author: MOORE, Judge. MOORE, Judge.

text:
    Michael Chad McDANIEL v. HELMERICH & PAYNE INTERNATIONAL DRILLING COMPANY.
    2101112.
    Court of Civil Appeals of Alabama.
    March 30, 2012.
    Opinion on Application for Rehearing July 20, 2012.
    Certiorari Denied Nov. 9 2012 Alabama Supreme Court 1111440.

      Desmond V. Tobias, Mobile, for appellant.
    Jannea S. Rogers and Nicholas F. Mori-sani of Adams & Reese LLP, Mobile, for appellee.
   MOORE, Judge.

Michael Chad McDaniel (“the employee”) appeals from a judgment of the Mobile Circuit Court (“the trial court”) denying his claim for workers’ compensation benefits against Helmerich & Payne International Drilling Company (“the employer”). We reverse.

Procedural History

This is the second time this case has been before this court. See McDaniel v. Helmerich & Payne Int’l Drilling Co., 61 So.3d 1091 (Ala.Civ.App.2010). The employee filed a claim for workers’ compensation benefits stemming from a motor-vehicle accident that occurred on a Mobile County road on January 10, 2008. 61 So.3d at 1092. In McDaniel, this court reversed a summary judgment entered by the trial court in favor of the employer. Id. at 1095. The trial court had concluded that the employee had failed to present substantial evidence indicating that one or more of the exceptions to the “going and coming rule,” which provides that “accidents occurring while a worker is traveling on a public road while going to or coming from work generally fall outside the course of the employment,” applied in the present case. Id. at 1093. This court concluded, however, that, when viewing the evidence in a light most favorable to the employee, there was a genuine issue of material fact regarding whether the facts of the case fell within one of the exceptions to the going and coming rule. Id. at 1095. Upon remand from this court, the employer filed an amended answer asserting affirmative defenses. A trial was held on June 20, 2011. On July 19, 2011, the trial court entered a judgment, which included findings of fact and conclusions of law, finding in favor of the employer based on the going and coming rule and the inapplicability of the exceptions to the rule in the present case. The employee filed his notice of appeal to this court on August 16, 2011.

Facts

The employee testified that he began working for the employer, a drilling contractor, in May 2007 and that, at the time of the accident on January 10, 2008, he was living in Alexandria, Louisiana. The employee testified that the employer is hired by oil companies to drill holes or wells or to place pipes to open wells that have already been drilled. The employee testified that, when he was at work, he was on location, which meant that he stepped out of an on-site trailer and went straight to work. He testified that he was assigned to wherever his rig was drilling a well and that the rig crews go and set up the rig to drill. The rig crews then drill down to wherever the well is going to be stopped, and then they remove the rig and go to the next location set up for drilling.

The employee testified that he began working for the employer as a floor hand, or a “roughneck,” which required him to take care of the rig, maintaining it and keeping it clean and free of hazards. He testified that he was a roughneck for about 2 7-day “hitches,” which consist of 7 12-hour “tours,” or shifts, and that the crew would work for 7 days and then have 7 days off. The employee was then promoted to the position of “motor man,” which required him to take care of all the transfer of fluids, like fuel and diesel, to run the generators to power the rig; to cheek the oil in all the motors to make sure they did not go down; to check air bladders and drain the air tanks for air compressors for the rig; and to do inspections for the tool pusher, or rig manager, of the equipment on the rig. The employee testified that, in addition to being paid for the 12-hour tours, he was paid for 2 hours a week for attending safety meetings and another hour each week for attending a weekly safety meeting. He testified that the safety meetings were held every morning before his tour went into effect, that those meetings were mandatory, and that they typically lasted from 15 to 30 minutes.

The employee testified that the employer provided the rig crew with crew trailers to stay in bunks on location because it wanted the crew on the worksite. Additionally, the rig manager is provided a trailer with an office inside, and the oil company’s representatives have their own' trailer outside the rig. Gerald Hay, who is employed by the employer as a rig manager, testified that the employer rents the crew trailers to have them on location. The employee testified that he always stayed in the crew trailers during a 7-day hitch. .

