author: BARNES, J.,

text:
    Anita Carol PEARSON a/k/a Carol Pearson a/k/a Anita Pearson, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01848-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.

      Donald Rafferty, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Anita Carol Pearson was convicted by a Pearl River County Circuit Court jury of conspiring to intimidate a witness. She appeals her conviction and sentence, claiming that the circuit court erred in the admission of certain evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Pearson operated a bail bonding company called “A1 Outlaw Bonding.” One of her regular clients was Jimmy Dale Frierson, who had known Pearson for approximately twenty years. On February 17, 2009, Frierson was in justice court for violating parole, and he spotted Pearson trying to get his attention. Frierson claimed Pearson made a hand gesture (drawing her hand across her throat) that indicated to him she wanted Frierson to harm another defendant present in the courtroom. That defendant was Mark Harris, another client of Pearson’s. Harris had filed a complaint against Pearson in 2008 for kidnapping and armed robbery. The basis of the complaint was that one of Pearson’s investigators apprehended Harris for violating the conditions of his bond and, in the process, assaulted him and took money from him. For this charge, Pearson had been arrested on February 6, 2009, and was out on bond herself.

¶ 3. After Frierson told law enforcement about Pearson’s hand gesture, he submitted a statement to the local circuit court judge on February 20, 2009, saying he believed Pearson wanted him to kill or hurt Harris in exchange for money. Fri-erson agreed to act as a confidential informant to obtain further information, and law enforcement taped three phone conversations between Frierson and Pearson that occurred between February 23rd and February 26th. In the first taped conversation, Pearson talked to Frierson about obtaining bond for another inmate, and she then brought up the following:

P: So, um, the other lil’ matter?
F: Yeah, with Mark [Harris]? I’m get-tin’ him.
P: Yeah.
F: He’s fixing to get moved down here to me.
P: Okay.
F: I’m havin’ him moved in the cell with me. I’m fixin’ to take care of his ass for ya.
P: That’ll work. Okay.... [The rest of the conversation was related to other bonding matter].

¶ 4. In the second phone call, Frierson told Pearson he had someone ready to “take care” of Harris, but Pearson told Frierson to talk to Harris first and that her attorney, Glenn White, was going to “pull [Harris] out tomorrow night.”

F: Alright. On Mark [Harris], you want me to wait till he talks to Glenn White?
P: Yeah.
F: Or what?
P: Yeah, yeah, yeah.
(Inaudible — talking over each other)
F: And then get him?
P: Yeah.
F: Alright you want me to get him?
P: Yeah, but you wait. You wait until he talks to him, then you call me back and I’m gonna tell you what he said.

In the last conversation, the two discussed the fact that Harris had been taken from jail, and Frierson asked Pearson: ‘You want me to take care of this son of a bitch?” Pearson replied: “A, yes, mmhum.” Pearson then told Frierson that she had a one-hundred dollar bill for him and to send someone to pick up money that he could use for the prison canteen. Law enforcement sent an undercover employee to pick up the money from Pearson.

¶ 5. On June 12, 2009, Pearson was indicted for conspiring to intimidate a witness by paying Frierson one-hundred dollars “to threaten and/or assault Mark Harris” in order to influence his testimony. The State presented testimony by Frierson and submitted the taped phone conversations as evidence. The defense argued that Pearson was being framed by law enforcement, and one of its witnesses, Sandra Tevo, claimed that Frierson, who was her uncle, confessed to her that Pearson did not do what he had accused her of doing. In rebuttal, the State called Investigator Larry Ware with the Attorney General’s office to testify regarding a taped conversation between himself and Tevo, where she admitted that Pearson had helped her get out of jail on bond in exchange for spying on Frierson. Over the defense’s objection, the circuit judge allowed Investigator Ware’s testimony and allowed the recording to be played for the jury, finding that it was admissible as a prior inconsistent statement by a witness in order to impeach Tevo’s testimony.

¶ 6. After a four-day trial, Pearson was convicted on June 16, 2011, and sentenced to five years in the custody of the Mississippi Department of Corrections, with the first year to be served in the Intensive Supervision Program (ISP) (“house arrest”) and, upon successful completion of the ISP, the second year to be served under post-release supervision, with the remainder of the sentence to be suspended if Pearson abides by the terms and conditions of post-release supervision.

¶ 7. Pearson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The circuit court denied the motion. On appeal, Pearson alleges that the circuit judge erred in ruling that the taped conversation between Tevo and Investigator Ware was admissible rebuttal evidence. Finding no error, we affirm.

ANALYSIS

I. Whether the circuit court erred in admitting testimony in violation of Uniform Rules of Circuit and County Court Practice 9.04.

¶ 8. At trial, Tevo testified for the defense, stating that her uncle, Frierson, was “not a truthful person.” She claimed Frierson had told her that Pearson “didn’t do this” and that the police approached him to set up Pearson and promised he “could be released from jail” if he helped them. Tevo did acknowledge that she was currently out on bond through Pearson’s bonding company and that Pearson was a friend. While she admitted on cross-examination that she had talked with Investigator Ware, Tevo denied that they had talked about her helping Pearson in exchange for Pearson getting her out of jail on bond.

¶ 9. In rebuttal, the State played a recorded conversation between Tevo and Investigator Ware. Defense counsel objected to the recorded statement, but the State argued that it was rebuttal evidence to Tevo’s testimony and a prior inconsistent statement. The judge ruled that “if [Tevo] is testifying to what [Pearson] told her, and it is inconsistent with her other statement, then it is admissible.” In the recording, Tevo told Investigator Ware that Pearson had used her to spy on Frierson and set him up. Specifically, Tevo claimed that she and Pearson discussed planting narcotics on Frierson so that he would have trouble with law enforcement. Tevo also told Investigator Ware that Pearson had paid other inmates to state that Frier-son was a liar and admitted that Pearson did not make her pay any money for her $60,000 bond. After the jury left to deliberate, defense counsel again objected to the recording and made a motion to strike, requesting a mistrial. The circuit court denied the motion.

¶ 10. Pearson argues that allowing the tape recording into evidence violated Rule 9.04 of the Uniform Circuit and County Court Rules and that the only remedy was a mistrial. In her pretrial motion for discovery, Pearson requested that the State provide “all tape recordings and transcripts thereof containing any and all statements made by the Defendantf.]” The motion also requested “[a]ll statements made by the Defendant to third parties, including government and/or state agents whose identities were then unknown to Defendant.” Pearson claims the defense was “unfairly surprised as a result of the State’s failure to provide the recording prior to trial.”

