author: BOLIN, Justice. MURDOCK, Justice

text:
    Fernando RODRIGUEZ-FLORES a/k/a Jose Edgardo Pizarro-Plaza v. U.S. COATINGS, INC.
    1120099.
    Supreme Court of Alabama.
    June 28, 2013.

      Scott W. Hunter, Daphne; and Robert E. Rone, Mobile, for appellant.
    I. David Cherniak and J. Ben Segarra of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellee.
   BOLIN, Justice.

Fernando Rodriguez-Flores a/k/a Jose Edgardo Pizarro-Plaza appeals from the order of the Mobile Circuit Court dismissing his claims alleging retaliatory discharge and fraud. We affirm in part, reverse in part, and remand.

Facts and Procedural History

Rodriguez-Flores was employed by U.S. Coatings, Inc., as a painter. He states that in “early” 2010 he suffered an injury to his right lower extremity while working in a dry dock. Rodriguez-Flores further alleges that on June 5, 2011, he became violently ill after being exposed to paint fumes and suffering from heat exhaustion. Rodriguez-Flores’s employment was terminated on June 27, 2011. Rodriguez-Flores sued U.S. Coatings on September 26, 2011, seeking to recover worker’s compensation benefits pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et. seq., Ala.Code 1975 (“the Act”); asserting a retaliatory-discharge claim pursuant to § 25-5-11.1, Ala.Code 1975; and also asserting fraud, wantonness, and tort-of-outrage claims. The first two counts of Rodriguez-Flores’s complaint sought worker’s compensation benefits for the injuries allegedly occurring in early 2010 and in June 2011. Rodriguez-Flores further alleged in his complaint:

“THIRD CAUSE OF ACTION RETALIATORY DISCHARGE
“19. On or about June 27, 2011, Defendant U.S. Coatings, Inc., wrongfully terminated [Rodriguez-Flores’s] employment because he asserted a claim for workers’ compensation benefits.
“20. Such action by [U.S. Coatings] violates the Alabama Workers’ Compensation Act, Ala.Code § 25-5-11.1 (1975).
“21. As proximate result and consequence of said conduct, [Rodriguez-Flores] has suffered substantial damage[ ], including but not limited to past, present and future lost earnings, stress and mental anguish. [Rodriguez-Flores] has also incurred substantial medical bills for the treatment of the underlying injury.
“WHEREFORE, Fernando Rodriguez-Flores, aka Jose Edgardo Pizarro-Plaza, demands judgment against U.S. Coatings, Inc., for compensatory and punitive damages in an amount in excess of the minimum jurisdictional limits of this Court, together with interest and costs of Court.
“FOURTH CAUSE OF ACTION FRAUD
“23. After [Rodriguez-Flores] made several visits to a company doctor following his leg injury in 2010, he was referred to another doctor who wanted to begin more aggressive treatments.
“24. [U.S. Coatings], through [Rodriguez-Flores’s] supervisor, Jerry (last name unknown at this time), informed [Rodriguez-Flores] that he would be feed if he continued to seek treatment for his injury. [U.S. Coatings] also told [Rodriguez-Flores] that he was not entitled to be paid for time missed from work due to his injury. Jerry further instructed [Rodriguez-Flores] to tell the doctor that his injury was healed or [Rodriguez-Flores] would be feed. Finally, Jerry told [Rodriguez-Flores] that he was not entitled to be paid for time missed from work because of the injury and that [Rodriguez-Flores] was only entitled to be paid for hours actually worked.
“25. [Rodriguez-Flores], who does not speak English and who had no reason to believe that his supervisor was being dishonest with him, reasonably relied on his supervisor’s statements and as a result discontinued his treatments and doctor visits and continued to work while in severe pain.
“26. As a direct result of his reliance on his supervisor’s statements, [Rodriguez-Flores] continued to work while in severe pain, causing him to suffer severe physical, mental, and emotional pain and anguish.
“27. As a direct and proximate result of [U.S. Coatings’] fraud, [Rodriguez-Flores] continues to suffer severe physical, mental, and emotional distress and will continue to so suffer in the future.
“28. [Rodriguez-Flores’s] supervisor made the statements to [Rodriguez-Flores] either willfully to deceive or recklessly, in order to convince [Rodriguez-Flores] to discontinue treatment for his injury.
“WHEREFORE, Fernando Rodriguez-Flores, aka Jose Edgardo Pizarro-Plaza, demands judgment against U.S. Coatings, Inc., for compensatory and punitive damages in an amount in excess of the minimum jurisdictional limits of this Court, together with interest and costs of Court.
“FIFTH CAUSE OF ACTION OUTRAGE/WANTONNESS
“30. [U.S. Coatings] was aware that [Rodriguez-Flores’s] authorized treating physician opined that [Rodriguez-Flores] suffered from a medical condition that was wholly caused by his on-the-job accident in early 2010.
“31. [U.S. Coatings] was aware that [Rodriguez-Flores’s] authorized treating physician opined that [Rodriguez-Flores] was in severe pain due to the presence of his medical condition that was wholly caused by his on-the-job accident in early 2010.
“32. Despite having the foregoing knowledge regarding [Rodriguez-Flores’s] medical condition, [U.S. Coatings] consciously disregarded [Rodriguez-Flores’s] rights while aware that harm would likely result, refused to pay [Rodriguez-Flores] temporary total or partial disability benefits, and ordered him to discontinue treatment or be fired.
“38. The constructive denial of [Rodriguez-Flores’s] request for treatment, under the foregoing circumstances, is conduct that is extreme, outrageous and intolerable in civilized society.
“34. As a direct result of the [U.S. Coatings’] refusal to grant [Rodriguez-Flores] the medical treatment to which he is entitled by Alabama law, [Rodriguez-Flores] has unnecessarily endured and will continue to endure in the future, severe bodily pain, mental anguish, and emotional distress.
“WHEREFORE, [Rodriguez-Flores] prays that the jury award compensatory damages for the damages [Rodriguez-Flores] has suffered as a result of [U.S. Coatings’] intentional, wanton and/or reckless conduct as well as punitive damages to punish [U.S. Coatings] for its intolerable conduct and to deter others from such wrongful conduct.”

On January 19, 2012, U.S. Coatings, relying upon Ex parte Bender Shipbuilding & Repair Co., 879 So.2d 577 (Ala.2003), moved the trial court to dismiss all state-law claims asserted against it, arguing that those claims were preempted by 33 U.S.C. § 905(a), a provision of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et. seq. (“the LHWCA”).

On February 8, 2012, Rodriguez-Flores filed a response in opposition to U.S. Coatings’ motion to dismiss, arguing that the decision in Ex parte Bender Shipbuilding is distinguishable from this case because, unlike the employee in Ex parte Bender Shipbuilding, Rodriguez-Flores had not sought or received benefits under the LHWCA and that the remedies he was seeking were completely within Alabama statutory and common law. Rodriguez-Flores further argued that, based upon the facts of this case, he had the option, pursuant to Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), to seek benefits under the LHWCA or under Alabama’s workers’ compensation scheme and that he has chosen to seek benefits under the Act.

On March 1, 2012, Rodriguez-Flores supplemented his response in opposition to the motion to dismiss by submitting additional argument in opposition to the motion, as well as his affidavit. Rodriguez-Flores acknowledged in his supplemental response that accidental, negligent, and reckless acts by an employer cannot justify bringing a tort claim against the employer in a state court if the basis of the tort is within the scope of the LHWCA. However, he argued that the courts have recognized an exception to the exclusive-liability provision of § 905(a), “where the injury inflicted is the result of an intentional act.” Houston v. Bechtel Assocs. Prof'l Corp. D.C., 522 F.Supp. 1094, 1096 (D.D.C.1981). He argued that the facts presented here, which, he says, indicate that U.S. Coatings intended with actual malice to harm him both physically and financially, fall within that recognized exception.

Rodriguez-Flores also argued that, given the alleged conduct of U.S. Coatings in this case, he should be allowed to pursue his retaliatory-discharge claim brought pursuant to § 25-5-11.1, Ala.Code 1975, because the relief provided him by the LHWCA is inadequate as it can result only in a small penalty being levied against U.S. Coatings, whereas he is entitled to recover punitive damages and compensation for mental anguish in a retaliatory-discharge claim brought pursuant to § 25-5-11.1.