The employee testified that he was normally the motor man for rig 79; that the last location he had been at with rig 79 was an island in Louisiana state water; that rig 79 “went stacked,” or lost its work contract; and that he was then assigned to work on rig 136 in Mobile County on January 9, 2008. On that date, rig 136 and the crew trailers were located at the Hatters Pond Well in Creóla (“the Creóla site”). The employee testified that he drove his personal vehicle from his home in Louisiana to the Creóla site and arrived at approximately 4:00 a.m. on January 9, 2008. The employee testified that he and the remaining rig crew were “rigging down,” or disassembling, rig 136 at the Creóla site and preparing to move the rig to the Mattie May Smith Well in Chunchula (“the Chunchula site”), where they would “rig up,” or reassemble, rig 136 to prepare it for drilling at the new site.

At the end of the day on January 9, 2008, according to the employee, he was told that the crew trailers, which are moved before the rig itself, were being set up at the Chunchula site and to go there to sleep. He testified that he traveled to the Chunchula site, where he stayed in the crew trailer. According to the employee, on the morning of January 10, 2008, he and the other three crew members who had stayed in the trailer were awakened by the driller of his crew at approximately 5:15 or 5:20 a.m., and he stated that they attended a safety meeting conducted by Joe Ishee, the rig manager for rig 136. The employer presented evidence indicating that a safety meeting was not held at the Chunchula site the morning of January 10, 2008, and that the employee had given a recorded statement in which he had said that the safety meeting was going to be held at the Creóla site. The employee testified at trial, however, that the safety-meeting was held at the Chunchula site. He testified that, at the end of the safety meeting, he was instructed to go to the Creóla site and that he left the Chunchula site sometime after 5:30 a.m., traveling to the Creóla site. He testified that, during that trip, it was extremely foggy, he was traveling on a muddy road in the woods, and the conditions were extremely hazardous. According to the employee, upon leaving the Chunchula site, he traveled down a clay road for about a mile or a mile and a half, then traveled about three miles on a gravel road to the blacktop road. He testified that, at the end of the gravel road, his vehicle slid through the stop sign at the end of the road and a three-quarter ton Ford F-350 truck collided with the passenger side of his vehicle, causing him injuries.

The employee admitted that no one working on rig 136 had told him he had to stay in the crew trailer. It was undisputed that the employer did not provide the employee with a vehicle, per diem for food or anything else, mileage or gas reimbursement, a cellular telephone, a pager, or a radio.

Hay testified that he and Ishee spent the night of January 9, 2008, in the tool-pusher trailer at the Chunchula site and that both of them drove to the Creóla site for the safety meeting that morning. According to Hay, the rig crew does not always stay in a crew trailer. He stated that crew members may stay in a motel or at a girlfriend’s house or they may go home to sleep. He testified that, during a previous rig move, when a crew trailer was not available, the employer had paid for the roughnecks to stay in a hotel. He testified that the men traveling from their homes allows the employer to do its job. Hay testified that, if the employee wanted to keep his job with the employer, he was required to travel to work on rig 136 once rig 79 went into “stack.”

Standard of Review
“Section 25 — 5—81(e), Ala.Code 1975, provides the standard of review in a workers’ compensation case:
“ ‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25 — 5—81 (e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).’
“Landers v. Lowe’s Home Ctrs., Inc., [14] So.3d [144, 151] (Ala.Civ.App.2007). ‘This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.’ Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).”

MasterBrand Cabinets, Inc. v. Ruggs, 10 So.3d 13, 16-17 (Ala.Civ.App.2008).

Discussion

For an injury to be compensable under the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975, the injury must be caused by “an accident arising out of and in the course of [the] employment.” § 25-5-51, Ala.Code 1975. The employee argues on appeal that the trial court erred in concluding that his accident did not arise out of and in the course of his employment with the employer. He asserts, among other things, that, because he was a “traveling employee,” within the meaning of Young v. Mutual Savings Life Insurance Co., 541 So.2d 24 (Ala.Civ.App.1989), the accident, and his resulting injuries, arose out of and in the course of his employment.

In Young, a traveling salesman sustained an injury while on his lunch break. 541 So.2d at 25. This court stated, in pertinent part:

“We have held that accidents occurring on the employer’s premises during an employee’s regular lunch break occur in the course of employment. Gold Kist, Inc. v. Jones, 537 So.2d 39 (Ala.Civ.App.1988). According to Professor Larson, the term ‘premises’ ‘includes the entire area devoted by the employer to the industry with which the employee is associated.’ 1 Larson Workmen’s Compensation Law § 15.41, at 4-84 (1985). Our research, however, has revealed no Alabama cases dealing with the term ‘premises’ as it relates to traveling employees. In the absence of available precedent, we must, therefore, look to other sources for definitive law. Minnesota’s construction of its workmen’s compensation laws serves as a source of persuasive authority in these situations. Buchanan v. Pankey, 531 So.2d 1225 (Ala.Civ.App.1988). Minnesota courts have adopted the view that a traveling employee is considered to be conducting his employer’s business any time he is in his prescribed territory. Gumbrill v. General Motors Corp., 216 Minn. 351, 13 N.W.2d 16 (1944). It appears that the claimant was within his prescribed territory at the time of the accident. It follows then, in light of the foregoing authority, that the claimant was within the course of his employment at the time of the accident.”

