text:
    Anthony Donnell WILLIAMS a/k/a Anthony Williams a/k/a Anthony D. Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00515-COA.
    Court of Appeals of Mississippi.
    June 10, 2014.
    Anthony Donnell Williams, appellant, pro se.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This appeal stems from the Adams County Circuit Court’s summary dismissal of Anthony Williams’s motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS

¶ 2. On November 17, 2006, an Adams County grand jury indicted Williams in a four-count indictment for the following: one count of aggravated assault on a law enforcement officer; one .count of felony fleeing from law enforcement; one count of possession of a weapon by a convicted felon; and one count of receiving stolen property. Williams entered into a plea agreement with the State wherein Williams pled guilty to one count of the indictment for the offense of aggravated assault on a law enforcement officer, and the three remaining felony charges were dismissed, as well as a charge of sale of cocaine, which had been charged in a separate indictment. Williams pled guilty on July 13, 2007, and the trial court sentenced Williams to serve thirty years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. On June 23, 2009, Williams filed a petition for a writ of habeas corpus, which the trial court treated a PCR motion, asserting that the wording of his indictment “was surplus” to the statute under which he was indicted. The bottom of Williams’s indictment sets forth the relevant statutes for the charges therein. A review of the indictment also shows this listing follows the signature of the grand-jury foreman. The indictment sets forth the elements of aggravated assault on a law enforcement officer in the text of count I. However, the indictment identifies the supporting statute for count I as Mississippi Code Annotated section 93-3-7 (Rev.2013), rather than Mississippi Code Annotated section 97-3-7 (Rev.2006). Williams claimed that he read the indictment as legally charging him with a noncriminal offense, domestic contract violation, since the indictment identified section 93-3-7 as the supporting statute for the charge, and as a result, the trial judge incorrectly sentenced him to prison time.

¶ 4. On June 30, 2009, the trial court entered an order dismissing Williams’s PCR motion. The trial court stated that “it is true that the statute number at the end of the indictment in this cause is [section 93-3-7,] which should have been [section 97-3-7].” However, the trial court explained that the Mississippi Supreme Court has held that “when dealing with indictments, ... we employ a rule of substance over form.” The trial court cited Wright v. State, 958 So.2d 158 (Miss.2007), wherein the supreme court stated that “although a typographical error existed concerning the subsection number, the substance of the indictment read that Wright was charged with forcible rape.” As a result, the trial court determined that the body of the indictment herein correctly charged Williams with aggravated assault on a police officer. The trial court further acknowledged that Williams’s sentencing order correctly and lawfully sentenced Williams to the correct term of imprisonment under section 97-3-7.

¶ 5. On March 27, 2013, the Mississippi Supreme Court entered an order granting Williams’s request to file an out-of-time appeal from the trial court’s June 30, 2009 order dismissing Williams’s PCR motion. Williams filed this appeal the next day. Recognizing that the supreme court’s order granting Williams’s motion for an out-of-time appeal provides us with jurisdiction to hear this appeal, this Court now turns to address the merits of Williams’s PCR motion. See Miss. Code Ann. § 99-39-5(2) (Supp.2013) (“A motion for relief under this article shall be made ... in case of guilty plea, within three (3) years after entry of the judgment of conviction.”).

STANDARD OF REVIEW

¶ 6. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

¶ 7. Williams argues that the wording in the text of count I of the indictment, the count to which he pled guilty, “was surplus” to the corresponding statute under which he was charged. Williams asserts that any conflict existing in the indictment must be weighed in his favor.

¶ 8. A review of the record shows that the indictment reflects that count I charges Williams with aggravated assault on a law enforcement officer, stating that Williams

did wilfully, unlawfully, and feloniously attempt to cause serious bodily injury under circumstances manifesting extreme indifference to the value of human life to Robert' Brown, a police officer acting within the scope of his duty and office, by aiming a certain deadly weapon, namely a pistol, and with that pistol did point it in the face of Robert Brown, then pull the trigger and attempt to shoot Robert Brown with the felonious intent of him, [Williams], to cause serious bodily injury to Robert Brown.

(Emphasis added). As acknowledged by Williams in his argument, the bottom of the second page of the indictment sets forth the Mississippi Code Annotated section for count I as 93-3-7. However, the statute applicable to count I is actually Mississippi Code Annotated section 97-3-7, which establishes the felony of aggravated assault on a law enforcement officer. We recognize that the statutory section mistakenly included, 93-3-7, addresses contracts between spouses. The applicable statutory section, 97-3-7(2), that embraces the elements charged in the text of count I constitutes the statutory section codifying the offense of aggravated assault on a law enforcement officer. A review of the indictment reflects that the similar statutory section numbers were transposed, and a review of the indictment as a whole shows that the offense with which Williams was charged was clearly stated therein. See Brown v. State, 944 So.2d 103,106 (¶ 8) (Miss.Ct.App.2006).

¶ 9. This Court has held that “[t]he primary purpose of an indictment is to notify an accused of the charges against him in order to allow him to prepare an adequate defense.” Id. This purpose maybe accomplished by providing the accused with “a concise and clear statement of the elements of the crime with which the accused is actually charged.” Id. (citations and quotation marks omitted); see also Williams v. State, 445 So.2d 798, 804 (Miss.1984). Additionally, “the incorrect citation of a statute number does not alone render an indictment defective, but rather is ‘mere surplusage’ and not prejudicial to a defendant.” Brown, 944 So.2d at 106 (¶8) (citation omitted); see also White v. State, 169 Miss. 332, 332, 153 So. 387, 388 (1934).

¶ 10. During the plea hearing in the present case, the transcript reflects that the' trial judge asked: “Are you pleading guilty to this charge ... because you are, in fact, guilty of this charge? ... [Specifically, you’re charged with pointing a pistol at a law enforcement officer and attempting to shoot that officer?” Williams answered, “Yes, sir.” Williams testified that he indeed possessed a gun and that he pointed the gun at the law enforcement officer. When asked whether he tried to fire the gun, Williams responded, “I tried to see would [sic] it fire, but it wouldn’t fire.” The trial judge asked Williams again, on the record, “So you are guilty of this charge?” Williams answered, “Pretty much.” The plea-hearing transcript reveals that the trial judge asked Williams a third time if he was guilty of the charge. Williams responded again, ‘Yes, sir.” During the plea hearing, Williams described the incident to the court, and offered an apology to the law enforcement officer involved.

¶ 11. The record reflects that count I of the indictment herein indeed complied with the demands of precedent and provided Williams with a clear and concise statement of the elements of the crime with which he was charged, aggravated assault on a law enforcement officer. See Brown, 944 So.2d at 106 (¶ 8). After our review, we find no evidence in the record to support Williams’s claim that he believed he was pleading guilty to a noncriminal offense under section 93-3-7, instead of to aggravated assault on a law enforcement officer. Williams’s plea petition shows that he acknowledged under oath his request to enter a plea of guilty to the charge of aggravated assault upon a law enforcement officer, and that he did so freely, knowingly, and voluntarily.

