion does not “conclusively determine for all cases the proper valuation of an ownership share of a partnership of legal-service providers,” 50 So.3d at 1106,1 concur.

However, I write specially to state that the main opinion should not be interpreted as a mandate to the trial court to conclude that the husband’s interest in the law firm cannot be valued by the terms of the buy-sell agreement. I also write to emphasize that the utmost caution should be taken to protect the confidentiality of information obtained from the law firm. If at any point it is determined that information requested by the wife violates an attorney-client privilege, the wife should not be permitted access to such information.

THOMAS, J., concurs.

      . In the spirit of that order, we have endeavored to limit our specific references to material contained in any attachments to the wife’s mandamus petition to the minimum necessary to decide the questions presented.


author: THOMPSON, Presiding Judge.

text:
    Elliott B. NORMAN v. Tamatha K. NORMAN.
    2081011.
    Court of Civil Appeals of Alabama.
    May 21, 2010.

      Steven D. Eversole of Eversole Law LLC, Birmingham, for appellant.
    Harold D. Callaway III, Gulf Shores, for appellee.
   THOMPSON, Presiding Judge.

Elliott B. Norman (“the father”) appeals from a judgment modifying child support. The father and Tamatha K. Norman (“the mother”) were divorced in 1998. The mother was awarded custody of the parties’ children, and the father was ordered to pay child support. The record indicates that in November 2006 the mother filed a petition seeking to modify child support, among other things not germane to this appeal. On June 25, 2009, after a number of continuances for various reasons, including the father’s motion to stay the proceedings pursuant to the Servicemembers Civil Relief Act, the trial court entered a judgment increasing the father’s child-support obligation. In calculating the father’s child-support obligation, the trial court included as income the military allowances that the father receives for housing and subsistence. The father appeals.

The father asserts that his military allowances are not “income” for purposes of determining his child-support obligation. This court has previously determined that the position advocated by the father as to this issue lacks merit. Rule 82(B)(2)(a), Ala. R. Jud. Admin., defines “gross income” as follows:

“(a) ‘Gross income’ includes income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment-insurance benefits, disability-insurance benefits, gifts, prizes, and preexisting periodic alimony.”

(Emphasis added.)

In Barnes v. State ex rel. Cassady, 686 So.2d 425, 427 (Ala.Civ.App.1994), this court held that, for purposes of determining the child-support obligation of the father in that case, the trial court did not err in including the father’s military allowances for housing and career sea pay in calculating his gross income. Barnes is indistinguishable from this case. Thus, we conclude that the trial court properly considered the father’s military allowances as “income” for purposes of determining his child-support obligation.

The father contends that by including those allowances as gross income, the trial court violated the Supremacy Clause of the United States Constitution. U.S. Const., art. VI, cl. 2. He asserts that because the housing and subsistence allowances provided to him by the military are not subject to federal income tax, they should not be subject to inclusion as income for purposes of computing his child-support obligation. The father does not provide this court with any authority standing for the proposition that a state court cannot consider military allowances as income when determining child support. In fact, the Supremacy Clause will rarely be invoked to override state law or policy in the area of domestic relations, except when a state’s domestic-relations and marital-property laws do major damage to clear and substantial federal interests. United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966).

Our research reveals no Alabama cases on point. The Appellate Court of Illinois has addressed the issue and held that a state court may consider military allowances in determining child support without running afoul of the Supremacy Clause. In re Marriage of McGowan, 265 Ill.App.3d 976, 638 N.E.2d 695, 202 Ill.Dec. 827 (1994). The Illinois court explained its holding as follows:

“The allowances at issue are not subject to Federal income tax nor are they subject to garnishment. The argument is made that such criteria should be used in determining whether they are included in the computation to which the guidelines are applied. However, ‘income’ for tax purposes is not synonymous with ‘income’ for determining child support. (See In re Marriage of McBride (1988), 166 Ill.App.3d 504, 510, 116 Ill.Dec. 880, 519 N.E.2d 1095.) The fact that the Internal Revenue Code excludes from gross income qualified military benefits, of which military allowances are a part (see 26 U.S.C.A. § 134 (1993)), is of little weight in determining whether to include BAQ, VHA or BAS [military allowances for housing and subsistence] as income in calculating child support. (Alexander [v. Armstrong, 415 Pa.Super. 263,] 609 A.2d [183,] 186 [ (1992) ].) The purpose of the two calculations are different. While the Internal Revenue Code is concerned with reaching an amount of taxable income, the support provisions in the Act deal with reaching the amount of income of both parents in order to determine the sum each parent can pay for the support of their child. Alexander, 609 A.2d at 186, citing Pa. R. Civ. P. 1910.16-1.
“Moreover, if the Illinois legislature ‘intended its definition of income for child support purposes to parallel the calculation of income for tax purposes, then the language of the child support statutes or guidelines would have reflected this.’ (Alexander, 609 A.2d at 186.) It clearly does not.
“Whether or not the funds can be reached by garnishment is also not appropriate in considering what is included in the child support formula. Hautala [v. Hautala, 417 N.W.2d 879 (S.D.1988) ], and Peterson [v. Peterson, 98 N.M. 744, 652 P.2d 1195 (1982),] stand for the proposition that under Federal law, military allowances are not subject to garnishment and are beyond the reach of creditors including the recipients of child support. (See Hautala, 417 N.W.2d at 881; Peterson, 98 N.M. at 747, 652 P.2d at 1198.) Regulations promulgated pursuant to 42 U.S.C. § 659 (1991), which provide for enforcement of support obligations of Federal employees, clearly state that BAQ, VHA and BAS are not garnishable. (Hautala, 417 N.W.2d at 881, citing 5 C.F.R. § 581.104(h)(2) (1980).) The Federal laws and regulations cited above are not in conflict with the Act. As the Supreme Court stated in Rose v. Rose (1987), 481 U.S. 619, 635, 107 S.Ct. 2029, 2039, 95 L.Ed.2d 599, 614, ‘[W]hile it may be true that these funds are exempt from garnishment or attachment while in the hands of the Administrator, we are not persuaded that once these funds are delivered to the [soldier] a state court cannot require that [soldier] to use them to satisfy an order of child support.’ The Court recognized that Congress intended the Federal law to avoid sovereign immunity problems, not to shield income from valid support orders. Hautala, 417 N.W.2d at 881; Peterson, 98 N.M. at 747, 652 P.2d at 1198 (Congress enacted § 659 to ensure a divorced military spouse would continue to provide financial support, so long as was required, to either his former spouse or to children of the marriage, or both).
“This case does not present a supremacy of laws issue. To the contrary, the Department of Defense by regulation and otherwise encourages members of the armed forces to fulfil their family commitments. (See Army Regulation 608-99, par. 2-4(b) (1985).) Since most soldiers are mindful of these responsibilities, there is no reason to judicially legislate an exception to our income guidelines for child support. Accordingly, the trial court erred in excluding the stated allowances as income under 750 ILCS 5/505(a)(3) (West 1992).”

McGowan, 265 Ill.App.3d at 979-80, 638 N.E.2d at 697-98, 202 Ill.Dec. at 829-30.