On March 11, 2012, the trial court entered the following order:

“This matter is before the Court on the Motion of [U.S. Coatings] to Dismiss all of [Rodriguez-Flores’s] claims on the grounds that they are barred by the exclusivity provisions of the Longshore and Harbor Workers’ Compensation Act (‘LHWCA’), 33 U.S.C. Section 905(a).
“After considering the pleadings, briefs, and arguments of counsel, the Court finds that the Motion is due to be GRANTED IN PART, and DENIED IN PART.
“Counsel for [Rodriguez-Flores] concedes that his client ‘has the choice of seeking benefits from either the LHWCA or the Alabama Workers’ Compensation Act.’ However, he also argues that the injuries ‘were outside the navigable waters of the United States.’ Because the LHWCA provides at least concurrent coverage for the injuries of [Rodriguez-Flores], the Court finds that the reasoning of Ex parte Bender Shipbuilding [& Repair Co.], 879 So.2d 577 [(Ala.2003)], bars his tort claims. Because the record is not clear as to where [Rodriguez-Flores] may have been injured, the Court cannot say that the Alabama Workers’ Compensation Act does not provide concurrent coverage for his claim to worker’s compensation benefits.
“For the foregoing reasons, [U.S. Coatings’] Motion to Dismiss is GRANTED as to Count Three and Count Four of his Complaint. Its Motion to Dismiss is DENIED as to Count One and Count Two.”

(Capitalization in original.)

On August 22, 2012, U.S. Coatings moved the trial court to certify its order of March 11, 2012, as final pursuant to Rule 54(b), Ala. R. Civ. P. On August 26, 2012, the trial court entered an order certifying the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

Standard of Review

This Court has stated:

“In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.’
878 So.2d at 1148-49.”

Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005). See also Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007).

Discussion

I. The State-Law Fraud Claim

The LHWCA, as amended, establishes a comprehensive federal workers’ compensation program that provides longshoremen and their families with medical, disability, and survivor benefits for work-related injuries and death. The injured or deceased longshoreman’s employer must pay the statutory benefits regardless of fault, but is shielded from any further liability to the longshoreman or his or her estate. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994).

The history of the LHWCA as it relates to preemption and state workers’ compensation schemes has been explained as follows:

“LHWCA jurisprudence has its genesis early in this century. In Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 528-29, 61 L.Ed. 1086 (1917), the Supreme Court ruled that states’ attempts to apply their workmen’s compensation laws to maritime injuries were constitutionally impermissible, thereby establishing the so-called Jensen line, where land meets water, at which point state jurisdiction concluded. In the ensuing years, the Court softened the rigid Jensen line somewhat, allowing states to extend their compensation coverage schemes to maritime circumstances that were maritime but ‘local in character.’ See Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921). Still, many longshoremen injured on navigable water were left without a remedy. Congress responded in 1927 by enacting the LHWCA as a federal compensation law.
“With the enactment of the LHWCA, workers injured upon the navigable waters had compensation to redress their injuries. In its original version, however, the LHWCA’s coverage stopped at the shoreline, allowing compensation for injuries occurring ‘on the navigable waters,’ but only if compensation under state law was unavailable. Pub. L. No. 69-803, ch. 509, § 3(a), 44 Stat. 1424, 1426 (1927). The line of demarcation between federal and state coverage, however, was often difficult to ascertain. As a result of the ‘doubtful jurisdictional line,’ the Supreme Court, in Davis v. Department of Labor, 317 U.S. 249, 256, 63 S.Ct. 225, 229, 87 L.Ed. 246 (1942), recognized for the first time that the area surrounding the ‘doubtful’ line was a fact-sensitive ‘twilight zone,’ where ‘employees must have their rights determined case by case.’ Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), further advanced the notion of concurrent federal and state jurisdiction, holding that the LHWCA covered all injuries on the navigable waters even if a case of injury was also within the reach of state compensation laws. Id. 370 U.S. at 126-27, 82 S.Ct. at 1203-04. At this point in its jurisprudential evolution, although ‘maritime but local’ injuries fell within the twilight zone’s concurrent jurisdiction, the LHWCA’s reach still stopped at the water’s edge.
“This produced a disparity in benefits for the same type of injury, depending on which side of the water’s edge the injury occurred. Congress ameliorated this disparity in 1972 with amendments to the LHWCA’s coverage provision which extended the LHWCA landwardly. The LHWCA came ashore when its coverage provision was amended to include injuries ‘occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).’ 38 U.S.C. § 903(a). See Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, Pub. L. No. 92-576, § 2(a), 86 Stat. 1251; H.R.Rep. No. 1441, 92nd Cong., 2nd Sess., reprinted in 1972 U.S.Code Cong. & Admin. News 4698, 4707-08.
“Any doubts about the effect of the landward extension of the LHWCA on the twilight zone were retired by the Supreme Court’s latest seminal expression in the area, Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980). Five employees of Sun Ship, Inc., a shipbuilding and ship repair outfit located on the Delaware River, were injured on land and filed a claim for state workmen’s compensation benefits under the Pennsylvania Workmen’s Compensation Act. The state Appeal Board affirmed the award of benefits to the workers, but the Commonwealth of Pennsylvania challenged the benefits awards, asserting that the LHWCA was the workers’ exclusive remedy. The Supreme Court affirmed:
“ ‘Given that the pre-1972 Longshoremen’s Act ran concurrently with state remedies in the ‘maritime but local’ zone, it follows that the post-1972 expansion of the Act landward would be concurrent as well. For state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters.’
“Id. 100 S.Ct. at 2436. In other words, when the LHWCA came ashore in 1972, the twilight zone followed. Sun Ship makes crystal clear the notion that workers injured on land, yet who fall within LHWCA coverage, are within the twilight zone and may pursue federal or state compensation benefits.
“The twilight zone, therefore, is a specie of maritime law in which overlapping jurisdictional spheres create concurrent jurisdiction between the LHWCA and state laws. Currently, maritime injuries fall within three jurisdictional spheres. At the seaward extreme, the LHWCA is the exclusive remedy. For injuries occurring on land outside the jurisdictional grasp of the LHWCA, state law alone governs. In the twilight zone, however, ‘maritime but local’ injuries may be compensated by federal or state law. Id. at 2436; In re All Maine Asbestos Litigation (BIW Cases), 589 F.Supp. 1563, 1568 (D.Maine 1984) (hereinafter In re All Maine); see 1A Benedict on Admiralty § 10 (1987).”

Wallace v. Ryan-Walsh Stevedoring Co., 708 F.Supp. 144, 151-53 (E.D.Tex.1989) (footnotes omitted).

Section 904 of the LHWCA provides, in part, that “[e]very employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title” and that such compensation “shall be payable irrespective of fault as a cause for the injury.” Section 905(a) of the LHWCA provides, in part, that “[t]he liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee” and that, in such action, “the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.” The exclusivity provision of the LHWCA has been explained as follows:

“The LHWCA, at 33 U.S.C. § 905, precludes a personal injury action against any employer who complies with the LHWCA. Just as Ala.Code 1975, § 25-5-53, provides that workers’ compensation benefits are the exclusive remedy for injuries received in a work-related accident, the LHWCA provides, in 33 U.S.C. § 905(a), that an injured worker may not maintain a tort action against his employer for any negligence of the employer giving rise to the injury; the injured worker’s exclusive remedy is under the LHWCA. In International Paper Co. v. Murray, 490 So.2d 1234 (Ala.Civ.App.1985), aff'd in part, rev’d in part on other grounds, Ex parte Murray, 490 So.2d 1238 (1986), this court noted:
“ ‘The LHWCA was adopted in 1927 as a federal compensation plan for maritime workers, and was patterned after existing state workers’ compensation laws.... The LHWCA is a workmen’s compensation statute similar to our own, where employers have “relinquished their defenses to tort actions in exchange for limited and predictable liability.” ’
“490 So.2d at 1236 (quoting Morrison Knudsen Constr. Co. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 461 U.S. 624, 103 S.Ct. 2045, 76 L.Ed.2d 194 (1983)).”

Jarrell v. Bender Shipbuilding & Repair Co., 681 So.2d 1092, 1094 (Ala.Civ.App.1996). Thus, employers enjoy immunity from tort claims under the LHWCA as they do under the Act. Jones v. Halliburton Co., 791 F.Supp.2d 567, 582 (S.D.Tex.2011) (noting that the “exclusivity provision of LHWCA ‘completely obliterates the rights at common, civil or maritime law against Employer and fellow employee’” and that “ ‘an employer that secures insurance coverage for its employees as required by the [Defense Base Act, 2 U.S.C. § 151 et seq.,] is entitled to immunity under the LHWCA’”); Ex parte Shelby Cnty. Health Care Auth., 850 So.2d 332, 338 (Ala.2002) (stating that the Act provides immunity from common lawsuits for those employers and carriers who come within the Act and makes it clear that the Act is an exclusive remedy only in situations where an employee is suing his employer for injuries sustained in the course of his employment). This immunity is extended by the LHWCA to include co-employee actions. § 933(i); Perron v. Bell Maint. & Fabricators, Inc., 970 F.2d 1409 (5th Cir.1992). Although § 25-5-ll(b), Ala.Code 1975, allows for co-employee suits in certain limited circumstances involving willful conduct, this Court has held that such suits are barred by the exclusivity provisions of the LHWCA where the accident falls within the twilight zone of concurrent jurisdiction and the scope of the LHWCA. Fillinger v. Foster, 448 So.2d 321 (Ala.1984).

