author: BRYAN, Justice.

text:
    Dr. Ann M. MOTTERSHAW v. Shannon LEDBETTER, as administrator of the ESTATE OF Venoria WOMACK, deceased. The Radiology Group, LLC v. Shannon Ledbetter, as administrator of the estate of Venoria Womack, deceased.
    1110959 and 1110962.
    Supreme Court of Alabama.
    Nov. 8, 2013.
    As Modified on Denial of Rehearing Jan. 17, 2014.

      Jack B. Hinton, Jr., of Hinton & Hern-don, Montgomery, for Dr. Ann M. Motter-shaw; and James L. Martin, Eufaula, for The Radiology Group, LLC.
    Leah 0. Taylor and Rhonda P. Chambers of Taylor & Taylor, Birmingham, for appellee.
   BRYAN, Justice.

Dr. Ann M. Mottershaw and The Radiology Group, LLC, appeal separately from the trial court’s order granting a motion for a new trial filed by the plaintiff, Shannon Ledbetter, as administrator of the estate of Venoria Womack, deceased. These appeals primarily concern whether the trial court exceeded its discretion in ordering a new trial based on the jury’s exposure to certain evidence that the trial court had excluded by an order granting a motion in limine.

On May 11, 2007, Womack underwent a CT scan of her sinuses. Dr. Mottershaw, a radiologist employed by The Radiology Group, read the CT scan. Evidence at trial indicated that Dr. Mottershaw, in reading the CT scan, failed to detect a cancerous mass in Womack’s sinuses. Two weeks later, on May 25, 2007, Wom-ack underwent another CT scan. The radiologists who read that scan also failed to detect the mass in Womack’s sinuses. Unlike Dr. Mottershaw, those radiologists were not employees of The Radiology Group. A few months later, on August 6, 2007, Womack underwent an MRI of her head. The radiologist who read the MRI detected the cancer in Womack’s sinuses. Womack subsequently underwent treatment for her cancer at Shands Medical Center in Gainesville, Florida. However, on March 6, 2008, Womack died.

In April 2009, Ledbetter, as administrator of Womack’s estate, sued various health-care providers, alleging medical malpractice and wrongful death. The complaint alleged that the defendants breached the applicable standard of care by failing to timely diagnose Womack’s cancer. Among the defendants were Dr. Mottershaw and her employer, The Radiology Group. Eventually, all the defendants except Dr. Mottershaw and The Radiology Group were dismissed.

On September 6, 2011, Ledbetter filed a motion in limine seeking, among other things, to prevent reference to or presentation of any evidence indicating “[t]hat other health care providers [besides Dr. Mottershaw and The Radiology Group] allegedly failed to detect Venoria Womack’s nasopharyngeal cancer.” The trial court granted the motion in limine insofar as it requested that restriction, among other restrictions not relevant here.

On October 3, 2011, the case against Dr. Mottershaw and The Radiology Group proceeded to trial. During opening statements, Dr. Mottershaw’s attorney noted that Dr. Mottershaw had read the CT scan of May 11, 2007. Dr. Mottershaw’s attorney then stated that “[t]wo weeks later there was another set of images done.” At that point, Ledbetter’s attorney asked to approach the bench and an off-the-record discussion was held. During the trial, Dr. Mottershaw’s attorney asked Dr. Kendall Jones, who provided expert testimony for Ledbetter:

“Q. Now, you got not only the May 11 images that we have talked about that were done by Dr. Mottershaw, but you also got other images from [Ledbetter’s] lawyer, right?
“A. Yes.
“Q. And you got a study that was done two weeks later. May 25, right?”

At that point, Ledbetter’s attorney asked to approach the bench, and the following discussion occurred outside the presence of the jury:

“MRS. TAYLOR [Ledbetter’s attorney]: Your Honor, that reference to the May 25 [scan] is strictly in opposition to Your Honor’s order on motion in limine. He has been instructed not to mention May 25 studies.
“He was instructed in the order on motion in limine, initially. He was instructed in the middle of opening statement. And here we go again. And we don’t know what to say other than it’s in blatant violation.
“MR. HINTON [Dr. Mottershaw’s attorney]: Well, Judge, I don’t recall being told don’t talk about May 25.
“THE COURT: I ruled that the May 25th stuff doesn’t come in.
“MR. HINTON: Nothing about May 25 comes in?
“THE COURT: No.
“MR. HINTON: My case is completely gutted.
“THE COURT: ... [Y]our case is about whether there was malpractice committed when [Dr. Mottershaw] missed the stuff on ... May 11th.
“THE COURT: ... The [May] 25th study gets in to accusing another doctor of missing something. That’s not what we are here for.
“THE COURT: ... The 25th is out, again.”

Later at trial, Dr. Mottershaw submitted a copy of Womack’s medical records from Shands Medical Center, which was labeled as Defendant’s Exhibit 7. Defendant’s Exhibit 7, which was admitted without objection, contained information about the May 25 CT scan. Specifically, the records stated, in pertinent part:

“05/25/2007: She underwent a CT of the head at an outside facility. The report is unavailable for review, but on review of the actual images, there is a mass in the right nasopharynx. The neck was not imaged.
“IMAGING REVIEW: Dr. [Jeffrey] Bennett reviewed an outside CT dated 05/25/2007. This shows a mass in the central nasopharynx and a large positive right retropharyngeal lymph node.”

After Defendant’s Exhibit 7 was admitted, Ledbetter’s attorney reminded the trial court that references to the May 25 CT scan in the exhibit needed to be redacted to comply with the trial court’s order in limine:

“MRS. CHAMBERS [Ledbetter’s attorney]: We need to make sure those records are redacted that you put in.
“MRS. CHAMBERS: We’ve redacted ours.
“THE COURT: We’ve got to redact — Let’s see.
“I wrote down th[at] Defense Exhibit 6 has got to be redacted.
“THE COURT: And 7.
“THE COURT: Now, Defense 6 and 7 are two that /all need to look through to make sure they’re redacted.”

Before closing arguments, Matt Griffith, an attorney for Dr. Mottershaw, told the trial court that, pursuant to the order granting the motion in limine, “we have redacted Defense Exhibit 5, 6, and 7.” However, the references to the May 25 CT scan were not redacted from Defendant’s Exhibit 7.

After closing arguments, the trial court asked the court reporter if “the exhibits in the trial have been looked at by .both sides” and whether “they are ready to go back.” The court reporter responded affirmatively. The trial court then asked whether “[b]oth sides have looked at those,” and the attorneys for both sides responded affirmatively. The case went to the jury on October 6, 2011. After deliberating for approximately 30 minutes, the jury sent a written question to the trial court: “Can we have a copy of the judge’s instruction (charge) [a]nd what about the test from the 25th? ” (Emphasis added.) Up to that point, the parties and the trial court were unaware that the references to the May 25 CT scan had not been redacted from Defendant’s Exhibit 7. In response to the question about “the test from the 25th,” the trial court answered: “All of the properly admitted exhibits have been provided to you.” After a few hours of deliberation, the jury returned a verdict in favor of Dr. Mottershaw and The Radiology Group. On October 31, 2001, the trial court entered a judgment on the jury verdict.

At some point after the jury returned its verdict, Ledbetter’s attorney reviewed the exhibits that had been sent to the jury-deliberation room. Ledbetter’s attorney then discovered that the two references to the May 25 CT scan in Defendant’s Exhibit 7 had not been redacted despite the order granting the motion in limine.

Ledbetter moved for a new trial, asserting several grounds. Following a hearing, the trial court entered an order granting a new trial. After discussing the pertinent procedural history of the case, the order stated, in part:

“[Ledbetter] contends this unredacted evidence was considered by the jury, and that it was prejudicial to [Ledbet-ter] in the jury’s deliberations that resulted in a verdict for [Dr. Mottershaw and The Radiology Group]. It is a well-settled principle of law, and, further, it is fundamental to a fair trial, that jurors should consider only the evidence properly admitted at trial. It is error for a jury to receive an exhibit not admitted into evidence. Ex parte Troha, 462 So.2d 953, 954 (Ala.1984).... Although the Court received Defendant’s Exhibit 7 into evidence, it excluded the evidence within that exhibit of the May 25th CT scan. Thus, the jury’s receipt of the unredacted Exhibit that contained evidence that was never admitted into evidence by the Court was error.
“The Court recognizes that not every instance of juror misconduct requires or warrants a new trial. Reed v. State, 547 So.2d 596 (Ala.1989). ‘Each case involving juror misconduct must be judged by its own peculiar facts, and the conduct, when found to be prejudicial, will require a reversal.’ Dawson v. State, 710 So.2d 472, 474 (Ala.1997). As a general matter, issues of jury misconduct arise where a juror allegedly is exposed to outside influences such as extraneous evidence, reviews unadmitted exhibits, or engages in unauthorized communications. There is no allegation of juror misconduct per se in this case.... The allegation is that the jury was improperly exposed to extraneous material in the medical records that was ordered to be redacted.
“... [C]ases involving the introduction of unadmitted exhibits warrant a new trial when one of two requirements is met: (1) the extraneous material is of such a nature as to constitute prejudice as a matter of law; or (2) the jury verdict is shown to have been actually prejudiced by the extraneous material. Ex parte Apicella, 809 So.2d 865, 870 (Ala.2001)- Having considered the specific circumstances of this case, the Court concludes that the jury’s exposure to and consideration of extraneous information in the form of the unredacted medical records which evidenced the May 25th scan resulted in prejudice as a matter of law and in actual prejudice to [Ledbetter] requiring a new trial.
“In some cases, the character and nature of the extraneous material constitute prejudice as a matter of law and no showing that the jury is in fact influenced thereby in arriving at their verdict is necessary. Ex parte Arthur, 835 So.2d 981, 984 (Ala.2002). Presumed prejudice, or prejudice as a matter of law, applies only in a case in which the jury’s consideration of the extraneous material was crucial in resolving a key material issue in the case. Dawson v. State, 710 So.2d 472, 475 (Ala.1997)....
“The jury’s consideration of the references to the May 25th scan was crucial in resolving a key material issue in this case. [Ledbetter] had moved in limine to preclude any evidence that other health care providers allegedly failed to detect Venoria Womack’s cancer. [Led-better] anticipated that [Dr.] Motter-shaw would argue that the radiologist who took the May 25th scan with contrast also failed to detect the cancer. The Court granted [the] motion in li-mine and specifically told Dr. Motter-shaw’s counsel not to reference the May 25th scan. There is no dispute that extraneous material was actually received by the jurors. Obviously, the jurors were aware of the May 25th scan and thought it should be considered because they specifically requested it after they began deliberating. Defendant’s Exhibit 7, which contained unredacted references to the May 25th scan, was relevant to a key material issue in the case. This extraneous information resulted in prejudice as a matter of law.
“Even if the extraneous information had not resulted in prejudice as a matter of law, the Court would grant the motion for new trial because the extraneous information resulted in actual prejudice to [Ledbetter]. When a court is determining whether a juror’s conduct has caused actual prejudice, the standard applied is whether the extraneous material might have influenced that juror and others with whom he deliberated. Ex parte Dobyne, 805 So.2d 763, 771 (Ala.2001) (‘the test is whether the [movant] might have been prejudiced, not whether he actually was prejudiced, by such misconduct’), overruled in part on other grounds by Ex parte Burgess, 21 So.3d 746 (Ala.2008)-No single fact or circumstance will determine whether the verdict rendered in a given case might have been unlawfully influenced by a juror’s misconduct. Reed v. State, 547 So.2d 596, 598 (Ala.1989). Rather, it is a case’s own peculiar set of circumstances that will decide the issue....
“Having observed the unredacted exhibit and all of the evidence properly admitted, the Court is in the best position to assess the possible prejudicial effect the unredacted May 25th references may have had on the jury. The Court finds that the jury’s receipt of extraneous material in the unredacted Defendant’s Exhibit 7 which involved the May 25th scan with contrast might have unlawfully influenced the jury’s verdict for the Defendants. All references to the May 25th scan had been excluded by order of the Court. There is no doubt that the jury considered the extraneous material in Defendant’s Trial Exhibit 7 as evidenced by the jury’s question. The jury asked to see a copy of the report from the 25th after they started deliberating. The reference to a May 25th scan might have influenced all of the jurors....
“Having concluded that [Ledbetter] is entitled to a new trial based on the jury’s consideration of an exhibit that was not admitted into evidence, this Court concludes that it is not necessary to reach [Ledbetter’s] remaining grounds for new trial.”