Id. at 26.

The employer argues that the employee was not a traveling employee, as was the traveling salesman in Young, or the truck driver at issue in the only other Alabama case directly discussing traveling employees, Cummings Trucking Co. v. Dean, 628 So.2d 902 (Ala.Civ.App.1993). The trial court found that the employee “was not a ‘traveling employee’ as the term is defined under Alabama law.” Although both Young and Dean referred to the workers in those eases as “traveling employees,” neither case defined that term. Thus, we look to other jurisdictions to determine whether the employee in the present case fits the definition of a “traveling employee.”

In Ball-Foster Glass Container Co. v. Giovanelli, 163 Wash.2d 133, 177 P.3d 692 (2008), the Supreme Court of Washington stated:

“There are two widely recognized definitions of a traveling employee. Under Larson’s formulation of the rule, a traveling employee is one ‘whose work entails travel away from the employer’s premises.’ 2 [Arthur] Larson & [Lex K] Larson, [Larson’s Workers’ Compensation Law ] § 25.01[ (2006) ]. An alternate definition provides: ‘A traveling employee is one whose job requires travel from place to place or to a place away from a permanent residence or the employee’s place of business.’ 2 John P. Ludington, Modem Workers Compensation § 111:15 (Matthew J. Canavan ed., 1993).
“The traveling salesperson and the long-haul truck driver are prototypical examples of traveling employees. However, workers who have no fixed site of employment or whose business is travel are not the only categories of employees who fall within the definition. Traveling employees also include those on temporary assignment at a fixed location.”

163 Wash.2d at 145, 177 P.3d at 698. See also Rodriguez v. Permian Drilling Corp., 150 N.M. 164,168, 258 P.3d 443, 448 (2011) (treating oil-rig workers as “traveling employees,” i.e., “ ‘employees for whom travel is an integral part of their jobs, such as those who travel to different locations to perform their duties, as differentiated from employees who commute daily from home to a single workplace’ ” (quoting Ramirez v. Dawson Prod. Partners, Inc., 128 N.M. 601, 606, 995 P.2d 1043, 1048 (Ct.App.2000))).

We agree with the Washington Supreme Court that a traveling employee is not limited to those who work as a traveling salesperson or a long-haul truck driver, although those are the only two positions to which the “traveling employee” exception has been previously applied in Alabama.

In Rodriguez v. Permian Drilling Corp., supra, the Supreme Court of New Mexico distinguished traveling employees from mere commuters:

“Traveling employees are distinct from ‘mere commuters’ whose injuries are excluded from compensation under the [Workers’ Compensation] Act[, N.M. Stat. Ann. § 52-1-1 et seq.]. See Flores [v. McKay Oil Corp.], 2008-NMCA-123, ¶ 27, 144 N.M. 782, 192 P.3d 777. We imagine a commuter as one who chooses to live in Albuquerque or Tesuque but works in Santa Fe. The commuter has the option of living and working in the same city, but for any number of reasons chooses to travel some distance between home and work. In Flores, the Court of Appeals concluded that the oil rig workers injured while traveling to the rig site were commuters, not traveling employees. The Court of Appeals found that the injuries did not arise out of the employment because the rig was in a fixed location, relatively close to the workers’ residences, and because the employer did not provide any reimbursement or per diem specifically for transportation costs nor require any of the workers to maintain valid licenses or insurance. Id. ¶¶ 22-24, 27[, 144 N.M. at 791-92, 192 P.3d at 786-87]. Traveling employees, in contrast, are those who encounter special hazards on the road that could be avoided were travel not a necessary component of the employment. ...
“The primary reason for the distinction between a commuter and a traveling employee is that travel undertaken by a traveling employee provides substantial benefit to both employee and employer. ‘[T]he activity giving rise to the injury must confer some benefit on the employer.’ Ramirez[ v. Dawson Prod. Partners, Inc.], 2000-NMCA-011, ¶ 16, 128 N.M. 601, [608,] 995 P.2d 1043[, 1050]; see also Kurtis A. Kemper, Application of the ‘Mutual Benefit’ Doctrine to Workers’ Compensation Cases, 11 A.L.R.6th 351 Table (2006) (compiling cases). ‘The benefit to the employer need not be pecuniary, and may be as intangible as a well-fed and well-rested employee.’ Ramirez, 2000-NMCA-011, ¶ 17, 128 N.M. 601, [608-09,] 995 P.2d 1043[, 1050-51].
“ ‘The rationale behind the traveling employee rule is that an employee who is required to travel away from home is furthering the business of his employer as he eats, sleeps, and performs other acts necessary to his health and comfort during his travels. In addition, where the employment requires travel, the employee is consequently exposed to hazards she would otherwise have the option of avoiding. Thus the hazards of the route become the hazards of employment. But, it is not merely travel on a highway that creates a risk of compensable injury; if that were so, every ordinary commuter would be covered under the Act. Rather, it is the job’s requirement of travel and the employer’s authority and control in assigning its employees to different work sites that increase the normal risk and render compensable injuries suffered during such travel.’
“Id. ¶ 12[, 128 N.M. at 606-07, 995 P.2d at 1048-49] (internal quotation marks, citation, and alterations omitted).”

150 N.M. at 169-70, 258 P.3d at 448-49.

In Wilson v. Georgia Power Co., 128 Ga.App. 352, 353-54, 196 S.E.2d 693, 694 (1973), the Georgia Court of Appeals noted that the workers at issue in that case “were required by their employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site, [and] hence were, in effect, in continuous employment, day and night, for the purposes of the Workmen’s Compensation Act[, Ga.Code Ann. § 34-9-1 et seq.].”

The employee in the present case, in order to keep his job, was required by the employer to drive from his home in Alexandria, Louisiana, to report to rig 136 in Mobile County. The employee testified that he worked a 7-day hitch, which consisted of working 12 hours each day for 7 consecutive days. Thus, like in Wilson, the employee was “geographically limited by the necessity of being available for work on the employer’s job site.” 128 Ga.App. at 353-54, 196 S.E.2d at 694. The employee testified that the home office of the employer from which he worked, or his “place of business,” was located in Tulsa, Oklahoma. Regardless of whether he was required to stay in the crew trailer, one was rented and provided by the employer at the site of rig 136 and the employee was invited by the employer to stay in a crew trailer, with an assigned bunk, free of charge. Taking those facts into account, the employee would be considered a “traveling employee” in accordance with the definitions discussed in Wilson and Rodriguez and arguably all three of the definitions discussed in Ball-Foster. We conclude, therefore, that the employee in this case meets the definition of a “traveling employee,” and, like the salesman in Young, he was within the course of his employment at the time of his accident because he was within the' employer’s prescribed territory, specifically, between the two locations at which rig 136 was being used.

In Gumbrill v. General Motors Corp., 216 Minn. 351, 13 N.W.2d 16 (1944), cited by this court in Young, the Supreme Court of Minnesota observed that, although a traveling employee “is considered as carrying on his employer’s business at any time he is in his prescribed territory,” that employee is not covered by the workmen’s compensation act once a special errand or mission begins until that errand is completed. 216 Minn. at 353, 13 N.W.2d at 17. In Young, the salesman in that case stopped along his route to eat lunch; after eating lunch, he got out of his car, noticed some ripe blackberries across the road, and, after crossing the road to look at the blackberries, fell into a ditch parallel to the road and injured himself. 541 So.2d at 26. Citing Gumbrill, this court concluded:

“The possibility of slipping and falling into a roadside ditch is not a hazard peculiar to a traveling salesman. Clearly the claimant, although primarily carrying on his employer’s business, i.e., he continued on his route after the fall, had departed on his own personal enterprise at the time of the injury. Gumbrill v. General Motors Corp., supra. The injury sustained here was, thus, not causally connected with the claimant’s employment.”

