author: MOORE, Judge.

text:
    C.C. v. B.L.
    2120308.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2013.
    Rehearing Denied Dec. 6, 2013.

      Clarence Dortch III of Dortch Law Office, LLC, Talladega, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

C.C., the paternal grandfather of L.L. (“the child”), appeals from a judgment of the Talladega Juvenile Court (“the juvenile court”) denying his dependency petition. We affirm the juvenile court’s determination that the child is not dependent and remand the cause for the juvenile court to dismiss the paternal grandfather’s petition.

Background

S.L., the mother, gave birth to the child either in June 2000 or in June 2001. The mother is incarcerated, and although T.C., the child’s alleged or presumed father, has previously sought custody of the child, he is no longer involved with the child. On September 11, 2003, the juvenile court awarded custody of the child to B.L., the child’s maternal grandmother.

On January 7, 2011, the paternal grandfather filed a petition alleging that the child was dependent because the maternal grandmother had neglected him, had failed to provide the child with a stable home, had allowed or caused the child to miss excessive days of school, and had, at times, allowed the child to live with third parties. The paternal grandfather sought custody of the child.

On December 26, 2012, the juvenile court conducted an evidentiary hearing on the paternal grandfather’s dependency petition. At that hearing, the paternal grandfather relied on evidence that had been presented to the juvenile court at previous pendente lite hearings. The paternal grandfather called no witnesses, and he offered no evidence before resting his case. The paternal grandfather’s lawyer argued that the paternal grandfather’s home was more appropriate for the child and that the paternal grandfather was more financially sound than the maternal grandmother; that the maternal grandmother’s home was unstable and that she had moved frequently in recent years; that the child had been excessively absent from school while in the maternal grandmother’s care; that the maternal grandmother had raised the child’s mother, who had ended up in. prison; that the paternal grandmother had a history with the Department of Human Resources; and that, although the child has asthma, cigarette butts had been found outside the maternal grandmother’s home.

The maternal grandmother’s lawyer responded that the paternal grandfather had failed to establish that the child was dependent and that whether he was a better provider or a better custodian than the maternal grandmother was not relevant to the issue of dependency. The child’s guardian ad litem recommended that the juvenile court deny the dependency petition based on the lack of evidence presented as well as her own investigation.

The juvenile court noted that all previous orders entered in the action had been based on the agreement of the parties and that the child had not been found to be dependent since the filing of the paternal grandfather’s January 2011 petition. The juvenile court rendered its decision from the bench, stating that it could not making a finding of dependency and that, as a result, it lacked jurisdiction to rule on the custody and visitation issues raised by the paternal grandfather. The juvenile court entered a judgment on that same date denying the paternal grandfather’s petition. The paternal grandfather timely filed his notice of appeal.

Analysis

? paternal grandfather challenges the juvenile court’s denial of his dependency petition. He argues that the child was dependent and, therefore, that custody should have been awarded to him.

We disagree.

The only evidence in the record even remotely relevant to the issue of the child’s dependency is a court report prepared in 2002 or 2003 by the Department of Human Resources and an ex parte order entered by the juvenile court in January 2011 that noted the child’s purportedly excessive absences from school. After service of process on the maternal grandmother, however, that ex parte order was vacated.

The burden of establishing the child’s dependency was on the petitioner, i.e., the paternal grandfather. See, e.g., C.E.W. v. P.J.G., 14 So.3d 166 (Ala.Civ. App.2009) (noting that, in a termination-of-parental-rights case brought by a third-party custodian against a parent, the custodian, as the party filing the petition, bore the burden of proof as to the child’s dependency and as to the lack of viable alternatives to termination); and Ex parte Big Four Coal Min. Co., 213 Ala. 305, 306, 104 So. 764, 764-65 (1925) (“It should further be observed that a party as petitioner in [a] suit must discharge the burden of proof imposed upon him by law and material to the issue being tried.... Failing in the discharge of the burden of proof ..., no recovery could be had.”).

Additionally, although the paternal grandfather may have pointed the juvenile court to evidence that had previously been submitted to and considered by the juvenile court regarding the issue of dependency, i.e., home evaluations and testimony presented at pendente lite hearings, that evidence is not contained in the record on appeal. “It is well settled that an appellant has the burden of presenting a record containing sufficient evidence to show error by the trial court.” Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 246 (Ala.Civ.App.2000). Additionally, “ ‘it is the appellant’s duty to ensure that the appellate court has a record from which it can conduct a review. Further, in the absence of evidence in the record, this Court will not assume error on the part of the trial court.’ ” Dunlap v. Regions Fin. Corp., 983 So.2d 374, 377 n. 3 (Ala.2007) (quoting Zaden v. Elkus, 881 So.2d 993, 1009 (Ala.2003)). Because the record contains nothing to establish the child’s dependency, we cannot conclude that the juvenile court erred in failing to find the child dependent.

The paternal grandfather next asserts that the juvenile court erred by failing to grant him visitation with the child. In light of the juvenile court’s finding that the child was not dependent, the juvenile court lacked jurisdiction to enter a judgment affecting the custody of the child, including visitation. As this court stated in J.A. v. C.M., 98 So.3d 958 (Ala.Civ.App.2012):

‘“Juvenile courts are purely creatures of statute and have extremely limited jurisdiction. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). That limited jurisdiction allows a juvenile court to make a disposition of a child in a dependency proceeding only after finding the child dependent. V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (“ ‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.’ ”).’
“T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009) (first emphasis added). Furthermore, this court has held that, in a dependency action, ‘[i]f a juvenile court determines that the child is not dependent, the court must dismiss the dependency petition.’ K.C.G. v. S.J.R., 46 So.3d 499, 501-02 (Ala.Civ.App.2010). See also § 12-15-310(b), Ala.Code 1975 (‘If the juvenile court finds that the allegations in the [dependency] petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.’).”

93 So.3d at 954-55.

Because the juvenile court determined that the child was not dependent, it correctly determined that it lacked jurisdiction to enter a judgment affecting custody and visitation matters regarding the child. The juvenile court, however, erred by denying the paternal grandfather’s dependency petition rather than dismissing it, as required by § 12 — 15—310(b), Ala.Code 1975. We, therefore, affirm the juvenile court’s judgment as to the issue of dependency, but instruct the juvenile court to enter a judgment dismissing the paternal grandfather’s petition.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

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

      . The record indicates that the child was bom in June 2000, but the paternal grandfather’s brief to this court indicates that the child was born in June 2001.

      . That evidence is not contained in the record before this court.

      . The maternal grandmother has not filed an appellee's brief.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    CITY OF CENTER POINT v. Kenneth CROWDER. City of Center Point v. Roderick Reginald Harris. City of Center Point v. Matthew Thomas Driy.
    2120965, 2120966, and 2120967.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2013.
    Rehearing Applications Denied Dec. 13, 2013.

      Alton B. Parker, Jr., and Thomas S. Hiley of Spain & Gillon, LLC, Birmingham, for appellant.
    Submitted on appellant; brief only.
   THOMPSON, Presiding Judge.

In 2011, the City of Center Point (“the city”) sought to have the Alabama Legislature pass an act authorizing the city to use cameras for what it characterized as “automated civil enforcement” of certain traffic violations, including speeding and failure to stop at stop lights or stop signs. In response, the legislature enacted Act No. 2011-580, Ala. Acts 2011 (hereinafter “the Act”). Subsequently, the city’s city council enacted an ordinance incorporating the language of the Act.

The Act provides, in pertinent part, that a driver who receives notice that he or she has violated the Act may contest the imposition of the civil penalty imposed for the violation by seeking a hearing before an administrative hearing officer appointed by the city’s mayor. If the city’s administrative hearing officer determines that a violation of the Act has occurred, a driver who wants to challenge that determination may do so by filing “a petition for judicial review to the District Court of Jefferson County.” § 5(1), Act No. 2011-580 (applicable to stop-light and stop-sign violations); § 13(1), Ala. Act. No. 2011-580 (applicable to excessive-speed violations). The Act then specifies that “[t]he district court shall conduct the appeal in the same manner as the court hears a small claims civil action.” § 5(I) and § 13(I), Act No. 2011-580.

In January 2012, the city notified Kenneth Crowder that he had violated the Act by running a stop sign and that it was imposing a $100 penalty for that violation. Also in January 2012, the city notified Roderick Reginald Harris and Matthew Thomas Driy that they had violated the Act by exceeding the speed limit and that it was imposing $100 penalties for those violations. Crowder, Harris, and Driy (hereinafter collectively referred to as “the drivers”) each challenged the imposition of the penalty by requesting an administrative hearing. The administrative hearing officer upheld the city’s accusation against each driver, and he ordered each driver to pay the applicable penalty imposed by the Act.

The drivers then each timely filed in the Jefferson District Court (“the district court”) a petition for judicial review of the administrative decision upholding the city’s imposition of the penalty. On June 11, 2012, the district court entered an order in each of the actions, in which it found that it lacked subject-matter jurisdiction over the action and purported to transfer the action to the Jefferson Circuit Court (“the trial court”). No party appealed the district court’s orders.