Dr. Mottershaw and The Radiology Group filed separate appeals, which we consolidated for the purpose of writing one opinion. On appeal, The Radiology Group adopted Dr. Mottershaw’s brief. For ease of discussion, we will refer simply to the arguments of “Dr. Mottershaw,” with the understanding that those arguments have been adopted by The Radiology Group.

On appeal, Dr. Mottershaw argues that the trial court erred in ordering a new trial based on the jury’s consideration of the unredacted evidence regarding the May 25 CT scan. Initially, we note that Dr. Mot-tershaw argues at various points that this case is not, as the trial court stated, an “extraneous-material” case; thus, she says, the cases relied on by the trial court are inapplicable. She seems to draw a distinction between cases in which jurors themselves brought extraneous materials into the jury-deliberation room and the facts of this case, in which the jurors were inadvertently exposed to material that should have been redacted. However, she does not point to any case relying on such a distinction for purposes of evaluating the effect of improper exposure. In both types of cases, the key point is that jurors were exposed to material they should not have seen, ie., “extraneous material.” Thus, Dr. Mottershaw’s argument is largely one of semantics.

Dr. Mottershaw first argues that, in ordering a new trial, the trial court failed to give the required deference to the jury’s verdict. Dr. Mottershaw cites cases generally indicating that a jury’s verdict is presumed to be correct and should be set aside only if the verdict is “palpably wrong or manifestly unjust.” Bradford v. Kimbrough, 485 So.2d 1114, 1116 (Ala.1986). In making this argument, Dr. Mottershaw essentially confuses, on the one hand, the standard for reviewing a motion for a new trial grounded on the argument that the verdict is against the great weight of the evidence with, on the other hand, the standard for reviewing a motion for a new trial grounded on the argument that the jury considered extraneous evidence. This Court has stated that the trial court has discretion in cases such as this one and that we must give deference to the trial court’s decision:

“Where a motion for a new trial is granted for reasons ‘other than, or in addition to, a finding that the verdict [was] against the great weight or preponderance of the evidence,’ this Court applies a standard of review that is more deferential to the trial court’s determination that a new trial is warranted. Curtis v. Faulkner Univ., 575 So.2d 1064, 1065 (Ala.1991). Where a trial court grants a motion for a new trial for grounds other than, or in addition to, that the verdict is against the great weight of the evidence, this Court’s review is limited:
“ ‘ “It is well established that a rul- ■ ing on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.” ’
“Kane v. Edward J. Woerner & Sons, Inc., 543 So.2d 693, 694 (Ala.1989) (quoting Hill v. Sherwood, 488 So.2d 1357, 1359 (Ala.1986)).”

Beauchamp v. Coastal Boat Storage, LLC, 4 So.3d 443, 449-50 (Ala.2008). Because Dr. Mottershaw relies on the incorrect standard in her first argument, i. e., the standard applicable to a sufficiency-of-the-evidence argument, her first argument is unavailing. The main issue, which Dr. Mottershaw tangentially addresses in some of her arguments, is whether the trial court exceeded its discretion in ordering a new trial; the main issue does not involve whether the verdict is supported by sufficient evidence.

We next address the underlying standard informing the trial court’s discretion in this case. Generally, the introduction of extraneous materials warrants a new trial if either “1) the jury verdict is shown to have been actually prejudiced by the extraneous material; or 2) the extraneous material is of such a nature as to constitute prejudice as a matter of law.” Ex parte Apicella, 809 So.2d 865, 870 (Ala.2001). In this case, the trial court found both actual prejudice and prejudice as a matter of law. Regarding the concept of “actual prejudice,” this Court has stated:

“ ‘The test of vitiating influence is not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered.’
“[Roan v. State,] 225 Ala. [428,] 435, 143 So. [454,] 460 [ (1932) ].
“On its face, this standard would require nothing more than that the defendant establish that juror misconduct occurred ....
“However, as other Alabama cases establish, more is required of the defendant. In Reed v. State, 547 So.2d 596, 598 (Ala.1989), this Court addressed a similar case of juror misconduct:
“ ‘We begin by noting that no single fact or circumstance will determine whether the verdict rendered in a given case might have been unlawfully influenced by a juror’s [misconduct]. Rather, it is a case’s own peculiar set of circumstances that will decide the issue.... ’
“It is clear, then, that the question whether the jury’s decision might have been affected is answered not by a bare showing of juror misconduct, but rather by an examination of the circumstances particular to the case.”

Ex parte Apicella, 809 So.2d at 871.

The circumstances of this case indicate that the trial court did not exceed its discretion in concluding that the unredact-ed references to the May 25 CT scan in Defendant’s Exhibit 7 might have improperly influenced the jury. After deliberating for about 30 minutes, the jury specifically asked the trial court: “[Wjhat about the test from the 25th?” The trial court, unaware that references to the May 25 CT scan had not been redacted from the exhibit, answered: “All of the properly admitted exhibits have been provided to you.” The jury’s question, coupled with the trial court’s answer, suggests that the jury considered information that had actually been prohibited by the order granting the motion in limine. Evidence indicating that a May 25 CT scan showed that Wom-ack had cancer — but that the cancer remained undetected — reasonably could have influenced the jury in determining the liability of Dr. Mottershaw, who read the earlier CT scan of May 11 and failed to detect the cancer. Dr. Mottershaw argues that the trial court’s determination that there was actual prejudice is based on speculation; however, the circumstances need to indicate only that there might have been prejudice. Ex parte Apicella. Based on the circumstances, the trial court did not exceed its discretion in determining that the jury might have been improperly influenced by extraneous material, ie., that there was so-called “actual prejudice.” Because the trial court did not exceed its discretion in finding actual prejudice, we need not consider whether the trial court exceeded its discretion in finding prejudice as a matter of law.

Dr. Mottershaw also argues that the trial court erred in ordering a new trial because, she says, “the jury’s consideration of the existence of the date of the May 25 images was not ‘crucial in resolving a key material issue in the case.’ ” Dr. Motter-shaw’s brief at 42. By arguing that the material was not “crucial in resolving a key material issue in the case,” Dr. Mot-tershaw refers to the test for determining whether the extraneous material caused “prejudice as a matter of law.” See Ex parte Apicella, 809 So.2d at 872 (“Generally, a presumption of prejudice [as a matter of law] applies only in a case in which the jury’s consideration of the extraneous material was ‘ “crucial in resolving a key material issue in the case.” ’ ” (quoting other cases)). The trial court found both prejudice as a matter of law and actual prejudice in this case. Because we conclude that the trial court did not exceed its discretion in finding actual prejudice, we need not address the trial court’s alternate finding of prejudice as a matter of law. Thus, we do not address Dr. Mottershaw’s argument that there was no prejudice as a matter of law.

The deferential standard of review in this case is well illustrated in Gold Kist, Inc. v. Tedder, 580 So.2d 1321 (Ala.1991), a case similar to this one. In Gold Kist, the jury returned a verdict in favor of the defendant in a negligence/wantonness case arising out of an automobile accident. The trial court granted a motion for a new trial on the ground that the jury may have been improperly influenced by an unadmitted exhibit that was left in the courtroom while the jury deliberated there.

At the trial in Gold Kist, one of the issues was whether the automobile accident caused the plaintiffs hip condition. As defenses, the defendant attempted to prove that the plaintiff had previously injured her hip, that she had a previous hip condition that had begun to affect her hip before the accident, and that the plaintiffs alcoholism had contributed to the hip condition. During the trial, the defendant constructed a chronology of medical events concerning the plaintiff, including her earlier hip problems and treatment for alcohol abuse. That chronology was listed on a large paper tablet and was placed on a easel in the courtroom. The list was referenced during trial but was never offered or admitted into evidence. However, it was left within sight of the jury during its deliberations, despite the trial court’s instruction to the parties to remove their materials. In moving for a new trial, the plaintiff argued that the jury had been impermissibly influenced by the list, and the trial court granted the new trial.

In affirming the trial court’s order, this Court noted that the grant or denial of a motion for a new trial lies “largely within the discretion of the trial court,” that it is presumed correct, and that it will not be reversed “unless some legal right was abused and the record plainly and palpably shows that the trial court was in error.” 580 So.2d at 1322. This Court then concluded that the trial court did not err in granting a new trial based on the trial court’s conclusion “that the jury might have been unlawfully influenced by having the easel in the room where it deliberated.” 580 So.2d at 1323. See also Padgett v. Hughes, 535 So.2d 140, 143 (Ala.1988) (stating that a trial court did not exceed its discretion in ordering a new trial after the jury was exposed to improper evidence and noting that “[t]he trial court could not, nor can we, speculate as to what effect this improper evidence may have had on the jury”).