We agree with the reasoning of the Illinois appellate court. As is the case in Illinois, under Alabama law, the definitions of “gross income” and its exemptions for purposes of calculating child support and the definitions of “gross income” and its exemptions for purposes of calculating income taxes are not synonymous. Cf. Rule 32(B)(2)(a) and (b), Ala. R. Jud. Admin., and § 40-18-14, Ala.Code 1975.

Moreover, including military allowances in the definition of gross income for purposes of calculating child support does not do “major damage” to “clear and substantial” federal interests. See Yazell, 382 U.S. at 352. To the contrary, as the Illinois court pointed out, the federal government encourages members of the military to fulfill them family commitments, such as paying child support.

For the reasons set forth above, we conclude that, in calculating the father’s child-support obligation, the trial court properly considered his military allowances for housing and subsistence. Including military allowances in determining a parent’s child-support obligation does not conflict with federal law or trigger Supremacy Clause concerns. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . The record indicates that the father is on active duty in the United States Navy.


author: MOORE, Judge.

text:
    Hugh RUSH v. EAST BAY ELECTRIC, LLC.
    2090168.
    Court of Civil Appeals of Alabama.
    May 28, 2010.

      Mack B. Binion, Margaret M. Miller, and S. Joshua Briskman of Briskman & Binion, P.C., Mobile, for appellant.

      Rudene B. Crowe and S. Gaillard Ladd of Luther, Oldenburg & Rainey, P.C., Mobile, for appellee.
   MOORE, Judge.

Hugh Rush appeals from an order of the Mobile Circuit Court (“the trial court”) denying Rush’s motion to set aside an earlier judgment entered by the trial court approving a workers’ compensation settlement between Rush and East Bay Electric, LLC (“East Bay”). We affirm.

Procedural History

On April 15, 2009, Rush and East Bay filed a “joint petition for approval of settlement” in the trial court. In that petition, Rush alleged that he had been injured in an accident that occurred in the course of his employment with East Bay. The parties asserted that they had agreed to settle Rush’s disputed claims arising out of the accident for the sum of $20,000, that Rush was releasing East Bay from “all liability and obligation to [Rush] for compensation benefits arising out of the alleged injury to [Rush]; INCLUDING any and all rights to recover past, present, and future medical expenses necessary and directly related to the subject injury,” and that Rush was waiving the right to vocational rehabilitation. (Capitalization in original.) The petition also stated that Rush was represented by Terrell Stubbs, that Stubbs was entitled to a fee up to 15% of the settlement amount for his legal services on Rush’s behalf, and that Stubbs had agreed to accept $3,000 in attorney’s fees. Stubbs signed the petition as Rush’s attorney.

On May 21, 2009, the parties filed an “amended joint petition for approval of settlement” (“the amended petition”), and the trial court conducted a hearing on the amended petition that same date. The amended petition largely repeated the statements contained in the original petition, except that the amended petition deleted the references to Stubbs and the $3,000 attorney’s fee.

During the settlement hearing, Rush testified that he had consulted with Stubbs, who was described as being a Mississippi attorney, regarding the settlement; however, Rush did not explain why Stubbs was not present at the hearing or why the amended petition did not provide attorney’s fees for Stubbs. Rush orally requested that the trial court approve the amended petition. The trial court entered a judgment on May 21, 2009, approving the amended petition. That judgment did not award any attorney’s fees to Stubbs. On that same date, Rush filed a “satisfaction of judgment” that stated that the judgment had been satisfied in full by direct payment.

On September 17, 2009, Rush filed a motion to set aside the trial court’s judgment. Rush asserted that Stubbs had not appeared in the case because he had not been admitted to practice law in Alabama “pro hac vice, or otherwise.” Rush attached to his motion a settlement statement and receipt and acknowledgment dated May 27, 2009, in which he had consented to paying Stubbs $5,000 as attorney’s fees, which equates to 25% of the $20,000 settlement funds, and $2,100 as expenses out of the settlement funds. Rush attested in an affidavit attached to his motion that he had not been informed that Stubbs “was only entitled to 15% of my settlement” and that he had since learned that Stubbs had taken an attorney’s fee in excess of the amount permitted by Alabama law. See § 25-5-90, Ala. Code 1975 (establishing maximum attorney’s fee of 15% of compensation paid). Rush alleged that East Bay’s workers’ compensation insurance carrier knew that Stubbs would take an attorney’s fee because it had made the settlement check payable jointly to Stubbs and Rush, as evidenced by a copy of the March 17, 2009, check attached as an exhibit to the motion. Rush alleged, moreover, that counsel hired by East Bay’s workers’ compensation insurance carrier had deleted the reference to attorney’s fees in the final settlement documents filed with the trial court. Rush contended that Stubbs’s collection of any fee, “much less one for more than the statutory amount,” rendered the judgment approving the settlement void and that the judgment should be set aside because the failure to notify the trial court of the attorney’s fees constituted a fraud on the court.

East Bay filed a response to the motion to set aside the judgment approving the settlement in which East Bay argued that the settlement should not be set aside because, it argued, “[a]ny fee arrangement between ... Stubbs and [Rush] that was not part of the settlement in Alabama has nothing to do with [East Bay], [its] counsel, or ... [Paula] Harris, as representative of the insurance carrier.” East Bay attached to its response an affidavit from Paula Harris, a supervisor for Avizent Risk, East Bay’s workers’ compensation carrier, in which Harris attested that she had negotiated the settlement with Stubbs and that, upon reaching an agreement with Stubbs, she had contacted East Bay’s attorney, Rudene Crowe, to draft the settlement documents and to handle the settlement hearing before the trial court. East Bay also filed Stubbs’s affidavit in which Stubbs stated that he originally thought the workers’ compensation claim could be filed in Mississippi but that, after concluding that the claim could be filed only in Alabama, he nevertheless continued to negotiate a settlement at Rush’s insistence until he reached an agreement with Harris. Stubbs stated that Crowe’s office subsequently sent him the settlement documents to review. Stubbs then called Crowe and informed Crowe that he was not admitted to practice law in Alabama and that he would not be taking a fee “on the Alabama workers’ compensation claim, nor would [he] be attending any settlement hearing.” According to Stubbs, the settlement documents were then revised to delete any reference to Stubbs’s taking an attorney’s fee. Following the settlement hearing, Crowe forwarded to Stubbs the “settlement documents, along with the settlement check.” Stubbs then stated as follows:

“The funds that I took out of the settlement check were payment for time spent on legal matters, which not only included counseling [Rush] and assisting [Rush] with his workers’ compensation claim, but other legal matters as well, regarding which Hugh Rush and I had a confidential fee agreement. My confidential fee agreement with Hugh Rush did include that a portion of my fees were not only for assisting Hugh Rush in negotiating the settlement reached on the workers’ compensation claim, but also was for other legal matters I was and still currently am, handling for him.”

Stubbs also attested that he had loaned Rush $2,000, as evidenced by two $1,000 checks made payable to Rush, and that he and Rush had agreed beforehand that the $2,000 would be treated as a reimbursable expense under their confidential fee agreement.