On August 17, 2012, the trial court entered an identical judgment in each action. In its August 17, 2012, judgments, the trial court determined that the Act failed to afford the district court subject-matter jurisdiction to consider the drivers’ petitions for judicial review, or “appeals.” The city filed a postjudgment motion for all three actions. On November 19, 2012, the trial court entered a postjudgment order in each action. In each order, the trial court denied the city’s postjudgment motion and clarified that it had determined that the Act failed to validly confer on the district court the jurisdiction to consider the drivers’ petitions for judicial review, or “appeals.” The city appealed. The drivers have not submitted briefs to this court. We have consolidated the appeals for the purpose of issuing one opinion.

On appeal, the city argues that the trial court lacked subject-matter jurisdiction to consider these actions and to enter its judgments determining that the Act did not confer subject-matter jurisdiction over the drivers’ “appeals” to the district court. The city argues that because the Act provides for appeals by persons such as the drivers in these actions to be brought in the small-claims division of the district court, the circuit court can exercise no jurisdiction over the appeals under the Act.

The jurisdictional issues presented in these appeals were not advanced originally by the parties in the courts below. Rather, comments made by the trial court during the hearings in the underlying actions indicate that district-court personnel and the district judge were uncertain whether the Act had properly conferred subject-matter jurisdiction on the district court and, therefore, whether the district court could properly proceed to consider the drivers’ appeals. The question raised by the district court, which was later considered by the trial court, was whether the district court could, as the Act dictates, treat a petition for judicial review of a decision of the city’s administrative hearing officer as a small-claims action.

In asserting its argument that, under the Act, only the district court could properly exercise subject-matter jurisdiction over a petition for judicial review of a decision of the city’s hearing officer, the city relies primarily on Article VI, § 143 of the Alabama Constitution of 1901 (Off.Re-comp.), which provides:

“The district court shall be a court of limited jurisdiction and shall exercise uniform original jurisdiction in such cases, and within such geographical boundaries, as shall be prescribed by law, provided that the district court shall hold court in each county seat and at such other places as prescribed by law. The district court shall have jurisdiction of all cases arising under ordinances of municipalities in which there is no municipal court and shall hold court in each incorporated municipality of a population of 1000 or more where there is no municipal court at places prescribed by law.”

(Emphasis added.)

It is undisputed that the city does not operate its own municipal court. Therefore, under Art. VI, § 143, the district court exercises original jurisdiction of all cases involving the violation of the city’s municipal ordinances. The city contends that, in these cases, the district court has jurisdiction over the civil actions arising under the Act, arguing that § 143 affords the district court jurisdiction over “all cases arising under ordinances of municipalities.” (Emphasis added.) In resolving these appeals, this court makes no determination regarding whether the district court may exercise civil jurisdiction in matters pertaining to violations of civil municipal ordinances. Rather, we assume, without deciding, that the district court could exercise civil jurisdiction over actions involving the violation of civil municipal ordinances.

Proceeding under that assumption, we note that, as indicated in note 2, supra, the provisions of the Act governing an accused driver’s right to appeal specify that the driver must file a “petition for judicial review” of the hearing officer’s decision; the Act then characterizes such a petition for judicial review as an “appeal” that is to be treated as a small-claims action in the district court. See § 5(1), and § 18(1), Act No. 2011-580. The district court concluded that it did not have subject-matter jurisdiction over a petition for judicial review, or an “appeal,” of a purported administrative decision of the city. Accordingly, on June 11, 2012, the district court entered its orders determining that it lacked subject-matter jurisdiction and purporting to transfer the driver’s appeals to the trial court.

The June 11, 2012, orders constituted dismissals of the actions in the district court for lack of subject-matter jurisdiction. However, none of the parties to the district-court actions filed an appeal of the June 11, 2012, orders to the trial court to challenge the district court’s determination that it lacked jurisdiction to consider the drivers’ appeals. See § 12-12-71, Ala. Code 1975 (“[A]ll appeals from final judgments of the district court shall be to the circuit court for trial de novo.”). Rather, the drivers and the city proceeded in the trial court, apparently under the assumption that the district court could properly transfer the three actions to the trial court.

In fact, a district court may transfer an action that it determines is not within its jurisdiction but, rather, is within the jurisdiction of the circuit court:

“If a case filed in the circuit court is within the exclusive jurisdiction of a district court or a case filed in the district court is within the exclusive jurisdiction of the circuit court, the circuit clerk or a judge of the court where the case was filed shall transfer the case to the docket of the appropriate court, and the clerk shall make such cost and docket fee adjustments as may be required and transfer all case records.”

§ 12-11-9, Ala.Code 1975. The requirement that a district court transfer an action within the jurisdiction of the circuit court is jurisdictional. § 12-11-9. However, for a district-court order transferring an action to the circuit court to be effective, the circuit court must have exclusive subject-matter jurisdiction over the action. Alexander v. Hawk, 189 So.3d 824, 827 (Ala.Civ.App.2013) (holding that, when the district court improperly purported to transfer to the circuit court an action over which the circuit court lacked subject-matter jurisdiction, the circuit court was without jurisdiction to enter its judgment, which was void, and dismissing the appeal from that void judgment); Darby v. Schley, 8 So.3d 1011, 1014 (Ala.Civ.App. 2008) (holding that, because the circuit court did not have subject-matter jurisdiction over the unlawful-detainer action, the district court’s “unauthorized transfer” of the action “could not transfer jurisdiction over that action to the” circuit court); cf. Ex parte Smith, 438 So.2d 766, 767-68 (Ala.1983) (holding that, when the district court dismissed, rather than transferred, a case not within its jurisdiction and a party appealed that dismissal, the circuit court could consider only the propriety of the dismissal on appeal, and determining that the circuit court lacked jurisdiction on appeal to consider the merits of the action). Thus, this court must determine whether the trial court could exercise subject-matter jurisdiction over the drivers’ petitions for judicial review in order to determine whether the district court could validly transfer the drivers’ actions to the trial court.

A circuit court exercises general jurisdiction over all actions unless jurisdiction is specifically limited to another court by other law. Art. VI, § 142, Ala. Const. 1901 (Off.Reeomp.). “[W]hether a circuit court has subject-matter jurisdiction over a case is determined by inquiring as to whether the circuit court has the requisite constitutional or statutory authority over the case.” Ex parte Collins, 84 So.3d 48, 52 (Ala.2010).

The city argues, relying solely on the language of the Act, that the trial court lacked jurisdiction over the drivers’ appeals. We agree that nothing in the Act, the statute governing these appeals, affords the trial court jurisdiction over the petitions for judicial review, or “appeals,” filed by the drivers. The Act clearly specifies that appellate review of the city’s decision is in the district court. Thus, the Act purports to limit the jurisdiction over appeals of decisions of the city to the district court, and, therefore, the trial court does not have general jurisdiction under Art. VI, § 142. Accordingly, we conclude that the trial court did not have general jurisdiction over the issues raised in the drivers’ petitions for judicial review, or appeals, of the city’s hearing officer’s decisions.

Also, the drivers’ petitions for judicial review may not be considered to be common-law petitions for the writ of certiorari that could be properly transferred to and considered by the trial court. A party having a right to appeal may not seek appellate review by way of a common-law petition for a writ of certiorari. Reed v. White, 80 So.3d 949, 952 (Ala.Civ.App.2011) (“Because § 36-26-27[, Ala.Code 1975,] provided White a statutory right to appeal th[e] decision, she could not circumvent that procedure by filing a petition for a common-law writ of certiorari.”). The language of the Act affords the drivers a method of obtaining review of the city’s decisions. Accordingly, this court declines to treat the drivers’ appeals as petitions for a common-law writ of certiorari that could be heard in the trial court. No other basis for jurisdiction in the trial court is apparent.

We hold that the district court’s purported transfers of the drivers’ petitions for judicial review were without effect because the trial court could not exercise exclusive original jurisdiction over those petitions, or appeals. Accordingly, because neither the drivers nor the city filed appeals to the trial court from the district court’s June 11, 2012, orders determining that it lacked subject-matter jurisdiction over the drivers’ petitions, the trial court never obtained jurisdiction over those actions. Alexander v. Hawk, supra; Darby v. Schley, supra. The trial court was without jurisdiction to enter its August 17, 2012, judgments in these actions. Accordingly, those judgments are void, and the appeals are due to be dismissed. See Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008) (“A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a judgment.”).

APPEALS DISMISSED.

PITTMAN and DONALDSON, JJ., concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . The language of the city’s ordinance is virtually identical to that of the Act; although these appeals involve the propriety of both the Act and the city’s ordinance, for the sake of simplicity, we refer to and cite only the Act in this opinion.

      . The pertinent portions of the Act pertaining to the right of appeal under that Act read as follows:
      "(I) The decision of the hearing officer shall be the final decision by the city council. A person or persons aggrieved by a decision may file a petition for judicial review to the District Court of Jefferson County within 30 days after the date of entry of the decision. The district court shall conduct the appeal in the same manner as the court hears a small claims civil action.”
      § 5(I), Act. No. 2011-580.
      "(I) The decision of the hearing officer shall be the final decision by the city council for judicial review to the Jefferson County District Court within 30 days after the date of entry of the decision. The district court shall conduct the appeal in the same manner as the court hears a small claims civil action.”
      § 13(I), Act. No. 2011-580.