Dr. Mottershaw presents several other arguments. She argues that the trial court wrongly excluded mention of the May 25 CT scan in the first place. In making that argument, Dr. Mottershaw notes that the complaint, which was never amended, also alleged claims against a radiologist who read the May 25 CT scan but failed to detect the cancer. However, the claims against that radiologist were later dismissed; the only claims that went to trial were those against Dr. Mottershaw and her employer, The Radiology Group. Dr. Mottershaw also notes that the trial court allowed testimony by Dr. Jeffrey Bennett, Womack’s physician, regarding the May 25 CT scan to be presented as an offer of proof. She argues that the “[t]he use of those images ... for diagnosis and treatment [purposes] was then made clear” and, “[w]ith that revelation, it became further clear that the Court’s ... ruling excluding the May 25 images was erroneous.” Dr. Mottershaw’s brief at 31-32. Although it is unclear, the gist of Dr. Mottershaw’s argument seems to be that the trial court erred by determining that the potential prejudicial impact of the fact of the existence of the May 25 scan substantially outweighs its probative value. However, her argument is conclusory, and she does not present any authority establishing that the order granting the motion in limine is erroneous given the particular facts of this case. “It is well established that it is not the function of an appellate court to create, research, or argue an issue on behalf of the appellant.” Gonzalez v. Blue Cross/Blue Shield of Alabama, 760 So.2d 878, 883 (Ala.Civ.App.2000). Thus, her argument is unpersuasive.

Dr. Mottershaw also argues that Ledbetter’s argument for a new trial was not “preserved.” Dr. Mottershaw’s argument seems to have two prongs. First, Dr. Mottershaw notes that Ledbetter did not object to the admission of Defendant’s Exhibit 7, the medical records that included references to the May 25 CT scan. Dr. Mottershaw cites caselaw in which this Court has held that a trial court exceeded its discretion by ordering a new trial based on bad jury charges in the absence of a timely objection to those jury charges. See, e.g., Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So.2d 1196, 1210 (Ala.2006). However, that is not the situation we have here. Although Ledbetter did not object to the admission of Defendant’s Exhibit 7 — the medical records that included references to the May 25 CT scan — the trial court had already ruled in its order granting the motion in limine that references to the May 25 scan would be excluded. The trial court reminded the parties that parts of Defendant’s Exhibit 7 needed to be redacted to comply with the order in limine. Dr. Mottershaw cites no authority indicating that a failure to object under these circumstances precludes the trial court from considering Ledbetter’s argument for a new trial, which relied on the order granting the motion in limine. This is not a case where a party failed to properly object and thereby waived any argument in support of a new trial.

In the second prong, Dr. Motter-shaw argues Ledbetter waived her argument on which she based her motion for a new trial because she failed to object when Dr. Bennett made a passing reference to the May 25 CT scan at trial. At trial Dr. Bennett testified:

“Q. [By Ledbetter’s attorney:] And in your deposition, you describe the progression involving the carotid sheath from May 11th until when you saw it in August, didn’t you?
“A. No.
“I described the progression from May 25th to the August 16th CT, because you can’t evaluate it on this May 11th study.
“Q. You didn’t see narrowing of the carotid artery on May 11th, did you?
“A. On the subsequent contrast enhanced study, I did not.”

Again, Dr. Mottershaw cites general authority regarding the waiver of objections to jury instructions; that authority does not establish that Ledbetter waived her argument in support of a motion for a new trial, which relied on the order granting the motion in limine, based on the facts of this case.

In a similar argument, Dr. Mottershaw argues that Ledbetter could have asked for a curative instruction “when the May 25 records/images were mentioned.” Dr. Mottershaw’s brief at 32. It appears that Dr. Mottershaw refers to Dr. Bennett’s reference at trial to “May 25th,” quoted above. Even if the jury had been instructed to disregard Dr. Bennett’s testimony about May 25 that would not have changed the fact that there were inadvertently un-redacted references to the May 25 CT scan in Defendant’s Exhibit 7. Further, Dr. Mottershaw cites no authority indicating that failure to seek a curative instruction regarding Dr. Bennett’s testimony would somehow preclude the trial court from ordering a new trial based on the jury’s exposure to the inadvertently unredacted material in Defendant’s Exhibit 7.

Dr. Mottershaw also argues that failure to redact the references to the May 25 CT scan in Defendant’s Exhibit 7 was harmless error because, she says, that evidence had already been admitted without objection. See Rule 45, Ala. R.App. P. (“No judgment may be reversed ... unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”). In support of her argument, Dr. Motter-shaw cites Dr. Bennett’s testimony, quoted above. She also cites “mention of May 25 by [Dr. Mottershaw’s] counsel,” which apparently refers to this question that was posed by Dr. Mottershaw’s attorney to Dr. Jones: “And you got a study that was done two weeks later. May 25, right?”

After this question was posed to Dr. Jones, Ledbetter’s attorney asked to approach the bench, and a discussion was held outside the presence of the jury concerning the order granting the motion in limine. The mere reference to the May 25 CT scan by Dr. Jones is not the equivalent of medical records referencing the May 25 CT scan. Further, Dr. Bennett’s cryptic reference to “May 25th” is not the equivalent of medical records referencing the CT scan performed on that date.

Dr. Mottershaw also argues that, if there was error in this case, it was caused by Ledbetter, i.e., it was invited error. “‘[A] party may not induce an error by the trial court and then attempt to win a reversal based on that error. “A party may not predicate an argument for reversal on ‘invited error,’ that is, ‘error into which he has led or lulled the trial court.””” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala.2008) (quoting Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003), quoting other cases). The thrust of Dr. Mottershaw’s argument is that Ledbetter should have discovered that Defendant’s Exhibit 7 had not been redacted before it went to the jury. This is not invited error because Ledbetter did not lull the trial court into making an error. Rather, both Ledbetter and Dr. Mottershaw simply failed to notice that Dr. Mottershaw’s exhibit had not been redacted as ordered. In addition to general law regarding invited error, Dr. Mottershaw cites McCormick v. Badham, 204 Ala. 2, 85 So. 401 (1919). Without going into unnecessary detail, we note that the holding of that case simply does not appear to be grounded on invited error; rather, there was no error in the first place.

Dr. Mottershaw also argues that the trial court erred by striking her attorney’s affidavit, which Dr. Mottershaw submitted in opposition to Ledbetter’s motion for a new trial. Rule 59, Ala. R. Civ. P, provides, in part:

“(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits, they shall be served with the motion. The opposing party has fifteen (15) days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding twenty (20) days either by the court for good cause shown or by the parties by written stipulation....”

On November 30, 2011, Ledbetter filed a motion for a new trial, which she supported with a brief and affidavits. On January 23, 2012, Dr. Mottershaw filed a response to the motion for a new trial. On January 25, 2012, the trial court held a hearing on the motion for a new trial. More than two weeks after the hearing, on February 9, 2012, Dr. Mottershaw filed the affidavit of one of her attorneys, Matt Griffith, in opposition to the motion for a new trial. Ledbetter moved to strike the affidavit, and the trial court granted the motion to strike on February 13, 2012. That same day, the trial court granted a new trial.

In this case, Dr. Mottershaw filed her attorney’s affidavit on February 9, 2012, 71 days after Ledbetter filed her motion for a new trial on November 30, 2011. Thus, Dr. Mottershaw’s affidavit was filed well after the period for doing so established by Rule 59(c). In Elliott v. Elliott, 372 So.2d 846, 850 (Ala.1979), this Court stated that the time requirements in Rule 59(c) may be relaxed in the trial court’s discretion. Dr. Mottershaw argues that the trial court exceeded its discretion by striking the affidavit because, she says, (1) she was given no opportunity to argue against the motion to strike and (2) the affidavit was a reasonable and timely response in light of the arguments made at the hearing two weeks earlier. Dr. Mot-tershaw then contends, without further elaboration, that the affidavit “gives clarity to the context of the unredacted exhibit issue, the responsibility for it, and bears explicit pertinence to the erroneous assumptions made by the trial court in ... granting] ... a new trial.” Dr. Motter-shaw’s brief at 66. Dr. Mottershaw does not explain how the affidavit would have changed the result. Dr. Mottershaw argues that the trial court’s discretion should be exercised liberally to receive affidavits, but the cases cited by her for that proposition do not exactly say that. Quite simply, the trial court may allow or disallow untimely affidavits at its discretion, Elliott, and there is no indication that the trial court exceeded its discretion by striking the untimely affidavit in this case.

Dr. Mottershaw also argues that the trial court exceeded its discretion in denying her Rule 54(d), Ala. R. Civ. P., petition to tax costs. After the jury returned a verdict in her favor, Dr. Motter-shaw petitioned the trial court to tax costs, and the trial court denied the motion. Rule 54(d) provides, in part, that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs .... ” (Emphasis added.) Further, “[t]he taxation of costs under Rule 54(d) rests in the discretion of the trial court, and its decision will not be reversed in the absence of a clear abuse of discretion.” Miller v. Thompson, 844 So.2d 1229, 1233 (Ala.Civ.App.2002). The trial court did not exceed its discretion in denying Dr. Mot-tershaw costs, especially considering that the trial court has now granted Ledbetter a new trial and that we are affirming that decision. That is, Dr. Mottershaw is no longer the prevailing party. See White Sands Group, L.L.C. v. PRS II, LLC, 32 So.3d 5, 21 (Ala.2009) (“Because we are reversing the summary judgment for PRS II, Sterling, and Asfour, we must vacate the PRS II costs order and the Sterling/Asfour costs order.”); and White v. American Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir.1990) (“[I]n light of our conclusion that a new trial is required, we vacate the district court’s award of costs because plaintiff is not a ‘prevailing party’ within the meaning of Fed.R.Civ.P. 54(d) and therefore is not entitled to costs.”).

In her brief, Ledbetter argues, in the alternative, that the trial court could have granted a new trial on two grounds asserted by Ledbetter before the trial court but specifically pretermitted by the trial court in its order granting a new trial. Dr. Mottershaw, in her reply brief, addresses those alternative grounds. In support of her arguments regarding those alternative grounds, Dr. Mottershaw attached to her reply brief three exhibits — the deposition testimony and related exhibits of certain doctors — that are not in the record but were made as an offer of proof. Dr. Mot-tershaw also filed a motion under Rule 10(f), Ala. R.App. P., to supplement the record with those three exhibits. In response, Ledbetter filed a motion to strike those three exhibits attached to the reply brief. Of course, those three exhibits are irrelevant in light of our resolution of this appeal. Because the question whether to include the exhibits in the record concerns issues we have not considered in resolving this appeal, whether to supplement the record is basically a moot issue. Thus, we deny both the motion to supplement and the motion to strike.