Some courts have recognized an exception to the exclusivity provision of the LHWCA where the employer has committed an intentional tort. Fisher v. Halliburton, 667 F.3d 602 (5th Cir.2012). However, these “cases take a very narrow view of the types of intentional injury that lie outside of the LHWCA — the cases consistently require that the employer have had a specific intent or desire that the injury occur.” Id. at 618. See Sample v. Johnson, 771 F.2d 1335, 1346 (9th Cir.1985); Roy v. Bethlehem Steel Corp., 838 F.Supp. 312, 316 (E.D.Tex.1993) (“The employer can be sued under LHWCA, however, if he committed an intentional tort, i.e., genuine, intentional injury.”); Houston v. Bechtel Assocs. Prof'l Corp., D.C., 522 F.Supp. at 1096 (observing that “[t]he courts have ... carved out an exception to exclusive liability provisions where the injury inflicted is the result of an intentional act”); Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D.Me.1981) (“Nothing short of a specific intent to injure the employee falls outside the scope of the [LHWCA].”); Sharp v. Elkins, 616 F.Supp. 1561 (D.La.1985); and Rustin v. District of Columbia, 491 A.2d 496, 501 (D.C.1985) (observing that the exclusivity provision of the LHWCA “does not reach actions where the employer specifically intended to injure the employee”).

Although Rodriguez-Flores acknowledges in his brief that the scope of the exception to the exclusivity provision of the LHWCA is exceedingly narrow, he nevertheless argues that his fraud claim falls within the exception. We disagree. In Ex parte Bender Shipbuilding, supra, the employee was injured during the course of his employment as a shipfitter at the employer’s shipyard and as such his claim was subject to the concurrent jurisdiction of the LHWCA and the Act. The employee was paid benefits under the LHWCA. The employee then sued his employer asserting a fraud claim based on the employee’s allegations that he was entitled to be offered light-duty work after he was released to return to work following his injury but that the employer had falsely represented to him that it had no light-duty work available. The employee alleged that he suffered monetary losses and mental anguish as the result of his employer’s alleged fraud. The employer moved the trial court for a summary judgment, arguing that the employee’s fraud claim was barred by the exclusivity provision found in § 905(a) of the LHWCA and that, although some courts had recognized an intentional-tort exception to the LHWCA’s exclusivity provision if the employer had specifically intended to injure the employee, there had been no allegation or evidence presented in the case that the employer had specifically intended to injure the employee. The case proceeded to trial, and the jury returned a verdict in favor of the employee for $40,000.

On appeal to the Court of Civil Appeals, the employer again argued that the employee’s claims were preempted by the LHWCA. However, the Court of Civil Appeals rejected that argument, stating:

“The LHWCA did not require [the employer] to provide light-duty work to [the employee] as part of his ‘compensation,’ and it did not provide [the employee] with any redress for [the employer’s] alleged fraud in denying him light-duty work. See generally 33 U.S.C. § 901 et seq. The mere fact that [the employee] could not claim [the employer’s] light-duty-work benefit unless [the employer] was also responsible for paying his LHWCA compensation did not convert the light-duty-work benefit into ‘compensation’ due under the LHWCA. Thus, [the employer’s] argument that [the employee’s] claim is simply a claim for the mishandling or denial of benefits due under the LHWCA is without merit....
“Unlike the claims in [the cases] relied upon by [the employer], the state-law claim submitted to the jury in the present case was not a claim for an alleged improper handling or denial of benefits due under the LHWCA. As noted, [the employer] eventually paid all compensation and medical benefits due [the employee] under the Act, as well as all related penalties due under the Act, and [the employee] dismissed his claims pertaining to [the employer’s] initial denial of those benefits.
“[The employee’s] claim that was submitted to the jury was based upon an alleged intentional misrepresentation that there was no light-duty work available during the period of [the employee’s] temporary disability. Any obligation to provide [the employee] with such light-duty work in the first place, and therefore any duty to avoid misrepresenting the availability of such work, arose outside of the LHWCA. It arose because [the employer] undertook to provide such work and the full compensation benefits associated therewith as an additional benefit to its employees. Providing such work was not a benefit required by the LHWCA.”

Bender Shipbuilding & Repair Co. v. Walley, 879 So.2d 568, 576-77 (Ala.Civ.App.2002).

On certiorari review, this Court explained:

“[A]n employer charged pursuant to the LHWCA with compensating an injured employee may provide light-duty work for an injured employee in certain circumstances and thereby avoid the obligation to pay that employee temporary total disability benefits that might otherwise apply. If the employer is not able to establish that suitable alternate employment is available, either in its own facility or elsewhere, then the LHWCA obligates the employer to pay disability benefits to the employee. See Manigault v. Stevens Shipping Co., 22 BRBS 332 (1989) ...
“... [T]he availability of a light-duty-work program, while not mandated by the LHWCA, is an economic benefit an employer can offer its employees in lieu of its obligation to pay temporary total disability benefits. Although the LHWCA does not require that such a benefit be provided, claims regarding the mishandling of an economic benefit such as light-duty work, made available to an employee as the employer’s alternative means of complying with the LHWCA, would arise under the LHWCA.”

Ex parte Bender Shipbuilding & Repair Co., 879 So.2d 577, 583 (Ala.2003).

This Court further determined that the employee’s claim was in essence a claim alleging that the employer had, “intentionally or in bad faith, refused to award a benefit to him and, in so doing, [had] intentionally inflicted emotional distress,” 879 So.2d at 584, and determined that that claim was barred by the exclusivity provision of the LHWCA. This Court stated:

“Most federal courts that have examined the question whether an employee’s state-law claims alleging intentional or bad-faith refusal to pay LHWCA compensation, wrongful termination of LHWCA benefits, or the intentional infliction of emotional distress as a result of failure to pay or the termination of LHWCA benefits have concluded that such claims are preempted by the LHWCA. See, e.g., Barnard v. Zapata Haynie Corp., 975 F.2d 919, 920 (1st Cir.1992) (holding that the plaintiffs claim for the employer’s intentional infliction of emotional distress in failing to pay benefits was preempted by the LHWCA and that the LHWCA is the ‘exclusive remedy for [an employer’s] failure to make timely [compensation] payments, irrespective of [the employer’s] reasons for nonpayment’); Atkin son v. Gates, McDonald & Co., 838 F.2d 808, 812 (5th Cir.1988) (holding that a state-law cause of action addressed by the LHWCA is preempted and that ‘the LHWCA is plainly preemptive of any state law claim for intentional or bad faith wrongful refusal to pay benefits due under the [LHWCA]’); Texas Employers’ Ins. Ass’n v. Jackson, 820 F.2d 1406 (5th Cir.1987), rev’d on other grounds, 862 F.2d 491 (5th Cir.1988) (en banc); Hall v. C & P Tel. Co., 809 F.2d 924 (D.C.Cir.1987) (claims alleging intentional infliction of emotional distress in bad-faith refusal to make timely compensation payments fall within the exclusivity provisions of the LHWCA); Sample v. Johnson, 771 F.2d 1335 (9th Cir.1985) (claims for wrongful refusal to pay or delay in paying LHWCA benefits are preempted by the LHWCA).
“In Jackson, a panel of the United States Court of Appeals for the Fifth Circuit concluded that the employee’s bad-faith claims brought under Texas law were preempted by the LHWCA. Jackson had sued his employer’s LHWCA insurance carrier in state court, alleging bad-faith insurance practices on the part of the carrier. The Jackson court explained that federal law preempts state law in three circumstances: first, when Congress explicitly expresses its intent to preempt state law; second, when Congress’s intent to displace state law can be inferred through the comprehensiveness or pervasiveness of the federal regulatory scheme; and third, when state law conflicts with federal law or interferes with the accomplishment and execution of Congress’s purpose. 820 F.2d at 1411. The panel then concluded that the LHWCA preempted the state law invoked by Jackson in all three circumstances. Id. That portion of the panel’s decision was affirmed by the Fifth Circuit sitting en banc, although the en banc court reversed the decision on other grounds. See 862 F.2d at 496 n. 7.
“In Atkinson, the Fifth Circuit noted that ‘a majority of courts have held that workers’ compensation statutes, particularly where they address the subject of delayed or withheld compensation benefits, provide the exclusive remedy in that respect.’ 838 F.2d at 813. The Fifth Circuit then quoted the following from 2A Larson, Workmen’s Compensation Law § 68.34(c), 13-145 to -146 (1987):
“ ‘ “It seems clear that a compensation claimant cannot transform a simple delay in payments into an actionable tort by merely invoking the magic words ‘fraudulent, deceitful and intentional’ or ‘intentional infliction of emotional distress’ or ‘outrageous’ conduct in his complaint. The temptation to shatter the exclusiveness principle by reaching for the tort weapon whenever there is a delay in payments or a termination of treatment is all too obvious, and awareness of this possibility has undoubtedly been one reason for the reluctance of courts to recognize this tort except in cases of egregious cruelty or venality.
“ ‘ “One final factor may be noted that has figured in many of these cases: the presence in the statute of an administrative penalty for the very conduct on which the tort suit is based. A majority of the courts have taken the view that this evidences a legislative intent that the remedy for delay in payments, even vexatious delay, shall remain within the system in the form of some kind of penalty.”’
838 F.2d at 814.”