¶ 12. Williams also alleges that due to the indictment’s citation to the incorrect statute, section 93-3-7, the trial court misinformed him of the maximum and minimum sentences he could- receive as the result of his guilty plea. Williams claims that the trial court should have applied the minimum and maximum sentences applicable to section 93-3-7, which addresses contracts between spouses and contains no provision for confinement. However, upon review, the record reflects that the trial court correctly informed Williams of the authorized statutory sentence for the offense of aggravated assault upon a law enforcement officer, explaining that “the most you could receive would be up to thirty years in the [custody of the MDOC], and the least you could receive would be a one-year sentence. It can also carry a fine of up to $5,000.” Williams affirmed on the record that he understood the maximum and minimum sentences he could receive. See Williams v. State, 126 So.3d 992, 998 (¶20) (Miss.Ct.App.2013) (discussing statutory maximum sentence for crime of aggravated assault upon a law enforcement officer).

¶ 13. Williams raises no argument regarding a disproportionate sentence; rather, Williams relies on the scrivener’s error in the indictment for his relief. He argues that he pled guilty to section 93-3-7— which carries no jail time — and not section 97-3-7 for aggravated assault on a law enforcement officer. Williams’s argument fails to acknowledge that the text of the indictment clearly charged him with felony aggravated assault on a law enforcement officer.

¶ 14. As stated previously, we find that in applying precedent to the facts of this case, the language of the indictment provided Williams proper notice of the elements of the crime charged against him. See Brown, 944 So.2d at 106 (¶8). We also find that the plea-hearing transcript in the record shows Williams acknowledged under oath his full understanding that he was pleading guilty to the crime of aggravated assault on a law enforcement officer. Accordingly, this assignment of error is without merit. See Evans v. State, 916 So.2d 550, 551-52 (¶¶5-6) (Miss.Ct.App.2005) (This Court affirmed a defendant’s sentence and conviction where the defendant claimed on appeal that the indictment was flawed and failed to provide him sufficient notice of the charges against him. This Court held that the indictment provided the essential elements of the crime, and that the incorrect citation of a statute number was not prejudicial to the defendant’s ability to prepare an adequate defense).

¶ 15. After our review, we find no error in the trial court’s dismissal of Williams’s PCR motion.

¶ 16. THE JÜDGMENT OF THE ADAMS COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . Mississippi Code Annotated section 99-39-5(2) (Supp.2013) provides prisoners three years in which to file an appeal for PCR. The trial court dismissed Williams’s PCR motion on June 30, 2009, and Williams filed this appeal on March 28, 2013, nearly four years later.

      . Section 97-3-7(2), as it existed at the time of the offense, provided:
      [A] person convicted of aggravated assault ... upon a ... law enforcement officer ... shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.

      . See Brown, 944 So.2d at 106 (¶ 8).

      . See also Smith v. State, 35 So.3d 549, 551 (¶ 8) (Miss.Ct.App.2009) (nonjurisdictional defects in indictment waived by guilty plea).

        .See White v. State, 113 So.3d 635, 637 (¶¶ 4-5) (Miss.Ct.App.2013).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Twanda R. WILLIAMS v. Terry WILLIAMS. Ex parte Twanda R. Williams. (In re Terry Williams v. Twanda R. Williams).
    2120796 and 2130383.
    Court of Civil Appeals of Alabama.
    April 11, 2014.
    Twanda R. Williams, pro se.
    Robert B. Reneau of Reneau & Thornton for appellee/respondent Terry Williams.
   PER CURIAM.

These consolidated proceedings relating to domestic-relations matters stem from a judgment of the Elmore Circuit Court divorcing Twanda R. Williams (“the mother”) and Terry Williams (“the father”), who are the parents of twin daughters born in June 1988. That judgment was entered in case no. DR-06-282 (“the divorce action”) in February 2008, after the daughters had reached the age of majority in Alabama (see Ala.Code 1975, § 26-1-1(a)); the judgment, in pertinent part, did not contain any provision regarding the custody of the daughters or regarding parental support thereof, but it did mandate various financial awards to the mother in the nature of alimony and divisions of marital property. The mother, acting through counsel, filed a motion to alter, amend, or vacate the judgment, asserting that an award of postminority support pursuant to the holding of Ex parte Brewington, 445 So.2d 294 (Ala.1983), was due to be made to the mother as the daughters’ caregiver because of their having been diagnosed as having social, emotional, and language-functioning disabilities, as well as depression and Asperger’s Syndrome (ie., an autism-spectrum disorder). The trial court, after a hearing on the mother’s post-judgment motion, partially granted the mother’s motion and reopened its judgment as to certain property-division matters; however, although the trial court indicated that it would take the issue of postminority support “under advisement,” its subsequent order of September 4, 2008, amending the divorce judgment did not include an award of postminority support because the daughters were “not in school” (although the father was directed therein to include the daughters in his “Survivor Benefit Plan,” ie., to name them as pension beneficiaries). Notably, the mother did not appeal from the judgment entered in the divorce action, as finally amended.

The parties soon found themselves before the trial court again regarding enforcement matters; although the record contains certain filings from an action numbered as case no. DR-06-232.01, the principal litigation activity that is pertinent to the mother’s appeal (this court’s case no. 2120796) occurred in the trial court’s case no. DR-06-232.02, an action initially brought by the father seeking modification of his alimony and retirement-benefit-payment obligations. The mother asserted a counterclaim alleging that the father was in contempt of his obligations under the divorce judgment as amended and sought a declaration mandating that the father take measures to ensure coverage of the daughters under the military health-insurance plan known as TRICARE. After those pleadings were filed, counsel for both parties were permitted to withdraw, and the parties thereafter represented themselves in case no. DR-06-232.02 without the benefit of legal counsel. The trial court initially entered an order assessing the father’s monetary arrearage; subsequently, the father was determined to be in contempt and directed to pay a sum certain to purge himself. The trial court later addressed the remaining issues raised by the pleadings in case no. DR-06-232.02 in a judgment dated February 14, 2013; the trial court declared that the mother was entitled to receive one-half the father’s gross retirement-benefit payments before reductions (implicitly denying the father’s relief requests) and that the father would be required to place the daughters on his TRICARE coverage “for as long as it remain[ed] available to them.”

Although the order and judgment discussed above addressed the issues framed by the pleadings in case no. DR-06-232.02, the mother’s appeal in case no. 2120796 asserts error as to the trial court’s alleged failure in that action to award Brewington support. The mother’s injection of the issue into ease no. DR-06-282.02 occurred, if at all, by means of a document labeled “Case Review” addressed to the trial court and dated February 8, 2013, in which she requested an award of postminority support; there is no indication in that document that it had been served upon the father, nor did the mother seek leave of the trial court in that document to amend her mother’s nearly four-year-old counterclaim.