1110959 — MOTIONS DENIED; AFFIRMED.

1110962 — AFFIRMED.

MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

      . Dr. Mottershaw asks: “If this were an ‘extraneous material’ case, where are the affidavits to prove it?” Dr. Mottershaw's brief at 57. Rule 606(b), Ala. R. Evid., generally prohibits juror testimony impeaching a verdict, but jurors may testify as to "whether extraneous prejudicial information was improperly brought to the jury's attention.” The mere absence of jury affidavits in this case does not establish that there was not "extraneous prejudicial information” in this case.

      . The cases addressing the jury’s consideration of extraneous materials often use the term "juror misconduct” in describing how the materials came before the jury. In this case, there was no "juror misconduct,” but, just as in juror-misconduct cases, the jury had before it material that should have been excluded, and that is the salient point. Thus, the same standard for determining prejudice would apply in juror-misconduct cases as well as in cases not actually concerning juror misconduct, like this case. See, e.g., Gold Kist, Inc. v. Tedder, 580 So.2d 1321 (Ala.1991), discussed infra.

      . Dr. Mottershaw also filed in the trial court a motion to supplement the record, and the trial court denied that motion.


source: Caselaw Access Project

author: /s/ Lyn Stuart Lyn Stuart /s/ Michael F. Bolin Michael F. Bolin /s/ Glenn Murdock Glenn Murdock /s/ Greg Shaw Greg Shaw /s/ James Allen Main James Allen Main /s/ A. Kelli Wise A. Kelli Wise /s/ Tommy Bryan Tommy Bryan Associate Justices /s/ Roy S. Moore Roy S. Moore Chief Justice /s/ Tom Parker Tom Parker Associate Justice

license: Public Domain

text:
    OPINION OF THE JUSTICES.
    No. 388.
    Supreme Court of Alabama.
    Feb. 27, 2014.
   Members of the Senate

Alabama State House

Montgomery, Alabama 36180

Dear Senators:

We have received Senate Resolution No. 44, which states, in pertinent part:

“[W]e respectfully request the Honorable Chief Justice and Associate Justices of the Alabama Supreme Court, or a majority of them, to give this body their written opinions on a constitutional question which has arisen concerning the following pending Senate Bills: SB253 relating to impeachment of certain public officials; SB258 relating to the Legislative Department; SB259 relating to the Executive Department; SB261 relating to the Separation of Powers of Government; and SB276 relating to Homestead Exemptions.
“Section 284 of the Constitution of Alabama of 1901 (the constitution) prescribes the manner in which amendments to the constitution may be proposed by the Legislature. Three-fifths of all members elected to both the House of Representatives and the Senate must approve proposed amendments, after which the proposals must be voted upon by the electorate, and if approved by a majority of the voters, become a valid part of the constitution.
“In a September 27, 2018, decision of the Alabama Supreme Court, Bell v. Strange, [143 So.3d 668 (Ala.2013) ], the court discussed the role of Section 284 in amending the constitution.[]
“Because the purpose of the Senate Bills cited is to propose various amendments to the constitution to be submitted to the voters of the state, and in deference to this legislative body so that we may properly and constitutionally perform the duties of our office, written opinions are requested concerning the following important constitutional question:
“If pending Senate Bills 258, 258, 259, 261, and 276 are passed in compliance with the requirements of Section 284 of the Constitution of Alabama, would they be constitutionally valid proposed constitutional amendments?”

We respectfully decline to issue an advisory opinion with respect to the question presented.

QUESTION DECLINED.

Respectfully Submitted,

/s/ Lyn Stuart

Lyn Stuart

/s/ Michael F. Bolin

Michael F. Bolin

/s/ Glenn Murdock

Glenn Murdock

/s/ Greg Shaw

Greg Shaw

/s/ James Allen Main

James Allen Main

/s/ A. Kelli Wise

A. Kelli Wise

/s/ Tommy Bryan

Tommy Bryan

Associate Justices

Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

I have received Senate Resolution No. 44, requesting an advisory opinion on whether the amendments to the Alabama Constitution of 1901 proposed by five senate bills would be constitutionally valid if passed by the legislature and then sent to the voters for ratification pursuant to § 284 of the Alabama Constitution of 1901. Seven Justices have declined to issue an advisory opinion on the question requested.

The reference in Senate Resolution No. 44 to Bell v. Strange, 143 So.3d 668 (Ala.2013), indicates that the Senate wishes to know whether the amendments proposed by the five senate bills may be collectively submitted to the voters by the amendment procedure of § 284, or whether such a large-scale simultaneous revision of the Alabama Constitution may be submitted to the voters only through the mechanism of a constitutional convention as provided in § 286 of the Alabama Constitution of 1901.

Section 284 authorizes the legislature to submit “proposed amendments” to the voters for ratification if three-fifths of the members elected to both the Senate and the House of Representatives approve them. Section 286 authorizes the legislature, by a majority vote, to call an election on the question of holding a constitutional convention. If the voters approve, the convention may act “for the purpose of altering, revising, or amending the existing Constitution.”

In my dissent in Bell v. Strange, I examined at length State v. Manley, 441 So.2d 864 (Ala.1983), which held that the legislature may not use § 284 to propose an entirely new constitution but must for that purpose use the constitutional-convention method of § 286. I applied the guidance and analysis of Manley to the question presented in Bell: whether a rewriting of the entire constitution, by attaching each article to a separate amendment like cars in a train, would unconstitutionally circumvent the people’s prerogative to control constitutional revision through the § 286 constitutional-convention process. I concluded in Bell that this process is unconstitutional.

The proposed amendments would repeal and rewrite Article III, Distribution of Powers of Government; Article IV, Legislative Department; Article V, Executive Department; Article VII, Impeachments; and Article X, Exemptions. Overall, these proposed amendments, if adopted, would rewrite five major articles of the Alabama Constitution, which comprise 41% of its individual provisions. The substantial impact of these proposed amendments actually understates the scope of the project from which they originated and of which they are a part. Act No. 2011-197, Ala. Acts 2011, created a “Constitutional Revision Commission” whose goal was to revise 11 out of the 18 articles of the Alabama Constitution. Eight members of the commission are legislators or are appointed by the legislature. The drafting engine of the commission is the Alabama Law Institute, an advisory body to the legislature. Thus, Act No. 2011-197 created a mechanism controlled by the legislature to completely revise the Alabama Constitution, a task historically reserved to a convention of the people, which may only be called by popular vote pursuant to § 286 of the Constitution.

Justice Parker, in his special concurrence in Bell, addressed the constitutionality of “an article-by-article amendment approach” to accomplish a general revision of the Constitution:

“The people, through the Alabama Constitution, have entrusted to the legislature two powers in regard to amending or changing the constitution: 1) to propose an amendment to the people for validation by their vote, pursuant to either § 284 or Art. XVIII, § 284.01, Ala. Const.1901, and 2) to call a constitutional convention, pursuant to § 286, which will commence only upon a majority vote of the people. The effect of an article-by-article amendment approach is the creation of a third legislative power in regard to changing the constitution. This is an enlargement of legislative power in contravention of Art. I, § 2, Ala. Const.1901, which provides, in pertinent part: ‘That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit....”’

Bell v. Strange, 143 So.3d at 670 (Parker, J., concurring specially) (emphasis added). By Justice Parker’s reasoning, the Senate’s proposal to amend five articles of the Constitution as part of an ongoing global revision of that document is unconstitutional as neither lying within the grant of power of § 284 nor conforming with the requirements of § 286.

Constitutional revision should not be initiated by a body that is itself a creation of the very constitution it seeks to revise and that thus may seek to mold the document to serve its own parochial institutional interests. Instead, revision belongs to the people themselves, the rightful creators of the Constitution. For example, unlikely to appear in any proposed constitutional revision initiated by the legislature are term limits. The Constitutional Revision Commission did include an “alternative” proposal that “Legislators elected in 2014 and thereafter are limited to 20 years total service in the legislature.” This provision, though modest, does not appear in Senate Bill 258, the proposed amendment of Article IV, the legislative article. Similarly, one is unlikely to see in a constitutional-revision package authored by the legislature a reduction in legislative activity, such as a return to biennial sessions or enlarged restrictions on the legislative power to tax and to spend.

Part of the design of Act No. 2011-197 has already been implemented through the revision of Articles XII (Corporations) and XIII (Banks and Banking), which revision was proposed and adopted in 2012. The currently proposed amendments are the next set of cars on the revision train. Still to come, according to Act No. 2011-197, are Articles I, IX, XIV, and XVII. Six of the remaining seven articles “shall be excluded from consideration by the commission due to a previous revision of the article or because revision is not considered needed....” Act No. 2011-197, paragraph (e). The final article on taxation “is excluded from consideration by the commission at this time.” Act No. 2011-197, paragraph (f). Thus, the entire Alabama Constitution — from Article I through Article XVIII — has come under the scrutiny of the legislature’s Constitutional Revision Commission. In short, the Alabama Legislature is conducting an in-house constitutional convention disguised as a series of discrete amendments offered under § 284 to circumvent the requirement that the constitution may be “revised” only by a constitutional convention under § 286.

The article-by-article revision process of Act No. 2011-197 is a carefully designed plan to deny the people their right to control the revision of the constitution through the convention process. As this Court held in Manley: “[T]he legislature’s power to initiate proceedings toward a new constitution is limited to the provisions of § 286.” 441 So.2d at 876. Thus, “only conventions have the power to make sweeping change.” 441 So.2d at 879 (Torbert, C.J., concurring specially). “‘[T]he purpose of the legislative mode is to bring about amendments which are few and simple and independent; and on the other hand, that of the mode through Conventions is to revise the entire Constitution _’ ” 441 So.2d at 869 (quoting John Alexander Jameson, A Treatise on Constitutional Conventions § 574c (4th ed. 1887)). “ ‘[W]henever a Constitution needs a general revision, a convention is indispensably necessary.’” Bell, 143 So.3d at 681 (Moore, C.J., dissenting) (quoting Jameson, § 219 (emphasis added)). A legislature desirous of revising the Alabama Constitution has one — and only one — option at its disposal: “pass[ ] an act or resolution calling a convention.” Ala. Const.1901, Art. XVIII, § 286.

Stretching out the constitutional-revision process over a number of years by submitting to the people two, three, or five revised articles per general election under the amendment procedure of § 284 does not change the reality that a nearly total revision of the Alabama Constitution is occurring. By wresting the convention process from the people, the legislature has unconstitutionally made itself the paramount mechanism of constitutional revision. “Revision by commission” is an unauthorized method by which to propose to the people of Alabama a comprehensive rewriting of the constitution. The legislature has the power only to amend the constitution, not to revise it. “The people of this State ... have decreed that they reserve, in revising or replacing the Constitution, a role much more active than merely passing upon a proposal someone else has written.” Manley, 441 So.2d at 877 (Torbert, C.J., concurring specially).