Ex parte Bender Shipbuilding, 879 So.2d at 584-85.

Rodriguez-FIores alleged that U.S. Coatings, through its employee, fraudulently represented to him that “he would be fired if he continued to seek treatment for his injury,” “that he was not entitled to be paid for time missed from work due to his injury,” and “that he was not entitled to be paid for time missed from work because of the injury and that [he] was only entitled to be paid for hours actually worked”; that he was directed to “tell the doctor that his injury was healed or [he] would be fired”; and that he reasonably relied on those representations that proximately resulted in his suffering severe physical, mental, and emotional pain and anguish. These allegations are in the nature of an intentional or bad-faith refusal to provide benefits and/or a wrongful termination of benefits similar to the fraud claim asserted in Ex parte Bender. Rodriguez-FIores has not alleged a specific intent on the part of U.S. Coatings to injure him, which is required in order to fall within the recognized exception to the exclusivity provision of the LHWCA. Based on the foregoing, Rodriguez-Flores’s state-law fraud claim is barred by both the exclusivity provision of the LHWCA and the Act. Accordingly, the trial court did not err in dismissing the fraud claim.

II. Retaliatory-Discharge Claim

Rodriguez-FIores argues that the trial court erred in determining that his retaliatory-discharge claim, brought pursuant to § 25-5-11.1, Ala.Code 1975, was preempted by § 905(a) of the LHWCA. Specifically, Rodriguez-FIores has argued that the relief provided by the LHWCA for a retaliatory discharge is not concurrent with and is inadequate to the relief provided by § 25-5-11.1. U.S. Coatings contends that the retaliatory-discharge claim is in the nature of a tort claim and is also precluded by § 905(a) of the LHWCA. Section 25-5-11.1 provides, in part:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter....”

A retaliatory-discharge claim filed pursuant to § 25-5-11.1 is in the nature of a traditional tort claim, Jackson Cnty. Hosp. v. Alabama Hosp. Ass’n Trust, 619 So.2d 1369, 1371 (Ala.1993), and a plaintiff is entitled to recover both compensatory and punitive damages on a claim alleging a retaliatory discharge pursuant to § 25-5-11.1. See AutoZone, Inc. v. Leonard, 812 So.2d 1179 (Ala.2001).

Section 948a of the LHWCA provides:

“It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter.... Any employer who violates this section shall be liable to a penalty of not less than $1,000 or more than $5,000, as may be determined by the deputy commissioner. All such penalties shall be paid to the deputy commissioner for deposit in the special fund as described in section 944 of this title, and if not paid may be recovered in a civil action brought in the appropriate United States district court. Any employee so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of such discrimination: Provided, That if such employee shall cease to be qualified to perform the duties of his employment, he shall not be entitled to such restoration and compensation. The employer alone and not his carrier shall be liable for such penalties and payments. Any provision in an insurance policy undertaking to relieve the employer from the liability for such penalties and payments shall be void.”

In Fillinger, supra, the employee, who was working as a “shipfítter” at a land-based operation and within the scope of the LHWCA, was injured during the course of his employment. Although eligible to do so, the employee did not seek benefits under the LHWCA, choosing rather to seek state workers’ compensation benefits pursuant to the Act. The employee also sued a co-employee pursuant to § 25 — 5—11(b), alleging that the co-employee negligently provided him with an unreasonably dangerous tool that resulted in his being injured. The co-employee raised § 933(i) of the LHWCA as a defense to the negligence claim. Section 933(i) provides, in part:

“The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured ... by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.”

The case proceeded to trial, and the jury returned a verdict in favor of the injured employee. The co-employee appealed the judgment, arguing that co-employee suits brought in state courts for damages are barred when the alleged injury falls within the scope of the LHWCA. The injured employee contended that in a “case of land-based maritime injury, concurrent jurisdiction exists between federal and state remedies and that the plaintiff is not barred by the LHWCA unless he elects to pursue remedies under the LHWCA.” Fillinger, 448 So.2d at 323. This Court explained the parties’ argument as follows:

“[The co-employee] strongly argues that, as a matter of federal law, specifically 33 U.S.C. § 933(i), the [injured employee] was prevented from maintaining a co-employee damage suit. [The co-employee’s] argument is based upon the proposition that to allow a co-employee suit by a covered maritime employee when the federal statute specifically prohibits such suits would be to create the ‘type of federal-state conflict in which, under long established principles of federal pre-emption, pre-emption of state law is required.’
“[The injured employee] contends that in a case of a land-based maritime injury, concurrent jurisdiction exists between federal and state remedies. In fact, [the injured employee] contends that the U.S. Supreme Court in Sun Ship[, Inc. v. Pennsylvania, 447 U.S. 715 (1980)], has held that the LHWCA does not preclude concurrent state jurisdiction under a state workmen’s compensation act in a case involving a harbor worker injured on land. [The injured employee] states that this was the sole issue in Sun Ship, supra, as is apparent from the opinion, and that the issue was decided in his favor. The Court, in Sun Ship, supra, opined:
“ ‘The single question presented by these consolidated cases is whether a State may apply its workers’ compensation scheme to land-based injuries that fall within the coverage of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), as amended in 1972. 33 U.S.C. §§ 901-950. We hold that it may.’
“Sun Ship, supra, 447 U.S. at 716, 100 S.Ct. at 2434.
“[The co-employee] counters that ‘a distinction should be observed between the pre-emption of co-employee negli-genee actions for damages and the area in which some degree of overlap between the Longshoremen’s and Harbor Workers’ Compensation Act and the Alabama Workers’ Compensation Act is permitted.’
“[The co-employee] argues that ‘a careful reading of the Sun Ship decision indicates that the only permissible concurrent jurisdiction between federal and state compensation laws is concurrent application of “compensation benefit” levels.’ He says ‘That is, “workers who commence their actions under state law will generally be able to make up the difference between state and federal benefit levels.” ’ (Emphasis in [original] ).
“[The co-employee] argues:
“ ‘The difference between benefit levels, however, refers to the schedule of compensation benefits, for example, for injuries to limbs, disfigurement and other categories in which weekly or biweekly benefit awards are made. This is something wholly different from the situation presented here, involving an action for damages, in which there is a clear conflict between the federal statute prohibiting co-employee damage suits and the state common law of Alabama which allows it.’ ”

Fillinger, 448 So.2d at 324-25.

In determining that the negligence claim was barred by the exclusivity provision of the LHWCA, this Court stated:

‘We are sensitive to the statement made in Sun Ship, supra, that a state may apply its workers’ compensation scheme to land-based injuries that fall within the coverage of the LHWCA, but we believe the concurrent jurisdiction for pursuit of benefits under a state’s workmen’s compensation scheme does not include common law suits for damages against co-employees.
“We are of the opinion that the LHWCA and the law of Alabama are in serious conflict as to the maintenance of co-employee suits, and because that is the case, we hold that federal law will pre-empt state law. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 [(1963)]; Howard v. Uniroyal, Inc., 543 F.Supp. 490 (M.D.Ala.1981); Ex parte Alabama Oxygen Co., Inc., [433 So.2d 1158 (Ala.1983)]. If the ‘enforcement of state law “presents a serious danger of conflict with the administration of the federal program ... ” ’ the federal law must take precedence. Uniroyal, supra at 492. We can perceive no greater conflict than that which would be presented if we allowed this employee to sue his co-employee because he was a land-based maritime worker, and a maritime worker injured on a navigable waterway would be precluded from maintaining such a suit; therefore, we are persuaded to hold that the exclusivity provisions of 33 U.S.C. § 933(i) apply and that the state action was barred.”

Fillinger, 448 So.2d at 326. See also Hill v. Knapp, 396 Md. 700, 914 A.2d 1193 (2007). Thus, this Court’s analysis and holding in Fillinger supports the conclusion that in the context of concurrent jurisdiction, i.e., the twilight zone of coverage, a remedy provided for in a state workers’ compensation scheme would be preempted where that remedy is expressly excluded by a provision of the LHWCA. See also Hill, supra.