On October 16, 2009, before the trial court could rule on the pending motion to set aside the judgment approving the settlement, Rush filed an “amended petition/complaint” in which he asserted claims for “wilful and intentional removal/failure to install/failure to repair safety device,” negligent design, and workers’ compensation benefits against East Bay; Riviera Utilities Corporation; Earl Anderson, a co-employee; and certain fictitiously named defendants. On November 3, 2009, the trial court denied Rush’s motion to set aside the judgment. Rush filed a notice of appeal to this court on November 9, 2009. On November 16, 2009, East Bay filed a motion to dismiss or, in the alternative, to strike the claim for workers’ compensation benefits asserted in Rush’s amended petition/complaint; the trial court granted the motion to strike the workers’ compensation claim on November 17, 2009.

Discussion

“Although neither party has raised the issue of jurisdiction, ‘[mjatters of jurisdiction are of such importance that a court may consider them ex mero motu.’ ” Nelson v. Nelson, 10 So.3d 603, 605 (Ala.Civ.App.2008) (quoting Trousdale v. Tubbs, 929 So.2d 1020, 1022 (Ala.Civ.App.2005)). Ordinarily, an appeal will lie only from a final judgment. See Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007). In this case, Rush appeals from an order denying his motion to set aside a judgment approving a workers’ compensation settlement. That order, which was entered on November 3, 2009, did not resolve the claims asserted in Rush’s amended petition/complaint filed on October 16, 2009. On November 17, 2009, the trial court purported to grant East Bay’s motion to strike the workers’ compensation claim asserted in Rush’s amended petition/complaint, but that order was a nullity because this court attained jurisdiction of the case on November 9, 2009, when Rush filed his notice of appeal. See Long v. City of Hoover, 855 So.2d 548, 551 (Ala.Civ.App.2003). Thus, the November 3, 2009, order did not completely adjudicate all claims pending in the trial court.

We conclude, however, that Rush did not properly amend his complaint on October 16, 2009. At the point Rush purported to amend his complaint, the case had already been terminated by the judgment approving the settlement and the satisfaction of that judgment as recorded by the clerk of the court. Rush had filed a motion to set aside that final judgment, but the trial court had not acted on that motion. Hence, the case remained closed and Rush was not free to amend his complaint under that same civil-action number.

In Dudley v. Mesa Industries, 770 So.2d 1082, 1083 (Ala.2000), the employee sued his employer both for workers’ compensation benefits and for damages pursuant to § 25-5-11, Ala.Code 1975. The trial court approved a workers’ compensation settlement agreement releasing the employer from “‘any and all claims for compensation and vocational rehabilitation benefits’ ” and simultaneously purported to grant the employee’s motion requesting leave to amend his complaint to add additional claims and defendants. 770 So.2d at 1083. The employee later amended his complaint, and the trial court subsequently dismissed all the employee’s remaining claims because, it concluded, its order approving the settlement agreement had been a final adjudication of the entire action and the subsequent amendment to the original complaint, therefore, had been ineffective. Id. The Alabama Supreme Court determined, however, that because workers’ compensation claims are distinct from third-party tort actions based on § 25-5-11, the trial court’s order approving the settlement agreement had applied only to the employee’s claims for workers’ compensation and vocational benefits, while his claims under § 25-5-11 remained pending and, thus, the trial court had not adjudicated all the employee’s claims. Id. at 1084-85. As a result, the trial court retained jurisdiction over the employee’s claims that had been added by his amended complaint. Id. at 1085.

In the present case, at the time the settlement agreement had been approved by the trial court, Rush had no remaining pending claims. As a result, the trial court's judgment granting the amended settlement petition acted as a final adjudication. Based on Dudley, we conclude that the trial court did not acquire jurisdiction over the claims asserted in Rush’s amended petition/complaint. As a result, upon the trial court’s denial of Rush’s motion to set aside that judgment, the case was finally adjudicated. Thus, we have jurisdiction to consider the appeal filed by Rush.

On appeal, Rush first argues that the trial court’s failure to include an award of attorney’s fees in its judgment approving the settlement of his workers’ compensation claim was error based on the language of § 25-5-90(a), Ala.Code 1975, which provides, in pertinent part:

“Unless otherwise provided in this chapter, no part of the compensation payable under this article and Article 4 of this chapter shall be paid to an attorney for the plaintiff for legal services, unless upon the application of the plaintiff, the judge shall order or approve of the employment of an attorney by the plaintiff; and in such event, the judge, upon the hearing of the complaint for compensation, either by law or by settlement, shall fix the fee of the attorney for the plaintiff for his or her legal services and the manner of its payment, but the fee shall not exceed 15 percent of the compensation awarded or paid.”

Citing Smith v. Michelin North America, Inc., 785 So.2d 1155 (Ala.Civ.App.2000), Rush argues that the word “shall” makes § 25-5-90(a) mandatory, that the trial court committed reversible error when it failed to award attorney’s fees in its judgment, and that, as a result, that judgment is void.

In Smith, the trial court declined to award attorney’s fees to the employee in a workers’ compensation case because attorney’s fees were not requested in the complaint and Smith’s attorney did not request attorney’s fees at the hearing. 785 So.2d at 1157. Smith’s attorney represented Smith after applying for and receiving the approval of the trial court pursuant to § 25-5-90(a); this court determined that the trial court had erred in failing to award attorney’s fees because of the use of the word “shall” in § 25-5-90(a). 785 So.2d at 1160. Judge Yates, joined by Judge Monroe, dissented as to that holding in Smith, arguing that § 25-5-90(a) required that a fee be requested by the attorney. Id. at 1161 (Yates, J., concurring in part and dissenting in part).

Smith holds that when an attorney has applied for and received judicial permission to represent a workers’ compensation claimant pursuant to § 25-5-90, “in such event” the judge, upon the hearing approving a settlement negotiated by that attorney, must fix the fee of the attorney. However, Smith does not hold that a judge approving a workers’ compensation settlement has a duty to fix a fee for an attorney who has not applied for and received judicial permission to represent the workers’ compensation claimant. In fact, the plain terms of § 25-5-90(a) preclude an attorney from collecting any part of a workers’ compensation settlement “unless upon the application of the plaintiff, the judge shall order or approve of the employment of an attorney by the plaintiff.” A judgment awarding fees to an unapproved attorney would be in violation of § 25-5-90(a).

In the present case, Stubbs originally petitioned the trial court for an award of attorney’s fees; however, Stubbs later withdrew that petition. The trial court heard testimony that Rush had consulted Stubbs in relation to the settlement, but the trial court was obviously aware that Stubbs was not representing Rush at the settlement hearing because Stubbs was not even present. The trial court did not approve Stubbs to represent Rush at any point. Thus, the trial court did not have any occasion to even consider awarding Stubbs any attorney’s fees. The trial court therefore did not “fail” to address Stubbs’s attorney’s fees; rather, it actually performed its statutory duty by not awarding Stubbs any attorney’s fees. The evidence submitted in support of, and in opposition to, the motion to set aside the judgment only provides additional bases for the trial court’s original decision not to award attorney’s fees by showing that Stubbs was not admitted to practice law in Alabama, which would be required for approval of his representation, and that Stubbs did not intend to take attorney’s fees for representing Rush on the workers’ compensation claim. We conclude, therefore, that Rush’s argument that the trial court’s decision not to award attorney’s fees pursuant to § 25-5-90(a) renders the judgment approving the settlement void is without merit.