Contemplating separation from Great Britain in 1775, Patrick Henry described the question as “one of awful moment to our country.” 3 Moses Coit Tyler, Patrick Henry 140 in III American Statesmen (John T. Morse, Jr., ed. 1887). The question propounded by the Senate regarding the validity of a legislative initiative to revise the Alabama Constitution likewise is “one of awful moment” to the integrity of our state constitution and to the prerogative of the people to revise the constitution by convention. In my opinion the process upon which the Senate has embarked to thoroughly revise the entire constitution by the legislative method of § 284 rather than the constitutional-convention method of § 286 is unconstitutional. George Washington warned that changing the federal constitution by a method contrary to that provided in the instrument is “usurpation” and “the customary weapon by which free governments are destroyed.” George Washington, Farewell Address (1796), in XII The Writings of George Washington 226 (Jared Sparks, ed. 1838). Abraham Lincoln once remarked that calling a tail a leg did not make a five-legged calf. 2 Michael Burlingame, Abraham Lincoln: A Life 468 (Johns Hopkins University Press 2008). Likewise, calling a massive process of constitutional revision nothing more than a series of individual amendments does not make it so.

This Court has recognized “the settled principle that the people have forbidden the Legislature from conducting itself in a manner inconsistent with their constitution and when it does, it is incumbent upon the judiciary to nullify a legislative enactment contrary to the constitution.” Rice v. English, 835 So.2d 157, 162 (Ala.2002). Article I, § 2, of the Alabama Constitution states that “all political power is inherent in the people,” who are the rightful engineers in the constitutional locomotive. Any branch of government that wrongfully seeks to hijack the process of constitutional revision must be stopped before the train runs out of control.

For the reasons stated above, I would provide the advisory opinion requested and hold that the proposed amendments are constitutionally invalid because, taken as a group and also as a part of the Act No. 2011-197 revision train, they violate the exclusive prerogative of the people to revise their constitution through a constitutional convention held pursuant to § 286.

QUESTION ANSWERED.

Respectfully Submitted,

/s/ Roy S. Moore

Roy S. Moore

Chief Justice

Members of the Senate

Alabama State House

Montgomery, Alabama 36130

Dear Senators:

I have received the Senate’s request for an opinion of the Justices of the Supreme Court as to whether the constitutional amendments proposed by Senate Bills 253, 258, 259, 261, and 276, if ratified, would violate § 284 of the Constitution of Alabama of 1901. Initially, I note that I agree with the separate advisory opinion issued today by Chief Justice Moore. Moreover, based on my special concurrence in Bell v. Strange, 143 So.3d 668 (Ala.2013), I answer the question in the affirmative: the constitutional amendments proposed by the above-mentioned senate bills, if ratified, would violate § 284, Ala. Const.1901.

Senate Resolution No. 44 states, in pertinent part:

“[W]e respectfully request the Honorable Chief Justice and Associate Justices of the Alabama Supreme Court, or a majority of them, to give this body their written opinions on a constitutional question which has arisen concerning the following pending Senate Bills: SB253 relating to impeachment of certain public officials; SB258 relating to the Legislative Department; SB259 relating to the Executive Department; SB261 relating to the Separation of Powers of Government; and SB276 relating to Homestead Exemptions.
“Section 284 of the Constitution of Alabama of 1901 (the constitution) prescribes the manner in which amendments to the constitution may be proposed by the Legislature. Three-fifths of all members elected to both the House of Representatives and the Senate must approve proposed amendments, after which the proposals must be voted upon by the electorate, and if approved by a majority of the voters, become a valid part of the constitution.
“In a September 27, 2013, decision of the Alabama Supreme Court, Bell v. Strange, [143 So.3d 668 (Ala.2013) ], the court discussed the role of Section 284 in amending the constitution!
“Because the purpose of the Senate Bills cited is to propose various amendments to the constitution to be submitted to the voters of the state, and in deference to this legislative body so that we may properly and constitutionally perform the duties of our office, written opinions are requested concerning the following important constitutional question:
“If pending Senate Bills 263, 258, 259, 261, and 276 are passed in compliance with the requirements of Section 284 of the Constitution of Alabama, would they be constitutionally valid proposed constitutional amendments?”

The underlying constitutional question presented by Senate Resolution No. 44 concerns the manner in which the legislature may amend the Alabama Constitution. In my special concurrence to Bell, I set forth the following, which answers the underlying constitutional question presented by Senate Resolution No. 44:

“I write ... to express my concern ... with legislative proposals, allegedly proposed to the people pursuant to Art. XVIII, § 284, Ala. Const.1901, to amend many sections of the Alabama Constitution by the validation of a single amendment. ...
“As Chief Justice Torbert noted in his special concurrence in State v. Manley, 441 So.2d 864 (Ala.1983):
“‘There is a difference between the power of the Legislature to enact statutes and the power to change the Constitution. Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917). In Bourbon v. Governor of Maryland, 258 Md. 252, 257-58, 265 A.2d 477, 480 (1970), the Maryland Court of Appeals, considering the legislature’s role in initiating constitutional change, wrote:
“ ‘ “[T]he legislature does not exercise its ordinary legislative power or any sovereignty of the people that has been entrusted to it but acts under a limited power which the people have conferred upon it and which with equal propriety and appropriateness might have been conferred upon either house, the governor, a special commission or other body or tribunal. In proposing amendment of the Constitution the legislature does not have the plenary powers it has in enacting laws but only the powers specifically delegated to it.”
‘“(Citations omitted). The Legislature has plenary power with respect to statutory matters, but only a limited power as to constitutional matters. Johnson v. Craft, [205 Ala. 386, 87 So.375 (1921) ]; Opinion of the Justices [No. 92], 252 Ala. 89, 39 So.2d 665 (1949). In regard to its powers to change the Constitution, the Legislature, as the representative of the people, has only those powers specifically granted by the people through the Constitution. Opinion of the Justices [No. 116 ], [254 Ala. 183, 47 So.2d 713 (1950) ].’
“Manley, 441 So.2d at 877-78 (Torbert, C.J., concurring).
“The people, through the Alabama Constitution, have entrusted to the legislature two powers in regard to amending or changing the constitution: 1) to propose an amendment to the people for validation by their vote, pursuant to either § 284 or Art. XVIII, § 284.01, Ala. Const.1901, and 2) to call a constitutional convention, pursuant to [Art. XVIII,] § 286, [Ala. Const.1901,] which will commence only upon a majority vote of the people. The effect of an article-by-article amendment approach is the creation of a third legislative power in regard to changing the constitution. This is an enlargement of legislative power in contravention of Art. I, § 2, Ala. Const. 1901, which provides, in pertinent part: ‘That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit....’
“It is the ‘tendency of vested power to broaden and exalt itself.’ Ellingham v. Dye, 178 Ind. 336, 345, 99 N.E. 1, 4 (1912). For this reason, it is ‘[t]he people[ ] in whom resides the vital power in reference to organic law’ and not the legislature. Collier v. Frierson, 24 Ala. 100, 105 (1854). Through the constitution, the people have ‘ “prescribe^] the exclusive modes by which it may be altered or amended, or its effect and operation changed.” ’ Manley, 441 So.2d at 873 (quoting Johnson v. Craft, 205 Ala. 386, 393, 87 So.375, 380 (1921)). As stated by Chief Justice Torbert, the legislature is limited to the powers entrusted to it by the people. Because of the tendency of governments to expand their own power and suppress the rights of the people, this Court must vigilantly protect the ‘inalienable and indefeasible right’ of the people to create and maintain the form and function of the State ‘in such manner as they may deem expedient.’ Art. I, § 2, Ala. Const.1901.”

Bell, 143 So.3d at 669-70 (Parker, J., concurring specially).

Therefore, because each of the senate bills as to which you have asked for an advisory opinion would amend entire articles of the Constitution of Alabama of 1901, the constitutional amendments proposed by the senate bills would violate § 284.

QUESTION ANSWERED.

Respectfully Submitted,

/s/ Tom Parker

Tom Parker

Associate Justice

      . In Bell, this Court affirmed the trial court’s judgment without an opinion. Justice Parker and Justice Shaw issued opinions concurring specially in and Chief Justice Moore issued an opinion dissenting from the no-opinion affir-mance.

      . Perhaps my colleagues, aware that taxpayers have standing to challenge unconstitutional expenditures, Zeigler v. Baker, 344 So.2d 761, 764 (Ala.1977), prefer to defer addressing the issue presented in Senate Resolution No. 44 until that issue is framed by briefing in an adversarial setting. They might also have perceived the question as lacking in sufficient specificity.

      . The Court affirmed the trial court’s judgment in Bell without an opinion. Justices Parker and Shaw concurred specially, and I dissented. All the writings discussed the distinction between § 284 and § 286.

      .On the question whether the results of a constitutional convention must be submitted to the people for ratification, see Opinion of the Justices No. 140, 263 Ala. 141, 81 So.2d 678 (1955); Art. XVIII, § 286.01, Ala. Const. 1901 (Off. Recomp.).

      . Before 1976, the Alabama Legislature met once every two years.

      . Although the comprehensive revision of the judicial article in 1973 and the suffrage and elections article in 1996 may seem to establish a precedent for using § 284 in place of calling a constitutional convention pursuant to § 286, "a few sporadic offenses against an unambiguous constitutional mandate will not suffice to establish the basis for a subversion of its terms.” Johnson v. Craft, 205 Ala. 386, 402, 87 So. 375, 388-89 (1921).

      . " ‘The mounting popularity of constitutional commissions is attributable mainly to their general acceptability to state legislators who prefer to rely on bodies over whose proposals they have control.’ " Bell, 143 So.3d at 680 (Moore, C.J., dissenting) (quoting Albert L. Sturm, The Development of American State Constitutions, 12 Publius: Journal of Federalism 57, 84(1982)).

      . In Bell, this Court affirmed the trial court’s judgment without an opinion. Justice Shaw and I authored special concurrences, and Chief Justice Moore authored a dissent.


author: MOORE, Judge. MOORE, Judge.

text:
    Doris HARDY v. Ronald W. SMITH and Nancy R. Smith. Ronald W. Smith and Nancy R. Smith v. Doris Hardy.
    2110726.
    Court of Civil Appeals of Alabama.
    April 12, 2013.
    Opinion on Overruling of Rehearing Aug. 16, 2013.
    Certiorari Denied Oct. 18, 2013 Alabama Supreme Court 1121388.