¶ 11. “Rule 9.04(A)(1) of the Uniform Circuit and County Court Rules requires the State, upon written request, to disclose the identity of its witnesses in chief and the substance of their written or oral statements.” Ben v. State, 95 So.3d 1236, 1248 (¶ 35) (Miss.2012). However, as the State noted at trial, Tevo was the defense’s witness, not the State’s witness, and the recording was submitted during rebuttal. Therefore, Pearson is not entitled to relief under Rule 9.04(A)(1). See Yates v. State, 919 So.2d 1122, 1129 (¶ 31) (Miss.Ct.App.2005) (finding prosecution’s failure to disclose statement by a witness during rebuttal did not violate Rule 9.04(A)(1)).

¶ 12. Furthermore, since Pearson’s pretrial motion only requested “any and all statements” made by Pearson, we find that the State had no obligation to disclose Tevo’s prior inconsistent statement to opposing counsel under Rule 9.04. See Johnson v. State, 89 So.3d 630, 639 (¶ 29) (Miss.Ct.App.2011) (“[P]rior inconsistent statements used to impeach a witness need not be disclosed to opposing counsel unless opposing counsel has requested that such statements be disclosed.” (quoting Ross v. State, 954 So.2d 968, 999 (¶ 63) (Miss.2007))). Accordingly, we find no merit to this assignment of error.

II. Whether the circuit court erred in allowing rebuttal testimony of prior bad acts.

¶ 13. Pearson also contends that the State’s rebuttal evidence violated Mississippi Rule of Evidence 608(b), which states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

However, as the State accurately asserts in its brief, Pearson did not object to the rebuttal testimony on this specific ground. Rather, defense counsel argued that the evidence was “improper” as it violated Rule 9.04 (an issue we have already addressed above), and it was evidence of “what allegedly other people said” to Tevo, i.e., hearsay. “Objections to evidence must bring to the attention of the [circuit] judge the specific ground on which it is contended such evidence is inadmissible so that the [circuit] judge may determine whether or not such evidence is available to objector’s adversary.” Lenard v. State, 77 So.3d 530, 535 (¶ 17) (Miss.Ct.App.2011) (quoting Stringer v. State, 279 So.2d 156, 158 (Miss.1973)). “[A]n objection on one or more specific grounds constitutes a waiver of all other grounds.” Brown v. State, 682 So.2d 340, 350 (Miss.1996). Consequently, this argument is waived on appeal.

¶ 14. Regardless, the Mississippi Supreme Court has held:

[The Rule 608(b) ] absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness’s character for truthfulness. The admissibility of extrinsic evidence offered for other grounds of impeachment, such as contradiction, prior inconsistent statement, bias, and mental or sensory capacity, is governed by Rules 402, 403, and 616.

Gore v. State, 37 So.3d 1178, 1188 (¶ 23) (Miss.2010) (emphasis added) (citing M.R.E. 608(b) cmt.). “[I]f a witness testifies either on direct or cross-examination[,] ‘the adverse party for the purpose of impeaching his testimony, may show that the witness has made previous inconsistent or conflicting statements either by eliciting such statements upon cross-examination of the witness himself, or by proving them by other witnesses.’ Hubbard v. State, 437 So.2d 430, 434-35 (Miss.1983) (emphasis added and citation omitted). As the State points out, the purpose of introducing this rebuttal testimony was to contradict Tevo’s prior testimony, not to attack Tevo’s character for truthfulness. During cross-examination by the State, Tevo admitted that she had spoken with Investigator Ware, but denied the investigator asked her “about that conversation with [Pearson] about you trying to get [Frier-son] to change his story in exchange for [Tevo] getting out of jail[.]” However, the recording shows that Tevo talked with the investigator for thirty minutes, during which time Tevo claimed Pearson wanted to be informed regarding Frierson’s activities. She said the two women discussed planting drugs on Frierson. Investigator Ware also testified: “Ms. Tevo stated that Ms. Pearson wanted her to follow Jimmy Dale Frierson around, keep her up abreast on his whereabouts, what he’s doing, that kind of stuff. Ms. Tevo also related that Ms. Pearson mentioned to her about planting drugs on Jimmy Dale Frierson.”

¶ 15. The State explained at trial that the reason the recording was only entered for identification purposes was that it was “not intended to be substantial evidence.” The State continued: “It’s for impeachment purposes only. And that’s what the rule provides. It does not go in as to substance. It’s for impeachment purposes.” Based on our review, we agree with the circuit court’s finding that the rebuttal testimony was admissible as a pri- or inconsistent statement.

¶ 16. Furthermore, although not raised by the parties, we find that the rebuttal testimony was proper to show bias by the witness, Tevo. Mississippi Rule of Evidence 616 states that “evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible” for the purpose of attacking a witness’s credibility.

It is a permissible means of impeaching a witness to attempt to show that the witness is, for some reason, biased or prejudiced for or against a party. Indeed, evidence of bias is admissible for attacking witness credibility, and our supreme court has instructed that bias is always material and may be proven by extrinsic evidence.

Banks v. State, 45 So.3d 676, 681 (¶ 23) (Miss.Ct.App.2010) (internal citations omitted). At trial and in the recording, Tevo acknowledged that she and Pearson were friends. In the recording, Tevo stated that she was worried that when Pearson found out Tevo “went against her,” Pearson would revoke her bond. Investigator Ware also testified: “Ms. Tevo seem[ed] to be concerned about her bonding being revoked by Ms. Pearson’s company and also a gentlemen by the name of Gerald Burge, which she stated that Mr. Burge had killed someone in her family.”

¶ 17. “The determination of whether evidence is properly admitted as rebuttal evidence is within the [circuit] court’s discretion.” Terrell v. State, 969 So.2d 53, 55 (¶ 7) (Miss.Ct.App.2007) (citing Powell v. State, 662 So.2d 1095, 1099 (Miss.1995)). We find that the circuit court did not abuse its discretion by admitting Investigator Ware’s testimony and allowing the jury to hear the taped recording as rebuttal to impeach Tevo’s prior testimony. The testimony was admissible as a prior inconsistent statement; it was also admissible to show bias by the witness. Accordingly, we affirm the circuit court’s judgment.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF CONSPIRACY TO INTIMIDATE A WITNESS AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS TO SERVE, WITH THE FIRST YEAR TO BE SERVED ON HOUSE ARREST AND, UPON SUCCESSFUL COMPLETION OF ONE YEAR OF HOUSE ARREST, THE SECOND YEAR TO BE SERVED ON POST-RELEASE SUPERVISION, AND THE REMAINING THREE YEARS TO BE SUSPENDED UPON MEETING THE TERMS AND CONDITIONS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The recordings of the three conversations were later submitted as evidence at trial. This version of the recording is from the defendant's Exhibit D-7, that Pearson claimed was a more accurate transcript of the recording than the State’s Exhibit S-2.