541 So.2d at 26-27.

We find the present case distinguishable. The employee in the present case had not departed on his own personal enterprise at the time of the injury. He awoke in the crew trailer provided by the employer at the Chunchula site, where rig 136 would shortly be in operation, and began his drive to the Creola site where rig 136 was being rigged down. His presence in Alabama was beneficial to the employer, and the hazards of the route, which had been specified by the employer by the placement of the crew trailers and the location of the rig, had become the hazards of the employment. Unlike in Young, the injury sustained by the employee was causally connected with the employee’s employment. We conclude, therefore, that the “traveling employee” exception applies in this case and that the trial court erred in concluding otherwise and in denying the employee workers’ compensation benefits. We reverse the trial court’s judgment and remand the case to the trial court to enter a judgment finding that the employee’s accident arose out of and in the course of the employment and to conduct such further proceedings as are necessary to determine the compensation and other benefits due the employee under the Act.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

On Application for Rehearing

MOORE, Judge.

Helmerich & Payne International Drilling Company (“the employer”) seeks a rehearing of this court’s March 30, 2012, decision reversing a judgment entered by the Mobile Circuit Court (“the trial court”) in favor of the employer on a claim by Michael Chad McDaniel (“the employee”) for workers’ compensation benefits. Specifically, the employer seeks a rehearing “as to whether the Court’s decision dated March 30, 2012, is based upon the Court’s having inadvertently overlooked the trial court’s findings of fact, relevant, reasonable, and persuasive caselaw from other jurisdictions construing the traveling employee exception in a manner more consistent with existing Alabama precedent, and the sufficient, substantial evidence presented to the trial court and supporting its findings.”

This court held oral arguments on the employer’s application for rehearing on June 19, 2012. Having considered the briefs filed by each party and the oral arguments offered by each side as well, we conclude that the employer’s application for rehearing is without merit.

APPLICATION OVERRULED.

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

      . Based on our disposition of the appeal, we decline to address the remaining issues raised on appeal.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    R.P.M. v. P.D.A.
    2110915.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2012.
    Kimberly A. Ford of Fordumas LLC, Huntsville, for appellant.
    Harlan D. Mitchell, Athens, for appellee.
   MOORE, Judge.

R.P.M. (“the mother”) appeals from a judgment entered by the Limestone Juvenile Court (hereinafter sometimes referred to as “the juvenile court”). We dismiss the appeal.

Background

On March 31, 2011, P.D.A. (“the father”) petitioned the juvenile court to modify custody of P.A. (“the child”), who was born on March 13, 2002. He asserted that the Juvenile Court of Davidson County, Tennessee (“the Davidson Juvenile Court”), previously had adjudicated his paternity of the child, had awarded the mother physical custody of the child, and had ordered the father to pay child support. He further asserted that, since the entry of that judgment by the Davidson Juvenile Court, the mother and the child had moved to Alabama, where they had resided for the three years preceding the filing of his petition. The father also asserted that a material change in circumstances had occurred such that he should be awarded custody of the child. The father’s petition was assigned a “CS” civil-action number by the juvenile court. The mother filed a counterclaim seeking to modify the father’s child-support obligation.

On March 7, 2012, the juvenile court conducted an ore tenus hearing. At that hearing, the father submitted into evidence, among other things, a certified copy of a May 6, 2004, order, entered by the Davidson Juvenile Court, adjudicating the father’s paternity and establishing a pen-dente lite visitation schedule for the father. The father also submitted into evidence a certified copy of an October 15, 2004, order in which the Davidson Juvenile Court had incorporated the parties’ voluntary agreement designating the mother as the “primary residential parent” and the father as the “alternate residential parent,” awarding the father a specified visitation schedule, and ordering the father to pay child support. In that order, the Davidson Juvenile Court specifically stated: “All other matters are reserved.”

On May 1, 2012, the juvenile court entered a judgment finding that the father had met his burden of proof under Ex parte McLendon, 455 So.2d 863 (Ala.1984), to warrant a custody modification. The juvenile court awarded the father physical custody of the child, awarded the mother a specified visitation schedule, and ordered the mother to pay child support. The juvenile court specifically denied all other requested relief.

On May 3, 2012, the mother filed a “Motion to Reconsider” the juvenile court’s judgment; that motion was denied on May 8, 2012. On June 12, 2012, the mother filed her notice of appeal.

At the request of this court, both the mother and the father filed “letter briefs” regarding the timeliness of the mother’s appeal. Although the appeal was allowed to proceed, such permission “does not preclude reconsideration of the fundamental question of appellate jurisdiction after an appellate court has had an opportunity to review the record.” Smith v. Smith, 919 So.2d 315, 316 n. 1 (Ala.Civ.App.2005); see also Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (noting this court’s policy of taking notice of jurisdictional matters at any time, even ex mero motu).