      Michael D. Smith and Jaime W. Conger of Smith & Staggs, LLP, Tuscaloosa, for appellant/cross-appellee Doris Hardy.
    Anthony B. Johnson of Johnson Law Firm, LLC, Centreville, for appel-lees/cross-appellants Ronald W. Smith and Nancy R. Smith.
   MOORE, Judge.

Doris Hardy appeals from a judgment of the Tuscaloosa Circuit Court (“the trial court”) to the extent that it denied her claim alleging unjust enrichment against Ronald W. Smith and Nancy R. Smith. The Smiths cross-appeal to the extent that the trial court entered a summary judgment on the issues whether Boyd Avenue is a public road and whether Hardy had adversely possessed that road.

Procedural History

On August 5, 2008, Hardy filed a complaint against the Smiths alleging claims of fraud and breach of contract; she also requested a declaratory judgment relating to certain properties that she had allegedly purchased from the Smiths. Hardy subsequently filed an amended complaint. On September 16, 2009, the Smiths filed an answer and a counterclaim alleging trespass and nuisance, willful and wanton conduct, and breach of contract; they also requested a declaratory judgment and in-junctive relief. On October 8, 2010, the Smiths filed a motion for a summary judgment on all Hardy’s claims. Hardy filed a response on November 5, 2010. On December 80, 2010, the trial court entered an order granting the Smiths’ summary-judgment motion in part and denying it in part; certain aspects of Hardy’s declaratory-judgment claim and Hardy’s breach-of-contract claim remained pending.

On February 4, 2011, Hardy moved the trial court to allow her to file a second amended complaint, which added Tuscaloosa County as a party and requested a determination as to whether a certain portion of property known as Boyd Avenue (“the disputed property”) is a public road. The trial court allowed the second amendment, and Tuscaloosa County subsequently answered the complaint.

On February 22, 2011, the Smiths filed an amended motion for a summary judgment. On March 3, 2011, Hardy moved for a summary judgment regarding whether the disputed property is a public road and whether she owned that property by adverse possession. On March 22, 2011, the Smiths responded to Hardy’s motion, and, on March 28, 2011, Hardy filed a reply to the Smiths’ response.

After a jury trial on the parties’ contract claims, a jury determined that neither party had proven the existence of any contract. Thereafter, Hardy moved the trial court to consider a claim that the Smiths had been unjustly enriched. On August 1, 2011, after a hearing on the remaining claims, the trial court entered a final judgment disposing of the remaining claims; the trial court held that the disputed property is not a public road and that Hardy had acquired title to the disputed property, and it dismissed, without prejudice, Hardy’s claim alleging unjust enrichment. On August 31, 2011, Hardy and the Smiths both filed postjudgment motions. On October 3, 2011, the trial court entered an order setting aside the final judgment and allowing Hardy to prosecute her unjust-enrichment claim.

On March 14, 2012, after a hearing on Hardy’s unjust-enrichment claim, the trial court entered a final judgment that, among other things, determined that the disputed property is not a public road, determined that Hardy had acquired title to certain property specifically described in the judgment, and denied Hardy’s unjust-enrichment claim. Any claims not specifically addressed in the judgment were denied. That same day, Hardy filed a request for findings of fact and conclusions of law regarding the unjust-enrichment claim. She also requested that the trial court alter, amend, or vacate the judgment or grant her a new trial. On March 15, 2012, the trial court entered an order denying Hardy’s postjudgment motion. On April 12, 2012, the Smiths filed a motion requesting that the trial court reconsider and/or clarify certain provisions of the judgment. Specifically, the Smiths requested that the trial court clarify that the issue whether the disputed property is a public road was decided at the summary-judgment stage and not at trial. On April 26, 2012, Hardy filed her notice of appeal; that notice of appeal was held in abeyance pending the disposition of the Smiths’ postjudgment motion. See Rule 4(a)(5), Ala. R.App. P. The Smiths’ motion was denied by operation of law on July 11, 2012. Rule 59.1, Ala. R. Civ. P. On August 15, 2012, the Smiths timely cross-appealed.

Discussion

Appeal

On appeal, Hardy argues that the trial court erred in denying her claim alleging unjust enrichment. At the trial, Hardy testified that she had paid the Smiths a total of $24,000 from 2000 until 2002 in order to purchase certain land known as “the Hollow.” Hardy also testified that she and the Smiths had agreed that she would purchase from the Smiths a mobile home and the land upon which the mobile home was situated. She testified that, pursuant to the agreement she had with the Smiths, she was required to pay the monthly payments on a loan that was secured by the mobile home and the insurance on the mobile home and that she had done so from 2000 until the lawsuit was filed. She testified that, after the lawsuit was filed, she deposited the monthly loan payments into her attorney’s trust account. The Smiths, on the other hand, testified that they had never agreed to sell the Hollow to Hardy, but, they said, they had agreed to sell Hardy the mobile home and less than one acre of real property upon which the mobile home was situated. The Smiths testified that, according to their agreement, Hardy was to pay them $1,000 per month for two years, was to make the loan and insurance payments on the mobile home, and was to pay off the loan secured by the mobile home within two years. It was undisputed that Hardy never paid off the loan but that she had made the $1,000 monthly payments for two years and had paid the monthly loan and insurance payments until the time the lawsuit was filed.

As noted previously, after a jury trial on the contract claims, the jury determined that neither party had proven that a contract existed. Thereafter, Hardy requested that she be awarded $24,000 on the basis that the Smiths had been unjustly enriched by the payments she had made because she had not received any property in return.

“ ‘In order for a plaintiff to prevail on a claim of unjust enrichment, the plaintiff must show that
“ ‘ “the ‘ “defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.” ’ Dickinson v. Cosmos Broad. Co., 782 So.2d 260, 266 (Ala.2000) (quoting Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986)).... ‘The doctrine of unjust enrichment is an old equitable remedy permitting the court in equity and good conscience to disallow one to be unjustly enriched at the expense of another.’ Battles v. Atchison, 545 So.2d 814, 815 (Ala.Civ.App.1989).”
‘Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1123 (Ala.2003). “‘One is unjustly enriched if his retention of a benefit would be unjust.’ ” Welch v. Montgomery Eye Physicians, P.C., 891 So.2d 837, 843 (Ala.2004) (quoting Jordan v. Mitchell, 705 So.2d 453, 458 (Ala.Civ.App.1997)). The retention of a benefit is unjust if
“ ‘ “ ‘(1) the donor of the benefit ... acted under a mistake of fact or in misreliance on a right or duty, or (2) the recipient of the benefit ... engaged in some unconscionable conduct, such as fraud, coercion, or abuse of a confidential relationship. In the absence of mistake or misre-liance by the donor or wrongful conduct by the recipient, the recipient may have been enriched, but he is not deemed to have been unjustly enriched.’ ”
‘Welch, 891 So.2d at 843 (quoting Jordan, 705 So.2d at 458). The success or failure of an unjust-enrichment claim depends on the particular facts and circumstances of each case. Heil-man, supra.’
“Mantiply v. Mantiply, 951 So.2d 638, 654-55 (Ala.2006) (emphasis omitted).”

Presley v. B.I.C. Constr., Inc., 64 So.3d 610, 625 (Ala.Civ.App.2009).

In the present case, the evidence indicated that Hardy had been in possession of the mobile home from 2000 until the time of the trial. Further, the Smiths had not received any payment on the mobile home from the time that the lawsuit was filed until the trial. There was no evidence indicating the fair rental value of the mobile home or whether the payments Hardy had made from 2000 until 2008 exceeded that value. In addition, the Smiths testified that the mobile home was in a state of disrepair at the time of the trial. Based on those particular facts, we conclude that Hardy failed to meet her burden of showing that the Smiths were unjustly enriched. Therefore, we affirm the trial court’s judgment on Hardy’s unjust-enrichment claim.

Cross-Appeal

In their cross-appeal, the Smiths argue that the trial court erred in entering a summary judgment on the issues whether the disputed property is a public road and whether Hardy had acquired possession of the disputed property by adverse possession.

“ “We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Aa. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Aa. R. Civ. P. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992).’ ”

Barrett v. Lee Brass Co., 883 So.2d 227, 228 (Ala.Civ.App.2003) (quoting Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002)).

A. Whether the disputed property is a public road

“A road can be made public in one of three ways: ““1) by a regular proceeding for that purpose; 2) by a dedication of the road by the owner of the land it crosses, with acceptance by the proper authorities; or 3) the way is generally used by the public for twenty years.’ ” ’ ”

Harper v. Coats, 988 So.2d 501, 504 (Ala.2008) (quoting Arnett v. City of Mobile, 449 So.2d 1222, 1224 (Ala.1984), quoting in turn Sam Raine Constr. Co. v. Lakeview Estates, Inc., 407 So.2d 542, 544 (Ala.1981), quoting in turn Powell v. Hopkins, 288 Ala. 466, 472, 262 So.2d 289, 294 (1972)).

With regard to statutory dedication, we note that, on one of the maps in the record, the disputed property is indicated as being a part of Boyd Avenue; however, there is no northern boundary to Boyd Avenue at the particular location of the disputed property. For a proper statutory dedication, “[t]he street must be so identified on the map, as to location, width, and length, that a surveyor may thereafter go upon the ground and lay it out.” Manning v. House, 211 Ala. 570, 573, 100 So. 772, 774 (1924) (superseded by statute on other grounds). Because the map shows the purported public road as having no northern boundary, it would be impossible for a surveyor to “lay it out.” Therefore, the trial court properly found that the disputed property was not statutorily dedicated as a public road.

“[I]n order to make a common law dedication, the owner of property must express an intention to dedicate the property. Also, there must be an acceptance of the dedicated property by the public or by an authorized person or body of persons acting in its behalf.” Stapler v. Hicks, 530 So.2d 230, 231 (Ala.1988). In the present case, the disputed property is adjacent to a parcel of property, which is separate from the property previously discussed, on which a two-story house is located (“the home site”) and which the Smiths had sold to Hardy. Although Boyd Avenue appears on the plat as early as 1912, the undisputed evidence indicated that no public road had ever been opened or maintained on the disputed property. The only evidence of the county’s involvement was that Ronald Smith had requested that Tuscaloosa County put in a drainage ditch along the roadway comprising the disputed property and that the county had done so. Ronald Smith testified that that had occurred before 1988. Further, the undisputed evidence indicated that the disputed property had been maintained by the Smiths and, subsequently, by Hardy for over 20 years. The Smiths had built a driveway and a “turn-around” area on the disputed property and had sodded that area; Hardy had continued to use the driveway and turnaround area on the disputed property after she purchased the home site from the Smiths. Based on the foregoing evidence, we conclude that there was insufficient evidence to indicate that any common-law dedication of the disputed property as a public road had been accepted by the county-

Furthermore, we conclude that the same evidence that we relied on in concluding that the county did not accept any common-law dedication also precludes a finding of a dedication by prescription, see Ford v. Alabama By-Prods. Corp., 392 So.2d 217, 218 (Ala.1980) (“An open, defined roadway, through reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public road by prescription.”), and, even if there was a proper dedication, would indicate that the road had been abandoned, see Kennedy v. Hines, 660 So.2d 1335, 1339 (Ala.Civ.App.1995).