      . See Miss.Code Ann. § 97-9-113 (Rev.2006).

      . The recording was not introduced as evidence; it was merely marked for identification purposes.

      . Pearson’s main theory of defense was that the local police did not like her due to her bonding practices and that they were trying to set her up.

      . Defense counsel did not use the term "hearsay” in its objection to the rebuttal evidence, and Pearson does not argue on appeal that the evidence was inadmissible as hearsay.

      . The Banks court continued: “Furthermore, ‘if the significance of a statement is simply that it was made and there is no issue about the truth of the matter asserted, then the statement is not hearsay.' " Banks, 45 So.3d at 681 (¶ 23) (quoting M.R.E. 801(c) cmt.).

      . Burge is Pearson’s ex-husband.


source: Caselaw Access Project

license: Public Domain

text:
    Kenneth Glynn DORSEY a/k/a Kenneth Glyn Dorsey a/k/a Kenneth G. Gorsey, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-00109-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.

      Kevin Dale Camp, Jackson, John Michael Duncan, Christopher Tyler Kent, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. On February 9, 2008, Kenneth Glynn Dorsey was stopped and charged with operating a vehicle while under the influence of alcohol (DUI). On November 30, 2009, the State indicted Dorsey for felony DUI pursuant to Mississippi Code Annotated section 63-11-30 (Rev.2004) in the Madison County Circuit Court. Section 63-ll-30(2)(c) states that “for any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felonyf.]” The indictment alleged Dorsey had two prior DUI convictions within five years of the current charge. The first prior conviction was on September 21, 2006, in the Justice Court of Madison County. This conviction was appealed to the County Court of Madison County on October 6, 2006, where Dorsey was convicted upon de novo review for the same offense. The second DUI offense showed a conviction date of October 10, 2006, in the Municipal Court of the City of Ridgeland, Mississippi.

¶ 2. On June 21, 2009, Dorsey pleaded guilty to felony DUI. He was sentenced to five years in the custody of the Mississippi Department of Corrections, with three years to be stayed, and Dorsey was to be placed on supervised probation for five years, placed on house arrest for two years, enrolled in an alcohol and drug treatment program within thirty days of the sentence, and fined $3,487.50.

¶ 3. Dorsey filed a motion for post-conviction relief (PCR), arguing that the State failed to prove the underlying offenses necessary to support his conviction of felony DUI. He also raises a prospective claim of double jeopardy in the event he is charged again for the same offense. The Madison County Circuit Court dismissed the motion, finding that Dorsey was not entitled to any relief, and we affirm that judgment.

STANDARD OF REVIEW

¶ 4. “The circuit court may dismiss a PCR motion without an evidentiary hearing ‘if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’ ” Ingram v. State, 107 So.3d 1024, 1027 (¶ 3) (Miss.Ct.App.2012) (quoting Miss.Code Ann. § 99-39-11(2) (Supp.2011)). Unless the circuit court’s factual findings “are clearly erroneous,” they will not be disturbed on appeal. Id. at (¶ 4) (citing Presley v. State, 48 So.3d 526, 528-29 (¶ 10) (Miss.2010)). Questions are law are reviewed de novo. Id.

DISCUSSION

¶ 5. Dorsey contends that he should not have been charged or convicted of felony DUI, as the State failed to provide proof he had been convicted of two DUI offenses five years prior to the felony DUI in question. Specifically, Dorsey argues that his September 21, 2006 conviction from justice court is “non-existent” or “does not exist” because it was appealed to the county court, where a judgment of guilt was rendered. Therefore, he claims that “his conviction in the Justice Court was gone for all of the intents and purposes of the law[,]” and the indictment was fatally defective.

¶ 6. Usually, “a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment or information against a defendant.” Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992) (quoting Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). However, the entry of a guilty plea does not waive the right to challenge the indictment for failure to charge an essential element of the crime. Joiner v. State, 61 So.3d 156, 159 (¶ 7) (Miss.2011).

¶ 7. We find that Dorsey’s argument lacks merit. An indictment should contain “the essential facts constituting the offenses charged and shall fully notify the defendant of the nature and cause of the accusation.” Wilkins v. State, 57 So.3d 19, 26 (¶ 20) (Miss.Ct.App.2010) (quoting URCCC 7.06). While it might have been more correct to list the county court DUI conviction that resulted from the appeal of the justice court conviction, the indictment was sufficient to inform Dorsey of the offense that constituted his prior DUI conviction.

¶ 8. Further, the Mississippi Supreme Court stated in Ex parte Caldwell, 62 Miss. 774, 776 (1885):

By [the] appeal to the circuit court from the judgment of the justice of the peace convicting the appellant, the judgment of the justice was superseded, but it was not vacated. It remained in force, liable to be merged in the judgment of the circuit court when rendered in the trial of the case anew by that court on the appeal.

Dorsey’s September 21, 2006 conviction in justice court did not become “non-existent”; rather, it merged with the county court’s conviction on appeal. Thus, we find that it was not reversible error to list the justice court conviction as an underlying offense to support Dorsey’s charge of felony DUI.

¶ 9. Although Dorsey also raises a prospective argument that he cannot be charged and tried again for the same offense of felony DUI, it is not necessary for this Court to .address this argument, as the issue is moot.

¶ 10. Accordingly, we affirm the judgment of the circuit court.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The offense for the first conviction occurred on January 15, 2006. The offense for the second conviction occurred on February 15, 2006.


author: WOODALL, Justice.

text:
    BLACK WARRIOR ELECTRIC MEMBERSHIP CORPORATION v. Ronald MCCARTER.
    1110745.
    Supreme Court of Alabama.
    Oct. 19, 2012.
    Rehearing Denied Dec. 7, 2012.

      John W. Dodson and David A. Rich of Ferguson Frost & Dodson, L.L.P., Birmingham, for appellant.
    Michael L. Jackson and Matthew D. Fri-dy of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and Christopher A. Keith and John H. McElheny of Wetter-mark & Keith, LLC, Birmingham, for ap-pellee.
   WOODALL, Justice.

Black Warrior Electric Membership Corporation (“Black Warrior”) appeals from a judgment entered on a jury verdict for Ronald McCarter in McCarter’s action seeking compensation for injuries he sustained when he contacted a power line owned and operated by Black Warrior. We reverse and remand.