      . The trial court’s judgments, in addition to dismissing the drivers’ appeals, in substance also declare invalid the portions of the Act governing jurisdiction over petitions for judicial review. Accordingly, because the city has an interest in defending the validity of the portions of the Act that were effectively invalidated by the trial court’s judgments, we conclude that the city is sufficiently aggrieved by the judgments to have standing in these appeals. Alcazar Shrine Temple v. Montgomery Cnty. Sheriff's Dep’t, 868 So.2d 1093, 1094 (Ala.2003) ("Only a party prejudiced or aggrieved by a judgment can appeal.”).

        . The trial court questioned whether the city had the authority to act as an administrative agency by providing for administrative review of its own decisions. That issue has not been presented to this court, and we make no conclusions regarding that issue.

      . Article VI, § 145, Ala. Const. 1901 (Off.Recomp.), and § 12-14-1, Ala.Code 1975, set forth the jurisdiction of municipal courts.


author: THOMAS, Judge.

text:
    Robert DUNGAN v. Thomas W. EARLY and Tanya S. Early.
    2120495.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2013.
    Certiorari Denied Dec. 13, 2013 Alabama Supreme Court 1130095.

      Robert Dungan, pro se.
    Lloyd E. Taylor of Taylor & Taylor, LLC, Robertsdale, for appellees.
   On Application for a Rehearing

THOMAS, Judge.

The no-opinion affirmance of August 2, 2013, is withdrawn, and the following is substituted therefor.

Robert Dungan appeals from a judgment of the Baldwin Circuit Court establishing a boundary line between his property and that of Thomas W. Early and Tanya S. Early. We affirm the trial court’s judgment.

On February 8, 2012, the Earlys filed a complaint to establish a boundary line; the complaint listed Robert and his daughter, Christina Dungan, as defendants because the Earlys’ property adjoined property owned by the Dungans. On March 14, 2012, Robert answered the complaint. On May 10, 2012, Robert filed a motion for an injunction against the Earlys, and he also filed discovery requests. On June 8, 2012, the Earlys filed a motion for a default judgment against Christina, who had failed to answer the complaint at that time. Christina filed an answer to the complaint on July 10, 2012, and, that same day, the trial court denied the motion for a default judgment. On July 11, 2012, the trial court conducted a trial at which it heard ore tenus evidence and at which documentary evidence was presented. The parties agree in their respective briefs that Robert was dismissed as a defendant before the trial date, and, thus, Christina was the only defendant at the start of trial. The record also supports this fact. However, the record also indicates that, during the trial, Christina transferred her interest in the Dungans’ property to Robert and that the parties stipulated to allow Robert to be substituted as a defendant in the action pursuant to Rule 25(c), Ala. R. Civ. P. Therefore, Robert was the only defendant to the action at the close of trial and, thus, is the only appellant in this appeal.

The testimony revealed the following facts. Christina testified that Robert had purchased the land upon which the disputed boundary lies for her benefit. She testified that Robert had had a survey and title search of the property prepared and that he and the Earlys had had disagreements regarding the boundary line separating their properties. She testified that Robert had removed “the pig fence” that the Earlys asserted in their complaint marked the boundary line between the parties’ properties. She also stated at the start of the trial that the pig fence had been located on her land as detailed in the survey and that a newly built privacy fence marked where the boundary line is located. She further testified that it was her understanding that the Earlys had not paid the property taxes on the disputed property— i.e., the property between the pig fence and the privacy fence — for ten consecutive years and, thus, that they could not rely upon that fact to support their claim that the pig fence was the true boundary line.

The survey was entered into evidence. Christina testified that parcel “C” on the survey showed the property Robert had purchased for her, which adjoined the Ear-lys’ property. She also testified that a line on the survey, located in the southeast corner of parcel C, depicted the pig fence that had been torn down. She testified that she had never viewed the property when the pig fence was still there. She further testified that the pig fence was there when Robert purchased the property but that it was not a true fence but merely a piece of a fence.

Thomas testified that he first noticed the pig fence in October 1999 when he was doing business with Howard Price, a person that had owned the Earlys’ property before they purchased it. Thomas testified that he and Tanya took possession of the property in the middle of 2001 and that he had paid the down payment with a deal to trade cars and had also paid a monthly payment of $300; he testified that he had entered into this purchase agreement with Brandy Price, a predecessor in interest in the property. Thomas testified that Aaron Early, his father, had moved onto the property in 2001 and had continually lived in his motor home on the property since that time. Thomas testified that in 2001, when he took possession of the property, Lorie Leiterman had held title to the adjoining property that Robert now owns. He said that Leiterman mentioned to him that the pig fence was the boundary line between the properties. Thomas offered into evidence pictures of the pig fence before its removal and testified that renters he had allowed on his property had planted gardenias and barbequed on the disputed property next to the pig fence. He also testified that a post with a “no trespassing” sign next to the pig fence had been placed there by one of his renters and that there was a metal stake along the pig fence that also marked the boundary he had used for over 10 years.

Thomas further testified that Robert had erected a privacy fence across a portion of the driveway that supplies the only passageway for the trailers his renters use; he said that there is a septic tank beneath another passageway to the property but that vehicles cannot be allowed to drive over the septic tank because they might damage it. He testified that Robert had also ceased allowing him to access a well on the disputed property that supplies water to two buildings located on his property. He testified that the well was there before he purchased his property, that it is on the disputed property that he is claiming to own, and that it has furnished water only to the buildings on his property since 2001. Thomas further testified that there is no other area of his property on which he could place a well due to the location of the septic tank.

Thomas testified that Robert had destroyed the pig fence, which, Thomas contended, marked the boundary line he had been told separated his property from the Dungans’ property. He testified that, following the removal of the pig fence, Robert had erected a privacy fence along the line Robert contended was the boundary fine. Thomas testified that, according to the placement of the privacy fence and the survey upon which Robert had relied in erecting the privacy fence, Robert was claiming three feet of a building that sits on what Thomas alleged had been his or his predecessors’ property since 1990. He further testified that his father had resided on his property for more than 10 years preceding the filing of the lawsuit and that his father, along with other renters, had occupied and used the property up to the area marked by the pig fence that had been destroyed. Thomas also testified that he had paid the taxes on the entire property he purports to own, which includes the disputed property, along with the taxes associated with the three buildings located on his property and/or the disputed property, each year since 2001 with the exception of several years in which he had accidently missed making the payments due to a misunderstanding with his sister. However, he testified that he had subsequently paid the taxes associated with the property for the entire 10-year period.

Aaron Early, Thomas’s father, testified that he had lived on the Earlys’ property since Thomas had purchased it. He further testified that he had a clear memory that he had lived on the property on September 11, 2001, because, he said, he remembers watching footage of the terrorist attacks that occurred on that date. He further testified that he had continuously lived on the property from about six months before the September 11, 2001, terrorist attacks until the date of the trial. Aaron testified that, during the entire time he had lived on the property, he had understood that the boundary line between the Earlys’ property and the Dungans’ property was marked by the pig fence, which Robert had destroyed after buying the adjoining property. He further testified that the driveway that he had continually used the entire time he had lived on the Earlys’ property had been blocked by Robert’s privacy fence.

On July 26, 2012, the trial court entered a judgment establishing the boundary as the place where the pig fence had been, as requested by the Earlys in their complaint, thereby implicitly denying the relief Robert had requested in his motion for injunc-tive relief. On August 24, 2012, Robert filed a postjudgment motion alleging that the evidence was insufficient to support the trial court’s judgment and that newly discovered evidence supported a judgment in his favor and noting that he had appeared pro se at trial. On November 20, 2012, the parties filed a joint agreement to waive the operation of Rule 59.1, Ala. R. Civ. P. On February 19, 2013, the trial court denied Robert’s postjudgment motion. Robert filed a timely notice of appeal with our supreme court on March 4, 2013. Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Because the trial judge received evidence ore tenus, our review is governed by the following principles:

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

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

Robert argues five issues on appeal: (1) whether the trial court violated his due-process rights by invoking Rule 615, Ala. R. Evid.; (2) whether the trial court’s judgment amounts to an unlawful taking; (3) whether the evidence supports the judgment; (4) whether appearing pro se violated his rights; and (5) whether the trial court erred in denying his post-judgment motion.

First, Robert argues that the trial court violated his due-process rights by invoking Rule 615 under the facts of this case. Specifically, he asserts that he was unable to hear the allegations against him, to cross-examine witnesses, or to present evidence due to the invocation of Rule 615.

The record indicates that Rule 615 was invoked without any objection at the start of the trial when Christina was the only defendant in the action. Thus, Robert was asked to leave the courtroom because Christina indicated that she intended to call him as a witness during the trial. Accordingly, Robert was not allowed to remain in the courtroom until he was substituted as a party pursuant to Rule 25. The record further indicates that, once he was substituted as a defendant, he did not assert that he would be prejudiced because he had not been present to hear Thomas’s testimony or Christina’s testimony, nor did he request a new trial because he had not heard all the evidence; instead, he willingly participated in the remainder of the trial as the sole defendant. Additionally, the record indicates that he failed to argue in his postjudgment motion that he had been prejudiced by not hearing the entire testimony. Thus, Robert asserts this argument for the first time on appeal. ‘[I]t is a well-settled rule that an appellate court’s review is limited to only those issues that were raised before the trial court. Issues raised for the first time on appeal cannot be considered.’ ” Neal v. Neal, 856 So.2d 766, 778 (Ala.2002) (quoting Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994)). Therefore, we will not consider Robert’s first argument.