Rush next argues that Stubbs’s taking excessive attorney’s fees amounted to a fraud on the court that requires reversal of the trial court’s denial of Rush’s motion to set aside the judgment, pursuant to Rule 60(b), Ala. R. Civ. P., or § 25-5-56, Ala.Code 1975. Citing Ex parte Free, 910 So.2d 753 (Ala.2005), Rush asserts that the trial court should have granted his motion for relief from the judgment pursuant to Rule 60(b), Ala. R. Civ. P., which states, in pertinent part, that “the court may relieve a party ... from a final judgment” for, among other things, “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.”

In Free, the plaintiff, Dorothy Free, had been represented by a group of attorneys in a workers’ compensation action. 910 So.2d at 754. The trial court entered a judgment in the workers’ compensation action in favor of Free, but her attorneys allegedly failed to inform her of that judgment and allegedly negotiated a settlement with her employer’s insurance company pursuant to which Free received only a fraction of the compensation she had been awarded in the judgment and the attorneys received a fee amounting to 34.5% of that agreed upon compensation. Id. The attorneys then allegedly deceived Free into signing the settlement documents without giving her an opportunity to read them. The trial court subsequently entered a judgment approving the settlement based partly on the terms of the settlement documents and partly on Free’s testimony that she agreed to the terms of those documents. Allegedly, Free then learned the true facts, and she filed a complaint against her attorneys for money damages on claims alleging fraud and conversion, among others, which the trial court dismissed. Id. at 754-55. On appeal, the supreme court rejected the argument that the trial court had properly dismissed the action because it amounted to a collateral attack on the judgment approving the settlement. Id. at 755. The supreme court noted that “Black’s Law Dictionary 686 (8th ed. 2004) defines ‘fraud on the court’ as follows: ‘In a judicial proceeding, a lawyer’s or party’s misconduct so serious that it undermines or it intended to undermine the integrity of the proceeding.’ ” Id. at 756. The supreme court then determined that the allegations of Free’s complaint were such that it could not say as a matter of law that the actions by the defendant attorneys did not constitute fraud on the court, and it reversed the trial court’s order dismissing Free’s complaint against the defendant attorneys. Id. at 756-57.

Rush alleges that, like in Free, he was not properly informed of his rights by his attorney and that, after the hearing and after receiving the settlement funds, his attorney retained more than the statutory maximum prescribed by § 25-5-90(a). The present case, however, is distinguishable from Free. In Free, Free’s attorneys allegedly obtained a judgment awarding them attorney’s fees in excess of the statutory maximum by concealing a prior judgment from Free and by tricking Free into signing documents and testifying before the trial court that she had agreed to the exorbitant fee. In turn, the trial court relied upon the allegedly fraudulently induced documents and testimony when approving the attorney’s fees in its judgment. In this case, the trial court did not enter any judgment approving the fees and expenses later taken by Stubbs. The judgment itself does not give Stubbs any right to any portion of the settlement proceeds. Hence, the judgment approving the settlement cannot be considered to have been procured by a fraud upon the court simply because Rush agreed to pay Stubbs amounts from the settlement that Stubbs had not been awarded. Free does not support Rush’s argument.

Rush also argues that a fraud had been committed upon the court because, he says, at the time of the settlement hearing East Bay’s representatives knew Stubbs would collect attorney’s fees and knowingly concealed that fact from the trial court in order to obtain approval of the settlement. However, Stubbs stated in his affidavit, without contradiction, that he had informed Crowe that he would not be taking attorney’s fees for representing Rush on his workers’ compensation claim. Based on that statement, the trial court reasonably could have determined that Crowe deleted from the settlement petition any reference to attorney’s fees being awarded to Stubbs based solely on her understanding that no such fees would be taken by Stubbs.

Rush counters that East Bay must have believed that Stubbs would be taking attorney’s fees because, he says, the settlement check was made payable jointly to Rush and Stubbs. However, the evidence in the record shows that the settlement check was issued on March 17, 2009, well before Stubbs first informed Crowe that he was not admitted to practice in Alabama and that he would not be taking attorney’s fees for representing Rush on his workers’ compensation claim. From all that appears in the record, at the time the settlement check was issued, East Bay’s representatives had no reason to believe that Stubbs could not lawfully represent Rush and receive attorney’s fees. Rush did not present any evidence to the trial court indicating that, after Stubbs told Crowe he would not take attorney’s fees, either Rush or Stubbs requested the issuance of a new settlement check made payable solely to Rush. The evidence in the record does not rule out that, simply for the sake of expediency, Crowe sent the settlement check to Stubbs for his endorsement with an understanding that the proceeds would be distributed entirely to Rush in accordance with the terms of the judgment approving the settlement. In other words, under the circumstances presented here, the trial court did not have to infer that East Bay’s representatives knew Stubbs would take attorney’s fees based on the mere fact that the settlement check remained payable jointly to Stubbs and Rush.

The trial court exercises its discretion when determining whether to set aside a judgment approving a workers’ compensation settlement, and its judgment will not be reversed on appeal except for an abuse of that discretion. Erwin v. Harris, 459 So.2d 928, 931 (Ala.Civ.App.1984). Based on the record before us, we cannot say that the trial court exceeded its discretion in deciding not to set aside the judgment approving the settlement. Therefore, we affirm the trial court’s judgment.

AFFIRMED.

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

      . In that motion, Rush asserted as one ground for setting aside the judgment that he had been misinformed by Stubbs and certain representatives of East Bay’s workers’ compensation insurance carrier that psychological injuries are not compensable under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). In parts of his brief to this court, Rush tangentially refers to that ground for relief from the judgment approving the settlement, but in the argument section Rush does not contend that the judgment approving the settlement should have been set aside due to the alleged misrepresentations as to the compensability of psychological injuries under the Act. Furthermore, Rush cites no legal authority to support such an argument. Accordingly, we conclude that Rush has waived any argument as to that issue under Rule 28, Ala. R.App. P., and we will not address that issue further.

      . Rush also cites Sokoll v. Humphrey, Lutz & Smith, 337 So.2d 362 (Ala.Civ.App.1976), for the proposition that § 25-5-90(a) requires that attorney’s fees be limited by the trial court. We agree that § 25-5-90(a) precludes an attorney from collecting attorney’s fees exceeding 15% of the compensation payable under the settlement. However, the trial court did not award any attorney's fees in this case, so we fail to see how the judgment violates § 25-5-90.

      . Section 25-5-56, Ala.Code 1975, which discusses settlements between parties in workers’ compensation cases, provides that ”[s]ettlements made may be vacated for fraud, undue influence, or coercion, upon application made to the judge approving the settlement at any time not later than six months after the date of settlement.” Thus, Rule 60(b), Ala. R. Civ. P., is inapplicable in reviewing this issue on appeal. See Hawkins v. Jim Walter Res., Inc., 600 So.2d 1052, 1053-54 (Ala.Civ.App.1992), and Rule 81, Ala. R. Civ. P. To the extent, however, that a "fraud upon the court” is a species of fraud separate and distinct from fraud in general, Rule 60(b) may apply. See Ex parte Free, 910 So.2d 753 (Ala.2005) (addressing an independent cause of action alleging fraud on the court to reverse a settlement in a workers' compensation case under Rule 60(b)), and Wal-Mart Stores, Inc. v. Green, 740 So.2d 412 (Ala.Civ.App.1999) (§ 25-5-56 does not prevent a party from seeking relief pursuant to Rule 60(b) on grounds other than fraud, undue influence, or coercion). Because we are affirming the trial court’s judgment and concluding that Rush failed to make the necessary showing that fraud had been committed, we pretermit any further discussion regarding the applicability of § 25-5-56 or Rule 60(b).