I. Factual and Procedural Background

This case arose out of an accident that occurred September 14, 2006, on State Highway 14 (“the highway”) approximately one mile south of the intersection of the highway and State Highway 60 near Saw-yerville (“the intersection”). The highway runs north and south at the accident site, but makes a 90-degree turn at the intersection and then runs east and west. Alabama Power Company owns and operates the electrical-transmission lines running along the highway west of the intersection to a bridge across the Black Warrior River (“the west leg”), while the power lines running along the highway south of the intersection toward Sawyerville (“the south leg”) are owned and operated by Black Warrior.

On the day of the accident, McCarter was a member of a crew employed by APAC Southeast, Inc. (“the crew”), to replace asphalt on the highway. For the preceding two or three weeks, the crew had been engaged in paving the west leg. On September 14, 2006, at approximately 7:00 a.m., the crew began paving the south leg, beginning at the intersection. McCar-ter was operating a “Roadtec SB-2500B Material Transfer Vehicle,” which throughout this litigation has been referred to as a “shuttle buggy.” In its operating position, the shuttle buggy travels between, and in tandem with, a dump truck loaded with hot asphalt and an asphalt spreader. The operator drives the shuttle buggy from a seating compartment located near the rear of the machine.

At approximately 2:00 p.m., the crew arrived at a point on the highway where Black Warrior had installed a “service tap” across the highway to provide electrical service for a residence on the east side of the highway. The service tap consisted of two lines. The lower of the two was a “neutral” line, which carries no electricity. Positioned a few feet above the neutral line was a “primary” line, which carried 7,600 volts of electricity. The height of the lines above the roadway is subject to the specifications of the National Electric Safety Code (“the NESC”). The specifications required 15'6" of clearance for the neutral line and 18'6" of clearance for the primary line. The shuttle buggy measures 14'8" at its highest point.

As the shuttle buggy began to pass under the power lines, McCarter attempted to raise one of the lines using an 8' metal pole. In the process of lifting the fine, he was electrocuted and received serious injuries to his arm and hand.

McCarter sued Black Warrior, alleging, in pertinent part, that Black Warrior negligently installed and maintained the power line by which he was injured. The case was tried to a jury on the theory that Black Warrior had maintained its lines at a height below that required by the NESC. More specifically, during opening statements to the jury, McCarter’s counsel stated, in pertinent part:

“Power companies have duties to the public. Those duties are to avoid exposing the public to any needless dangers. Now, that includes adhering to the safety codes that are set out by the [NESC]. Did a power company fail to live up to this obligation, then they are responsible for whatever harms might occur because of that failure.
“Now, the paving crew that’s going down the highway is working for a company called APAC. They are paving southbound on Highway 14, rocking and rolling, going along. All of a sudden one of the pavers looks up and sees this one low power line leading to that red, brick house and its just about to contact the paving machine that he’s on....
“Now, in that split second, Mr. Ronald McCarter, the paver who’s sitting on that shuttle buggy on top of it operating that machine at the time made a decision to pick up what’s called a lute. It’s about an eight to ten foot metal pole.... He decides to pick that lute up and reach out and try to prevent that wire from contacting that particular machine.
“Well, he does that successfully. Picks up the lute, lifts it over, and contacts the wire. Well, at that instant, rather than Mr. McCarter picking ... up and moving a telephone wire that hangs down pretty low or a cable wire that crosses the road and hangs down pretty low — or even a Black Warrior neutral line that has no electricity through it — Mr. McCarter figures out that, you know what? That’s a power line. It’s got 7,600 volts of electricity in it. He figured it out because he got electrocuted when he tried to move it to try to prevent it from contacting that machine.
“Now, we’ve sued Black Warrior for one reason. That reason is right here. In this trial, you’re going to hear about the [NESC]. It’s a big, old book of standards that electric companies adhere to. At the bottom of this piece of paper, bottom [of] this posterboard here is one of the tables that tells the standards that electric companies are supposed to adhere to and it tells you how high these lines are supposed to be, and depending on where they are and how much electricity is running through them. We’re going to get into that in great detail throughout the week.
“I want you to remember this, it’s got to be 18 and a half feet tall. It’s got a lot of electricity running through it. If it’s the neutral, it’s gotta be 16 feet tall. We’re going to talk a lot about that. The reason we sued them is because of this particular code, because they failed to live up to that standard.”

(Emphasis added.)

Black Warrior moved for a judgment as a matter of law (“JML”) at the close of all the evidence. Following the denial of that motion, the trial court charged the jury on the duty owed by Black Warrior as it relates to notice:

“Ladies and gentlemen of the jury, [Black Warrior] is not an insurer of the • safety of the plaintiff nor is it under obligation to safeguard its wires that by no possibility can injury result therefrom. [Black Warrior] only had a duty to take precautions or remedy defects with respect to its power lines if it had actual or constructive notice of the defect or actual or constructive knowledge of facts that would give it reason to anticipate that a person might come in contact with a power line.
“If you find that [Black Warrior] did not have actual or constructive notice of a defect in this power line that would give it reason to anticipate a person might come in contact with the power line, you must find for [Black Warrior].”

The jury returned a verdict for McCarter. Black Warrior’s postjudgment motion for a JML was overruled, and Black Warrior appealed.

Black Warrior contended in its JML motions, as it does on appeal, that there was no evidence, let alone substantial evidence, indicating “that Black Warrior had actual or constructive notice that the height of the power line was defectively low so as to give Black Warrior reason to anticipate that a person, such as [McCar-ter], might come in contact with the power line.” Although Black Warrior argues on appeal both that evidence of its liability was insufficient to present a jury question and that the verdict was against the weight and preponderance of the evidence, the resolution of this case turns on the sufficiency of the evidence.

II. Discussion

“‘[T]he de novo “standard by which we review a ruling on a motion for a JML is ‘ “materially indistinguishable from the standard by which we review a summary judgment.” ”” ” McGee v. McGee, 91 So.3d 659, 663-64 (Ala.2012) (quoting Glass v. Birmingham Southern R.R., 982 So.2d 504, 506 (Ala.2007), quoting in turn Bailey v. Faulkner, 940 So.2d 247, 249 (Ala.2006)). “ When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue.’” Pittman v. United Toll Sys., LLC, 882 So.2d 842, 844 (Ala.2003) (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)). “‘“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.” ’ ” Long v. Wade, 980 So.2d 378, 383 (Ala.2007) (quoting Kmart Corp. v. Bassett, 769 So.2d 282, 284 (Ala.2000), quoting in turn West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). “Further, this Court has stated that ‘ “[ejvidence supporting nothing more than speculation, conjecture, or a guess does not rise to the level of substantial evidence.” ’ ” State Farm Fire & Cas. Co. v. Shady Grove Baptist Church, 838 So.2d 1039, 1041 (Ala.2002) (quoting McGinnis v. Jim Walter Homes, Inc., 800 So.2d 140, 145 (Ala.2001), quoting in turn Brushwitz v. Ezell, 757 So.2d 423, 432 (Ala.2000)).