Regardless of our view of the merits of the mother’s appeal in case no. 2120796, we lack jurisdiction to consider her appeal, and therefore must dismiss it, because the mother filed her notice of appeal from the trial court’s February 14, 2013, judgment on June 13, 2013, more than 42 days after that judgment was entered. See Rules 2(a)(1) and 4(a)(1), Ala. R.App. P. Although the mother claims to have timely filed a motion pursuant to Rule 59(e), Ala. R. Civ. P., that would have suspended the time for taking an appeal pursuant to the provisions of Rule 4(a)(3), Ala. R.App. P., the supplemental record she has caused to be transmitted to this court reveals that the document she claims to have filed with the trial court within 30 days after the entry of the trial court’s February 14, 2013, judgment (which document is, like the February 8, 2013, document, labeled simply “Case Review”) was sent to that court on February 27, 2013, via facsimile transmission. Under the holding of our supreme court in Ex parte Tuck, 622 So.2d 929 (Ala.1993), a party cannot effectively “ ‘file’ a notice of appeal or other paper with an Alabama court clerk by transmitting it to the clerk’s office by facsimile transmission.” L.M. v. Shelby Cnty. Dep’t of Human Res., 999 So.2d 505, 507 (Ala.Civ.App.2008). Further, the electronic case-action-summary sheet maintained by the clerk of the trial court in case no. DR-06-232.02 does not reflect that the document relied upon by the mother as having constituted a post-judgment motion was ever filed with that court.

Following the entry of the trial court’s February 14, 2013, judgment, the father retained counsel and initiated in the trial court a new civil action, identified as case no. DR-06-232.03, in which he sought the termination of garnishment orders regarding alimony and the deletion of the requirement that he place the daughters on his TRICARE coverage because he was not providing 50% of the daughters’ support and armed-services guidelines would, therefore, not allow the daughters to be enrolled in TRICARE. The mother filed a response in which she asserted that the trial court should not address Brewington support and should not disturb the TRI-CARE health-insurance requirement because of the pending appeal in case no. 2120796 but stated that the father had not included the daughters in his Survivor Benefit Plan in conformity with the September 4, 2008, amended divorce judgment and that he should be directed to do so. After a hearing, the trial court entered an order on January 8, 2014, declaring that the father was not required to provide TRICARE coverage for the daughters and that “[t]here is no medical insurance premium requirement on the father”; on January 9, 2014, the trial court entered a second order lifting the garnishment of the father’s funds and stating that the father’s payments due under the property division set forth in the divorce judgment as amended would be paid at a rate of $922 per month from the father’s retirement benefits. Neither order addressed Brew-ington support or the daughters’ inclusion in the father’s Survivor Benefit Plan.

The mother filed a petition for a writ of mandamus within a presumptively reasonable time after the entry of the two January 2014 orders of the trial court. The three-page body of her petition seeks an order directing the trial court to (a) immediately rule that the daughters are entitled to Brewington support; (b) vacate the January 8, 2014, order setting aside the father’s duty to ensure that the daughters are covered under TRICARE; (c) enforce that portion of its September 4, 2008, judgment mandating that the daughters be included in the father’s Survivor Benefit Plan so as to “allow [them] to receive an annuity in[ ] case of [the] father’s death”; and (d) award the mother $500,000 to be deposited in two particular irrevocable supplemental-care trust accounts. The mother’s petition was assigned case no. 2130383 by this court. We called for an answer from the respondents, and after having received an answer from the father, case no. 2130383 was consolidated with case no. 2120796 and was submitted for a decision.

Our review of the mother’s mandamus petition leads us to the conclusion that it is without merit. The mother’s petition cites only two cases, both in support of her first issue regarding Brewing-ton support — Brewington itself and Ex parte Cohen, 763 So.2d 253 (Ala.1999), which held that Brewington support, when awarded, is to be calculated pursuant to the provisions of Rule 32, Ala. R. Jud. Admin. The mother’s petition does not cite authority for the other three issues raised therein, in contravention of Rule 21(a)(1)(D), Ala. R.App. P., which, similar to the analogous Rule 28(a)(10), Ala. R.App. P., governing briefs in appeals, requires a petition for an extraordinary writ filed in an appellate court to cite statutes and authorities supporting the proposition that the writ should issue; as our supreme court stated in Ex parte Showers, 812 So.2d 277, 281 (Ala.2001), “[i]f anything, the extraordinary nature of a writ of mandamus makes the Rule 21 requirement of citation to authority even more compelling than the Rule 28 requirement of citation to authority in a brief on appeal.” Moreover, as to the sole issue properly presented by the mother, we conclude that the mother’s insistence in case no. DR-06-232.03 that the trial court should not address Brew-ington support precludes her from seeking a writ compelling an award of such support, based upon invited error and the mother’s failure to have requested the trial court to perform the act sought in her mandamus petition. See Ex parte City of Prattville, 56 So.3d 684, 689-90 (Ala.Civ.App.2010).

In light of the foregoing facts and authorities, we dismiss the mother’s appeal in case no. 2120796 and deny the mother’s petition for mandamus relief in case no. 2130383.

2120796 — APPEAL DISMISSED.

2130383 — PETITION DENIED.

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

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

      . Although certain sections of the mother's appellate brief in case no. 2120796 purport to assert error with respect to the trial court's failure to award her a health-insurance ar-rearage based upon the trial court’s September 4, 2008, judgment directing the father to include the daughters in his Survivor Benefit Plan, the mother's argument does not cite any legal authority pertinent to that issue. When an appealing party fails to cite any authority for an argument on a particular issue, an appellate court may deem that issue waived because it is neither the appellate court's duty nor its function to perform that party's legal research, even when the party is acting pro se. See Schwartz v. Schwartz, 835 So.2d 1017, 1018 (Ala.Civ.App.2002) (citing Rule 28, Ala. R.App. P.).


author: PITTMAN, Judge.

text:
    Andy J. THURMOND III v. Robert R. PARRISH.
    2120787.
    Court of Civil Appeals of Alabama.
    April 11, 2014.
    Charles N. Miller and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant.
    W. McCollum Halcomb and Naomi A. Cohen Ivker of Zarzaur & Schwartz, PC, Birmingham, for appellee.
   PITTMAN, Judge.

Andy J. Thurmond III appeals from a summary judgment in favor of Robert R. Parrish entered by the Shelby Circuit Court (“the trial court”). Because the trial court lacked jurisdiction to enter that summary judgment, it is void, and, because a void judgment will not support an appeal, we dismiss Thurmond’s appeal with instructions.

In September 2011, Parrish sued Quality Time Powersports, Inc. (“Quality Time”), and Thurmond, stating a breach-of-contact claim against each of them. Quality Time and Thurmond were served with process. Subsequently, when Quality Time and Thurmond failed to answer the complaint or otherwise defend the action, Parrish sought an entry of default and a default judgment against them. The clerk of the trial court made an entry of default against Quality Time and Thurmond on April 2, 2012, and the trial court entered a default judgment against them on April 24, 2012.

On May 24, 2012, the 30th day after the entry of the default judgment, Thurmond, acting pro se, filed a letter asking the trial court to set aside the default judgment because, he said, he and Quality Time had not been represented by an attorney when they failed to file an answer or otherwise defend the action, “[he had been] under the impression that there would be a call for summary judgment at which time [he] would be able to state the issues that [he] ha[d] with [Parrish’s claims against him and Quality Time],” and he would like the opportunity to state those issues. The letter then recited why Thurmond believed that he and Quality Time were not liable to Parrish.