Next, Robert contends that the trial court erred in establishing the boundary line as it did because, he says, the trial court’s judgment amounts to an unlawful taking under the facts of this case. He supports this argument by again stating that his due-process rights were violated by the fact that he was not in the courtroom for the initial witnesses’ testimony, which the trial court relied upon in its judgment. Robert asserts this unlawful-taking argument for the first time on appeal; therefore, we will not consider it. Neal, 856 So.2d at 778.

Next, Robert seems to assert an insufficiency-of-the-evidence argument. Specifically, he contends that the evidence did not support the conclusion that the Earlys had acquired the disputed property by adverse possession because, he says, the Earlys failed to show that the “possession [was] actual, hostile, open, notorious, exclusive, and continuous for the statutory period of 10 years.” We find Robert’s argument to be misguided under the facts of this case because he fails to grasp the law applicable to boundary-line disputes.

It is well settled that

“[boundary disputes are subject to a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession.... In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years.”

Kerlin v. Tensaw Land, & Timber Co., 390 So.2d 616, 618 (Ala.1980).

In Smith v. Brown, 282 Ala. 528, 534-35, 213 So.2d 374, 379-80 (1968), our supreme court noted the changes in the law regarding boundary-line disputes as follows:

“There are many decisions of this court dealing with the problem of adverse possession between coterminous land owners. The very early cases of this court strictly applied the ‘subjective intent’ rule which looks to the intention of the possessor as the controlling factor. This line of cases holds that unless the possessor has actually formed an intention to hold the strip, even though it is beyond the true line, the possessor’s position is not adverse. Brown v. Cockerell, 33 Ala. 38 [ (1858) ]; Alexander v. Wheeler, 69 Ala. 332 [(1881)]; Davis v. Caldwell, 107 Ala. 526, 18 So. 103 [ (1895) ]; Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182 [ (1898) ]; Ashford v. McKee, 183 Ala. 620, 62 So. 879 [ (1913) ]. The rule is stated with great clarity in Hess v. Rudder, as follows:
“‘...Possession, to be adverse, must be held under a claim of right, and there can be no adverse possession without an intention to claim title. Hence it is essential to the proper determination of the character of the possession to consider the intention with which it was taken and held. If one occupies land up to a certain fence, because he believes that to be the line of his land, but not having any intention to claim up to the fence, if it should be beyond the line, the intent to claim title does not exist coincident with the possession, and the possession up to the fence is not, therefore, adverse.’
“This rule, however, was modified by later cases and in the case of Smith v. Cook, 220 Ala. 338, 124 So. 898 [ (1929) ], this court crystalized this modification and stated very precisely the modified rule which still prevails in this State.
“ ‘. .Appellants claim that the conclusion is controlled by principles of law settled by this court, which for convenience we will restate. If two coterminous proprietors agree on a boundary line, and each occupies to its location, the possession is presumed adverse, and after ten years has the effect of fixing such line as the true one. Turner v. DePriest, 205 Ala. 313, 87 So. 370 [ (1921) ]; Copeland v. Warren, 214 Ala. 150, 107 So. 94 [ (1926) ]; Gunn v. Parsons, 213 Ala. 217, 104 So. 390 [ (1925) ]; Mink v. Whitfield, 218 Ala. 334, 118 So. 559 [ (1928) ]; Smith v. Harbaugh, 216 Ala. 202, 112 So. 914 [ (1927) ]. If a coterminous landowner holds actual possession of the disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Smith v. Bachus, 201 Ala. 534, 78 So. 888 [ (1918) ]; Hoffman v. White, 90 Ala. 354, 7 So. 816 [(1890)]; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103 [ (1920) ]; Shepherd v. Scott’s Chapel, 216 Ala. 193, 112 So. 905 [(1927)].
“ ‘There is, however, a limitation or an additional principle that, if the occupancy to a line is with no intention to claim to it if it should be beyond the true location of the boundary, such possession is not adverse. Hess v. Rudder, 117 Ala. 525, 23 So. 136, 67 Am. St. Rep. 182 [ (1898) ]; Smith v. Bachus, 195 Ala. 8, 70 So. 261 [ (1915) ]; Hodges v. Sanderson, 213 Ala. 563,105 So. 652 [ (1925) ].’ ”

In the present case, the testimony was clear that, when the Earlys took possession of their land in 2001, the Earlys were under the impression that the pig fence was the boundary line between the properties and, thus, the Earlys allowed renters and Aaron to occupy up to that line. The testimony also indicated that the renters had planted gardenias, had barbecued, had continuously used a driveway located on the disputed property for ingress and egress, and had placed “no trespassing” signs on the property surrounding the pig fence, establishing that the Earlys and their renters had occupied the property up to the pig fence. Additionally, Thomas testified that he had paid the taxes assessed on the property up to the pig fence and the buildings located on the property up to the pig fence for a 10-year period. Thus, the evidence supported a conclusion that the Earlys had had actual possession of the property on the east side of the pig fence under a claim of right openly and exclusively for a continuous period of 10 years based on their belief that the pig fence marked the true boundary line. Thus, although the belief that the pig fence marked the true boundary line was a mistaken belief, the Earlys acquired title up to that line because, under Smith, it is immaterial what the Earlys might or might not have claimed had they known they were mistaken. 282 Ala. at 535, 213 So.2d at 380. See Reynolds v. Rutland, 365 So.2d 656, 658 (Ala.1978) (concluding that the evidence was sufficient to support adverse possession in a boundary-line dispute when the a review of the record indicated that the “[a]ppellees did openly and notoriously hold the disputed strip in question intending to claim it as their own, although admittedly it was held under the mistaken belief that they were holding to the true line”). Therefore, we find that the record supports the trial court’s judgment establishing the boundary line under the rule pronounced in Smith.

Finally, Robert argues that he was prejudiced by acting pro se and that the trial court erred in denying his post-judgment motion. Robert filed his appeal pro se; however, he fails to support either argument with citation to relevant authority. Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain “citations to ... cases, statutes, [and] other authorities.” “ ‘[A]n appellant’s citations to general propositions of law not specifically applicable to the issues presented by the appeal do not meet the requirements of Rule 28, Ala. R.App. P.’ ” Cincinnati Ins. Cos. v. Barber Insulation, Inc., 946 So.2d 441, 449 (Ala.2006) (quoting BankAmerica Hous. Servs, v. Lee, 833 So.2d 609, 621 (Ala.2002)). Furthermore,

“a pro se litigant must comply with legal procedures and court rules. Black v. Allen, 587 So.2d 349 (Ala.Civ.App.1991). Courts are no more forgiving to pro' se litigants than to those represented by counsel. Black, supra. Additionally, it has long been held that ‘[w]hen an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.’ City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) (internal citations omitted). See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985); and Ex parte Riley, 464 So.2d 92 (Ala.1985).”

Schwartz v. Schwartz, 835 So.2d 1017,1018 (Ala.Civ.App.2002). Therefore, we decline to consider these arguments on appeal.

Conclusion

Because Robert has failed to establish any error warranting reversal of the trial court’s judgment, we affirm it.

APPLICATION GRANTED; NO-OPINION ORDER OF AFFIRMANCE OF AUGUST 2, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . Robert’s motion for injunctive relief also listed numerous other parties as respondents in its style. However, the State Judicial Information System case-detail sheet indicates that no other parties were ever added to the action or served.

      . Rule 615 states:
      "At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or (4) a victim of a criminal offense or the representative of a victim who is unable to attend, when the representative has been selected by the victim, the victim's guardian, or the victim's family.”


text:
    D.E. v. T.M.
    2120445.
    Court of Civil Appeals of Alabama.
    Nov. 8, 2013.

      Page A. Banks, Huntsville, for appellant.
    Janice Pierce Groce, Birmingham, for appellee.
   THOMAS, Judge.

D.E. (“the father”) appeals from a judgment of the Madison District Court (“the trial court”), holding him in contempt for his willful failure and refusal to abide by the trial court’s May 3, 2010, judgment concerning payment of a child-support ar-rearage, orthodontic expenses, attorney fees, and postminority educational expenses of the son of the father and T.M. (“the mother”); sentencing him to jail for 40 days, which sentence was suspended on the condition that he make the payments ordered in the judgment; and ordering the payment of additional postminority educational expenses.

On April 20, 2012, the mother filed a petition for a “rule nisi and enforcement of a prior order of modification” against the father for his alleged failure to abide by the terms of the trial court’s May 2010 judgment. On May 30, 2012, the father answered the petition, denying the general allegations.

On January 28, 2013, the trial court conducted a hearing regarding the mother’s petition for a rule nisi. The mother testified that the father had not reimbursed her the sum of $3,321.95 for the son’s first semester of college within 60 days of the entry of the May 2010 judgment, as ordered in that judgment; that the father had failed to pay $7,500 of the past-due child support within 60 days, as ordered in the May 2010 judgment; and that the father had not paid $5,500, as ordered in paragraph 6 of the May 2010 judgment, or surrendered himself to jail in lieu of payment. Additionally, the mother testified that the father had failed to pay attorney fees in the amount of $3,990, as ordered in paragraph 8 of the May 2010 judgment, and that he had failed to pay his portion of the son’s orthodontic expenses, as ordered in paragraph 7 of the May 2010 judgment. The mother testified that the father had paid her only $400 per month from the time the May 2010 judgment was entered until the time that funds from the father’s employer began to be garnished in March 2012. The mother testified that she received approximately $1,000 per month in garnished funds and that when she began receiving those funds the father’s $400-per-month payment had ceased. She further testified that the May 2010 judgment was for past-due payments in the amount of $42,160.06 and that the interest due on the child-support arrear-age was $16,755.84; the mother further testified that, based upon her calculations of payments the father had made, in addition to the amount of funds that had been garnished at the time of the contempt trial, the father owed $21,485.16 in past-due payments and interest in the amount of $27,631.31 for a total of $49,116.47 due under the May 2010 judgment. She requested that the father be held in contempt for failing to abide by the May 2010 judgment by not paying the amounts owed and that the father also be ordered to serve the jail time suspended under the May 2010 judgment for his failure to pay. The mother testified that the father had filed a bankruptcy petition between the time of the entry of the May 2010 judgment and the trial date but that the father’s bankruptcy petition had been dismissed.