Fillinger differs from this case in that Fillinger involved a remedy provided for by the Act that was expressly precluded by a provision of the LHWCA. Here, both the LHWCA and the Act prohibit retaliatory discharge and provide remedies when a retaliatory discharge has occurred. The distinction between the two comes only in the remedies available, not in an express prohibition of the cause of action by the federal act. In the case of the LHWCA, an employee is entitled to be restored to his employment and to be compensated for lost wages. Additionally, the employer is subject to a nominal penalty payable to a special fund administered under the LHWCA. 33 U.S.C. § 948(a). Under the Act, an employee may bring a retaliatory-discharge action and, if successful, may recover both compensatory and punitive damages. AutoZone, supra. We must determine whether this discrepancy in the remedies available for an alleged retaliatory discharge under the Act and under the LHWCA cause the Act to be preempted by the LHWCA.

A state law may be preempted by federal law where the state law is in actual conflict with the federal law. MPI Acquisition, LLC v. Northcutt, 14 So.3d 126 (Ala.2009). This “conflict preemption” occurs in two situations: (1) “ ‘where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce’”; or (2) “when, ‘under the circumstances of [a] particular case, [state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Wyeth v. Levine, 555 U.S. 555, 589, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009)(Justice Thomas concurring in the judgment) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), and Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). We deal here with the second situation.

The Supreme Court has explained the purpose and intent of the 1972 amendments, which brought land-based maritime injuries within the fold of the LHWCA, as follows:

“As the Reports make clear, the disparities which Congress had in view in amending the LHWCA lay primarily in the paucity of relief under state compensation laws. The thrust of the amendments was to ‘upgrade the benefits.’ S.Rep. No. 92-1125, supra, at 1 [(1972)]; see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261-262 (1977). Concurrent jurisdiction for state and federal compensation laws is in no way inconsistent with this policy of raising awards to a federal minimum. When laborers file claims under the LHWCA, they are compensated under federal standards. And workers who commence their actions under state law will generally be able to make up the difference between state and federal benefit levels by seeking relief under the [LHWCA] if the latter applies.
“To be sure, if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers’ injuries than under an exclusively federal compensation system. But we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits. Rather, it seems that the quid pro quo to the employers for the landward extension of the LHWCA by the 1972 amendments was simply abolition of the longshoremen’s unseaworthiness remedy. See S.Rep. No. 92-1125, supra, at 4-5; H-R.Rep. No. 92-1141, supra, at 1 [(1972)], U.S. Code Cong. & Admin. News 1972, at 4698; Northeast Marine Terminal Co. v. Caputo, supra, at 261-262. Indeed, it is noteworthy that in their discussion of advantages to employers under the 1972 amendments, the bill Reports dwell upon the rejection of the unseaworthiness action, and do not mention pre-emption of state remedies. See S.Rep. No. 92-1125, supra, at 4-5; H.R.Rep. No. 92-1441, supra, at 1, U.S. Code Cong. & Admin. News 1972, at 4698.”

Sun Ship, 447 U.S. at 723-25. The Supreme Court has stated that “the 1972 extension of federal jurisdiction [to include land-based maritime injuries] supplements, rather than supplants, state compensation law” and that the “language of the 1972 amendments cannot be fairly understood as pre-empting state workers’ remedies from the field of the LHWCA.” Id. at 720.

Unlike the situation in Fillinger where the LHWCA expressly precluded co-employee negligence actions while the Act permitted them, both the LHWCA and the Act prohibit a retaliatory discharge when an employee has sought benefits under the respective acts. Although an aggrieved employee may recover different damages under the respective acts, we cannot say that § 25-5-11.1 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” MPI Acquisition, 14 So.3d at 128, in expanding the LHWCA to include land-based maritime injuries as explained by the Supreme Court in Sun Ship. See also Wallace, supra (holding that a retaliatory-discharge claim brought pursuant to Texas workers’ compensation act, for which compensatory and punitive damages were recoverable, did not conflict with the LHWCA and was not preempted). Based on the foregoing, we conclude that Rodriguez-Flores’s retaliatory-discharge claim brought pursuant to § 25-5-11.1 did not conflict with the LHWCA and, therefore, was not preempted by the LHWCA. Accordingly, the trial court erred in dismissing the retaliatory-discharge claim.

Conclusion

The trial court’s judgment is affirmed insofar as it dismisses the fraud claim. The trial court’s judgment is reversed insofar as it dismissed the retaliatory-discharge claim, and the case is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I concur in the result. I do so because of questions I have with respect to certain federal and state precedents upon which the main opinion relies. Fernando Rodriguez-Flores makes no challenge in the present case, however, to the applicability or validity of those precedents. Moreover, with respect to Rodriguez-Flores’s fraud claim under state law, Rodriguez-Flores does not argue that this claim is not preempted by the LHWCA and the applicability of the “very narrow” exception to the exclusivity rule recognized by some federal courts with respect to intentional acts by employers.

      . The trial court’s judgment failed to dispose of the tort-of-outrage and wantonness claims. The tort-of-outrage claim appears to be so closely intertwined with the fraud claim as to make certification of the fraud claim pursuant to Rule 54(b), Ala. R. Civ. P., inappropriate. See Stephens v. Fines Recycling, Inc., 84 So.3d 867 (Ala.2011). Accordingly, this Court, on May 3, 2013, remanded the cause to the trial court to make the order of August 26, 2012, a final judgment pursuant to Rule 54(b), Ala. Civ. P., by ruling on count 5, the tort-of-outrage/wantonness claim, and entering an amended Rule 54(b) order. The trial court entered an order on May 8, 2013, complying with this Court's order on remand. Rodriguez-Flores did not appeal as to the tort-of-outrage/wantonness claim, and, accordingly, that claim is not before this Court on appeal.

      . An employee’s coverage under the LHWCA is determined under a two-pronged test composed of a "status” requirement and a "situs” requirement. Director, Office of Workers' Compensation Programs v. Perini North River Assocs., 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983). The status prong is satisfied if the employee was “engaged in maritime employment” at the time of his injury. 33 U.S.C. § 902(3). Section 902(3) defines "employee” as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker....” The situs prong is met if the employee’s injury occurred “upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).” 33 U.S.C. § 903(a). The parties do not dispute that Rodriguez-Flores would qualify for coverage under the LHWCA.

      . This Court has stated:
      " ‘Federal law may pre-empt state law in any of three ways. First, in enacting the federal law, Congress may explicitly define the extent to which it intends to pre-empt state law. E.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-96 (1983). Second, even in the absence of express pre-emptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the States must leave all regulatory activity in that area to the Federal Government. E.g., Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Finally, if Congress has not displaced state regulation entirely, it may nonetheless pre-empt state law to the extent that the state law actually conflicts with federal law. Such a conflict arises when compliance with both state and federal law is impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). See also Fidelity Federal Savings & Loan Assn., supra, 458 U.S., at 153.' "

        MPI Acquisition, LLC v. Northcutt, 14 So.3d 126, 128 (Ala.2009) (quoting Michigan Canners & Freezers Ass'n v. Agricultural Marketing & Bargaining Bd., 467 U.S. 461, 469, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984)). There is no express preemption clause in the LHWCA regarding retaliatory-discharge claims. Further, the United States Supreme Court has determined that the language of the 1972 amendments to the LHWCA express no intent on behalf of Congress to preempt any state remedies regarding events occurring within the "twilight zone” of coverage. Sun Ship, supra.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    C.M. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2111147.
    Court of Civil Appeals of Alabama.
    Feb. 8, 2013.
    Rehearing Denied March 29, 2013.
    Certiorari Denied June 21, 2013 Alabama Supreme Court 1120811.

      J. Brent Beal and Ronald W. Smith of Abies, Baxter, Parker & Smith, P.C., Huntsville, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua J. Lane, asst. atty. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

C.M. (“the mother”) appeals from judgments of the Madison Juvenile Court terminating her parental rights to her four children: R.L., whose date of birth is May 9, 1999; R.M., whose date of birth is May 26, 2004; T.M., whose date of birth is December 15, 2005; and A.M., whose date of birth is January 20, 2009. On appeal, the mother argues that the judgments terminating her parental rights are void because, she says, the juvenile court lacked personal jurisdiction over her.

On October 20, 2011, the Madison County Department of Human Resources (“DHR”) petitioned to terminate the mother’s parental rights. The juvenile court set the matter for trial on February 21, 2012. On February 17, 2012, the mother’s appointed counsel moved to continue the hearing because the parents had not been served. The juvenile court reset the trial date, and DHR moved the juvenile court to allow service of process by publication. DHR attached to its motion the affidavit of DHR caseworker Wanda Savage, who averred that the mother “avoids service and/or has been absent from her residence for more than thirty days since the filing of the petition and her present location is unknown ... and cannot with reasonable diligence be ascertained.” On March 9, 2012, the juvenile court entered an order approving service by publication.