On August 16, 2012, the 84th day after Thurmond had filed his May 24, 2012, letter, the trial court entered an order stating that it would treat that letter as a motion to set aside the default judgment against Thurmond. However, that order further stated that, insofar as that letter asked the trial court to set aside the default judgment against Quality Time, it was not properly before the trial court because a corporation such as Quality Time could be represented only by a licensed attorney. On September 21, 2012, an attorney, acting on behalf of Thurmond, filed a “Supplement to Defendant Thurmond’s Motion to Set Aside Default Judgment” (“the September 21, 2012, supplement”). The September 21, 2012, supplement asserted (1) that Rule 55(c), Ala. R. Civ. P., provided that the trial court could set aside a default judgment on the motion of a party filed not later than 30 days after the entry of the default judgment; (2) that Thurmond had meritorious defenses to Parrish’s claim against him; (3) that Parrish would not be unfairly prejudiced if the default judgment against Thurmond were set aside; and (4) that Thurmond’s failure to file an answer or otherwise defend the action was not culpable because, the September 21, 2012, supplement stated, Thurmond erroneously expected to be given notice of a hearing before a judgment was entered against him.

On November 16, 2012, more than 90 days after the filing of Thurmond’s May 24, 2012, letter, the trial court entered an order purporting to set aside the default judgment against Thurmond. Thereafter, Thurmond and Parrish each filed motions for a summary judgment. On March 6, 2013, the trial court entered an order purporting to deny Thurmond’s summary-judgment motion, and, on April 16, 2013, the trial court entered a purported summary judgment in favor of Parrish. On May 22, 2013, Thurmond appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Although neither party has raised the issue whether this court has jurisdiction over the appeal, “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Stone v. Haley, 812 So.2d 1245, 1245-46 (Ala.Civ.App.2001) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997)). Rule 55(c) provides that a trial court may set aside a default judgment on the motion of a party filed not later than 30 days after the entry of the default judgment. Because Thurmond filed his May 24, 2012, letter asking the trial court to set aside the default judgment not later that 30 days after the entry of the default judgment, we treat that letter as a Rule 55(c) motion. See, e.g., O’Hare v. O’Hare, 129 So.3d 297, 299 (Ala.Civ.App.2013) (treating a motion to set aside a default judgment that was filed not later than 30 days after the entry of the default judgment as a Rule 55(c) motion). Under Rule 59.1, Ala. R. Civ. P., a Rule 55(c) motion that is not otherwise ruled upon is deemed denied by operation of law on the 90th day after it was filed unless the 90-day period is extended by “the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie.” See Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1204 (Ala.2009) (“[A] postjudgment motion not otherwise ruled upon is denied as a matter of law on the 90th day after the motion is filed_”). The record neither indicates that the parties consented to an extension of the 90-day period for the trial court to rule on Thurmond’s Rule 55(c) motion nor indicates that an appellate court extended that 90-day period. Moreover, even if the September 21, 2012, supplement is deemed to be an amendment of Thurmond’s Rule 55(c) motion, it did not extend the 90-day period for the trial court to rule on Thurmond’s Rule 55(c) motion because the September 21, 2012, supplement was not filed within 30 days after the entry of the default judgment. See Roden v. Roden, 937 So.2d 83, 85 (Ala.Civ.App.2006) (“[I]f a subsequent filing is deemed to be an amendment to a previous postjudgment motion, that amendment will trigger a new 90-day jurisdictional period only if the amendment is filed within 30 days after the original judgment, i.e., within the time for filing an ‘original’ postjudgment motion.” (emphasis omitted; emphasis added)). Therefore, because the trial court did not expressly rule on Thurmond’s Rule 55(c) motion on or before August 22, 2012, the 90th day after it was filed, that motion was denied by operation of law on that date, which denial terminated the trial court’s jurisdiction. See, e.g., Scott v. Lenoir, 5 So.3d 1282, 1283 (Ala.Civ.App.2008) (“The trial court loses jurisdiction to consider [a postjudgment] motion after the expiration of the 90-day period.”).

Because its jurisdiction terminated on August 22, 2012, the trial court lacked jurisdiction to enter the November 16, 2012, order purporting to set aside the default judgment against Thurmond; the March 16, 2013, order purporting to deny Thurmond’s summary-judgment motion; and the April 16, 2013, order purporting to enter a summary judgment in favor of Parrish. See Sibley v. Sibley, 90 So.3d 191, 193 (Ala.Civ.App.2012) (holding that an order purporting to amend a judgment was void because it was entered after the trial court had lost jurisdiction to rule on the parties’ postjudgment motions). A judgment entered by a trial court lacking jurisdiction is void, and a void judgment will not support an appeal. See Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008). Accordingly, we dismiss Thurmond’s appeal with instructions for the trial court to vacate all the orders it entered in this action after August 22, 2012.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Even if we ignored the reference to Rule 55(c) in the September 21, 2012, supplement and treated that supplement as a Rule 60(b), Ala. R. Civ. P., motion seeking relief from the default judgment, it could not have conferred jurisdiction on the trial court because, although the allegation that Thurmond erroneously expected to be given notice of a hearing before a judgment was entered against him could be treated as an allegation of "mistake” pursuant to Rule 60(b)(1), Ala. R. Civ. P., (1) the September 21, 2012, supplement contains no allegations that could be treated as alleging grounds specified in Rules 60(b)(2), (3), (4), or (5), Ala. R. Civ. P.; (2) it contains no allegations of aggravating circumstances that would justify its being treated as a Rule 60(b)(6), Ala. R. Civ. P., motion, see Noll v. Noll, 47 So.3d 275, 278-79 (Ala.Civ.App.2010) (holding that a motion that alleged Rule 60(b)(1) grounds could not be treated as a Rule 60(b)(6) motion in the absence of allegations of aggravating circumstances); (3) it was untimely because it was not filed within four months after the entry of the default judgment, see Rule 60(b) ("The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment ... was entered. ..."); and (4) an untimely Rule 60(b) motion will not confer jurisdiction on a trial court, see Noll, 47 So.3d at 279 ("A trial court lacks jurisdiction to consider an untimely Rule 60(b) motion.”).


author: DONALDSON, Judge. THOMAS, Judge,

text:
    AMERICAN CAST IRON PIPE COMPANY v. Sharon BLACKMON. Sharon Blackmon v. American Cast Iron Pipe Company.
    2120509.
    Court of Civil Appeals of Alabama.
    April 11, 2014.

      Joseph H. Driver, Thomas L. Oliver, and Carrie J. Hodge of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant/cross-appellee American Cast Iron Pipe Company.
    Charles H. Boohaker, Birmingham, for appellee/cross-appellant Sharon Blackmon.
   DONALDSON, Judge.

American Cast Iron Pipe Company (“ACIPCO”) appeals from a judgment of the Jefferson Circuit Court (“the trial court”) awarding Sharon Blackmon permanent-partial-disability benefits pursuant to the Alabama Workers’ Compensation Act (“the Act”), Ala.Code 1975, § 25-5-1 et seq. Blackmon cross-appeals, arguing that the trial court erred by denying her requests for the award of additional costs of litigation against ACIPCO. Because we hold, among other things, that the award of permanent-partial-disability benefits exceeds the amount of benefits authorized under the Act, we reverse the trial court’s judgment as to the issues raised in ACIP-CO’s appeal. We affirm the judgment as to the issue raised in Blackmon’s cross-appeal.