Analysis

Although the mother’s notice of appeal indicates that she is appealing from a judgment entered by the Limestone Circuit Court, we note that the father’s petition was properly filed and docketed in the Limestone Juvenile Court. See Ala.Code 1975, § 12-15-115(a)(8). There is no indication in the record that the action was transferred from the Limestone Juvenile Court to the Limestone Circuit Court, and the judgment from which the mother appeals was entered by Judge Woodruff in his capacity as a juvenile-court judge. “Moreover, a case designated with a ‘CS’ ease number is considered a juvenile-court action, whether it is filed in a juvenile court or in a circuit court. See H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278-79 (Ala.Civ.App.2009).” C.W.S. v. C.M.P., 99 So.3d 864, 866 n. 1 (Ala.Civ.App.2012).

Based on the above, we conclude that the Alabama Rules of Juvenile Procedure properly govern this action. As a result, we must consider whether the mother’s notice of appeal invoked the appellate jurisdiction of this court.

“It is well settled that jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997); Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). ‘The timely filing of [a] notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006) (‘an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived’).”

Kennedy v. Merriman, 963 So.2d 86, 87-88 (Ala.Civ.App.2007).

Under the Alabama Rules of Juvenile Procedure, the mother had 14 days from the denial of her postjudgment motion to file her notice of appeal. See Rule 28(C), Ala. R. Juv. P.; and H.J. T. v. State ex rel. M.S.M., 34 So.3d 1276, 1279 (Ala.Civ.App.2009) (“A notice of appeal in a juvenile action must be filed within 14 days of the date of entry of the judgment or the denial of a [timely filed] postjudgment motion.”).

Thus, the mother’s notice of appeal must have been filed no later than May 22, 2012, to be timely. Because the mother did not appeal until June 12, 2012, after the 14-day period had expired, this court has no jurisdiction to consider her appeal. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”). We, therefore, dismiss the mother’s appeal.

APPEAL DISMISSED.

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

      . The father did not attach to his petition certified copies of the judgment he referenced.

      . The orders submitted by the father were certified by the clerk of the Davidson Juvenile Court and by a judge of the Davidson Juvenile Court. The record does not contain a copy of a final judgment entered by the Davidson Juvenile Court.

      . Although the judgment bore the date of April 3, 2012, it was not entered into the State Judicial Information System until May 1, 2012. See Rule 58(c), Ala. R. Civ. P.

      . We further note that the case-action summary included in the record expressly indicates that the action was maintained in the Limestone Juvenile Court.

      . We express no opinion as to whether the juvenile court acquired subject-matter jurisdiction of the issues presented in the father’s custody-modification petition.


text:
    A.J. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES. T.J. v. Cullman County Department of Human Resources.
    2110899, 2110900, 2110901, 2110902, 2110903, and 2110904.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2012.

      Michael D. Haynes, Cullman, for appellant A. J.
    Kimberly H. Drake, Cullman, for appellant T. J.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

A.J. (“the mother”) and T.J. (“the father”) appeal from separate judgments entered by the Cullman Juvenile Court (“the juvenile court”) on May 9, 2012, terminating their parental rights to their children V.N.J., who was born on September 28, 2005; T.A.J., who was born on October 27, 2009; and E.R.J., who was born on April 4, 2011 (hereinafter referred to collectively as “the children”). We dismiss the appeals.

Background

On October 12, 2011, the Cullman County Department of Human Resources petitioned the juvenile court to terminate the parental rights of the mother and the father to the children. After conducting ore tenus proceedings on April 18, 2012, and May 1, 2012, the juvenile court entered judgments on May 9, 2012, terminating the parental rights of the mother and the father to the children. On May 16, 2012, the father moved the juvenile court to grant him in forma pauperis status; on May 18, 2012, the mother also requested that the juvenile court grant her in forma pauperis status. In those motions, the father and the mother indicated that they wished to appeal. The juvenile court granted those motions on May 31, 2012. The mother filed her notice of appeal on June 6, 2012; the father filed his notice of appeal on June 7, 2012.

Analysis

“It is well settled that jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997); Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). ‘The timely filing of [a] notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006) (‘an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived’).”

Kennedy v. Merriman, 963 So.2d 86, 87-88 (Ala.Civ.App.2007).