On March 21, 2012, the mother’s appointed attorney entered a notice of appearance as counsel for the mother, requesting that he be served with all notices and pleadings in the case. One week later, the mother’s counsel filed a “notice of non-waiver of service,” stating as follows:

“1. Counsel was informed that the Madison County Department of Human Resources has filed a Petition for Termination of Parental Rights in the above styled matter.
“2. Attorney filed a notice of appearance in order to ensure that all future pleadings and orders of the court be properly forwarded to the attorney.
“3. The notice of appearance filed by the attorney was not intended as a waiver of service of the petition on the mother, [C.M.].
“4. Accordingly, attorney informs the court that the mother does not waive service of process in this cause. Upon being served, the mother will file an appropriate answer.
“Wherefore, the premises considered, attorney prays that this Honorable court will take notice that the mother does not waive service of process in the above-styled case. In the event that this Notice of Non-Waiver of Service is not sufficient to preserve the mother’s rights relating to service, attorney respectfully requests the court to advise so that appropriate filings to protect the mother’s rights can be facilitated. Attorney further prays for any other such alternative form of relief deemed necessary and proper in order to effectuate a fair and equitable outcome in this cause.”

Notice of the termination-of-parental-rights petition was published in The Huntsville Times for four consecutive weeks beginning on May 4, 2012. On June 20, 2012, the mother’s counsel filed an objection to DHR’s February 27, 2012, motion for service by publication.

The termination action was tried on June 25, 2012. The mother personally appeared, along with her appointed counsel. In response to the juvenile court’s inquiry as to whether there were any preliminary matters to be addressed, the mother’s attorney moved to strike the court reports that would be offered by DHR, moved to strike the factual averments in an earlier motion filed by DHR, and moved the juvenile-court judge to recuse herself. Counsel then renewed his objection to the affidavit in support of the motion for service by publication, asserting that the affidavit had failed to set out any facts indicating that the mother was avoiding service and stating that the mother did “not waive service by the proper method as set out in [Rule] 4.3[, Ala. R. Civ. P.].” The juvenile court denied all the mother’s motions and, with respect to the last motion, stated that any defects in service were cured by the mother’s presence at trial. The mother did not testify or present any witnesses or other evidence. The mother’s counsel cross-examined DHR’s witness and moved for a “directed verdict” at the close of the evidence. The juvenile court denied that motion and, at the conclusion of the trial, announced its ruling from the bench:

“The court having found the four children that are the subject of this proceeding to be dependent children, the court hereby grants custody to the Alabama Department of Human Resources and the State of Alabama for purpose of adoptive placement.”

The juvenile court memorialized its ruling in judgments entered in favor of DHR on August 9, 2012, in each case. The mother filed a timely notice of appeal to this court on August 22, 2012. The juvenile court certified the record as adequate pursuant to Rule 28(A), Ala. R. Juv. P.

Section § 12-15-318, Ala.Code 1975, rather than Rule 4.8, Ala. R. Civ. P., governs the procedure for service by publication in a termination-of-parental-rights case. See L.K. v. Lee Cnty. Dep’t of Human Res., 64 So.3d 1112, 1114 (Ala.Civ.App.2010). Section 12-15-318 provides:

“(a) Except as otherwise provided by the Alabama Rules of Juvenile Procedure and this section, service of process of termination of parental rights actions shall be made in accordance with the Alabama Rules of Civil Procedure.
“(b) If service of process has not been completed within 90 days of the filing of the termination of parental rights petition, the petitioner shall request service by publication.
“(c) Service of process by publication may not be ordered by the juvenile court unless the following conditions are met:
“(1) The child who is the subject of the proceedings was abandoned in the state.
“(2) The state or private department or agency having custody of the child has established, by evidence presented to the juvenile court, that the absent parent or parents are avoiding service of process or their whereabouts are unknown and cannot be ascertained with reasonable diligence.
“(d) Service shall be made by publication in a newspaper of general circulation in the county of the juvenile court having jurisdiction and in the county of the last known address of the parent or parents of the abandoned child, at least once a week for four consecutive weeks.”

Savage’s affidavit did not allege that the children had been abandoned in the state. Nor does the record demonstrate that the juvenile court, before it ordered service by publication, was presented with any evidence indicating that the children had been abandoned, that the mother was avoiding service, or that DHR had used reasonable diligence to ascertain the mother’s whereabouts.

“Section 12-15-318(c) clearly provides that two conditions must be satisfied in order for a juvenile court to grant a motion to serve a parent by publication in a termination-of-parental-rights case. First, the juvenile court must find that the child has been abandoned in this state. Second, the juvenile court must find, based on evidence presented to it by DHR or by any other person having legal custody of the abandoned child, ‘that the absent parent or parents are avoiding service of process or their whereabouts are unknown and cannot be ascertained with reasonable diligence.’ § 12-15-318(c)(2). If those conditions are met, the juvenile court can then order service by publication as set out in § 12-15-318(d).”

L.K., 64 So.3d at 1114-15.

On March 21, 2012, the mother’s appointed counsel filed a notice of appearance. In Simmons v. Simmons, 99 So.3d 316, 320 (Ala.Civ.App.2011), this court held that “[an attorney’s] filing a notice of appearance on behalf of [his or her client] constitute[s] a waiver of service of process by [the client].” On March 28, 2012, the mother’s counsel attempted to “amend” the notice of appearance to disavow any waiver of service of process, but a notice of appearance is not a “pleading,” see Rule 7(a), Ala. R. Civ. P., to which the exception to waiver of the defense of insufficiency of service of process outlined in Rule 12(h)(1), Ala. R. Civ. P., for “amended pleadings” is applicable. Cf. D.M.T.J.W.D. v. Lee Cnty. Dep’t of Human Res., 109 So.3d 1133, 1140 (Ala.Civ.App.2012) (holding that mother “did not waive the defense of lack of personal jurisdiction by failing to raise it in her first responsive pleading, i.e., her answer to DHR’s ... petition to terminate her parental rights” because “the mother sought leave to amend her answer to include the defense of lack of personal jurisdiction, ... DHR did not object to that motion, and ... the juvenile court allowed the mother to amend her answer”).

Finally, even assuming that counsel’s notice of appearance could be amended to disavow the previous waiver of service, the mother waived the defense of lack of personal jurisdiction when she appeared with her counsel at the termination-of-parental-rights trial on June 25, 2012, and participated in the trial proceedings by moving to strike certain evidence, by cross-examining DHR’s witness, and by moving for a judgment on partial findings. See supra note 2. “ ‘[I]f a defendant intends to rely on want of jurisdiction over his person, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court. An appearance for any other purpose is usually considered general.’ ” R.M. v. Elmore Cnty. Dep’t of Human Res., 75 So.3d 1195, 1200 (Ala.Civ.App.2011) (quoting Persons v. Summers, 274 Ala. 673, 681, 151 So.2d 210, 215 (1963)) (emphasis added).

The juvenile court properly exercised personal jurisdiction over C.M. Its judgments are affirmed.

AFFIRMED.

THOMAS and DONALDSON, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

      . DHR also petitioned to terminate the parental rights of A.B., the father of the oldest child, R.L., and of S.M., the father of the other three children — R.M., T.M., and A.M. Neither man participated in the termination proceedings, and neither has appealed

      . Because this action was tried before the court without a jury, the motion is properly considered one for a judgment on partial findings, pursuant to Rule 52(c), Ala. R. Civ. P., and Rule 1(a), Ala. R. Juv. P.


author: PER CURIAM.

text:
    Danny L. SMITH v. Brandi M. SMITH. Ex parte Danny L. Smith. (In re Brandi M. Smith v. Danny L. Smith).
    2120466 and 2120491.
    Court of Civil Appeals of Alabama.
    June 21, 2013.

      Danny L. Smith, pro se.
   PER CURIAM.

Danny L. Smith (“the former husband”), an incarcerated inmate in the Alabama correctional system and a registered sex offender, seeks review, via both appeal and a petition for a writ of mandamus, of an order entered by the Etowah Circuit Court denying his motion, filed pursuant to Rule 60(b), Ala. R. Civ. P. In that Rule 60(b) motion, Smith sought relief from a judgment entered by that court in September 2006 that had granted relief sought by Brandi M. Smith (“the former wife”) in a protection-from-abuse (“PFA”) proceeding. We deny the former husband’s mandamus petition; we affirm as to the former husband’s appeal.