Based on the foregoing, we conclude that the trial court properly found that the disputed property was not a public road.

B. Whether Hardy adversely possessed the disputed property

The Smiths also argue that Hardy could not “tack” the period of her possession of the disputed property onto their period of possession to meet the statutory period for adverse possession because, they say, they did not intend to adversely possess the disputed property.

“Another essential element of adverse possession relates to the claimant’s intent to assert dominion and control over the disputed property. Reynolds v. Rutland, 365 So.2d 656 (Ala.1978). The Reynolds court emphasized, however, that although ‘intent to claim the disputed strip is required, there is no requirement that the intent be to claim property of another, as such a rule would make adverse possession dependent upon bad faith. Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully. Smith v. Brown, [282 Ala. 528, 213 So.2d 374 (1968) ].’ Id. at 657-58.”

Strickland v. Markos, 566 So.2d 229, 233 (Ala.1990).

In his deposition, Ronald Smith unequivocally testified that he had not intended to adversely possess the disputed property and that, at all times, he had understood the disputed property to be a public road; that testimony is evidence that the Smiths subjectively did not intend to adversely possess the disputed property. Smith further testified that, at some point before 1988, he had requested that the county install a drainage ditch on the disputed property; that testimony is objective evidence that the Smiths did not intend to adversely possess the disputed property. Although there is other objective evidence indicating that the Smiths’ intent was, in fact, to possess the disputed property, this court “ ‘must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant.’ ” Barrett, 883 So.2d at 228. Because there was conflicting evidence regarding the Smiths’ intent to adversely possess the disputed property, we reverse the trial court’s summary judgment on Hardy’s adverse-possession claim and remand this cause for further proceedings on that issue.

APPEAL — AFFIRMED.

CROSS-APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

DONALDSON, J., recuses himself.

On Application far Rehearing

MOORE, Judge.

On application for rehearing, Doris Hardy argues that, as to her unjust-enrichment claim, Ronald W. Smith and Nancy R. Smith should carry the burden of proving that Hardy received a benefit sufficient to offset her payments. We note, however, that “generally a plaintiff bears the burden of proving the essential elements of his [or her] claims.” Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala.2000). Here, Hardy has cited no legal authority contrary to the general rule. Thus, we overrule Hardy’s application for a rehearing.

APPLICATION OVERRULED.

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

DONALDSON, J., recuses himself.

      . Although the judgment does not specify that these issues were decided as a matter of law, there was no evidence presented on either issue at the time of the trial and the discussions at the trial indicate that the issues would be decided on the motion for a summary judgment.


author: PITTMAN, Judge. PITTMAN, Judge.

text:
    Gloria SAVAGE v. Dr. Timothy MARLOW et al.
    2120078.
    Court of Civil Appeals of Alabama.
    June 21, 2013.
    Opinion on Overruling of Rehearing Sept. 13, 2013.
    Certiorari Denied Jan. 10, 2014 Alabama Supreme Court 1121510.

      Leston C. Stallworth, Jr., of The Stall-worth Law Firm, LLC, Monroeville, for appellant.
    Jack B. Hinton, Jr., of Hinton & Hern-don, Montgomery, for appellees.
   PITTMAN, Judge.

Gloria Savage (“Gloria”) appeals from a judgment in favor of Dr. Timothy Marlow, MAG Mutual Insurance Company (“MAG Mutual”), and Jack Hinton, Jr. We dismiss the appeal.

In March 2012, Gloria, Courtney Savage (“Courtney”), and Loretta Savage (“Loretta”) sued Marlow, MAG Mutual, and Hinton, alleging that, in 2009, Loretta had sued Marlow, stating a claim of medical malpractice; that, during Mar-low’s deposition in Loretta’s action, Mar-low had disclosed confidential medical information regarding Gloria; that, during his closing argument in Loretta’s action, Hinton, an attorney representing Marlow in that action, had disclosed confidential medical information regarding Gloria; and that Hinton was an agent of MAG Mutual, Marlow’s medical-malpractice insurer. Based on those allegations, Gloria, Courtney, and Loretta (collectively “the plaintiffs”) stated various tort claims against Marlow, MAG Mutual, and Hinton (collectively “the defendants”).

The defendants filed a motion seeking, among other things, the dismissal of the plaintiffs’ claims and an assessment of attorney fees and costs against the plaintiffs and their attorney pursuant to the Alabama Litigation Accountability Act (“the ALAA”), § 12-19-270 et seq., Ala.Code 1975. The plaintiffs responded to the motion, and, subsequently, the trial court held a hearing regarding the motion. Thereafter, on May 21, 2012, the trial court entered a judgment (“the May 21, 2012, judgment”) (1) determining that the plaintiffs had failed to state a claim upon which relief could be granted and dismissing all the plaintiffs’ claims; (2) determining, based on an analysis of the 12 factors listed in § 12-19-273, a part of the ALAA, that the plaintiffs and their attorney had brought the action without substantial justification and that the attorney fees and costs incurred by the defendants in defending the action should be assessed against the plaintiffs and their attorney pursuant to the ALAA; and (3) granting the defendants a period of 10 days from the entry of the May 21, 2012, judgment to submit documentation establishing the amount of the attorney fees and costs they had incurred in defending the action so that the trial court could assess a specific amount of attorney fees and costs pursuant to the ALAA.

On June 8, 2012, the plaintiffs filed a motion (“the June 8, 2012, motion”) titled “Motion to Reconsider Judgment Entered by the Court on the 21st Day of May 2012 or[,] in the Alternative, [to] Grant Relief from [that] Judgment Under Rule 60(b)(6) of the [Alabama Rules of Civil Procedure].” That same day, the plaintiffs filed a pleading titled “Amendment to Complaint,” which stated that Courtney and Loretta were “no longer [plaintiffs or parties to this matter.” After the defendants had submitted documentation establishing the amount of the attorney fees and costs they had incurred in defending the action, the trial court, on June 12, 2012, entered a judgment (“the June 12, 2012, judgment”) assessing attorney fees and costs totaling $8,826 against the plaintiffs and their attorney pursuant to the ALAA.

On July 22, 2012, the 62d day after the entry of the May 21, 2012, judgment and the 40th day after the entry of the June 12, 2012, judgment, Gloria filed a motion (“the July 22, 2012, motion”) titled “Second Request for Hearing” in which she asserted that the June 8, 2012, motion was a Rule 59, Ala. R. Civ. P., motion; that the June 8, 2012, motion had requested a hearing; and that the trial court was required to hold such a hearing.

On September 17, 2012, the trial court held a hearing regarding the June 8, 2012, motion and the July 22, 2012, motion; however, the trial court did not enter a written order ruling on those motions. On October 22, 2012, Gloria filed a notice of appeal. Thereafter, the supreme court transferred Gloria’s appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Jurisdictional issues are of such importance that an appellate court will take notice of them at any time and will do so even ex mero motu. See, e.g., Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002). Because “[t]he timely filing of a notice of appeal is a jurisdictional act,” Marsh, 852 So.2d at 163, we must first determine whether Gloria’s notice of appeal was timely filed.

If a trial court does not adjudicate a pending ALAA claim in an otherwise final judgment on the merits of an action or reserve jurisdiction in that judgment to consider the ALAA claim subsequent to the entry of that judgment, the ALAA claim is deemed to be implicitly denied by that judgment. See Klinger v. Ros, 33 So.3d 1258, 1260 (Ala.Civ.App.2009) (“Our supreme court has held that, when a trial court enters an otherwise final judgment on the merits of a case but fails to address a pending ALAA claim or to reserve jurisdiction to later consider that claim, the ALAA claim is implicitly denied .... ”). On the other hand, if the trial court reserves jurisdiction to consider the ALAA claim subsequent to the entry of the otherwise final judgment on the merits, the trial court has jurisdiction to adjudicate the ALAA claim subsequent to the entry of the otherwise final judgment on the merits. Klinger, 33 So.3d at 1260-61 (“‘[T]he trial court can hold a separate hearing on an ALAA claim after the entry of the final judgment on the merits provided that the trial court specifically reserves jurisdiction to hear the ALAA claim.’” (quoting Casey v. McConnell, 975 So.2d 384, 389 (Ala.Civ.App.2007))). In the present case, although the May 21, 2012, judgment did not fully adjudicate the ALAA claim because it did not specify the amount of the attorney fees and costs assessed pursuant to the ALAA, it reserved jurisdiction to enter a judgment specifying the amount of the assessment after the entry of the May 21, 2012, judgment. Thus, the trial court retained jurisdiction to enter the June 12, 2012, judgment specifying the amount of that assessment. Id.

In the context of claims seeking attorney fees and costs pursuant to theories of recovery other than the ALAA, the appellate courts have held that “a decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication,” State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala.2002), and that “attorney-fee matters are separate and distinct from matters going to the merits of a dispute and ... an appeal may be taken from a final judgment as to either aspect of a case,” Niezer v. SouthTrust Bank, 887 So.2d 919, 923 (Ala.Civ.App.2004). However, we have not found an Alabama case determining whether an otherwise final judgment on the merits in which the trial court has reserved jurisdiction to adjudicate an ALAA claim subsequent to the entry of the otherwise final judgment on the merits is a final, appealable judgment despite its failure to dispose of the ALAA claim or is an interlocutory judgment because it did not dispose of the ALAA claim. Thus, in the present case, it appears that established precedent does not resolve the issue whether the May 21, 2012, judgment was a final, appealable judgment or an interlocutory judgment. Consequently, it is unclear whether this appeal involves two final, appealable judgments — i.e., both the May 21, 2012, judgment and the June 12, 2012, judgment — or only one final, appeal-able judgment — i.e., the June 12, 2012, judgment. However, because Gloria’s notice of appeal was untimely filed regardless of whether both the May 21, 2012, judgment and the June 12, 2012, judgment were final, appealable judgments or only the June 12, 2012, judgment was a final, appealable judgment, we need not determine whether the May 21, 2012, judgment was a final, appealable judgment or an interlocutory judgment.