Facts and Procedural History

The following facts were found by the trial court in its judgment entered on November 1, 2012, based upon stipulations by the parties and ore tenus testimony presented at trial. Blackmon began working for ACIPCO in February 1999. She continued in that employment until her employment was terminated by ACIPCO in March 2010. At the time of the injuries that gave rise to this matter, Blackmon was a pipe processor. Following her injuries, Blackmon’s employment was terminated because ACIPCO was unable to accommodate her physical limitations and restrictions. Blackmon filed suit against ACIPCO seeking benefits under the Act. The parties stipulated that venue, jurisdiction, and subject matter were proper and that Blackmon had sustained an injury to her right wrist on or about September 3, 2008, and to her right ankle on or about January 5, 2010, while performing work within the line and scope of her employment. The parties stipulated to the average weekly wage applicable to each injury. The parties stipulated that Dr. Shane Buggay, the authorized treating physician for Blackmon’s wrist injury, initially placed Blackmon at maximum medical improvement (“MMI”) for that injury on April 2, 2009, at which time he found that she had “no residual impairment” to her wrist and released her to return for treatment as needed. Blackmon returned to Dr. Buggay in June 2009 with further complaints of worsened symptoms and tenderness over the base of her thumb. Dr. Buggay provided further treatment for the injury and ultimately placed Black-mon at MMI again on January 6, 2010, at which time he gave Blackmon a permanent restriction of no forceful gripping against her thumb as a post. The parties stipulated that Dr. Richard Meyer placed Blackmon at MMI for her ankle injury on July 19, 2010, at which time he assigned her 0% permanent partial impairment. Dr. Meyer reconfirmed that rating on October 28, 2010, in a report stating: “There is certainly no measurable impairment by the book but likewise there is nothing that we are going to do that is going to change our situation now.” Dr. Meyer further stated: “I think standing on her feet all day at a hair salon would probably aggravate any degree of discomfort that she had from her previous injury.” The parties stipulated that Dr. James Floyd, who is not a treating physician authorized by ACIPCO, performed an orthoscopic examination of Blackmon’s right ankle but did not assign a disability rating for her ankle injury.

The parties tried the case to the trial court on June 5, 2012. When asked whether the injury to her wrist caused problems to other parts of her body, Blackmon testified that, “if I go so long without seeing the doctor or can’t go to the doctor, eventually it will get in the top part of my arm,” but she denied that her wrist injury affected her shoulder or any other part of her body. Blackmon testified as follows regarding her ankle:

“It still swells, swelling at the end of the day, and like I say, just — just standing up in general for a long period of time, I’ll say at least three, three hours and a half at the most just constantly standing without me taking a break or nothing like that, it starts to ache.”

Blackmon testified that, although her ankle injury kept her from going outside to play with her grandchildren, her injury did not prevent her from taking care of herself.

Following trial, the trial court granted Blackmon’s request to leave testimony open for the sole purpose of receiving testimony from Blackmon’s vocational-rehabilitation expert, John Long. Long testified that, “based upon [Blackmon’s] inability to sustain her work at ACIPCO and the tremendous wage loss she would have, it would by my — or there’s some different wage loss would be — her vocational disability would be 30 to 35 percent.”

On November 1, 2012, the trial court entered a judgment containing detailed findings of fact and conclusions of law. The trial court found that Blackmon had “suffered [a] 35% permanent partial disability as a result of her work-related injuries” and calculated Blackmon’s benefit award under the Act based upon the 300-week amount specified for permanent partial nonscheduled disability benefits. See § 25-5-57(a)(3)g, Ala.Code 1975. The trial court ordered ACIPCO to approve Dr. Buggay “as the treating physician for [Blackmon’s] right ankle injury.” The trial court taxed the filing fee against ACIP-CO and left all other costs taxed as prepaid. Both parties filed motions to alter, amend, or vacate portions of the judgment, and the trial court entered an order on February 27, 2013, denying those motions. ACIPCO filed a timely appeal, and Black-mon filed a timely cross-appeal.

On appeal, ACIPCO contends that the trial court erred (1) by awarding Blackmon benefits to the body as a whole; (2) by admitting evidence from Blackmon’s vocational-rehabilitation expert witness; and (3) by ordering ACIPCO to authorize a physician to treat Blackmon’s ankle injury other than the physician already authorized by ACIPCO for that treatment. On cross-appeal, Blackmon argues that the trial court erred by denying her motion to tax additional costs against ACIPCO.

Standard of Review
“The standard of appellate review in workers’ compensation cases is governed by § 25-5-81(e), Ala.Code 1975, which provides:
“ ‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Additionally, a trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995). ‘This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.’ Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).”

Denmark v. Industrial Mfg. Specialists, Inc., 98 So.Sd 541, 543-44 (Ala.Civ.App.2012).

Discussion

ACIPCO first contends that the trial court erred in awarding Blackmon benefits calculated based on an injury to her body as a whole rather than scheduled injuries to her wrist and ankle. ACIPCO argues that Blackmon’s two separate injuries to her wrist and her ankle are both compensable, under the schedule of benefits in the Act, at a maximum of 170 weeks for the wrist and 139 weeks for the ankle. See § 25-5-57(a)(3)a.l2, a.14, and a.15, Ala.Code 1975. ACIPCO argues that Blackmon failed to present evidence indicating that the effects of her injuries extended to other parts of her body or that her injuries virtually totally disabled her. Specifically, ACIPCO argues that, pursuant to the standard announced in Ex parte Drummond, 837 So.2d 831, 834-36 (Ala.2002), and Ex parte Hayes, 70 So.3d 1211, 1219-21 (Ala.2011), the trial court did not have sufficient evidence before it to support awarding benefits beyond the scheduled injuries to Blackmon’s ankle and wrist — i.e., the evidence was insufficient to support an award of benefits based on a finding of a 35% permanent partial disability to Blackmon’s body as a whole. This court has recently stated:

“In Ex parte Hayes, 70 So.3d 1211, 1217 (Ala.2011), our supreme court discussed the test for determining whether an injury to a scheduled member, such as a leg, should be treated as an unscheduled injury to the body as a whole:
“ ‘ “In [Ex parte ] Drummond [Co., 837 So.2d 831 (Ala.2002)], this Court adopted the following test: ‘ “[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.” ’ 837 So.2d at 834 (quoting 4 Lex K. Larson,. Larson’s Workers’ Compensation Law § 87.02 (2001)). This test clearly does not require damage to the physical structure of other parts of the body in order to take an injury out of the schedule.”
‘[Ex parte Jackson,] 997 So.2d [1038] at 1039 [ (Ala.2007) ]. As the Court of Civil Appeals recognized in its opinion on remand from this Court’s decision in Jackson:
“ ‘ “Based on the holding in Ex parte Jackson, supra, in order to prove that the effects of the injury to the scheduled member ‘extend to other parts of the body and interfere with their efficiency,’ the employee does not have to prove that the effects actually cause a permanent physical injury to nonscheduled parts of the body. Rather, the employee must prove that the injury to the scheduled member causes pain or other symptoms that render the nonscheduled parts of the body less efficient.”
‘Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1044 (Ala.Civ.App.2008). We also note with approval the subsequent explanation by the Court of Civil Appeals in Child Day Care Ass’n v. Christesen, 47 So.3d 249 (Ala.Civ.App.2008):
“ ‘ “In Ex parte Drummond Co., 837 So.2d 831, 834 (Ala.2002), our supreme court restated the test for determining when an injury to a scheduled member may be treated as a nonscheduled injury to the body as a whole: ‘ “[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.'”, ’ (Quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001).) ‘To “interfere” means “to interpose in a way that hinders or impedes.” See Merriam-Webster’s Collegiate Dictionary 652 (11th ed.2003). “Efficiency” refers to effective functioning. Id. at 397.’ Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1045 (Ala.Civ.App.2008).”
“ ‘47 So.3d at 251.’ ”