The mother and the father had 14 days from the entry of the juvenile court’s May 9, 2012, judgments to appeal. See Rule 28(C), Ala. R. Juv. P.; and H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1279 (Ala.Civ.App.2009) (“A notice of appeal in a juvenile action must be filed within 14 days of the date of entry of the judgment or the denial of a [timely filed] postjudgment motion.”).

Neither the mother nor the father filed a postjudgment motion pursuant to Rule 52 or Rule 59, Ala. R. Civ. P., which, under the procedural posture of these cases, were the only motions that would have tolled the time for filing their notices of appeal from the May 9, 2012, judgments. See, e.g., Rule 4(a)(3), Ala. R.App. P. (“The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal.”). A motion to proceed in forma pauperis is not a postjudgment motion that tolls the time for filing a notice of appeal.

The mother filed her notice of appeal on June 6, 2012, and the father filed his notice of appeal on June 7, 2012. Because neither the mother nor the father appealed until after the 14-day period had expired, this court has no jurisdiction to consider their appeals. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court”). We, therefore, dismiss the mother’s and the father’s appeals.

APPEALS DISMISSED.

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

THOMAS, J., recuses herself.


author: JOINER, Judge. WINDOM, Presiding Judge

text:
    STATE of Alabama v. Saquan EDWARDS.
    CR-11-0137.
    Court of Criminal Appeals of Alabama.
    April 27, 2012.
    Rehearing Denied Nov. 30, 2012.
    Luther Strange, atty. gen., and John, M. Porter, asst. atty. gen., for appellant.
    Frank Snowden, Montgomery, for appel-lee.
   JOINER, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, KELLUM, and BURKE, JJ., concur. WINDOM, P.J., concurs in the result, with opinion.

WINDOM, Presiding Judge

(concurring in the result).

I agree with the majority’s analysis in Part I of the unpublished memorandum in which the majority holds that the State failed to meet its burden to establish that the initial patdown search fell within the exception to the warrant requirement of the Fourth Amendment established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because the State failed to meet its burden of establishing that the initial search was constitutional, the remainder of the majority’s analysis is unnecessary. More importantly, I believe, contrary to the majority decision, that had the initial patdown search been constitutional, the information the officer obtained during the patdown would have provided probable cause to search Saquan Edwards’s pockets following the patdown. Therefore, I concur only in the result of the majority’s decision.

Edwards was charged with second-degree possession of marijuana. See § 13A-12-214, Ala.Code 1975. Thereafter, Edwards filed a motion to suppress the marijuana that Officer R.S. Shoupe found in his pocket following a patdown. On October 18, 2011, the circuit court held a hearing on Edwards’s motion to suppress.

During the hearing, the State presented evidence indicating that on July 20, 2010, Officer Shoupe was informed that the police had received a complaint that people were possibly selling drugs “out on Veranda (phonetic) and the Coliseum, [an area known for drug activity and burglaries] .... ” (R. 7.) According to Officer Shoupe, Officer Carr Michael was the first to arrive on the scene and called for backup. When Officer Shoupe arrived to back up Officer Michael, Officer Michael was talking to Edwards and Kendrick Campbell. Officer Shoupe testified that he did not know if the “scene was actually secured,” so he asked Officer Michael if he had conducted a patdown search on Edwards and Campbell. (R. 8.) Officer Michael told Officer Shoupe that he had not; instead, Officer Michael was “just keeping them within a distance [because] they [didn’t] seem to be a threat.” (R. 8.) When Officer Michael told Officer Shoupe that Edwards and Campbell did not seem to be a threat, Officer Shoupe said, “[W]ell, let’s make sure real quick” and conducted a patdown search of Edwards. (R. 8.)

While conducting the patdown of Edwards, Officer Shoupe felt a large bulge in Edwards’s right, front pocket. According to Officer Shoupe, based on his training and the way the bulge felt, he was of the opinion that the bulge was a bag of marijuana. At that point, Officer Shoupe asked Edwards what he had in his pocket, and Edwards admitted that it was marijuana. Thereafter, Edwards was arrested. At the conclusion of the hearing, the circuit court suppressed the marijuana.

It is well settled that warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the State establishes that the search or seizure falls within a recognized exception. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985). Exceptions to the warrant requirement include: 1) objects in plain view; 2) consensual searches; 3) a search incident to a lawful arrest; 4) hot pursuit or emergency situations; 5) probable cause coupled with exigent circumstances; and 6) an investigatory detention and frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995).