      . Because the issue is not before us, we make no determination as to whether Rush has any valid claim against Stubbs for taking attorney's fees out of Rush’s workers’ compensation settlement without judicial approval.


author: BRYAN, Judge.

text:
    LIGHTING AND LAMP CORPORATION v. ATHENS LOFTS, L.L.C.
    2081029.
    Court of Civil Appeals of Alabama.
    May 28, 2010.

      Jason A. Stoves, Birmingham, for appellant.
    Douglas J. Centeno of Benton & Cen-teno, LLP, Birmingham, for appellee.
   BRYAN, Judge.

Lighting and Lamp Corporation (“Lighting and Lamp”), the plaintiff below, appeals from a judgment in favor of Athens Lofts, L.L.C. (“Athens Lofts”), one of the defendants below. We affirm.

Between August 2006 and June 2007, Lighting and Lamp, a supplier of electrical fixtures and supplies, sold Jones-Williams Construction Co., Inc. (“Jones-Williams”), a construction company that had contracted with Athens Lofts to perform work on a building owned by Athens Lofts in Birmingham (“the Athens Flatts project”), electrical fixtures and supplies on credit. Jones-Williams charged those electrical fixtures and supplies to a specific account that Lighting and Lamp had set up for Jones-Williams for the Athens Flatts project. In June 2007, Jones-Williams abandoned the Athens Flatts project before completing its work.

On June 18, 2007, Adam Cohen, a member of Athens Lofts, met with Tim Pearson, Lighting and Lamp’s credit manager, and Ronnie Vetrano, the Lighting and Lamp salesman assigned to the Athens Flatts project. Jim O’Brien, a business associate of Cohen’s who did not own an interest in Athens Lofts, attended the meeting with Cohen. At the June 18 meeting, Pearson informed Cohen that Jones-Williams owed Lighting and Lamp approximately $119,000 for electrical fixtures and supplies that Jones-Williams had purchased on credit from Lighting and Lamp to use on the Athens Flatts project. At trial, Pearson and Vetrano testified that Cohen orally promised at the June 18 meeting that Athens Lofts would pay that amount in full in consideration for Lighting and Lamp’s selling Athens Lofts the additional electrical fixtures and supplies needed to complete the Athens Flatts project. Cohen, on the other hand, testified at trial that he did not make such a promise; he testified that he orally promised that Athens Lofts would pay only for certain electrical fixtures that Lighting and Lamp was holding in its warehouse, which Athens Lofts needed in order to complete the Athens Flatts project, and for any electrical fixtures and supplies purchased after June 18, 2007, for use in completing the Athens Flatts project. O’Brien testified at trial that he recalled only a discussion about a payment by Athens Lofts to obtain the release of the fixtures Lamp and Lighting was holding in its warehouse; he testified that he did not recall a promise by Cohen to pay in full the approximately $119,000 that Jones-Williams owed.

Between June 18, 2007, and September 24, 2007, Lighting and Lamp allowed the electrician who was completing the electrical work on the Athens Flatts project to charge $33,513.18 worth of electrical fixtures and supplies to the account Lighting and Lamp had set up for Jones-Williams for the Athens Flatts project. During that period, Athens Lofts paid Lighting and Lamp $40,000. On September 24, 2007, Lighting and Lamp began requiring cash payment for all materials it provided for the Athens Flatts project, and Athens Lofts paid cash for all purchases from Lighting and Lamp after that date.

When Jones-Williams abandoned the Athens Flatts project, it had been paid all but $976,414 of the price stipulated for its work in the contract between it and Athens Lofts. Athens Lofts paid subcontractors, suppliers, and laborers over $1,400,000 to complete the work that Jones-Williams contracted to perform.

On November 21, 2007, Lighting and Lamp served Athens Lofts with a notice that it was claiming a materialman’s lien, and, on November 27, 2007, it recorded a verified statement of its lien in the office of the Judge of Probate of Jefferson County.

On December 10, Lighting and Lamp sued Athens Lofts; Jones-Williams; James Williams, a principal in Jones-Williams who had personally guaranteed the payment of the debt Jones-Williams owed Lighting and Lamp; and several other parties. James Williams filed Chapter 7 bankruptcy, and the claims against him were discharged by the judgment entered in his bankruptcy action. The trial court entered a summary judgment in favor of Lighting and Lamp on its claims against Jones-Williams and dismissed the claims against all the other defendants except Athens Lofts.

The trial court held a bench trial regarding the claims against Athens Lofts at which it received evidence ore tenus. Following the trial, the trial court entered a judgment in favor of Athens Lofts. Lighting and Lamp timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Because the trial court received ore ten-us evidence, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

On appeal, Lighting and Lamp has presented argument regarding only three of its claims: (1) a claim that Cohen’s alleged oral promise that Athens Lofts would pay in full the approximately $119,000 Jones-Williams owed Lighting and Lamp made Lighting and Lamp a direct contractor of Athens Lofts and, therefore, Lighting and Lamp is entitled to a full-price lien in the amount owed by Jones-Williams (“the full-price-lien claim”); (2) a claim that Cohen’s alleged oral promise that Athens Lofts would pay in full the approximately $119,000 Jones-Williams owed Lighting and Lamp formed a contract between Athens Lofts and Lighting and Lamp, which Athens Lofts breached by failing to pay Lighting and Lamp that amount in full (“the breach-of-contract claim”); and (3) a claim that Cohen’s alleged oral promise that Athens Lofts would pay in full the approximately $119,000 Jones-Williams owed Lighting and Lamp created an open account pursuant to which Athens Lofts was obligated to pay that amount to Lighting and Lamp (“the open-account claim”). The factual basis of each of those claims is Cohen’s alleged oral promise that Athens Lofts would pay in full the approximately $119,000 Jones-Williams owed Lighting and Lamp; however, the trial court’s judgment included an express finding of fact that Cohen did not make such a promise. Consequently, Lighting and Lamp cannot prevail on any of those claims unless the trial court erred in making that factual finding.

As noted above, the evidence regarding whether Cohen orally promised that Athens Lofts would pay in full the approximately $119,000 Jones-Williams owed Lighting and Lamp was in conflict. Pearson and Vetrano both testified that Cohen made such a promise. In addition, Lighting and Lamp introduced written notes made by Pearson on several occasions on or after June 18, 2007, that tended to prove that Cohen had made such a promise. However, Cohen testified that he did not make such a promise, and O’Brien, a witness who did not have a financial interest in the outcome of the action, testified that he did not recall Cohen’s making such a promise. Moreover, the trial court had before it evidence indicating that Lighting and Lamp never requested that Cohen or any other agent of Athens Lofts sign a written agreement obligating Athens Lofts or Cohen to pay in full the approximately $119,000 Jones-Williams owed Lighting and Lamp. The trial court could have found that the absence of such a request was circumstantial evidence tending to prove that Cohen did not orally promise that Athens Lofts would pay in full the $119,000 Jones-Williams owed Lighting and Lamp.

“ ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).
“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact, whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review provides:
“ ‘ “[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’
“Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)).”

Yeager v. Lucy, 998 So.2d 460, 462-63 (Ala.2008) (emphasis added). Moreover,

“[i]n ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief. Ostrander v. Ostrander, 517 So.2d 3 (Ala.Civ.App.1987). Further, in determining the weight to be accorded to the testimony of any witness, the trial court may consider the demeanor of the witness and the witness’s apparent candor or evasiveness. Ostrander, supra.... It is not the province of this court to override the trial court’s observations. Brown [ v. Brown, 586 So.2d 919 (Ala.Civ.App.1991) ].”

Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994).

The trial court had the opportunity to observe the demeanor of the witnesses and their apparent candor or evasiveness. See Woods v. Woods. As the sole judge of the facts and of the credibility of the witnesses, the trial court could have accepted the testimony of Cohen that he did not orally promise that Athens Lofts would pay in full the approximately $119,000 Jones-Williams owed Lighting and Lamp and rejected the testimony of Pearson and Vetrano that he did make such a promise. Id. Moreover, the trial court could have found that the fact that O’Brien, a witness who did not have a financial interest in the outcome of the action, did not recall such a promise tended to corroborate Cohen’s testimony that he did not make such a promise. Furthermore, the trial court could have found that the absence of a request by Lighting and Lamp that Cohen or another representative of Athens Lofts sign a written agreement obligating Athens Lofts to pay in full the $119,000 that Jones-Williams owed Lighting and Lamp was circumstantial evidence tending to prove that Cohen did not make such a promise. Thus, the trial court’s finding that Cohen did not make such a promise was supported by credible evidence and was not contrary to the great weight of the evidence. Accordingly, we must accept that finding. See Yeager v. Lucy. That finding negates the factual basis of Lighting and Lamp’s full-price-lien claim, breach-of-contract claim, and open-account claim. Consequently, we affirm the trial court’s judgment in favor of Athens Lofts with respect to those claims.

Lighting and Lamp has not presented argument regarding any of its other claims; therefore, we must affirm the trial court’s judgment with respect to those claims as well. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (‘“When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).”).

AFFIRMED.

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


author: WISE, Presiding Judge. WELCH, Judge,

text:
    C.L.G. v. STATE of Alabama.
    CR-08-0407.
    Court of Criminal Appeals of Alabama.
    June 26, 2009.
    Rehearing Denied Aug. 14, 2009.
    Shannon A. Rash, Dothan, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

On October 26, 2007, the appellant, C.L.G., was adjudicated a youthful offender based on an underlying charge of second-degree rape. The trial court sentenced him to serve a term of three years in prison, but suspended the sentence and ordered him to serve three years on probation. On September 9, 2008, C.L.G.’s probation officer filed an “Officer’s Report on Delinquent Probationer.” After conducting a revocation hearing, the circuit court revoked his probation. This appeal followed.

C.L.G. argues that the circuit court erroneously revoked his probation based solely upon hearsay.

“ ‘The use of such hearsay evidence as the sole means of proving the violation of the probation condition denied appellant the right to confront and cross-examine the person who originated the factual information which formed the basis for the revocation. For this reason, appellant was denied minimal due process of law, and the evidence was insufficient to prove the alleged violation of probation.’

“[Mallette v. State,] 572 So.2d [1316,] 1317 [ (Ala.Crim.App.1990) ]. See also Ex parte Belcher, 556 So.2d 366 (Ala.1989) (State’s evidence held insufficient in probation revocation hearing where evidence consisted of probation officer’s testimony that, while on probation, the appellant was charged with a federal offense, i.e., conspiring to possess, with intent to distribute, approximately 1000 pounds of marijuana, and certified copies of the federal charge).

“ ‘[T]he law is clear that the formality and evidentiary standards of a criminal trial are not required in parole revocation hearings. Thompson v. State, 356 So.2d 757 (Ala.Crim.App.1978), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). Hearsay evidence may be admitted in the discretion of the court, though the State acknowledges that hearsay evidence cannot be the sole support of revoking probation. Mitchell v. State, 462 So.2d 740 (Ala.Crim.App.1984).
‘“Although probation is a “privilege” and not a right, Wray v. State, 472 So.2d 1119 (Ala.1985), certain standards of due process of law must be met to justify revocation. Those standards are set out in Armstrong v. State, supra.
“ ‘... While we recognize that all the formal requirements of a criminal trial are not mandated, and that the burden of proof is different, Thompson v. State, 356 So.2d 757 (Ala.Cr.App.1978) (“[t]he standard of proof is not reasonable doubt or preponderance of the evidence, but reasonable satisfaction from the evidence”), we also recognize that “[hjearsay information may not be used to furnish the sole basis of the revocation.” Watkins v. State, 455 So.2d 160 (Ala.Cr.App.1984). See, also, Moore v. State, 432 So.2d 552 (Ala.Cr.App.1983). In the case at bar, we find that the evidence in the record was insufficient. Although evidence sufficient to support a conviction is not required, a probation officer’s report and/or an arrest warrant, standing alone or together, would be insufficient.’
“Ex parte Belcher, supra, at 368-69 (emphasis in original).”

Hall v. State, 681 So.2d 247, 248 (Ala.Crim. App.1995). Further,

“ ‘ “ ‘[tjhe decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The state must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.’ Hill[ v. State, 350 So.2d 716 (Ala.Cr.App.1977) ].” ’
“Chasteen v. State, 652 So.2d 319, 320 (Ala.Crim.App.1994) (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984)).”

Nash v. State, 931 So.2d 785, 789 (Ala.Crim.App.2005).