DuBose Constr. Co. v. Simmons, 144 So.3d 350, 355 (Ala.Civ.App.2013). As this court discussed in DuBose:

“[W]e must determine whether substantial evidence supports the trial court’s determination that [the employee’] knee injury extended to his back and interfered with its efficiency. See [Ex parte] Hayes, 70 So.3d [1211] at 1217 [(Ala.2011) ].
“ ‘Under Alabama’s workers’ compensation law, the determination of whether an injury to one part of the body causes symptoms to another part of the body is a question of medical causation. See Honda Mfg. of Alabama, LLC v. Alford, [6] So.3d [22] (Ala.Civ.App.2007). To prove medical causation, the employee must prove that the effects of the scheduled injury, in fact, contribute to the symptoms in the nonscheduled parts of the body. See generally Ex parte Valdez, 636 So.2d 401, 405 (Ala.1994). Therefore, in order to decide whether the employee has satisfied the first prong of the Drummond test, we must determine whether substantial evidence supports the trial court’s finding that the injury to the employee’s foot altered the employee’s gait so as to cause pain in the employee’s back. See Ala.Code 1975, § 25-5-81(e)(2).’
“Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1044 (Ala.Civ.App.2008) (footnote omitted).”

Id. at 355. In this case, the record reveals no substantial evidence indicating that the effects of either scheduled injury incurred by Blackmon extended to interfere with the efficiency of other parts of her body. Blackmon testified that her injuries continued to cause her pain and swelling. However, her testimony does not indicate that the effects of the injuries to the scheduled members extend to other parts of her body or interfere with the body’s efficiency. The record does not support, and the trial court’s order fails to specify, a basis on which to depart from the schedule. The evidence is insufficient to support the trial court’s award of permanent-partial-disability benefits outside the compensation schedule for injuries to Blackmon’s wrist and ankle, and, therefore, the trial court’s judgment, insofar as it awarded compensation based on an injury to Blackmon’s body as a whole, is reversed.

ACIPCO also argues that the trial court erred in admitting evidence of Blackmon’s vocational disability through the testimony provided by John Long. Because we have determined that the evidence does not support an award beyond that authorized under the compensation schedule in the Act, we need not address this argument except to note that such testimony is generally irrelevant when compensation is to be limited to an award under the schedule. See Gulf States Paper Corp. v. Warren, 979 So.2d 98, 104 (Ala.Civ.App.2007) (“Because the employee’s recovery was limited to compensation for a scheduled injury, evidence concerning the employee’s vocational disability was irrelevant.”).

ACIPCO argues that the trial court erred by ordering ACIPCO to authorize a physician other than the physician already authorized by ACIPCO to treat Black-mon’s ankle injury. It is undisputed that, following an initial referral to a physician for treatment of her ankle injury, Black-mon expressed dissatisfaction with that treatment and requested a panel of four physicians pursuant to § 25-5-77(a), Ala. Code 1975. Blackmon chose Dr. Meyer for the treatment of her ankle injury. Blackmon does not dispute that she sought treatment at Cooper Green Hospital under the care of Dr. James Floyd on her own and without authorization from ACIPCO because Dr. Meyer had stated that he had no further treatment plans he could offer Blackmon for her ankle injury. ACIPCO never authorized Dr. Floyd as a treating physician. The trial court held:

“Since the Court finds that the ankle injury described herein is compensable under the Worker’s Compensation Act, [Blackmon] should not have to rely on further treatment at Cooper Green Hospital. [Blackmon] has requested that she be allowed to see and be treated by Dr. Shane Buggay for her right ankle injury since she is an established patient with him as the approved physician for her right wrist injury. [Blackmon’s] request for the approval of Dr. Shane Buggay as her approved treating physician for her right ankle injury is due to be granted.”

Blackmon has not identified a statutory basis to support the trial court’s authorization of an additional or further treating physician outside the provisions of § 25-5-77(a), which provides, in pertinent part:

“If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and the employee shall be entitled to select a second physician from a panel or list of four physicians selected by the employer. If surgery is required and if the employee is dissatisfied with the designated surgeon, he or she may so advise the employer, and the employee shall be entitled to select a second surgeon from a panel or list of four surgeons selected by the employer.”

Dr. Meyer was selected after Blackmon had invoked the panel process provided for in the first sentence of § 25-5-77(a). Dr. Meyer did not believe that surgery was indicated as a treatment option for Black-mon, therefore ACIPCO was not required to provide a panel of four surgeons pursuant to the second sentence § 25-5-77(a). Further, the record does not indicate that Blackmon asked the court to appoint a neutral physician pursuant to § 25-5-77(b), which provides, in pertinent part:

“If a dispute arises as to the injury, or as to the extent of the disability therefrom, the court may, at the instance of either party or of its own motion, appoint a neutral physician of good standing and ability to make an examination of the injured employee and to report his or her findings to the court, the expense of which examination shall be borne equally by the parties.”

This court has held:

“The Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, gives an employer the right to select an injured employee’s physician in the first instance. See Ala.Code 1975, § 25-5-77(a); see Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala.Civ.App.2008) (stating that the employer has the right ‘to exercise considerable control over the medical care for which it must pay, including the right to choose the employee’s physician in the first instance’). If an injured employee is dissatisfied with the physician selected by the employer, he or she may request that the employer provide a panel of four physicians from which the employee may choose a treating physician. § 25-5-77(a). There is no other method by which the employee may choose another physician provided by the employer.”

Ex parte Imerys USA, 75 So.3d 679, 682 (Ala.Civ.App.2011). Therefore, the trial court’s authorization of Dr. Buggay as a treating physician for Blackmon’s ankle injury was inconsistent with the Act, and we reverse the trial court’s judgment as to this issue.

On cross-appeal, Blackmon argues that the trial court erred by denying her requests to award additional costs of litigation against ACIPCO based on, she alleges, “the confrontational and antagonistic attitude of ACIPCO prior to litigation and throughout.” In support of this allegation, Blackmon cites only § 25-5-89, Ala.Code 1975, which provides:

“Costs may be awarded by said court in its discretion, and, when so awarded, the same costs shall be allowed, taxed and collected as for like services and proceedings in civil cases, but if it shall appear that the employer, prior to the commencement of the action, made to the person or persons entitled thereto a written offer of compensation in specific terms, which terms were in accordance with the provisions of this article and Article 2 of this chapter, then no costs shall be awarded or taxed against such employer.”