“While this. Court has long held that companies engaged in the distribution of electricity are not subject to strict liability it has held:
“ ‘ “The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith....”’
“Curtis on Law of Electricity, § 510 (as quoted in Alabama Power Co. v. Mosley, 294 Ala. 394, 400, 318 So.2d 260, 264 (1975)); see Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979)....”

Cherokee Elec. Coop. v. Cochran, 706 So.2d 1188, 1192 (Ala.1997) (emphasis added). “The obligation of the electric company to insulate is not absolute, but alternative, in its nature. ‘Either the wire must be insulated, or it must be so located as to be, comparatively speaking, harmless.’ ” Dwight Mfg. Co. v. Word, 200 Ala. 221, 224, 75 So. 979, 982 (1917)(quoting Curtis on Law of Electricity § 511 (emphasis added)).

Ordinarily, the existence of a duty is a question of law, and a trial court’s ruling on a question of law is reviewed de novo. Ex parte Farmers Exch. Bank, 783 So.2d 24, 27 (Ala.2000). However, “ ‘[wjhere the facts, upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury.’ ” Bush v. Alabama Power Co., 457 So.2d 350, 354 (Ala.1984) (quoting Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979)).

Whether Black Warrior’s lines were, in fact, “defectively low” was sharply disputed at trial. Witnesses for Black Warrior testified that measurements were taken of Black Warrior’s lines immediately after the accident and that the lowest wire was found to be 16'2" above the roadway. McCarter, on the other hand, presented witnesses who testified that the neutral line would not have cleared the shuttle buggy at 14'8". However, Black Warrior argues that, even assuming the accuracy of McCarter’s witnesses, McCarter failed to present substantial evidence that Black Warrior had constructive notice of the defect so as to fasten liability on Black Warrior for McCarter’s contact with its power line. We agree with Black Warrior.

As evidence of notice, McCarter relied on testimony presented by Black Warrior. Specifically, Earnest Bryant, a representative of Black Warrior, testified that he had traveled underneath the power lines at the accident site on his way to work at approximately 6:30 a.m. on the day of the accident. Although Bryant testified that the lines were at the proper height at 6:30 a.m., McCarter contends that Bryant’s testimony presents substantial evidence that Black Warrior had constructive knowledge that the lines were not at the proper height. According to McCarter, the jury was free to ignore Bryant’s testimony to the extent it tended to establish the compliance of the lines but, nevertheless, to conclude that Bryant saw, or that he should have seen, that the lines were not in compliance with NESC standards. In particular, McCarter states that, “given that Black Warrior’s corporate representative testified that the lines were inspected that morning, Black Warrior should have known the lines were too low.” McCarter’s brief, at 33. In response to this argument, Black Warrior contends that such a conclusion can be reached only by improperly stacking inferences. We agree with Black Warrior.

“An ‘inference’ is a reasonable deduction of fact, unknown or unproved, from a fact that is known or proved. See, Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So.2d 274 (1964). ‘[A]n inference cannot be derived from another inference.’ Malone, 277 Ala. at 107, 167 So.2d at 281. An inference must be based on a known or proved fact. Id.”

Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1224 (Ala.1992) (emphasis added).

McCarter infers Black Warrior’s knowledge of a defect in the fines from the fact that Bryant failed to notice such a defect on the morning of the accident. However, that inference depends, in turn, on whether the fines were — in fact — below NESC standards at 6:30 a.m. McCarter infers that the fines were low at 6:30 a.m., apparently only because they were allegedly low that afternoon when the accident occurred. However, the state of the fines at 6:30 a.m. is a matter in hot dispute, rather than a “known or proven fact.”

In that connection, Black Warrior presented the testimony of its safety and fleet-maintenance director, Robert Tutt, who investigated the scene immediately after the accident. According to his un-controverted testimony, he discovered a gap of 5" to 8" at the base of the pole bearing the power fines, indicating that the pole had recently been forced over in the direction of the highway. This condition, he stated, caused the top of the pole to lean toward the highway by 12" or more, resulting in a lowering of the fines over the roadway. According to Tutt, there was “no trash or debris” in the gap, which indicated that the pole had been “freshly moved.” He opined that the pole shift was most likely caused by a “large piece of equipment” getting into the fines. Indeed, Bryant, himself, was called to the accident scene and allegedly found the fines “noticeably lower” than they had been at 6:30 a.m. No inference of knowledge of inadequate clearance can, therefore, be derived from Bryant’s traveling underneath the fines at 6:30 a.m. on the day of the accident.

In support of his position on the notice issue, McCarter relies on a number of cases from this Court, namely, Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371 (Ala.1989) (disapproved of on unrelated grounds by Robbins v. Sanders, 927 So.2d 777 (Ala.2005)); Alabama Power Co. v. Capps, 519 So.2d 1328 (Ala.1988); Alabama Power Co. v. Cantrell, 507 So.2d 1295 (Ala.1986); Alabama Power Co. v. Brooks, 479 So.2d 1169 (Ala.1985); and Bush v. Alabama Power Co., 457 So.2d 350 (Ala.1984). However, these cases are distinguishable.

In Tapley, Wendall M. Tapley, “a truck driver employed by Diversified Support Services to haul asphalt and related materials to and from an asphalt plant, was killed when he raised the ‘trailer dump’ of his tractor-trailer rig into an uninsulated electric distribution line ... owned by CAEC [Central Alabama Electric Cooperative].” 546 So.2d at 373. The accident happened on the premises of the asphalt plant less than a week after CAEC had installed the line. Id. At the time the line was installed, CAEC knew that it could not install its line across areas of the plant where “dumping was obviously taking place,” because of the height of unloading dump trucks. 546 So.2d at 374 (emphasis added). Consequently, CAEC’s officials decided to string the “line across the roadway to the asphalt plant” where the accident occurred, id., at an elevation “well below the height to which the truck beds were raised,” despite “knowing that truck beds were raised in several locations on the premises.” 546 So.2d at 380 (emphasis added). Under such facts, this Court held that a jury question was presented as to foreseeability and notice. 546 So.2d at 379.