In this case, the circuit court revoked C.L.G.’s probation on the ground that he had committed the new offense of obstruction of governmental operations. During the revocation hearing, Sheriff Gregory Ward of the Geneva County Sheriffs Department testified that, between 6:00 p.m. and 7:00 p.m. on September 8, 2008, he took a report regarding a missing juvenile, L.W.; that the report indicated that L.W., who was sixteen years old at the time, had skipped school with a friend, Chelsey Hut-to, and the location of L.W. and Hutto was not known at the time; and that, during his investigation, he contacted C.L.G. about L.W. He also testified that C.L.G. told him he did not know where L.W. was; that he had picked up Hutto at the mall in Dothan, and L.W. was going to leave with some of her friends; that he would try to get Hutto to tell him where L.W. was; and that he would help. Ward further testified that he talked to C.L.G. on a second occasion; that C.L.G. told him he had not been able to get any information from Hutto and told him essentially the same story as before; that he talked to Hutto on Saturday evening, and she told him basically the same story; that both C.L.G. and Hutto told him they were going to get back to him, but he did not receive any telephone calls from them; and that he contacted C.L.G. and told him he was going to put out an “AMBER Alert” for L.W. Finally, he testified that he received information that, after he notified C.L.G. about the “AMBER Alert,” C.L.G. and his father went to the St. Clair County Sheriffs Department to tell them the entire story and that L.W. was subsequently located at the home of C.L.G.’s father.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Rule 801(c), Ala. R. Evid. In this case, Ward’s testimony that he had received information that C.L.G. and his father had gone to the sheriffs department after the “AMBER Alert” was issued and that L.W. was subsequently located at C.L.G.’s father’s home was offered to prove that C.L.G. and his father had in fact gone to the sheriffs department and that L.W. was in fact located at C.L.G.’s father’s house. Therefore, the testimony was offered to prove the truth of the matter asserted therein, and was, by definition, hearsay. Further, in its brief, the State concedes that “the complaint that initiated the investigation, the statements regarding the finding of the juvenile at C.L.G.’s father’s house, and the fact that C.L.G. took the juvenile to his father’s house are hearsay,” but asserts that Ward’s testimony regarding the statements C.L.G. made to him constituted adequate non-hearsay evidence to support the revocation of his probation. (State’s brief at p. 11.) Although Ward’s testimony about the statements C.L.G. made to him did not constitute hearsay, that testimony did not tend to establish that C.L.G.’s statements were false and that he had actually obstructed a governmental operation. At most, his testimony showed that C.L.G. made two statements to him during the course of his investigation. Therefore, the hearsay information Ward received was necessary to show that C.L.G. had lied about L.W.’s whereabouts. Without such information, the State did not present any evidence to reasonably satisfy the circuit court that C.L.G. had actually committed the offense of obstructing governmental operations. Because the only evidence to show that C.L.G.’s statements were false and that he had committed the offense of obstructing governmental operations was Ward’s hearsay testimony, the State did not present sufficient non-hearsay evidence to support the revocation of C.L.G.’s probation. Accordingly, we reverse the circuit court’s order revoking C.L.G.’s probation and remand this case to the circuit court for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WINDOM and KELLUM, JJ., concur.

WELCH, J., dissents, with opinion.

MAIN, J., dissents.

WELCH, Judge,

dissenting.

The majority reverses the trial court’s judgment revoking C.L.G.’s probation based on a determination that C.L.G. had violated the terms of his probation by committing a new criminal offense, Ala.Code 1975, § 13A-10-2, obstructing governmental operations. The statute provides:

“§ 13A-10-2. Obstructing governmental operations.
“(a) A person commits the crime of obstructing governmental operations if, by means of intimidation, physical force or interference or by any other independently unlawful act, he:
“(1) Intentionally obstructs, impairs or hinders the administration of law or other governmental function; or
“(2) Intentionally prevents a public servant from performing a governmental function.”

The majority holds that the trial court erred because the only evidence establishing that C.L.G. obstructed governmental operations was hearsay evidence from Sheriff Gregory Ward, who testified that C.L.G. and his father had gone to the police department and had revealed that a minor, L.W., who had been reported missing by her father, could be found at C.L.G.’s father’s house. Sheriff Ward had no direct knowledge of the foregoing evidence, although he did have direct knowledge of and provided testimony about C.L.G.’s earlier statements to him about L.W.’s whereabouts; C.L.G. made two separate statements to Sheriff Ward indicating that he did not know where L.W. was located and that he knew nothing of the girl’s disappearance, even when Sheriff Ward told C.L.G. that he was going to issue an “AMBER Alert” for L.W. The majority concludes: “Although Ward’s testimony about the statements C.L.G. made to him did not constitute hearsay, that testimony did not tend to establish that C.L.G.’s statements were false and that he had actually obstructed a governmental operation. At most, his testimony showed that C.L.G. made two statements to him during the course of his investigation.”

I agree with the majority that a judgment revoking probation cannot be based solely on hearsay. E.g., Brazery v. State, 6 So.3d 559 (Ala.Crim.App.2008); Nash v. State, 931 So.2d 785 (Ala.Crim.App.2005); Goodgain v. State, 755 So.2d 591 (Ala.Crim.App.1999). However, that well-established rule of law does not apply in this case; therefore, reversal based on that rule is not necessary. Rule 27.6(d)(1), Ala. R.Crim. P., provides that the trial judge considering a petition to revoke probation must be reasonably satisfied from the evidence that a violation of the conditions of probation occurred. Rule 27.6(d)(1) also states that, in a probation-revocation hearing, “[t]he court may receive any reliable, relevant evidence not legally privileged, including hearsay.” (Emphasis added.) The use of hearsay evidence in a revocation proceeding to prove or disprove that a probationer violated a condition of probation proof is clearly allowed by the express terms of Rule 27. The reason any evidence — whether direct or hearsay — is presented at a revocation hearing is to persuade the trial court in its determination about whether an alleged probation violation occurred. Clearly, hearsay evidence is permitted as a part of the evidence necessary to make that determination.

In this case, although evidence about C.L.G.’s statement at the sheriffs department admitting that he was aware of the whereabouts of the missing juvenile was hearsay, the revocation was not based solely on that hearsay. Sheriff Ward had independent knowledge of the allegations against C.L.G., and he provided testimony about that evidence. In fact, the majority summarized the testimony from the revocation hearing and stated, in relevant part:

“During the revocation hearing, Sheriff Gregory Ward of the Geneva County Sheriffs Department testified that, between 6:00 p.m. and 7:00 p.m. on September 8, 2008, he took a report regarding a missing juvenile, L.W.; that the report indicated that L.W., who was sixteen years old at the time, had skipped school with a friend, Chelsey Hutto, and the location of L.W. and Hutto was not known at the time; and that, during his investigation, he contacted C.L.G. about L.W. He also testified that C.L.G. told him he did not know where L.W. was; that he had picked up Hutto at the mall in Dothan, and L.W. was going to leave with some of her friends; that he would try to get Hutto to tell him where L.W. was; and that he would help. Ward further testified that he talked to C.L.G. on a second occasion; that C.L.G. told him he had not been able to get any information from Hutto and told him essentially the same story as before; that he talked to Hutto on Saturday evening, and she told him basically the same story as before; that both C.L.G. and Hutto told him they were going to get back to him, but he did not receive any telephone calls from them; and that he contacted C.L.G. and told him he was going to put out an ‘AMBER Alert’ for L.W. Finally, he testified that he received information that, after he notified C.L.G. about the ‘AMBER Alert,’ C.L.G. and his father went to the St. Clair County Sheriffs Department to tell them the entire story and that L.W. was subsequently located at the home of C.L.G.’s father.”

50 So.3d at 1124-25. (footnote omitted).

The majority concludes that the revocation of C.L.G.’s probation was based solely on hearsay and the order revoking C.L.G.’s probation is due to be reversed, and it states:

“Although Ward’s testimony about the statements C.L.G. made to him did not constitute hearsay, that testimony did not tend to establish that C.L.G.’s statements were false and that C.L.G. had actually obstructed a governmental operation. At most, his testimony showed that C.L.G. made two statements to him during the course of his investigation. Therefore, the hearsay information Ward received was necessary to show that C.L.G. had lied about L.W.’s whereabouts. Without such information, the State did not present any evidence to reasonably satisfy the circuit court that C.L.G. had actually committed the offense of obstructing governmental operations. Because the only evidence to show that C.L.G.’s statements were false and that he had committed the offense of obstructing governmental operations was Ward’s hearsay testimony, the State did not present sufficient nonhearsay evidence to support the revocation of C.L.G.’s probation.”