(Emphasis added.) However, apart from generally noting that § 25-5-89 “provides for the award of costs,” Blackmon offers no other authority on which this court might review whether the trial court exceeded its discretion in denying her request for additional costs of litigation. It is well settled that “[t]his court will address only those issues properly presented and for which supporting authority has been cited.” Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). “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.” White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). As a result, we need not consider Blackmon’s cross-appeal further, and we affirm the trial court’s judgment as to this issue.

Conclusion

Because the trial court impermissibly entered an award outside the compensation scheduled in the Act for the injuries Blackmon sustained and impermissibly authorized treatment for Blackmon’s ankle injury by Dr. Buggay without a statutory basis, we reverse the trial court’s judgment as to those issues and remand this case for entry of a judgment consistent with this opinion. The trial court’s judgment, insofar as it denied Blackmon’s motion to tax additional costs against ACIP-CO is affirmed.

APPEAL — REVERSED AND REMANDED.

CROSS-APPEAL — AFFIRMED.

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

THOMAS, J., concurs in part, concurs specially in part, and concurs in the result in part as to the appeal and concurs in the result as to the cross-appeal, with writing.

THOMAS, Judge,

concurring in part, concurring specially in part, and concurring in the result in part as to the appeal; concurring in the result as to the cross-appeal.

Regarding the appeal filed by American Cast Iron Pipe Company (“ACIPCO”), I agree that the judgment of the Jefferson Circuit Court (“the trial court”) should be reversed and the cause remanded. I agree with the majority of this court that the evidence presented by the vocational expert was irrelevant in light of the conclusion that Sharon Blackmon’s compensation must be limited to the compensation set out for scheduled members under the Alabama Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq.

However, regarding the conclusion that Blackmon’s benefits should not be calculated based on a nonscheduled injury to her body as a whole, I concur specially. In addition to the authorities cited in the main opinion, I would rely upon General Electric Co. v. Baggett, 1 So.3d 1015, 1020 (Ala.Civ.App.2007), to support this holding. The employee in Baggett complained that his leg injury required him to use a cane to walk, prevented him from squatting and lifting without pain, prevented him from standing for long periods, prevented him from, walking long distances, prevented him from crawling and climbing, and caused him to have trouble balancing. Baggett, 1 So.3d at 1020. We concluded in Baggett that the evidence regarding the employee’s symptoms did not amount to substantial evidence indicating that the effects of his leg injury extended to other parts of his body, noting specifically that “these effects are consistent with the loss of the use of a leg and do not necessarily indicate that the left-leg injury extends to other parts of the body.” Id. In our discussion in Baggett regarding whether the effects of the employee’s injury extended to the body as a whole, we noted that our supreme court, in Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), had expressly overruled Checker’s Drive-In Restaurant v. Brock, 603 So.2d 1066, 1069 (Ala.Civ.App.1992), in which this court had concluded that, based on the fact that the employee’s physician had limited her ability to stand and the fact that the employee had testified that the pain in her foot had prevented her from standing for long periods, the employee’s compensation should have been based upon an injury to her body as a whole. Because Blackmon primarily complains of pain and swelling in her ankle that prevents her from standing for long periods, I find that our analysis in Baggett and our supreme court’s overruling of Brock form a compelling basis for reversing the trial court’s judgment in the present case, insofar as it determined that Blackmon had suffered a nonscheduled injury to her body as a whole.

I also agree with the conclusion that the trial court erred by authorizing Dr. Shane Buggay as Blackmon’s treating physician for her ankle injury. However, I do not read § 25-5-77(b), Ala.Code 1975, as authorizing a method by which an employee may seek to change his or her authorized treating physician or to seek treatment in addition to that provided by an authorized treating physician. Instead, I read that provision as authorizing the appointment of a neutral physician to resolve a dispute over the type of injury or the extent of disability and not to treat the employee. I believe that my reading of § 25-5-77(b) is supported by this court’s conclusion that an employee has only one method of choosing another authorized treating physician — the panel-of-four process provided for in § 25-5-77(a) — and that “[tjhere is no other method by which the employee may choose another physician provided by the employer.” Ex parte Imerys USA, 75 So.3d 679, 682 (Ala.Civ.App.2011). Thus, I concur in the result on this issue.

Regarding Blackmon’s cross-appeal, I agree to affirm the trial court’s judgment as to the issue raised by Blackmon. I do not believe that the trial court erred by denying Blackmon’s motion to tax additional costs against ACIPCO; however, I cannot agree that Blackmon offered too little authority for this court to comprehend and address the issue. Clearly, Blackmon referred this court to § 25-5-89, Ala.Code 1975, which provides:

“Costs may be awarded by said court in its discretion, and, when so awarded, the same costs shall be allowed, taxed and collected as for like services and proceedings in civil cases, but if it shall appear that the employer, prior to the commencement of the action, made to the person or persons entitled thereto a written offer of compensation in specific terms, which terms were in accordance with the provisions of this article and Article 2 of this chapter, then no costs shall be awarded or taxed against such employer.”

In her brief to this court, Blackmon contends that the trial court erred by failing to tax certain costs against ACIPCO. She then cites specific authority for the proposition that costs may be awarded, and she states her position that the trial court should have exercised its discretion to tax the costs against ACIPCO because, she says, it had displayed a “confrontational and antagonistic attitude.” Therefore, I conclude that Blackmon has properly presented the issue for our review. However, I concur in the result in the cross-appeal because I further conclude that the award of costs is generally within a trial court’s discretion and that, in this case, the trial court did not abuse its discretion. Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 281 (Ala.Civ.App.2005).

      . Blackmon is a licensed cosmetologist and attempted to work as a hairdresser after her employment was terminated by ACIPCO.

      . We express no opinion as to whether an employee whose authorized treating physicians have not recommended a course of reasonably necessary medical treatment, but whose unauthorized physician has recommended such a course of treatment, may seek judicial vindication of the right to receive the reasonably necessary medical treatment at the cost of the employer on the basis that the employer has neglected or refused to provide the treatment.


author: THOMAS, Judge.

text:
    MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES v. J.V.
    2130108.
    Court of Civil Appeals of Alabama.
    April 18, 2014.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellant.
    E. Shane Hollaway of Hollaway Law Office, Guntersville, for appellee.
   THOMAS, Judge.

In December 2011, the Marshall County Department of Human Resources (“DHR”) filed a petition in the Marshall Juvenile Court (“the juvenile court”) seeking to terminate of the parental rights of J.V. (“the father”) and M.M.T. (“the mother”) to J.J.V. (“the child”). On February 7, 2012, the juvenile court appointed an attorney for the father. In April 2012, the attorney representing the father in a criminal proceeding filed what he styled as a “limited” notice of appearance and a motion seeking that the termination-of-parental-rights proceeding be stayed pending the resolution of the criminal proceeding against the father. The juvenile court granted that motion.

It appears that the child’s foster parents had filed a petition to terminate the parental rights of the father on January 5, 2011; that petition was assigned case no. JU-09-300067.03. The petition in case no. JU-09-300067.03 was ordered to be consolidated with DHR’s petition, which had been assigned case no. JU-09-300067.04, in March 2013. In April 2013, DHR sought permission to serve the mother and the father by publication, which the juvenile court granted. However, after service by publication was accomplished, DHR learned the whereabouts of the father; DHR then moved to perfect personal service on the father. DHR accomplished personal service on the father on or about September 9, 2013.