We will first explain why Gloria’s notice of appeal was untimely filed with respect to the May 21, 2012, judgment if that judgment was a final, appealable judgment. If the May 21, 2012, judgment was a final, appealable judgment, the June 8, 2012, motion was a timely filed Rule 59(e), Ala. R. Civ. P., motion. See, e.g., Evans v. Waddell, 689 So.2d 23, 26-27 (Ala.1997) (“While the Alabama Rules of Civil Procedure do not speak of a ‘motion to reconsider,’ [the appellate courts] ha[ve] repeatedly construed motions so styled, when they have been filed within 30 days after the entry of a final judgment, to be Rule 59(e) motions.”). A timely filed Rule 59(e) motion suspends the running of the 42-day period to file a notice of appeal until the motion is either ruled upon by the trial court or denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. See Rule 4(a)(2), Ala. R.App. P.; Marsh, 852 So.2d at 163-64; and Rule 59.1. Under Rule 59.1, a Rule 59 motion “not otherwise ruled upon is denied as a matter of law on the 90th day after the motion is filed, or, where applicable, on the last day of any extension of the 90-day period.” William son v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1204 (Ala.2009). In the present case, the 90th day after the filing of the June 8, 2012, motion was September 6, 2012. The trial court did not rule on the June 8, 2012, motion on or before September 6, 2012, and the 90-day period for ruling on that motion was not extended. Therefore, if the May 21, 2012, judgment was a final judgment and, consequently, the June 8, 2012, motion was a Rule 59(e) motion, the June 8, 2012, motion was denied by operation of law on September 6, 2012. See Rule 59.1; Williamson, supra; and Marsh, supra. Gloria would then have had 42 days to file her notice of appeal with respect to the May 21, 2012, judgment. See Rule 4(a)(1), Ala. R.App. P. The 42d day after September 6, 2012, was October 18, 2012. Gloria did not file her notice of appeal until October 22, 2012. Therefore, if the May 21, 2012, judgment was a final, appealable judgment, Gloria’s notice of appeal was untimely with respect to that judgment.

We will now explain why Gloria’s notice of appeal was untimely filed with respect to the June 12, 2012, judgment if both the May 21, 2012, judgment and the June 12, 2012, judgment were final, ap-pealable judgments. Because the June 8, 2012, motion was filed before the entry of the June 12, 2012, judgment, the June 8, 2012, motion was not filed with respect to the June 12, 2012, judgment and, of course, did not refer to that judgment or seek relief from it pursuant to Rule 59(e). Therefore, the June 8, 2012, motion did not suspend the running of the 42-day period for Gloria to file her notice of appeal with respect to the June 12, 2012, judgment. Although the July 22, 2012, motion was filed after the entry of the June 12, 2012, judgment, that motion did not refer to the June 12, 2012, judgment or seek relief pursuant to Rule 59(e) with respect to that judgment. Therefore, the July 22, 2012, motion did not constitute a Rule 59(e) motion with respect to the June 12, 2012, judgment and, therefore, did not suspend the running of the 42-day period for Gloria to file a notice of appeal with respect to the June 12, 2012, judgment. Moreover, even if the July 22, 2012, motion had sought relief pursuant to Rule 59(e) with respect to the June 12, 2012, judgment, the July 22, 2012, motion was not filed within 30 days after the entry of the June 12, 2012, judgment. Rule 59(e) requires that “[a] motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.” Therefore, even if the July 22, 2012, motion had sought relief pursuant to Rule 59(e) with respect to the June 12, 2012, judgment, the July 22, 2012, motion was untimely and, consequently, did not suspend the running of the 42-day period for Gloria to file a notice of appeal with respect to the June 12, 2012, judgment. See Marsh, 852 So.2d at 163 (“Although a timely postjudgment motion will toll the 42-day time period for filing a notice of appeal, an untimely filed postjudgment motion will not do so.”). Thus, Gloria had 42 days from June 12, 2012, to file a notice of appeal with respect to the June 12, 2012, judgment. The 42d day after the entry of the June 12, 2012, judgment was July 24, 2012. Gloria did not file her notice of appeal until October 22, 2012. Therefore, Gloria’s notice of appeal was untimely filed with respect to the June 12, 2012, judgment if both the May 21, 2012, judgment and the June 12, 2012, judgment were final, appealable judgments.

If the May 21, 2012, judgment was an interlocutory judgment and the June 12, 2012, judgment was the only final, appeal-able judgment in this action, Gloria’s notice of appeal was untimely with respect to the June 12, 2012, judgment for the same reasons it was untimely with respect to that judgment if the May 21, 2012, judgment were a separate final, appealable judgment. Accordingly, because Gloria’s notice of appeal was untimely filed, it failed to invoke the jurisdiction of this court. See Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007) (“Because [the appellant’s] notice of appeal was untimely, it did not invoke the jurisdiction of this court....”). Rule 2(a)(1), Ala R.App. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Therefore, we dismiss the appeal.

APPEAL DISMISSED.

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

On Application for Rehearing

PITTMAN, Judge.

Gloria Savage (“Gloria”) has applied for rehearing and asserts in her application that this court should not have dismissed her appeal as untimely filed because, she says, this court had previously considered that issue and had ruled that her appeal would be permitted to proceed as timely filed. Before Gloria’s appeal was taken under submission and assigned, this court requested “letter briefs” from the parties addressing the issue whether Gloria’s notice of appeal had been timely filed, and the parties complied with that request. Based on the assertion in Gloria’s letter brief that she had filed her motion titled “Motion to Reconsider Judgment Entered by the Court on the 21st Day of May 2012 or[,] in the Alternative, [to] Grant Relief from [that] Judgment Under Rule 60(b)(6) of the [Alabama Rules of Civil Procedure]” on June 11, 2012, we determined that Gloria’s notice of appeal might have been timely filed, and, therefore, we permitted her appeal to proceed. However, after Gloria’s appeal was taken under submission and assigned, our review of the entries regarding Gloria’s action in the State Judicial Information System and the record on appeal revealed that that motion was filed on June 8, 2012, rather than June 11, 2012, which conclusively established that Gloria’s notice of appeal was untimely filed for the reasons explained in our opinion on original submission. An initial ruling by an appellate court permitting an appeal to proceed “ ‘ “does not preclude reconsideration of the fundamental question of appellate jurisdiction after an appellate court has had an opportunity to review the record.’”” O’Hare v. O’Hare, 129 So.3d 297, 299 (Ala.Civ.App.2013) (quoting R.P.M. v. P.D.A., 112 So.3d 49, 50 (Ala.Civ.App.2012), quoting in turn Smith v. Smith, 919 So.2d 315, 316 n. 1 (Ala.Civ.App.2005)). Accordingly, we overrule Gloria’s application for rehearing.

APPLICATION OVERRULED.

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

      . On August 23, 2012, Gloria petitioned this court for a writ of mandamus directing the trial court to vacate the May 21, 2012, judgment and the June 12, 2012, judgment. This court docketed that mandamus petition as case no. 2111118. On August 24, 2012, this court denied Gloria’s mandamus petition.
      On August 29, 2012, Gloria petitioned the supreme court for a writ of mandamus directing the trial court to vacate the May 21, 2012, judgment and the June 12, 2012, judgment. The supreme court docketed that mandamus petition as case no. 1111532. On September 18, 2012, the supreme court denied Gloria’s mandamus petition.

      . Neither Courtney nor Loretta filed a notice of appeal.

      . Even if the July 22, 2012, motion were deemed to be a separate Rule 59(e) motion challenging the May 21, 2012, judgment, it would not extend the period for Gloria to file a notice of appeal with respect to the May 21, 2012, judgment because it was not filed within 30 days after the entry of the May 21, 2012, judgment, see Rule 59(e) (“A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.”), and an untimely filed Rule 59(e) motion will not suspend the running of the period for filing a notice of appeal, see Marsh, 852 So.2d at 163 ("Although a timely postjudgment motion will toll the 42-day time period for filing a notice of appeal, an untimely filed postjudgment motion will not do so.”). Likewise, even if the July 22, 2012, motion were deemed to be an amendment of the June 8, 2012, motion, the July 22, 2012, motion would not have extended the period for Gloria to file a notice of appeal with respect to the May 21, 2012, judgment because the July 22, 2012, motion was not filed within 30 days after the entry of that judgment. See Roden v. Roden, 937 So.2d 83, 85 (Ala.Civ.App.2006) ("[I]f a subsequent filing is deemed to be an amendment to a previous postjudgment motion, that amendment will trigger a new 90-day jurisdictional period only if the amendment is filed within 30 days after the original judgment, i.e., within the time for filing an 'original' postjudgment motion.” (emphasis omitted)).

      . Although it would have no effect on the determination whether Gloria's notice of appeal was timely with respect to the June 12, 2012, judgment, we note that, if the May 21, 2012, judgment were not a final judgment, the June 8, 2012, motion would not have been a Rule 59(e) motion because “[a] ‘Rule 59 motion may be made only in reference to a final judgment or order.’ ” Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003) (quoting Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999)).


author: WINDOM, Presiding Judge.

text:
    Evan MILLER v. STATE of Alabama.
    CR-06-0741.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2013.
    Bryan A. Stevenson, Randall S. Suss-kind, and Alicia A. D’Addario, Montgomery, for appellant.
    Troy King and Luther Strange, attys. gen., and John M. Porter, asst. atty. gen., for appellee.
   On Remand from the Supreme Court of the United States

WINDOM, Presiding Judge.

Evan Miller was 14 years old when he committed murder made capital because it was committed during the course of an arson, see § 13A-5-40(a)(9), Ala.Code 1975. On August 27, 2010, this Court affirmed Miller’s capital-murder conviction and his resulting mandatory sentence of life in prison without the possibility of parole. Miller v. State, 63 So.3d 676, 687 (Ala.Crim.App.2010). On June 25, 2012, the Supreme Court of the United States reversed this Court’s judgment affirming Miller’s mandatory sentence and held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller v. Alabama, — U.S. -, -, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012). In response to Miller, the Alabama Supreme Court decided Ex parte Henderson, 144 So.3d 1262, 1276 (Ala.2013), in which it established a sentencing procedure that provides for a sentence of less than life in prison without the possibility of parole that circuit courts must use when sentencing juveniles who have been convicted of capital murder. Thus, in accordance with the decision of the Supreme Court of the United States in Miller, Miller’s sentence is reversed, and this cause is remanded with instructions for the circuit court to conduct a new sentencing hearing under the procedure established in Henderson, 144 So.3d at 1284.

REVERSED AS TO SENTENCE AND REMANDED.

WELCH, KELLUM, BURKE, and JOINER, JJ., concur.