50 So.3d at 1125.

Section 13A-10-2(a), Ala.Code 1975, provides that a person obstructs governmental operations if, by means of intimidation, physical force, interference, or any other independently unlawful act he intentionally obstructs or hinders the administration of law or a governmental function or if he intentionally prevents a public servant from performing a governmental function. The evidence established that C.L.G. lied to Sheriff Ward after L.W. had been reported missing and while the sheriff was conducting an investigation into her absence and that C.L.G. told the sheriff on two occasions that he had no idea of L.W.’s whereabouts. This portion of Sheriff Ward’s testimony was nonhearsay. That fact, alone, is sufficient to demonstrate that the trial court’s revocation of C.L.G.’s probation was not based solely on hearsay.

The testimony that L.W. was missing, that law-enforcement officials were conducting a governmental operation to locate her, and that she was subsequently located at the home of C.L.G.’s father, was hearsay. The majority recognizes that C.L.G.’s statements were not hearsay. Indeed, they were offered for the purpose of demonstrating that they were in fact false, and not as a statement offered for the purpose of proving the matter asserted by C.L.G. That their falsity and capacity to interfere with an ongoing governmental operation was proved by hearsay testimony does not mean that the finding of the trial judge was based solely on hearsay evidence.

Thus, the majority appears to hold implicitly that each element of a criminal charge underlying a revocation violation must be established by direct evidence and cannot be established by hearsay. Such a result is not mandated by either Rule 27, Ala. R.Crim. P., or by any caselaw. The majority cites no case supporting that position.

In light of the specific provision of Rule 27.6(d) stating that the trial court may receive any relevant evidence not legally privileged, including hearsay, the majority’s underlying holding is an unwarranted interpretation of Rule 27 and the caselaw interpreting it. The trial court’s judgment revoking C.L.G.’s probation was not based solely on hearsay, and it was due to be affirmed. Therefore, I respectfully dissent.

      . The AMBER Alert Program distributes information regarding children who may have been abducted to the general public through various media.


author: MAIN, Judge. WELCH, Judge,

text:
    Travis Jay FOSTER v. STATE of Alabama.
    CR-08-0258.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 2009.
    Rehearing Denied Oct. 2, 2009.
    Certiorari Denied June 18, 2010 Alabama Supreme Court 1090058.
    Robert B. Tuten, Huntsville, for appellant.
    Troy King, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   MAIN, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, P.J., and KELLUM, J., concur.

WINDOM, J., concurs in the result.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

I disagree with the majority’s determination, in part II of its unpublished memorandum, that the trial court committed no error when it permitted Investigator Fred Sharp to testify about the victim’s credibility, specifically, whether he believed the victim’s disclosure that she had been raped by Travis Jay Foster. Investigator Sharp’s testimony embraced the ultimate issue in this case and, therefore, that testimony interfered with the jury’s role as fact-finder. Therefore, the testimony should not have been admitted.

“Alabama has long held that the credibility of a witness is a question solely for the jury’s determination.” Sanders v. State, 986 So.2d 1230, 1234 (Ala.Crim.App.2007) (citations omitted). Rule 704, Ala. R. Evid., provides that “[tjestimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.” The Advisory Committee’s Notes following Rule 704 state, in relevant part:

“Evidence of an opinion that goes to an ultimate issue in the case is inadmissible, whether offered by a lay witness or by an expert witness. McLeod v. Cannon Oil Corp., 603 So.2d 889 (Ala. 1992); Robinson v. State, 574 So.2d 910 (Ala.Crim.App.1990). See C. Gamble, McElroy’s Alabama Evidence § 127.01(5)(d) (4th ed.1991). The basis for the preclusion is the fear that the admission of such an opinion will preempt the role and function of the factfinder. That principle is often referred to as the ‘ultimate issue rule.’
“The adoption of Rule 704 constitutes a rejection of the corresponding federal rule, under which the ultimate issue rule is abandoned. See Fed.R.Evid. 704(a).”

“An ultimate issue has been defined as the last question that must be determined by the jury.” Fitch v. State, 851 So.2d 103, 116 (Ala.Crim.App.2001), quoting Tims v. State, 711 So.2d 1118, 1125 (Ala.Crim.App.1997). While caselaw has liberalized application of the ultimate-issue rule in Alabama, see, e.g., Fitch v. State, 851 So.2d at 117, that rule has not been abrogated.

In Sanders v. State, this Court stated:

“We have held that the ultimate issue in similar cases is whether the defendant had sexually abused the child, not whether the child had in fact been sexually abused. See Lee v. State, 565 So.2d 1155 (Ala.Crim.App.1990). Experts are permitted to testify concerning their opinion as to whether a child has been sexually abused. Kennedy v. State, 929 So.2d 515, 519 (Ala.Crim.App.2005).”

986 So.2d at 1232 (emphasis in original).

The majority here cites to and quotes Sanders, but it then holds:

“In this case, Investigator Sharp testified that he believed that the victim was credible. (R. 160-61.) He did not testify or give his opinion regarding the ultimate issue concerning Foster’s guilt. Therefore, the trial court did not abuse its discretion in allowing Investigator Sharp’s testimony on this ground.”

I disagree with the majority’s characterization of Investigator Sharp’s testimony, a portion of which included the following exchange:

“Q. [Prosecutor] Sir, I believe you had told us earlier you did interview [the victim] in this case, correct?
“A. [Inv. Sharp] Yes, sir, I did.
“Q. You did do what you classify as a forensic interview; is that correct?
“A. Yes.
“Q. You did look for those characteristics and things you’ve been taught in your training and experience to look for in determining whether a disclosure’s credible or not; is that correct?
“A. Yes, sir.
“Q. Based upon your forensic interview with [the victim], were you able to make a determination as to whether you felt that her disclosure was credible or not?
“A. Yes, sir, I was.
“Q. What was that?
“[Defense counsel]: Objection, Your Honor, same as stated previously.[]
“THE COURT: I understand. Overruled.
“Q. What was that determination?
“A. I believe that [the victim] was credible in her disclosure.”

(R. 159-160.)(Emphasis added.)

The disclosure the victim had made to Investigator Sharp revealed not only the fact that she had been raped, but also that she had been raped by Foster. Investigator Sharp’s testimony most certainly encompassed the ultimate issue in this case, and the trial court erred to reversal when it overruled Foster’s objection to that testimony. Although there' was additional testimony that Foster had raped the victim, Investigator Sharp’s testimony provided a substantial boost to the victim’s credibility because Investigator Sharp was offered as an expert who had extensive training in forensic interviews in child-abuse cases and who had testified hundreds of times in cases in which he had conducted forensic interviews. Foster’s substantial rights were significantly prejudiced by Investigator Sharp’s testimony, which invaded the province of the jury, so the error in admitting that testimony cannot be considered harmless.

I believe that Foster’s conviction should be reversed and the cause remanded for further proceedings. Therefore, I dissent.

      . Foster had previously objected on grounds that Investigator Sharp’s proposed testimony, vouching for the credibility of the victim, would invade the province of the jury and would violate the ultimate-issue rule. (R. 139-44.)