The trial on the termination petitions was held on September 23, 2013. The father did not appear at the trial, although he was represented by counsel. According to the testimony of Tracey Burrage, the DHR caseworker assigned to the child’s case, the father had been incarcerated since October 5, 2011, either on criminal charges arising from allegations that he had sexually abused the child, which charges had since been dismissed, or on an immigration hold. Before that date, Bur-rage said, the father had lived in at least five different homes after he moved to Marshall County from Florida in, at the earliest, April 2009. Burrage testified that she had ordered home studies on three of the five homes in which the father had lived; however, she said, none of the homes had been approved.

The father had had visitation with the child until shortly before his incarceration. The visits were, at first, supervised; however, at some point, the father had unsupervised visits with the child in his home. Burrage said that the father had missed about half of his scheduled visits; she said that the father had complained that he could not get to Monday visits because of his work schedule. The record reflects that the father had been employed at different short-term jobs during the majority of the time he had lived in Alabama. Bur-rage testified that she had supervised some, but not all, of the father’s supervised visits. She described the visits as “strained” and stated that the child did not interact with the father during visitation. She also said that the child had cried “a lot” during visits and that she had had to require the foster mother to accompany the child to the visits to encourage the child to get into the automobile to go to the visits.

The juvenile court entered the following order on September 24, 2013:

“A Termination of Parental Rights hearing was conducted on September 23, 2013. Present in the courtroom were the following individuals: Ms. Jamie Logan, Guardian Ad litem for the minor child; Ms. Tracy Burrage, Marshall County Department of Human Resources; Mr. Greg Price, counsel for mother of the child; Mr. Shane Holloway, counsel for father of the child; Mr. James Berry, attorney for the Marshall County Department of Human Resources; Mr. Brett A. Hammock, attorney for [M.B.] and [B.B.], intervening foster parents; [M.B.], intervening foster parent[,] and [B.B.], intervening foster parent.
“Counsel for mother and father appeared objecting to termination and denying that grounds existed warranting termination of parental rights. Therefore, a hearing was conducted. After consideration of the pleadings and evidence presented in this matter it is hereby ORDERED, ADJUDGED and DECREED as follows:
“1. The parental rights of the child’s mother, [M.M.T.], are hereby TERMINATED.
“2. The Court declines to terminate the parental rights of the child’s father, [J.V.].
“3. The costs in this matter are remitted.”

(Capitalization in original.)

DHR filed a motion seeking reconsideration of the juvenile court’s judgment. That motion was denied by the juvenile court on October 30, 2013; DHR filed a notice of appeal on October 31, 2013. Because the judgment failed to include a disposition as to the custody of the child, we issued an order remanding the cause to the juvenile court for it to add to its judgment a provision relating to the disposition of the child. The juvenile court complied with our remand instructions on March 18, 2014, by ordering that the child remain in the custody of DHR, and the judgment became final on that date. DHR’s October 31, 2013, notice of appeal also became effective on that date. See Rule 4(a)(4), Ala. R. Civ. P.

DHR argues on appeal that the evidence it presented at trial clearly and convincingly supported the conclusion that the father’s parental rights should have been terminated. DHR contends that it proved that the father moved around frequently and that he had not been able to maintain a stable home, that he had completed only one of two classes DHR had required him to complete, that his visits with the child had been “strained” when they occurred, and that he had been incarcerated since October 2011 and had not seen the child since then. Thus, DHR contends, the evidence supports a conclusion that the father has not adjusted his circumstances to meet the needs of the child and that he is unable or unwilling to meet his obligation to provide a stable home for the child.

Because the juvenile court failed to make any findings of fact in its judgment, DHR surmises that the juvenile court might have concluded that the father had not been properly served with its termination petition. In fact, at the trial, the father’s attorney indicated that the father had been served on September 9, 2013, only 14 days before the trial. The father’s attorney also commented that the father had until the end of the day on which the trial was set to timely answer the petition, a fact which the attorney for DHR admitted. See Rule 1(B), Ala. R. Juv. P. (“In all juvenile courts an answer or other pleading filed by a party pursuant to Rule 12, Alabama Rules of Civil Procedure, shall be filed within the 14-day period provided in Rule 12(dc), Alabama Rules of Civil Procedure, regardless of whether the juvenile courts are circuit courts or district courts.”); see also Rule 12(dc), Ala. R. Civ. P. (stating that the 30-day period provided for filing an answer or other pleading under Rule 12 is reduced to 14 days for most actions in district court).

The attorney for M.B. and B.B. (“the foster parents”) argued that the father had appeared in the action when, in April 2012, his attorney in the criminal proceeding sought and received a stay of the termination-of-parental-rights action initiated by DHR pending resolution of the criminal charges against the father. At the conclusion of the trial, the juvenile court stated: “He has got until today to [answer the petition],” indicating that, as DHR suggests, the juvenile court felt that the delay in personally serving the father with the petition to terminate his parental rights precluded its ability to enter a judgment terminating those rights.

On appeal, DHR vehemently objects to the juvenile court’s apparent conclusion that the late perfection of personal service of the father barred the juvenile court from acting on its petition to terminate the father’s parental rights. DHR relies on two procedural facts: the father’s filing of the motion seeking a stay of the termination action in April 2012 and the successful publication of notice after the juvenile court’s entry of an order authorizing service by publication. We find the first procedural fact dispositive of this issue.

A party can waive an insufficiency in or a lack of service of process if he or she makes a general appearance in an action without objecting to the insufficiency in or the lack of proper service. See also Persons v. Summers, 274 Ala. 673, 680, 151 So.2d 210, 214-15 (1963) (“We consider the appearance requesting a continuance to be a general appearance because we have said that if a defendant intends to rely on want of jurisdiction over his person, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court.”). This case is similar to R.M. v. Elmore County Department of Human Resources, 75 So.3d 1195, 1200 (Ala.Civ.App.2011), in which this court concluded that a mother’s motion seeking a stay of a termination-of-parental-rights proceeding was a general appearance in the action and that, by failing to raise a challenge to personal jurisdiction or a lack of service of process in her first appearance, the mother had waived those issues. The father’s motion seeking a stay of DHR’s termination-of-parental-rights action, like the motion filed by the mother in R.M., was a general appearance in the action, and it contained no objection to a lack of service of process. Thus, based on the comments made by the juvenile court at trial, we conclude that the juvenile court incorrectly determined that personal service on the father was still required and that the timing of that personal service prevented it from considering DHR’s termination-of-parental-rights petition as to the father.

Because we have concluded that the juvenile court did not lack jurisdiction over the father because of the timing of the personal service on the father, we reverse the judgment of the juvenile court insofar as it apparently declined to address the merits of DHR’s petition to terminate the father’s parental rights. Because the juvenile court, and not this court, is the fact-finding body in a termination-of-parental-rights action, we remand the cause for the juvenile court to consider, based on the evidence already presented, the merits of DHR’s termination-of-parental-rights petition regarding the father. ■

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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