These are the second and third appellate proceedings involving these parties; in Smith v. Smith (No. 2081148, March 5, 2010), 75 So.3d 709 (Ala.Civ.App.2010) (table), we affirmed a judgment of the trial court denying a motion filed by the former husband seeking relief from a judgment divorcing the parties. The record transmitted to this court in that case, of which we have taken judicial notice (see, e.g., Ex parte Hacker, 250 Ala. 64, 77, 38 So.2d 324, 337 (1948)), reveals that the parties married in February 2006, when the former wife was 16 years old and the former husband was 49 years old. In September 2006, after the former husband had been incarcerated and three weeks following the birth of the parties’ child, the former wife filed a petition for protection from abuse in the trial court (case no. DR-06-822.90); she alleged that the former husband had punched her in the stomach during her pregnancy and that he had dragged her by her hair for a distance of 12 feet, in addition to making other threats of violence. The trial court entered a temporary order granting the petition on September 11, 2006, and set the case for a further hearing. Although no further order or judgment in that proceeding appeared in the record in the previous appeal involving these parties, a supplemental record transmitted to this court in the present case reveals that a judgment in the PFA proceeding was entered, after notice to the former husband and a hearing, on September 27, 2006; that judgment provided, in pertinent part, that the former husband was enjoined from committing or threatening to commit further acts of abuse against the former wife or their child, that he was prohibited from communications with the former wife or the child, that he was directed to stay away from places frequented by the former wife and the child, that the former wife was to have temporary custody of the child, and that the former husband was to have no visitation with the child. Consistent with former law governing PFA orders and judgments, the trial court’s September 27, 2006, judgment in the PFA proceeding also specified that it was “effective for a period of 12 months.” Compare former Ala.Code 1975, § 30-5-7(e)(1) (portion of Alabama Protection from Abuse Act in effect before 2010 amendments that provided that “[a]ny final protection order ... shall be for a period of one year unless a shorter or longer period of time is expressly ordered by the court”). No appeal was taken by either party from the temporary PFA order or from the September 27, 2006, final judgment.

In March 2007, the former wife filed a complaint seeking a divorce from the former husband (case no. DR-07-253). The former husband failed to respond to the complaint despite having been personally served by the sheriff at the county detention center. The trial-court clerk entered the fact of the former husband’s default, and the trial court entered a judgment based upon that default divorcing the parties on account of incompatibility of temperament; granting the former wife sole custody of the parties’ child; vesting in the former wife a one-half interest in real estate located in Wellington that the former husband had purchased during the marriage; awarding the former wife the contents of a certain recreational vehicle; and restoring the former wife’s maiden name to her. No postjudgment motions were filed, and no appeal was taken from that judgment.

In July 2009, more than 26 months later, the former husband, who was then (as he is now) incarcerated in the state penal system, filed a motion in case no. DR-07-258 seeking to reopen both the divorce judgment and the final judgment in the PFA action; citing Rule 60(b), Ala. R. Civ. P., the former husband alleged that the former wife had committed fraud upon the court both in seeking the divorce judgment and in seeking the order in the PFA proceeding. In his motion, the former husband averred that in July 2008 he had received copies of the September 11, 2006, temporary PFA order through his criminal-defense attorney as he was preparing for trial on apparently unrelated criminal matters because, the former husband said, the state had indicated its intent to prove that a “permanent” PFA judgment had been entered against him. He further averred that the former wife had falsely pleaded that she had separated from the former husband. Notably, the former husband stated no rationale in his motion for his lengthy delay in seeking relief under Rule 60(b). The former wife filed a response to the former husband’s motion for relief from the divorce judgment in which she averred that the former husband had had notice of both the PFA proceeding and the divorce proceeding, but had chosen not to participate in either, and that she had remarried in October 2008 and had had a child with her new spouse. The former husband then sought leave to have his deposition taken. On September 1, 2009, the trial court entered an order denying leave for the former husband to be deposed and also denied the former husband’s Rule 60(b) motion attacking the divorce judgment. We affirmed the trial court’s judgment denying the Rule 60(b) motion filed in the divorce action, and cer-tiorari review of this court’s affirmance was denied by our supreme court (Ex parte Smith (No. 1091150, June 18, 2010), 83 So.3d 596 (Ala.2010) (table)).

In February 2013, the former husband, in the PFA action (case no. DR-06-822.90), filed a motion for relief from the final judgment entered in that case. In his motion, the former husband stated the following claimed reasons why, he said, the trial court should grant him relief from the final judgment in the PFA proceeding: (1) the judgment was void based upon a lack of personal service and, therefore, was entered in the absence of in personam jurisdiction; (2) the trial court had no jurisdiction to enter an order pertaining to custody or visitation as to the parties’ child without notice or an adversarial hearing; and (3) the former wife had given testimony during a 2008 criminal trial, well after the conclusion of the PFA proceeding, tending to indicate that the former husband could not have abused or threatened to abuse the former wife in the manner asserted in her PFA petition. The trial court entered a judgment denying the former husband’s Rule 60(b) motion on February 19, 2013. The former husband then timely filed a notice of appeal from that judgment and separately filed a petition for a writ of mandamus seeking substantially similar relief (although couched in terms of the trial court’s having actually denied a motion to dismiss, pursuant to Rule 12(b)(2), Ala. R. Civ. P., for lack of in personam jurisdiction).

This court consolidated both the former husband’s appeal and his mandamus petition for purposes of decision. We will address the substantive questions presented only in connection with the appeal, however; because mandamus will not lie when there is an adequate remedy by appeal, such as when the trial court has denied a motion filed pursuant to Rule 60(b), see generally Ex parte R.S.C., 853 So.2d 228, 234-36 (Ala.Civ.App.2002), and because the former husband’s mandamus petition was filed within a presumptively reasonable time for seeking review of trial-court orders only as to the trial court’s February 19, 2013, judgment, we conclude that the former husband’s mandamus petition is due to be dismissed as seeking relief duplicative of that properly sought in his appeal.

Rule 60(b), in pertinent part, affords discretion to trial courts to grant relief from judgments not only for a number of specified reasons, such as voidness of the judgment, see Rule 60(b)(4), Ala. R. Civ. P., but also for “any other reason justifying relief from the operation of the judgment,” see Rule 60(b)(6), Ala. R. Civ. P. It is well settled that an appeal from a denial of a motion pursuant to Rule 60(b) “does not bring the underlying judgment up for review but presents only the question of the propriety of the judgment denying the Rule 60(b) motion.” Ex parte R.S.C., 853 So.2d at 236. Appellate review of a ruling on a motion seeking relief on grounds other than voidness of the judgment attacked is deferential: not only is it true that “a strong presumption of correctness attaches to a trial court’s ruling on a Rule 60(b) motion,” but it is also true that “[t]he trial court has discretion to grant or deny relief under Rule 60(b), and its decision will not be reversed except for an abuse of that discretion.” Valley Forge Ins. Co. v. Alexander, 640 So.2d 925, 929 (Ala.1994). As to the voidness ground, however, we review the trial court’s decision on the former husband’s motion for relief from the underlying judgment de novo, assessing only whether the trial court, when it rendered the final judgment in the PFA proceeding, lacked jurisdiction over the former husband. See, e.g., Dennis v. Still Waters Residential Ass’n, 18 So.3d 959, 960 (Ala.Civ.App.2009).

The trial court, in denying the former husband’s Rule 60(b) motion seeking relief from the final judgment in the PFA action, did not state its reasons for having done so; moreover, we have not been favored with a brief from the former wife offering a legal rationale supporting the trial court’s decision. However, we note that the underlying judgment has expired by its terms: the judgment states that it will expire 12 months after its entry, which expiration occurred in September 2007. Thus, regardless of the manner in which the final judgment in the PFA action may have been characterized by the former husband, the former wife, or any third party, that judgment ceased to have operative effect by operation of law 12 months after it was entered.

We have grave doubts concerning the propriety of any order that would purport to grant relief to a party under the present circumstances. Indeed, in Baldwin v. Baker, 86 So.3d 1006, 1008 (Ala.Civ.App.2012), we concluded that, in light of the former one-year statutory limitation on the effectiveness of PFA judgments, a trial court properly denied a petition seeking further modification of a final judgment entered in a PFA action because the petition had been filed more than one year after the entry of the judgment sought to be further modified. However, assuming, without deciding, that the expiration of the final judgment in the PFA action does not destroy the former husband’s right to seek relief therefrom, we perceive no error in the trial court’s denial of relief in this case as to the two grounds — voidness and “any other reason” — asserted therein.