The mother testified that the son is a senior at Georgia State University in Atlanta. She testified that the son was a resident of Georgia and that he continues to be a resident of Georgia, and, thus, the son receives in-state tuition at Georgia State University. The mother testified that the son had taken out loans in his name to cover tuition expenses and that she had also taken out loans and had used her own money to pay the son’s college expenses. She testified that, although the May 2010 judgment ordered that he pay half of the son’s postminority educational expenses, the father had not contributed toward the son’s college expenses despite the mother’s having provided the father information about the amount to pay through his bankruptcy attorney.

The son testified that he is 21 years old and that he is a student at Georgia State University studying accounting and finance. He testified that his grade point average (“GPA”) in his major program is 2.95 and that his overall GPA is 2.54. The son testified that the father had not assisted him with his tuition or college expenses as far as he knew and that he had paid for his college expenses in cash and through student loans. The son testified that he had spoken with the father once since 2010. The son also testified that, based on his research and knowledge gained through a friend who attended the University of Alabama, the average tuition and fees per semester for an in-state student at the University of Alabama was $4,600; he also said that the average tuition and fees for an out-of-state student was $11,475 per semester. He further testified that he had received the HOPE scholarship for the Fall 2009 and the Spring 2012 semesters in the amount of $2,000 per semester and that he had received another scholarship, a retention scholarship, in the amount of $1,400 from the College of Business for the Spring 2013 semester.

The son testified that he had prepared a spreadsheet from “actual bills” he had “incurred” for his college expenses. According to the spreadsheet, the son had incurred a total of $75,821.41 in postminority college expenses since the second semester of his freshman year. However, the spreadsheet does not reflect that the son’s HOPE scholarship for the Spring 2010 semester or the retention scholarship for the Spring 2013 semester were deducted from the expenses the son incurred or otherwise indicate that those scholarships were used to pay other postminority educational expenses that may have been incurred by the son. In addition, on cross-examination, the son testified that the spreadsheet reflected “expenses” but did not reflect the actual amount he had paid. Although he testified that he had taken out loans to pay his postminority educational expenses, he did not produce any evidence concerning the amount of those loans; he did testify that his loan payments were deferred until after he graduated from college.

The father testified that he lives in Oxford and that he is employed at the Anni-ston Army Depot where he writes plans for the federal government. He testified that he had been writing plans for the federal government since 1998 and that, before that time, he had been in the military. Specifically, in regard to his employment history, he testified that he had been in the military from 1990 until 1996, that he had started working for the federal government in 1997, that he had been employed at the Army Depot in Anniston from 2004 until 2008, that he had then gone to Germany for one year and had begun working at the Army Depot in Anni-ston again in September 2009. The father testified that his gross annual employment income is $82,000. He testified that his federal tax return for 2010 indicated that he had an income of $82,060.60, that his 2011 tax return indicated that he had an income of $79,559.57, and that, although he had not filed his 2012 tax return, his leave and earning statements for that year indicated a total income of $82,570. In addition to his employment income, he testified that he receives $600 per month, or $7,200 annually, in disability income. The father further testified that he did not retire from the military but that he received a onetime severance payment in the amount of $80,000 in 1998, after he had ceased his military service.

The father testified that the son is not covered under his health insurance because, he said, he had not received information from the mother or the son to provide any health insurance. The father also testified that he had not made the lump-sum payments within 60 days as ordered in the trial court’s May 2010 judgment because, he said, he could not afford those payments. However, he testified that he had been paying $400 per month until the time the mother had had his wages garnished in the amount of $1,100 per month. He testified that he had not paid any college expenses for the son but had made only the payments in the amount the $400 per month. He further testified that he had never received a statement from the son or the mother regarding the son’s college expenses, although, he said, his e-mail address had not changed over the past 10 years.

The father testified that he did not have the ability to pay the amounts ordered in the May 2010 judgment due to his limited amount of net income and large expenses and due to the fact that he did not have any additional assets. Specifically, he testified that his net monthly income from both his salary and his disability income is $2,965.44. He further testified that he had the following monthly expenses: rent in the amount of $900; approximately $800 for automobile insurance and gas; spousal support in the amount of $1,400; and a furniture payment in the amount of $80. He stated that his additional expenses include the cost of food, repayment of an $11,000 loan, and the monthly payment on a loan for an automobile for one of his children, for which he had cosigned. However, he did not testify regarding the monthly amounts of the car payment, the monthly payment on the $11,000 loan, or food expenses. The father testified that, after paying his monthly obligations, he goes deeper into debt in the amount of $900 per month. The mother presented evidence from the father’s employer indicating that the father’s disposable income per pay period is $2,107.51. The father testified that he had 26 pay periods per year.

The father further testified that he did not have any additional assets besides $2,000 in a retirement account, against which he was not allowed to borrow. He testified that he had applied for loans at AOD Federal Credit Union, Pentagon Federal Credit Union, and local agencies in Anniston but that he had been denied on each attempt due to his having filed for bankruptcy.

On January 30, 2013, the trial court entered a judgment finding the father to be in criminal contempt for eight separate violations of the May 2010 judgment and ordering him to serve 40 days in jail, ordering the father to pay $27,150.70 for his half of the son’s postminority educational expenses incurred since the entry of the May 2010 judgment, and awarding the mother attorney fees. On February 5, 2013, the father filed a motion to alter, amend, or vacate the trial court’s judgment. The trial court held a hearing on the father’s postjudgment motion on February 14, 2013, and, following that hearing, it entered an order allowing the father to serve his jail sentence on weekends so as not to interfere with his employment and noted that it was still considering the remaining issues raised by the father in his postjudgment motion. On February 19, 2018, the trial court entered an order denying the father’s postjudgment motion as to all the remaining issues. The father filed a timely notice of appeal on March 1, 2013.

Discussion

The father first argues that the trial court was not presented with evidence demonstrating, beyond a reasonable doubt, that he had willfully failed and refused to comply with the May 2010 judgment. Specifically, he argues that the evidence indicates that he did not have the ability to pay and, thus, that the trial court could not have concluded that his failure to pay was a willful refusal to pay. We disagree.

“[T]he standard of review in an appeal from an adjudication of criminal contempt occurring in a civil case is whether the offense, i.e., the contempt, was proved beyond a reasonable doubt. Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); Combs v. Ryan’s Coal Co., 785 F.2d 970 (11th Cir.1986); and United States v. Turner, 812 F.2d 1552 (11th Cir.1987) .... In Turner, the Court, in discussing the standard of review in a criminal-contempt case, said:
“ ‘The essential elements of the criminal contempt for which punishment has been imposed on [the defendant] are that the court entered a lawful order of reasonable specificity, [the defendant] violated it, and the violation was wilful. Guilt may be determined and punishment imposed only if each of these elements has been proved beyond a reasonable doubt.’
“Turner, 812 F.2d at 1563. The Turner court also stated, quoting Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th Cir.1971):
“ ‘ “The test is whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond a reasonable doubt that the defendant was guilty, and that such evidence is inconsistent with any reasonable hypothesis of his innocence. Such is the substantial evidence test.” ’
“Turner, 812 F.2d at 1563.”

Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001). Moreover, “[i]nability to pay is a defense to a contempt action in a child-support-arrearage case.” T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App.2002).

We conclude that the evidence supports the trial court’s finding that the father willfully violated the May 2010 judgment by not paying the amounts due under that judgment or surrendering himself to the Madison County jail. In this case, the trial court’s judgment explicitly found “that [the father], through the commission of willful and intentional aet[s] by him, violated this Court’s Order, dated May 3, 2010,” and that the father’s “failure is due to his willful neglect and is not due to an inability to pay,” amounting to eight separate violations of the trial court’s May 2010 judgment. The evidence supports the trial court’s findings that the father’s failure to pay was not due to an inability to pay. “[W]hen a delinquent payor presents evidence of an inability to pay as a defense to a charge of contempt, the burden of proof falls upon the payee to show ‘beyond a reasonable doubt’ that the payor can pay.” McMorrough v. McMorrough, 930 So.2d 511, 514 (Ala.Civ.App.2005) (quoting Thomas v. Thomas, 406 So.2d 939, 942 (Ala.Civ.App.1981)).

In this case, the mother presented extensive evidence regarding the father’s income and his ability to pay. The evidence indicated that since 2009 the father had worked at the Anniston Army Depot making approximately $82,000 in annual income along with an additional $7,200 in annual disability payments. Thus, the father had approximately $89,200 in income from which he could have paid the obligations ordered in the May 2010 judgment. Additionally, the mother presented evidence indicating that the father had received a severance package in the amount of $80,000 in 1998 and that his disposable income per pay period, of which he had 26 per year, was $2,107.51. Accordingly, the mother presented evidence indicating that the father had the ability to pay the May 2010 judgment.