The facts in Capps were similar. That case involved a dump-truck operator who was fatally electrocuted on the premises of a “sand and gravel mining operation,” 519 So.2d at 1329, when he raised the bed of his truck into a power line owned and operated by Alabama Power Company (“APCo”). Rejecting APCo’s argument that the jury verdict in favor of the admin-istratrix of the operator’s estate was contrary to the weight and preponderance of the evidence, this Court stated:

“[APCo] undisputedly knew that the large items of equipment were present in the vicinity of the lines. These lines were installed specifically to serve this mining operation. Indeed, a large piece of equipment had torn down the lines about 200 yards from the site of this particular occurrence less than two months earlier.”

519 So.2d at 1329 (emphasis added).

Brooks also involved a jury verdict against APCo in an action by an equipment operator who was injured when he raised the equipment he was operating into APCo’s power line. The plaintiff was George Brooks, who was operating a “mobile drilling rig” on the premises of a mining company in connection with his employment. 479 So.2d at 1171. The accident occurred on a part of a driveway running to the shop area of the premises. Id. at 1174. Some years before the accident, “APCo [had] raised an adjacent span of lines to allow adequate clearance for large trucks traveling on this driveway to and from the [mining] pit.” 479 So.2d at 1174 (emphasis added). The line on which Brooks was injured had not been raised, although the driveway that ran under it was part of the driveway running underneath the adjacent lines that had been raised. Under these facts, the Court concluded that “reasonable men could differ as to whether APCo had sufficient notice so as to have anticipated that employees ... might operate, service, refuel, or repair their mining equipment, including the subject drilling rig, in the shop area within close proximity to the uninsulated line.” Id. at 1174-75.

In Cantrell, a fatal electrocution occurred during the decedent’s attempt to remove a 30' television antenna from the roof of an apartment building, which was located within 9' of APCo’s power line. 507 So.2d at 1296. Applying the then applicable “scintilla rule,” this Court held that a jury question as to APCo’s duty to insulate the power line was presented by the following facts:

“[A]n aluminum antenna, set up on an apartment building and near an uninsulated power line might be reasonably foreseeable as an object which could be energized if it touched the power line; this apartment was on the main street of Springville, Alabama, and both the power line and the antenna could be clearly viewed from the street; there are two electric meters, owned by APCo, on the side of the building a few feet from where the antenna was located, and the jury could have found that to examine the meters it would be necessary for anyone walking from the street to pass by the antenna; testimony was given that APCo meter readers had been seen in the neighborhood; and that the antenna had been in place about two years.”

507 So.2d at 1297-98.

Finally, in Bush, this Court reversed a summary judgment in favor of APCo in an action against it for injuries sustained by two workers at the Country Club of Mobile (“the Club”) in connection with an operation to replace bulbs in the lights over the outdoor tennis court. The operation had occasioned the construction of a metal scaffold 33'3" high for the purpose of reaching the bulbs, which were situated “at various spots around the tennis courts.” 457 So.2d at 354. The workers were electrocuted when the scaffold they were pushing contacted APCo’s power line, located “approximately 30 feet above the level of the tennis court.” 457 So.2d at 352. On the issue whether “it was foreseeable that persons would come into contact with the electrical wires which stretched across the tennis court,” this Court stated:

“It is undisputed that the tennis courts and the lights for the courts had been in place since the 1960’s. It is also undisputed that the power company had been out to the site to work on the switch into which this system of wires is attached. The switch is located on a pole in one corner of the tennis courts, and, from the switch and this pole, it is possible to see the tennis court layout, the lights, and the system of wires. Additionally, the power company had been on the site to do extensive repairs to this system after Hurricane Frederic came through in September 1979. This accident occurred less than seven months later.
“... The record shows that the wires crossed over the tennis court area, and that there were lights at various spots around the tennis courts. The lights were atop poles 25 to 35 feet in height. Whether the power company, under these facts, should have foreseen that someone would come in contact with its uninsulated wires while repairing the lights is purely a question of fact.”

457 So.2d at 354 (emphasis added).

None of these cases involved an issue, as does this one, of displacement of a power line by an unknown agency independent of the power company before the accident in question. Thus, they are not controlling here.

Black Warrior presented prima facie evidence that it had no knowledge of the alleged defect in its lines before the accident. Consequently, the burden then shifted to McCarter to present substantial evidence creating an issue as to such notice. Pittman, 882 So.2d at 844. However, the only evidence presented as to when the lines allegedly came to be below NESC standards amounted to speculation and conjecture. McCarter presented no substantial evidence from which it could be inferred that the lines were defectively low when Bryant passed under them at 6:30 a.m. or at any time of sufficient duration to give Black Warrior notice of the alleged defect. The trial court erred, therefore, in denying Black Warrior’s motion for a JML.

For the first time on appeal, McCarter attempts to invoke the doctrine of res ipsa loquitur to support the jury’s verdict. He now proposes that it was the neutral line that he touched, which had, for unknown reasons, become charged with electricity, resulting in his injuries. Relying on George v. Alabama Power Co., 13 So.3d 360 (Ala.2008), he now asserts that he was not required to prove notice as discussed above, because, he says, the jury could properly have concluded that the facts of this case gave rise to a presumption of negligence, which Black Warrior failed to rebut. However, McCarter cannot now rely on the doctrine of res ipsa loquitur.

To be sure, this Court did hold in George that the doctrine of res ipsa loquitur was applicable in an electrocution accident involving the apparent energization of a neutral line through some agency unknown to the plaintiff. More specifically, it held that the doctrine applied to preclude a summary judgment for APCo on the plaintiffs negligence claim. George, however, is in-apposite for a number of reasons.

In George, for example, the plaintiffs theory of the case was that he touched a neutral line and was injured because the electrical system was not functioning properly for a reason, or reasons, upon which.there had been no proof. By contrast, McCarter’s theory of the case in the trial court — as well illustrated in his opening argument — was merely that he touched a primary line because the lines were lower than the NESC required. In George, it was “undisputed that, in a properly functioning electrical-distribution system in which the neutral wire is properly grounded, the neutral wire cannot become energized and, thus, one who touches it will not be injured.” 13 So.3d at 360. In short, this ease was not tried on the theory that McCarter was injured by touching the neutral line.

“[I]t is a well-settled rule that parties are restricted to the theory on which a cause is prosecuted or defended in the court below. Where both parties adopt a particular theory they will not be permitted to depart therefrom when the case is brought up for appellate review.” Inter-Ocean Ins. Co. v. Banks, 268 Ala. 25, 27, 104 So.2d 836, 837 (1958).