Under the United States Supreme Court’s holding in Terry 392 U.S. 1, “[p]o-lice may conduct a patdown search without a .warrant if, under the totality of the circumstances, the officer has an articula-ble, reasonable suspicion that a person is involved in criminal activity and that he is armed.” State v. Taylor, 46 So.3d 504, 508 (Ala.Crim.App.2010) (citations and quotations omitted). “To justify the investigatory stop and patdown search, the officer’s actions must not be in response ‘to his inchoate and unparticularized suspicion or “hunch,” but [must be in response] to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.’ ” Ex parte James, 797 So.2d 413, 415 (Ala.2000) (quoting Terry, 392 U.S. at 26) (emphasis omitted). Thus, “[i]f a reasonably prudent person [in the officer’s shoes with the officer’s experience and training] would believe that his safety, or the safety of others, is endangered, [the officer] may conduct a limited search of outer clothing to discover any weapons.” Taylor, 46 So.3d at 508 (citations and quotations omitted). Of course, “a police officer may intrude beyond the outer clothing of a suspect if, during the patdown, the officer ‘feels an object whose contour or mass’ gives him ‘probable cause to believe that the [object] is contraband,’ ” Ex parte James, 797 So.2d at 418, n. 1 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)).

This Court has held that “ ‘[p]robable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ ” State v. Stallworth, 645 So.2d 323, 325 (Ala.Crim.App.1994) (quoting Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App.1991)). “The level of evidence needed for a finding of probable cause is low.” State v. Johnson, 682 So.2d 385, 387 (Ala.1996). “In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act....” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). “[O]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Stone v. State, 501 So.2d 562, 565 (Ala.Crim.App.1986) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)).

Here, Officer Shoupe did not articulate facts that would support a “reasonable suspicion that [Edwards was] involved in criminal activity and that he [was] armed.” Taylor, 46 So.3d at 508 (citations and quotations omitted). Other than stating that he was responding to complaints about possible drug sales in a high-crime area, Officer Shoupe failed to provide any details that would lead a reasonable person to suspect that Edwards was involved in criminal activity. Further, Officer Shoupe did not provide any facts that would lead “a reasonably prudent person [to] believe that his safety, or the safety of others, [was] endangered-” Taylor, 46 So.3d at 508 (citations and quotations omitted). In fact, Officer Michael told Officer Shoupe that Edwards and Campbell did not seem to be a threat, and Officer Shoupe decided to conduct a patdown search to “make sure.” (R. 8.) See Ex parte James, 797 So.2d at 415 (officers may not conduct a patdown search based on nothing more than a hunch).

Because Officer Shoupe was unable to articulate facts that would create a reasonable suspicion that Edwards was involved in criminal activity or that he posed a threat to the officers, I agree with the majority that the initial search was improper under Terry and that all evidence seized following that improper search was correctly suppressed.

I would, however, stop there. The majority goes on to state that even if the initial stop were valid, the subsequent search of Edwards’s pocket was unconstitutional. I disagree. Officer Shoupe testified that during the patdown, he felt a bulge in Edwards’s pocket. Based on his training and experience, Officer Shoupe was of the opinion that the bulge was marijuana. At that point, Officer Shoupe asked Edwards what was in his pocket, and Edwards admitted that the item was marijuana. See State v. Murray, 733 So.2d 945, 949 (Ala.Crim.App.1999) (neither reasonable suspicion nor probable cause is a constitutional prerequisite for a police officer to ask questions). Clearly, Officer Shoupe’s belief, based on his training and experience, that the bulge was marijuana coupled with Edwards’s admission provided a basis ‘“sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ ” Stallworth, 645 So.2d at 325 (quoting Sheridan, 591 So.2d at 130). See also Ex parte James, 797 So.2d at 418, n. 1 (“a police officer may intrude beyond the outer clothing of a suspect if, during the patdown, the officer ‘feels an object whose contour or mass’ gives him ‘probable cause to believe that the [object] is contraband’ ” (quoting Dickerson, 508 U.S. at 375-76)). Therefore, I disagree with the majority’s conclusion that even if the initial patdown were constitutional, the evidence should still be suppressed.

Because the State failed to present sufficient evidence to establish that the initial patdown search fell within the Terry exception to the Fourth Amendment’s warrant requirement, I agree that the circuit court’s decision to suppress the marijuana found as a result of that patdown search should be affirmed. However, I do not agree with the remainder of the majority’s analysis; therefore, I concur in the result only.

      . Officer Michael did not testify.