The father testified that, although he had an income of approximately $90,000 per year, he did not have the ability to pay due to his other expenses. Those expenses included $900 per month for rent, $800 per month for automobile insurance and gas, spousal support of $1,400 per month, and an $80-per-month furniture payment. He also testified that he was obligated to make a monthly loan payment for a car for one of his children, to pay another monthly loan payment, and to pay for groceries each month; however, he failed to testify regarding the amounts of those additional financial obligations. Upon questioning by the trial court, the father testified that the spousal-support obligation and car-note payment had been incurred after he had incurred the initial child-support obligation for the son. Moreover, the father testified that, although the letter from his employer indicated that his disposable income per pay period was $2,107.51, his true disposable income per pay period was only $1,091.74. He also testified that he did not have any separate assets against which he could borrow and that he was unable to obtain any loans to pay the amounts due because he had filed for bankruptcy. Thus, the ore tenus evidence concerning the father’s ability to pay was conflicting, and the trial court, as the trier of fact, was forced to make credibility determinations concerning the witnesses. See Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986) (“The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.”). Accordingly, we conclude that the trial court could have reasonably concluded that the father had the ability to pay the May 2010 judgment and, thus, that his failure to abide by that judgment was a willful violation of that judgment and contemptuous behavior. Therefore, we affirm the trial court’s judgment insofar as it found the father to be in criminal contempt.

Next, the father argues that the trial court erred in awarding the mother attorney fees because, he says, the action was for criminal contempt and such fees are not allowed. The father cites Ex parte Collins, 860 So.2d 1259 (Ala.2003), in support of his argument. In Ex parte Collins, our supreme court reversed a judgment of this court affirming a trial court’s award of attorney fees in a criminal-contempt action. Id. at 1260. In reversing this court’s judgment, our supreme court stated:

“This award of attorney fees directly conflicts with our opinion in In re State ex rel. Payne v. Empire Life Insurance Co. of America, 351 So.2d 538, 545 (Ala.1977), wherein we stated that, in a criminal-contempt action, ‘the award of attorney’s fees is not proper’ and that part of the trial court’s order purporting to award an attorney fee ‘must be considered as mere surplusage and severed from the judgment decree.’ See also Ex parte J.R.W., 667 So.2d 88, 91 (Ala.1995) (noting that “while awarding an attorney fee in a criminal contempt proceeding is improper, it does not void the judgment’).”

Id. Thus, we agree with the father that the trial court erred to reversal in awarding the mother attorney fees in the criminal-contempt action. Accordingly, we reverse the trial court’s judgment insofar as it awarded attorney fees to the mother in the criminal-contempt proceeding.

The father also argues that the trial court erred in ordering him to pay $27,150.70 for the son’s postminority educational expenses. The father’s argument regarding this third issue is twofold. First, he contends that the judgment is due to be reversed because, he says, the mother failed to present “sufficient evidence as to the costs incurred for the [sonj’s attendance at Georgia State University.” Second, he argues that the trial court’s judgment regarding the amount of postminority educational expenses is due to be reversed because, he says, the mother failed to show that the “amount of [post-minority educational] expenses requested was in accordance with the May 3, 2010, judgment,” which, the father says, limited postminority educational expenses to the amount charged by a state-supported college located in the State of Alabama.

Prior to our supreme court’s decision in Ex parte Christopher, 145 So.3d 60 (Ala.2013), see supra note 3, Alabama caselaw provided:

“A parent has a legal duty to provide or aid in providing a college education for his/her child if the child demonstrates the ability and willingness to attain a higher education and the parent has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship to himself. Flatley v. Flatley, 42 Ill.App.3d 494, 1 Ill.Dec. 155, 356 N.E.2d 155 (1976); Hambrick v. Prestwood, 382 So.2d 474 (Miss.1980); Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031 (1982); Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989); Deiley v. Deiley, 281 Pa.Super. 288, 422 A.2d 172 (1980). The use of the term ‘undue hardship’ does not mean without any personal sacrifice.”

Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990).

We first consider the father’s argument that the mother failed to provide sufficient evidence of the expenses the son had actually incurred to attend Georgia State University. The record indicates that the son testified as to the expenses he had incurred to attend Georgia State University. The son testified that the expenses were not estimated expenses but were the expenses that he had already incurred. Specifically, the spreadsheet shows that he had incurred the following expenses: $7,755.50 for the Spring 2010 semester, $9,019.50 for the Fall 2010 semester, $7,878.50 for the Spring 2011 semester, $9,369.38 for the Fall 2011 semester, $9,369.38 for the Spring 2012 semester, $3,203.35 for the Summer 2012 semester, $15,121.50 for the Fall 2012 semester, and $13,604.30 for the Spring 2013 semester. Those expenses total $75,321.41, of which the father was required to pay half, or $37,660.71. However, the trial court ordered the father to pay $27,150.70 for his portion of the son’s postminority educational expenses not addressed in the May 2010 judgment. Thus, it appears that the trial court deducted an amount exceeding the $2,000 HOPE scholarship for the Spring 2010 semester and the $1,400 retention scholarship for the Spring 2013 semester from the amount of the expenses presented at trial to determine the father’s postminority-educational-support obligation.

The trial court was free to consider the testimony and documentary evidence in determining the postminority educational expenses that the father was obligated to pay; all that is required is that the award be supported by the evidence presented, represent only that percentage the father was required to pay, and be an amount reasonably necessary for the son to attend college. Wagner v. Wagner, 989 So.2d 572, 581-82 (Ala.Civ.App.2008) (“[P]ostminority educational support may include more than the costs of tuition and books, and may include other expenses that the trial court, acting within its discretion, determines to be reasonably necessary for the child to attend college.”). Therefore, based on the evidence contained in the appellate record,-we conclude that the trial court’s award of $27,150.70 in postminority educational expenses is supported by the evidence presented at trial. See Allsopp v. Bolding, 86 So.3d 952, 959 (Ala.2011) (“ ‘Under the ore tenus standard of review, we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court’s findings.’ ” (quoting Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala.1990))).

We turn next to the father’s second argument regarding the trial court’s award of postminority educational expenses. The father contends that the award of postmi-nority educational expenses is due to be reversed because, he says, the mother failed to present evidence indicating that the expenses incurred were “in accordance with” the May 2010 judgment. Specifically, he contends that the mother failed to present evidence from which the trial court could have determined that the son’s postminority educational expenses were equal to or lesser than the amount “charged” by a state-chartered university in Alabama. Although the father fails to cite any statutes or caselaw in support of this contention or to fully develop his second argument targeted toward the trial court’s alleged error in awarding postmi-nority educational expenses, we will briefly address the father’s argument. The son testified that the average tuition charged by the University of Alabama to an instate resident was $4,600. The tuition and fees the son incurred for all but one of the son’s semesters was equal to or less than that amount; the tuition and fees the son paid for the Fall 2012 semester was $4,892. As a result, we conclude that the mother and the son proved that his tuition at Georgia State University was equivalent to the amount the son would have been charged for his education at a state-chartered university in Alabama. Thus, we affirm the trial court’s judgment insofar as it ordered the father to pay $27,150.70 in postminority educational expenses for the son.

Conclusion

We conclude, based upon the reasons stated above, that the trial court did not err to reversal in finding the father to be in criminal contempt of court for failing to comply with the trial court’s May 2010 judgment or in ordering the father to pay $27,150.70 in postminority educational expenses. However, we reverse the trial court’s judgment insofar as it awarded the mother attorney fees related to the criminal-contempt action, and we remand the cause for the trial court to vacate that portion of its judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      . The mother testified that the orthodontic bill was $4,600 and that the father’s portion was $2,300.

      . The $900-per-month rental payment included the father’s monthly utility expenses. Thus, he did not incur any additional monthly expenses for utilities.

      . Although the father testified that he sought loans at ''Pentagon” without specifying whether "Pentagon” is a banking institution, credit union, or other lending agency, we presume that the father is referring to Pentagon Federal Credit Union.

      . We note that on October 4, 2013, the Alabama Supreme Court released Ex parte Christopher, [Ms. 1120387, October 4, 2013] - So.3d -,-(Ala.2013), in which it overruled Ex parte Bayliss, 550 So.2d 986 (Ala.1989), insofar as it had construed Ala.Code 1975, § 30-3-1, to permit trial courts to award postminority educational support. The Alabama Supreme Court expressly made its opinion prospective only, stating that it would not disturb a postminority-educational-sup-port obligation that was already final, like the father’s obligation in the present case, which was established in the May 2010 judgment. Ex parte Christopher, — So.3d at -. Thus, Ex parte Christopher has no impact on the present case.

      . The spousal support is paid to the father's former spouse, not to the mother.


author: DONALDSON, Judge.

text:
    Ethel L. HOOKS, individually and on behalf of her minor children v. Joseph D. PETTAWAY.
    2120224.
    Court of Civil Appeals of Alabama.
    Nov. 8, 2013.

      Robert D. Bryant of Turner, Turner & Bryant, Marion, for appellant.
    Walter G. (Stoney) Chavers of Fleming & Chavers, L.L.P., Mobile, for appellee.
   DONALDSON, Judge.