Additionally, the jury in this case was not instructed on the doctrine of res ipsa loquitur, no evidence was presented on which such an instruction could have been predicated, and McCarter has not undertaken to challenge the manner in which the jury was instructed. It is a familiar principle that “[u]nchallenged jury instructions become the law of the case,” and “[t]he jury is bound to follow such instructions, even if they are erroneous.” Clark v. Black, 630 So.2d 1012, 1017 (Ala.1993). Additionally, “juries are presumed to have followed the trial court’s instructions.” Ex parte Loggins, 771 So.2d 1093, 1108 (Ala.2000). Thus, as instructed in this case, the jury could not have based its verdict on the application of the doctrine of res ipsa loquitur, and it cannot be presumed that it did so. The doctrine of res ipsa loquitur does not apply to relieve McCarter of the burden of proving notice.

III. Conclusion

In conclusion, McCarter failed to present substantial evidence that Black Warri- or had constructive knowledge of the alleged defect in its lines before the time of the accident. The trial court erred, therefore, in denying Black Warrior’s motion for a JML. The judgment is reversed and the case is remanded for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

MALONE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . McCarter concedes that Black Warrior did not have actual notice of any defect.

      . The power line was approximately 25' above the ground. 507 So.2d at 1296.


author: MOORE, Judge.

text:
    Roy S. TODD v. DISCOVER BANK, Issuer of Discover Card.
    2110199.
    Court of Civil Appeals of Alabama.
    May 4, 2012.
    Rehearing Denied July 13, 2012.

      Roy S. Todd, pro se.
    J. Bart Lloyd III and R. Todd Mishkin of Nathan & Nathan, P.C., Birmingham, for appellee.
   MOORE, Judge.

Roy S. Todd appeals from a summary judgment entered in favor of “Discover Bank, Issuer of Discover Card” (“Discover”), by the Shelby Circuit Court (“the trial court”).

On September 13, 2010, Discover filed a complaint against Todd, claiming that Todd owed it $11,721.03 “by virtue of contract, open account and account stated plus interest pursuant to the terms of the contract,” plus attorney fees. On November 9, 2010, Todd, appearing pro se, filed a motion to dismiss the complaint, asserting that Todd had sent a written request to Discover’s counsel on July 29, 2010, requesting proof of the debt and that Discover had not responded to his request. Todd filed a document in the trial court entitled “Sworn Denial,” which was signed by Todd and notarized; that document stated: “I deny that this is my debt and if it is my debt, I deny that it is still [a] valid debt and if it is a valid debt, I deny the amount sued for in the amount of $11,721.03 is the correct amount.” Also on November 9, 2010, Todd filed an answer denying the allegations in the complaint and asserting a number of affirmative defenses.

On November 30, 2010, Discover filed a motion for a summary judgment. Discover attached to that motion what it asserts is Todd’s “Cardmember Agreement”; itemized statements of Todd’s account with Discover; an affidavit from Discover’s attorney setting forth the amount of the attorney fees sought by Discover; and the affidavit of an account manager for the servicing agent of Discover verifying the records of Todd’s account. Discover filed a response to Todd’s motion to dismiss on December 16, 2010. In that response, Discover asserted, among other things, that it had provided verification of Todd’s debt on or about August 23, 2010. Discover also asserted that Todd had agreed to the terms of his “Cardmember Agreement” through use of his Discover account.

On January 6, 2011, a hearing was held on Discover’s summary-judgment motion and Todd’s motion to dismiss. On that date, in response to Todd’s arguments, the trial court allowed Todd 30 additional days to provide the trial court with proof that his account had been transferred or sold and that Discover no longer owned the account. On January 24, 2011, Todd filed a motion requesting an extension of time to conduct discovery; the trial court entered an order on April 8, 2011, setting a hearing on Discover’s summary-judgment motion on May 12, 2011. At that hearing, in response to Todd’s arguments, the trial court gave Todd an additional 20 days to provide some evidence that Discover had sold his account. The trial court also stated that, if Todd failed to provide such evidence, Discover’s summary-judgment motion would be granted.

On May 24, 2011, Todd filed a “motion for stay of proceedings pending private contractual arbitration,” requesting the trial court to compel arbitration. In that motion, Todd asserted that he and Discover had entered into a written agreement pursuant to which both parties had agreed that all disputes arising between them would be settled by arbitration; Todd attached the “Cardmember Agreement,” which contains an arbitration provision, as an exhibit and requested the trial court to compel arbitration. The trial court denied Todd’s motion for a stay and to compel arbitration on June 23, 2011, after a hearing. On July 18, 2011, Todd filed a motion to dismiss for lack of personal jurisdiction, asserting that he was a resident of Jefferson County rather than Shelby County and that the trial court therefore lacked personal jurisdiction over him; he also asserted that Shelby County was an improper venue for the action. Attached to that motion to dismiss, Todd submitted his affidavit, which stated that he resided in Birmingham, which is in Jefferson County, but that he did receive mail at an address in Alabaster, which is in Shelby County, “as a convenience.”

On July 20, 2011, the trial court entered a summary judgment in favor of Discover, which stated:

“This matter came before the court on the 23rd day of June, 2010, on Plaintiff Discover Bank, issuer of Discover Card’s Motion for Summary Judgment pursuant to Rule 56 of the Alabama Rules of Civil Procedure. Upon consideration of said motion and the accompanying proof, it is the opinion of the Court that such is well taken, and there appearing to be no genuine issue of material fact remaining in dispute and that [Discover] being entitled to judgment as a matter of law, it is ORDERED, ADJUDGED and DECREED that [Discovers] Motion for Summary Judgment is hereby granted, and judgment is hereby entered in favor of [Discover] and against Defendant, Roy S. Todd as follows: Principal in the amount of $11,721.08, plus interest which currently totals $0.00, plus attorney fees of $1,758.15, for a total judgment of $13,479.18, plus continuing interest and costs of court. This is a final judgment.”

Also on July 20, 2011, the trial court denied Todd’s original motion to dismiss.

Todd filed a motion to vacate the judgment on August 1, 2011. In that motion, he asserted that the trial court lacked jurisdiction based on Todd’s election to arbitrate under the “Cardmember Agreement.” The trial court held a hearing on Todd’s motion on September 29, 2011, at which Todd asserted that the Alabaster address was his son’s office. The trial court denied Todd’s motion to vacate on October 4, 2011. Todd filed his notice of appeal to this court on November 14, 2011.

Todd raises a number of arguments on appeal. We address those arguments out of order.