The former husband’s sole basis for asserting that the underlying judgment (including its visitation provisions) is void is that it was not demonstrated that he was personally served with process in the PFA action so as to warrant a conclusion that the trial court in the PFA action had personal jurisdiction. The supplemental record in this appeal indicates that the former wife, in her PFA petition, listed the former husband’s address as being at the “Etowah County Jail” and that the trial-court clerk expressly ordered that the PFA petition, the temporary PFA order, and the order setting a hearing on the petition be served on the former husband in care of the Eto-wah County jail. The return-on-service portion of the clerk’s service order contains an attestation by Stacy L. Smith that she personally delivered a copy of the specified papers to the former husband on September 11, 2006; although that form, in blank lines for specifying the served person’s address, lists an address in Wellington, the “Name” blank has an affixed star-shaped icon that appears to have been utilized to elicit a signature from the former husband, and the form in fact contains a signature on that line that closely matches the former husband’s signature on his notice of appeal in case no. 2081148. The trial court could properly have concluded that, notwithstanding the listing of an address other than that of the Etowah County jail, the former husband’s signature confirmed that he had, in fact, been personally served with papers pertaining to the PFA action at the jail by Stacy L. Smith on the date specified and that the trial court had properly obtained in per-sonam jurisdiction to enter its September 27, 2006, final judgment in the PFA action. We thus cannot conclude that the trial court erred in concluding that its judgment in the PFA action was not void (and, therefore, that the provisions of that judgment addressing the former husband’s rights of access to the parties’ child were similarly not void).

The “any other reason” ground cited by the former husband refers to his citation of testimony given by the former wife in 2008 that, he says, tends to disprove the proposition that he could have committed the abuse of which he was accused in the former wife’s PFA petition. Rule 60(b) expressly states that a motion filed pursuant thereto is to be made “within a reasonable time,” and we have specifically noted that the discretion afforded the trial court in ruling on a Rule 60(b) motion as to grounds other than voidness “‘applies to the determination of whether such a motion has been filed within a reasonable time as well as to the merits of the motion.’ ” Price v. Clayton, 18 So.3d 370, 376 (Ala.Civ.App.2008) (quoting Pittman v. Pittman, 397 So.2d 139, 142 (Ala.Civ.App.1981)).

“ ‘[I]n deciding whether a 60(b)(6) motion has been filed within a reasonable time, along with all of the circumstances surrounding the matter in controversy, it is beneficial and helpful for the court to especially consider whether delay in seeking relief has prejudiced the opposing party, whether third persons have relied upon the judgment, whether it would be detrimental, and the extent of such detriment, for the judgment to be altered, and whether the movant has a valid reason for failure to take appropriate action at an earlier date.’ ”

Mitchell v. Morgan, 491 So.2d 981, 982 (Ala.Civ.App.1986) (quoting Pittman, 397 So.2d at 141-42). A court, in particular, “may deny a Rule 60(b) motion where it finds that ... the moving party has not shown good cause for having failed to take appropriate action sooner.” Clark v. Clark, 356 So.2d 1208, 1211 (Ala.Civ.App.1978).

Here, notwithstanding the former husband’s arguments, we can readily conclude that the trial court acted within its discretion in denying relief in this case to the extent that the former husband relied on the “catchall” provision in subsection (6) of Rule 60(b). The former husband offered no reason, other than the preparation of an appellate transcript in a separate proceeding in 2012, as to why he waited approximately five years after the former wife’s testimony in open court at his own criminal trial before he sought relief in the PFA action, especially given that he had sought similar relief in the divorce action as early as 2009. In the meantime, the underlying judgment had expired by its own terms, the former wife had remarried, and the former wife had given birth to a child of that marriage. Under the circumstances present in this case, we cannot conclude that the trial court acted outside its discretion in denying relief, on the former husband’s “any other reason” basis, from the PFA judgment that it had entered more than six years previously.

Based upon the foregoing facts and authorities, the trial court’s judgment denying the former husband’s Rule 60(b) motion is due to be affirmed.

2120466 — AFFIRMED.

2120491 — PETITION DISMISSED.

All the judges concur.


author: MOORE, Judge.

text:
    Ex parte Cristy BULLARD. (In re Lee Walker v. Cristy Bullard).
    2120392.
    Court of Civil Appeals of Alabama.
    June 21, 2013.

      Donna C. Crooks, Daleville, for petitioner.
    Joe C. Cassady, Jr., Enterprise, for respondent.
   MOORE, Judge.

Cristy Bullard (“the mother”) petitions this court for a writ of mandamus directing the Coffee Circuit Court to grant her motion to dismiss a custody petition filed by Lee Walker (“the father”). We deny the petition.

Facts and Procedural History

The attachments to the mother’s mandamus petition reveal that the parties’ child, F.W. (“the child”), was born in Louisiana on November 10, 2008. On September 29, 2009, the district attorney’s office in Jefferson Parish, Louisiana, on behalf of the mother, initiated a proceeding under the Uniform Interstate Family Support Act, § 30-3A-101 et seq., Ala.Code 1975, seeking to establish the paternity of the child and child support. The affidavit attached to the “request” initiating the proceeding indicated that the child had resided in Louisiana since her birth. The proceeding was transferred to the Juvenile Court of Coffee County, where the father resides, and on December 18, 2009, the Coffee Juvenile Court entered a judgment that established the father’s paternity of the child and ordered him to pay child support.

On July 11, 2012, the father filed a petition in the Coffee Circuit Court (“the Alabama court”), seeking custody of the child. He alleged that the child “has resided” in Louisiana and that there is “an ongoing investigation by the New Orleans Police Department in regard to possible sexual abuse of the minor child while residing in [the mother’s] home, and [that] the Detective heading up the investigation in the New Orleans Police Department has instructed [the father] not to return the child [to the mother].” On July 17, 2012, the mother filed a petition for custody in the 24th District Judicial Court of Jefferson Parish, Louisiana (“the Louisiana Court”); the mother’s petition was set for a hearing. On July 27, 2012, the Alabama court awarded “temporary” custody of the child to the father. On August 8, 2012, the Louisiana court ordered the child to be returned to the custody of the mother. On September 10, 2012, the mother filed in the Alabama court a motion to dismiss the father’s petition for lack of jurisdiction; the Alabama court denied that motion on January 29, 2013. The mother timely sought mandamus relief.

Standard for Issuing a Writ of Mandamus

“The denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000); Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006). With regard to an appellate court’s consideration of a petition for a writ of mandamus, our supreme court has stated:
“ ‘This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala.1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987).’
“Ex parte Flint Constr. Co., 775 So.2d at 808. In discussing the review of a denial of a motion to dismiss for lack of subject-matter jurisdiction, the court further explained:
“ ‘ “In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘ “ ‘A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.’
“ ‘ “878 So.2d at 1148—49.” ’
“Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007) (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005)).”

Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala.Civ.App.2010).

Discussion

In her mandamus petition, the mother argues that the Alabama court lacked jurisdiction to award the father “temporary” custody of the child. Section 30-3B-201, Ala.Code 1975, a part of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala.Code 1975, provides, in pertinent part:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala.Code 1975,] and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).”

Section 30-3B-202, Ala.Code 1975, provides:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203[, Ala.Code 1975,] has continuing, exclusive jurisdiction over the determination until:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
“(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
“(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201.”

In the present case, it is apparent from the attachments to the mandamus petition that the Coffee Juvenile Court exercised jurisdiction to determine the father’s paternity of the child and to order child support in 2009. That judgment entered by the Coffee Juvenile Court constituted an implied award of custody to the mother. See, e.g., R.W. v. D.S., 85 So.3d 1005, 1007 (Ala.Civ.App.2011) (holding that “a paternity judgment awarding child support to a particular individual constitutes an implied award of custody of the child to that recipient”). Thus, pursuant to § 30-3B-202, the Coffee Juvenile Court would have continuing exclusive jurisdiction over the child-custody determination unless a court of this state were to determine that one of the conditions for termination of that jurisdiction exists; there is no information in the attachments indicating that a court of this state has done so. Although in Alabama a circuit court has no jurisdiction to modify a custody determination made by an Alabama juvenile court, it may exercise temporary emergency jurisdiction under Aa.Code 1975, § 30-3B-204. The allegations in the father’s petition for custody are sufficient to invoke that temporary emergency jurisdiction. See § 30-3B-204(a). The mother has failed to provide this court with any evidence indicating that no emergency exists and does not argue that the Aabama court failed to comply with the statutory requirements and limitations regarding temporary emergency jurisdiction, see § 30-3B-204(e) & (d). Thus, we have no choice but to deny the mother’s petition. See, e.g., Ex parte Diefenbach, 64 So.3d at 1095-96 (“The burden is on the mother, as the party seeking mandamus relief, to demonstrate her right to relief_ Given the materials submitted in this matter, this court is unable to determine whether Illinois, or another state, has jurisdiction.... Accordingly, we must conclude that the mother has not demonstrated that the trial court would not have jurisdiction ... to consider an initial custody determination or, therefore, that the trial court lacked jurisdiction to modify the Florida [custody] judgment under the [Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala.Code 1975].”).

PETITION DENIED.

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

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