Ethel L. Hooks (“Hooks”), individually and on behalf of her four minor children, Roger J. Hooks, Jr., Johnathan Hooks, Jordan Woodyard, and Janae Woodyard (collectively the “the Hookses”), appeals from a summary judgment entered in favor of Joseph D. Pettaway (“Pettaway”). We affirm the judgment as to those issues properly raised by Pettaway in his motion for a summary judgment and for which the burden shifted to Hooks to present substantial, admissible evidence in opposition. We reverse the judgment as to those issues not properly raised by Pettaway in his motion for a summary judgment and for which the burden never shifted to Hooks to present substantial, admissible evidence in opposition.

Procedural History

This case was previously addressed by this court in Hooks v. Pettaway, 102 So.3d 391 (Ala.Civ.App.2012), in which we summarized the facts as follows:

“On September 14, 2009, Hooks and Pettaway were involved in an automobile accident in Mobile County. On February 26, 2010, Hooks sued Pettaway, alleging claims of negligence and wantonness. Pettaway answered, denying the material allegations of the complaint and asserting various affirmative defenses. The trial court scheduled a jury trial for March 14, 2011, but, after two requests for a continuance, the trial was rescheduled for September 27, 2011. On September 21, 2011, six days before the scheduled trial date, Hooks took the deposition testimony of a physician who had provided treatment in this case. On September 26, 2011, one day before the scheduled trial date, Pettaway moved for a summary judgment, relying on the physician’s deposition testimony taken by Hooks on September 21. In Petta-way’s summary-judgment motion, he alleged that Hooks had failed to prove that Pettaway’s actions had caused Hooks’s alleged injuries. On September 27, 2011, the day the jury trial was scheduled to occur, the trial court entered a summary judgment in favor of Pettaway.
“On September 28, 2011, Hooks filed a postjudgment motion to alter, amend, or vacate the summary judgment. In her postjudgment motion, Hooks argued, among other things, that Pettaway’s motion did not comply with the requirements of Rule 56, Ala. R. Civ. P., because, Hooks said, the motion was filed ‘too late.’ Hooks also argued in her postjudgment motion that she had objected to the trial court’s ‘entertaining the [summary-judgment] motion in violation of ... Rule [56].’ The trial court denied the postjudgment motion on November 8, 2011. Hooks timely appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.”

102 So.3d at 392. We reversed the summary judgment and remanded the case, holding that “allowing Hooks only one day’s notice to prepare a response to the [summary-judgment] motion caused inevitable prejudice to Hooks.” Id. at 393. We noted that, “[although Hooks may not ultimately prevail in opposing the motion for a summary judgment, she is entitled to an opportunity to respond to the motion.” Id.

On remand, Pettaway filed a second motion for a summary judgment, which he described as a “renewed motion.” Petta-way did not address the issue of his liability to Hooks in the renewed motion. Instead, he argued that there was a lack of substantial evidence indicating that the accident proximately caused any damage to Johnathan’s lung, one of the claims apparently made in the complaint. In the renewed motion, he alleged:

“The impact [of the accident] was minor. There is no evidence of property [sic] and neither vehicle was towed. [The Hookses] refused medical treatment at the scene and in fact, never sought medical treatment the day of the accident. ([Ethel] Hooks depo. p. 56, 62, 66). Three days after the accident, Johnathan was treated for a collapsed lung (pneu[m]othorax) that [Hooks] allege[s] was caused by the accident.
“The only medical evidence or claim for damages presented by [Hooks] concerns [Johnathan]’s collapsed lung. There has been no evidence or testimony to substantiate that ... Ethel, Roger, Jordan or Janae were injured.
“The only injury alleged by [Hooks] is for [Johnathan]’s collapsed lung. No evidence or testimony substantiates injury to Ethel, Roger, Jordan or Janae. The only two doctors who treated [Johnathan] were unable to opine, within a reasonable degree of medical certainty, as to the cause of [Johnathan]’s injuries.”

In the renewed motion, Pettaway made a cursory argument regarding Hooks’s claim for medical expenses:

“Expert testimony is required to establish causation and the reasonableness and necessity of medical and hospital records and charges. Accordingly, [Hooks] must prove medical expenses are both reasonable and necessary.”

(Citations omitted.)

Attached as exhibits to Pettaway’s renewed motion for a summary judgment were excerpts from the deposition of Hooks, as well as from the depositions of Dr. Dwight Yoder and Dr. Kimberly Cole, physicians who had treated Johnathan at different times. In her deposition, Hooks described the circumstances of the accident and its aftermath, stating that Petta-way’s car hit her car from the back as she drove forward after being stopped at an intersection; that Johnathan complained of headaches and vomited twice shortly after the accident; and that she telephoned Dr. Yoder regarding Johnathan’s complaints the day of the accident and was told to monitor his condition. The excerpts from Hooks’s deposition indicate that the other three children complained of injuries following the accident; that Janae still complains of leg pain; and that Hooks took all the children to physicians within a few days of the accident.

The deposition excerpts of Dr. Yoder indicated that he saw Johnathan on September 17, 2009, three days after the accident. Dr. Yoder did not find that Johnathan had a pneumothorax, also known as a collapsed lung, at that time of his examination, but he found Johnathan’s symptoms to be consistent with asthma.

The excerpts from the deposition of Dr. Cole indicated that she saw Johnathan at an unspecified time, and that he apparently had a collapsed lung at the time of that examination. Dr. Cole testified that the collapsed lung could have been caused by influenza or the motor-vehicle accident, but she could not give an opinion as to which event actually caused the collapsed lung.

Hooks responded to the renewed motion with a 2 ½-page brief, in which she specifically referred to the claims apparently asserted in the complaint:

“On September 14, 2009, while waiting at a red light on Government Street, Mobile, Alabama, Plaintiff Ethel Hooks’ (‘Ms. Hooks’) vehicle was rear-ended by an automobile being driven by Defendant Joseph D. Pettaway, (Plaintiffs complaint @ para. 1.) Ms. Hooks’ four (4) minor children: Roger J. Hooks, Jr. (‘Roger’), Johnathan Hooks (‘Johnathan’), Jordan Woodyard (‘Jordan’), and Janae Woodyard (‘Janae’) were also in her car at the time of the collision. (Plaintiffs complaint @ para. 6-25).
“Within days, all of the [Hookses] sought medical attention; however, Johnathan suffered more serious physical injuries: post-traumatic head injuries and collapsed lung. (Deposition of Dr. Kimberly Cole, attached as Exhibit A, @ pages 29-33).
“Ms. Hooks claims general bodily injury, medical expenses, lost wages and income, pain and suffering, mental anguish, emotional distress, and damages to the vehicle she was driving. (Complaint @ para. 2 & 4). On behalf of her children, she alleged the following damages: general bodily injury, medical expenses, pain and suffering, mental anguish and emotional distress. (Complaint @ para. 6-25).”

Hooks claimed in her response that a summary judgment was not appropriate because there were genuine issues of material fact regarding Pettaway’s alleged negligence in causing the accident. Her sole argument consisted of the following:

“[Pettaway] does not, and cannot, contend that he did not have a duty to stop at the red light, that he breached that duty, [or] that the breach of that duty to stop proximately caused the collision that Ms. Hooks and her children complain about. Instead, he argues that the damage of medical bills and the specific injury (collapsed lung) to Johnathan cannot be proven, and therefore, he is not liable for all the other injuries caused by this accident. Ms. Hooks and her children also claim damages ranging from lost wages and income to mental anguish. And [Pettaway] has not offered any evidence, much less substantial evidence, disproving that those damages were not caused by him. The initial burden of proof is on the moving party to show the inexistence of any genuine factual issues.”

(Citation omitted.)

Hooks attached deposition excerpts of Dr. Cole as well. Hooks’s entire argument regarding the deposition testimony of Dr. Cole consisted of a single sentence: “Nevertheless, Dr. Cole’s medical testimony provides evidence that Johnathan’s collapsed lung and head trauma resulted from the collision. (See Ex. A, Dr. Cole’s depo.)” In the deposition excerpts submitted by Hooks, Dr. Cole testified that she examined Johnathan and diagnosed him with “posttraumatic headache,” or “headache after a trauma.” The date of the examination is not made clear. At some point in time, not specifically indicated in the record, Dr. Cole diagnosed Johnathan with influenza “A” and also treated him for a collapsed lung. Dr. Cole identified the reported automobile accident, influenza, and asthma as risk factors that may have caused Johnathan’s collapsed lung, but she could not say to a reasonable degree of medical certainty which factor was the cause.

Regarding Pettaway’s assertion in his renewed motion that Hooks could not prove medical expenses as damages, the evidentiary materials submitted by the parties in support of and in opposition to the renewed motion for a summary judgment contain only one reference, raised in Dr. Cole’s deposition:

[Plaintiff’s counsel]: ... I don’t know whether or not I have any medical bills. I don’t know whether or not you have any knowledge of the medical bills. Or do you?
[Dr. Cole]: I don’t have any.
[Plaintiffs counsel]: You don’t know how much medical bills were in this case?
[Dr. Cole]: (Witness shakes head.) [Plaintiffs counsel]: I’m sorry. I should have brought that. Well, would you say that whatever services that you did provide or hospital provided were reasonable and necessary?
[Dr. Cole]: Yes.
[Plaintiffs counsel]: Okay. And whatever charges that were charged would have been reasonable and necessary also?
[Dr. Cole]: Yes.”

Pettaway’s renewed motion was set for a hearing to be held on September 21, 2012. Nothing in the record before us indicates whether the hearing occurred, and there is no reference to or transcript of any arguments made by the parties to the trial court if a hearing was held. On September 21, the trial court entered a summary judgment in favor of Pettaway as to all claims, stating as follows: “Defendant’s Renewed Motion for Summary Judgment filed by Pettaway Joseph D. is hereby Granted.”

On October 8, 2012, Hooks filed a motion to alter, amend, or vacate the summary judgment, contending that Petta-way’s renewed motion did not comply with the requirements of Rule 56, Ala. R. Civ. P.; that Pettaway had “failed to present substantial evidence of the absence of genuine issues of material fact in the rear-end collision automobile negligence case”; and that there were unspecified genuine issues of disputed fact remaining. The motion to alter, amend, or vacate was denied the next day. Hooks then filed a timely notice of appeal to the supreme court. The appeal was transferred to this court by the supreme court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Hooks phrases the issue to be addressed as whether Pettaway “failed to present substantial evidence of the absence of genuine issues of material fact that he was not negligent/wanton in this rear-end automobile negligence action.”

Standard of Review

“We review a summary judgment by the following standard:
“ ‘ “ ‘In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the mov-ant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”
‘Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala.1999). When the basis of a summary-judgment motion is a failure of the nonmovant’s evidence, the movant’s burden, however, is limited to informing the court of the basis of its motion — that is, the moving party must indicate where the nonmoving party’s case suffers an evi-dentiary failure. See General Motors, 769 So.2d at 909 (adopting Justice Houston’s special concurrence in Ber-ner v. Caldwell, 543 So.2d 686, 691 (Ala.1989), in which he discussed the burden shift attendant to summary-judgment motions); and Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating that “a party seeking summary judgment always bears the initial responsibility of informing the [trial] court of the basis of its motion”). The moving party must support its motion with sufficient evidence only if that party has the burden of proof at trial. General Motors, 769 So.2d at 909.’
“Rector v. Better Houses, Inc., 820 So.2d 75, 79-80 (Ala.2001). Additionally, we ‘accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party.’ Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).”

Farr v. Gulf Agency, 74 So.3d 393, 397-98 (Ala.2011).

“The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury; the burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989).”

Williams v. Deerman, 724 So.2d 18, 20 (Ala.Civ.App.1998).

Discussion

In the renewed motion, Pettaway argued that there was not substantial evidence establishing that the automobile accident was a proximate cause of Johnathan’s collapsed lung.

“ ‘Proximate cause is an essential element of both negligence claims and wantonness claims.... Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new independent causes, produces the injury and without which the injury would not have occurred.’ ”

Lingefelt v. International Paper Co., 57 So.3d 118, 122-23 (Ala.Civ.App.2010) (quoting Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994)).

Pettaway supported his argument on this issue with deposition excerpts from Johnathan’s two treating physicians. In his deposition, Dr. Yoder states he did not find evidence of a collapsed lung three days after the accident. Johnathan had a history of asthma, and Dr. Yoder treated Johnathan for the condition. At a later date, Dr. Cole treated Johnathan for a collapsed lung. Dr. Cole identified three risk factors that might have contributed to the collapsed lung: influenza, the automobile accident, and asthma. However, when asked whether influenza or the automobile accident was the cause of the collapsed lung, she could not say within a reasonable degree of medical certainty which condition caused the injury.

Dr. Cole identified multiple risk factors that were possible causes of Johnathan’s collapsed lung. “An injury may proximately result from concurring causes; however, it is still necessary that the plaintiff prove that the defendant’s negligence caused the injury.” Martin v. Arnold, 643 So.2d at 567.

“ ‘ “ ‘Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur, where from the same proof the injury can, with equal probability, be attributed to some other cause. Such a condition is equivalent to an absence of evidence to the true cause

Shanklin v. New Pilgrim Towers, L.P., 58 So.3d 1251, 1257 (Ala.Civ.App.2010) (quoting Peevy v. Alabama Power Co., 393 So.2d 971, 973 (Ala.1981), quoting in turn Maddox v. Ennis, 274 Ala. 229, 230, 147 So.2d 788, 789 (1962), quoting in turn Southworth v. Shea, 131 Ala. 419, 421, 30 So. 774, 775 (1901)). See Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 315 (Ala.2000) (“ ‘When evidence points equally to inferences that are favorable and to inferences that are unfavorable to the moving party, the evidence lacks probative value; and the evidence may not be used to support one inference over another because such use is mere conjecture and speculation.’ ”) (quoting Turner v. Azalea Box Co., 508 So.2d 253, 254 (Ala.1987)).

The burden therefore shifted to Hooks to provide additional evidence or reasoning to raise her allegation as to the cause of Johnathan’s collapsed lung above the level of conjecture. Hooks did not offer substantial evidence in response to the renewed motion on this issue, and, thus, a summary judgment was due to be entered in favor of Pettaway on this issue. Further, Hooks offers no argument on appeal on this issue:

“ ‘Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). “This is so, because ‘ “it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” ’ ” Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).’ ”

Braden Furniture Co. v. Union State Bank, 109 So.3d 625, 630-31 (Ala.2012) (quoting White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008)). We, therefore, deem Hooks’s argument regarding Johnathan’s lung injury to be waived.

Albeit in a cursory manner, Pett-away also contended in the renewed motion that no medical expenses could be recovered by Hooks. “Medical bills are not recoverable unless they are sustained as a proximate cause of the defendant’s conduct.” Grimes v. Dodge, 816 So.2d 53, 56 (Ala.Civ.App.2001). “[T]he general rule regarding the recovery of medical expenses, including hospital expenses resulting from personal injuries, is that a plaintiff may recover those medical expenses that are reasonable and necessary.” Ex parte Hicks, 537 So.2d 486, 489-90 (Ala.1988). See Hodnett v. Harmon, 523 So.2d 443, 444 (Ala.Civ.App.1988) (“The law is well established in this state that, to recover for medical expenses, the plaintiff must prove that such expenses are reasonable.”). Pettaway referred to the depositions of Hooks, Dr. Yoder, and Dr. Cole to support his argument. The burden then shifted to Hooks to present substantial evidence in opposition. Hooks presented no evidence that any specific medical expenses were reasonable and necessary. Accordingly, we hold that summary judgment was appropriately entered in favor of Pettaway on the issue whether the Hooks-es’ medical expenses are recoverable as damages.

But Pettaway’s renewed motion stopped there; it addressed only those two issues. According to the record, there were claims still pending at the time the trial court ruled on the renewed motion; those claims, based on Pettaway’s alleged negligence and wantonness, sought damages for Hooks’s lost wages and income and damage to the vehicle she was driving, as well as damages for bodily injury other than Johnathan’s collapsed lung, pain and suffering, mental anguish, and emotional distress suffered by the Hookses. Those claims were not addressed in Pettaway’s renewed motion. The burden therefore never shifted to Hooks to address those claims or to present evidence in opposition to those claims.

“ ‘The [summary-judgment] movant has the initial burden of making a prima facie showing that there is no genuine issue of material fact; if the movant makes that showing, the burden then shifts to the nonmovant to present substantial evidence of each element of the claim challenged by the movant.’ Harper v. Winston County, 892 So.2d 346, 349 (Ala.2004) (emphasis added). However, if the movant does not satisfy his initial burden, ‘then he is not entitled to judgment. No defense to an insufficient showing is required.’ Ray v. Midfield Park, Inc., 293 Ala. 609, 612, 308 So.2d 686, 688 (1975) (emphasis added). ‘A motion that does not comply with Rule 56(e)[, Ala. R. Civ. P.,] does not require a response in defense from the nonmovant.’ Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 70 (Ala.2007). Simply stated, ‘ “[a] summary judgment is not proper if the movant has not complied with the requirements of Rule 56.” ’ 972 So.2d at 70 (quoting Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 277 (Ala.2000)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d at 1054-55.

Pettaway’s unsupported statement in the renewed motion that there were no claims for injuries other than the lung injury claimed by Johnathan was refuted by Hooks in her response to the motion by specific references to claims in the complaint. We do not have the benefit of knowing what, if anything, was represented orally to the trial court about the remaining claims if a hearing on the renewed motion was held. The validity of those claims is not before us. Our review is limited to the record presented to us by the parties, and, based on that record, Pettaway failed to meet his initial burden of showing an absence of genuine issues of material fact as to Hooks’s additional claims. ‘“A summary-judgment movant does not discharge his initial burden to challenge the sufficiency of the evidence of a nonmovant’s claim by simply ignoring the claim.’ ” Tiller v. YW Hous. Partners, Ltd., 5 So.3d 623, 630 (Ala.Civ.App.2008) (quoting White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d at 1055).

For these reasons, we affirm the judgment in favor of Pettaway on the claim that Johnathan’s collapsed lung was caused by the accident and for any claims for damages for medical expenses asserted by Hooks, but we reverse the judgment on all remaining claims. The case is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The name of this child is spelled "Johnathan” and "Jonathan" in different parts of the record. We use "Johnathan" for purposes of this opinion.

      . The complaint was not included as part of the record on appeal.