Todd argues that the trial court erred by allowing Discover to proceed against Todd without requiring Discover to provide proof of standing. Todd asserts that an affidavit submitted by Discover raises the question whether Discover had standing to bring the present action. The affidavit Todd refers to indicates that DFS Services, LLC, is the servicing agent of Discover. Todd asserts that, based on that affidavit, “[i]t would appear DFS is the real party in interest, since they initiated collection.” See Rule 17(a), Ala. R. Civ. P.; see also Battle v. Alpha Chem. & Paper Co., 770 So.2d 626, 634 (Ala.Civ.App.2000) (“[T]he question whether a party has standing to sue is distinct from whether he or she is the real party in interest. While the real-party-in-interest principle directs attention to whether the plaintiff has a significant interest in the particular action he or she has instituted, standing requires that the plaintiff demonstrate an injury to a legally protected right.”). We note, however, that the affidavit itself makes clear that the debt is owed to Discover. Thus, we reject Todd’s argument that a question of fact exists regarding the real party in interest. Insofar as Todd asserts that, when credit-card issuers sell credit-card accounts receivable, the issuing bank no longer owns those accounts receivable, Todd presented no evidence to the trial court, despite the trial court’s having provided him extensive opportunities to do so, indicating that Discover did not own Todd’s account or that his account had been transferred.

Todd argues that the trial court erred by entering a summary judgment in favor of Discover while his motion to dismiss for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“the FDCPA”), was pending. Although this is how Todd has framed this argument, we interpret his argument as one that the trial court erred in denying his initial motion to dismiss. Because Todd’s motion to dismiss predated the summary-judgment motion and because any error by the trial court in denying the motion could preclude the effectiveness of any subsequent filings and proceedings, we address this issue out of an abundance of caution. In his motion to dismiss, Todd asserted that Diseover’s attorneys had violated § 809 of the FDCPA by failing to validate Todd’s debt in response to his validation letter and by failing to cease collection activities until such validation was obtained. With regard to the validation of debts, 15 U.S.C. § 1692g.(a) provides, in pertinent part, that,

“[wjithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
“(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector....”

Subparagraph (b) of § 1692g. also indicates that the purpose of this section is to verify to the debtor the identity of the original creditor; indeed, 15 U.S.C. § 1692a.(6) defines a “debt collector,” as used in § 1692g.(a), as a person collecting the debt of another. Discover asserts in its brief to this court that it is not a “debt collector” as defined in § 1692a.(6) but, rather, the original creditor. Moreover, in its response to Todd’s motion to dismiss, Discover asserted that it had provided verification of Todd’s debt on or about August 23, 2010.

Todd cites Spears v. Brennan, 745 N.E.2d 862 (Ind.Ct.App.2001), in support of his assertion that the trial court erred in entering a summary judgment while his motion to dismiss, which asserted that Discover had failed to provide him with verification of his debt, was pending. First, we note that this court is not bound by the opinions of another state. See Ex parte Ted’s Game Enters., 893 So.2d 376, 381 (Ala.2004). Moreover, in Spears, the debt- or had brought a separate action against the creditor’s attorney seeking civil liability under the FDCPA. 745 N.E.2d at 869. In that case, the trial court and the appeals court had available to them the initial communication sent by the creditor’s attorney giving the debtor notice of the debt collection; that communication was quoted in the opinion on appeal. 745 N.E.2d at 868. The record on appeal in the present case, however, does not contain a copy of the letter sent by Discover on or about August 23, 2010. Todd presents that letter as an exhibit to his reply brief to this court and argues that it represents that Discover’s attorneys are debt collectors; however, because that letter is not contained in the record on appeal, we may not consider it. See Quality Living, Inc. v. State Dep’t of Public Health, 711 So.2d 1021, 1026 (Ala.Civ.App.1997).

A “Rule 12(b)(6)[, Ala. R. Civ. P.,] dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). We conclude, based on Todd’s failure to present evidence to the trial court indicating that Discover is a debt collector as defined by the FDCPA or that Discover had failed to comply with the FDCPA, that the trial court did not err in denying Todd’s motion to dismiss.

Todd next argues that the trial court erred in denying a stay pending contractual arbitration. The record on appeal does not contain an order denying Todd’s motion to stay or a transcript of the June 23, 2011, hearing on that motion, and there is nothing in the State Judicial Information System indicating that the trial court entered an order denying Todd’s motion. The parties agree, however, that that motion was denied at the June 23, 2011, hearing. See supra note 2.

“Review of a trial court’s denial of a motion to compel arbitration is properly sought through a direct appeal. Rule 4(d), Ala. RApp. P.; A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990). We apply the de novo standard of review to such appeals. Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 502 (Ala.1999).
“A party seeking to compel arbitration has the burden of proving: (1) the existence of a contract containing an arbitration agreement and (2) that the underlying contract evidences a transaction affecting interstate commerce. Kenworth of Birmingham, Inc. v. Langley, 828 So.2d 288, 290 (Ala.2002). Once those two items have been shown, the burden shifts to the opposing party to present evidence either that the arbitration agreement is not valid or that it does not apply to the dispute in question. Id.”

Jim Walter Homes, Inc. v. Saxton, 880 So.2d 428, 430 (Ala.2003).

Attached to Todd’s motion to stay was a copy of the “Cardmember Agreement,” which, as Todd pointed out in his motion, contains an arbitration agreement and also states: ‘Tour account involves interstate commerce and this provision shall be governed by the Federal Arbitration Act (FAA).” Thus, the burden shifted to Discover to present evidence indicating that the arbitration agreement is not valid or that it does not apply to the present cause of action. Discover did not file a response to Todd’s motion, and, as stated above, there is no transcript of the hearing on the motion in the record on appeal; thus, there is no indication that Discover disputed that a contract containing an arbitration agreement exists and that that contract evidences a transaction affecting interstate commerce. Discover asserts on appeal, however, that Todd substantially invoked the litigation process, waiving his right to arbitrate Discover’s claims.

“ ‘ “It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party’s participation in an action amounts to an enforceable waiver of its right' to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process, and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.”
‘Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995) (citations omitted). The courts will not lightly infer a waiver of the right to compel arbitration; thus, the burden on the party seeking to prove waiver is a heavy one.’
“U.S. Pipe & Foundry Co. v. Curren, 779 So.2d 1171, 1174 (Ala.2000) (emphasis added). Additionally, as this Court has consistently noted: ‘[TJhere is a presumption against a court’s finding that a party has waived the right to compel arbitration.’ Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So.2d 102, 103 (Ala.1997). See also Conseco Fin. Corp.-Alabama v. Salter, 846 So.2d 1077, 1080 (Ala.2002)
(‘We note that a presumption exists against a finding that a party has waived the right to compel arbitration.’); Blue Ribbon Homes Super Ctr., Inc. v. Bell, 821 So.2d 186, 191 (Ala.2001) (*We note that there is a presumption against finding that a party has waived the right to compel arbitration.’); Zedot Constr., Inc. v. Red Sullivan’s Conditioned Air Servs., Inc., 947 So.2d 396, 399 (Ala.2006); Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1093 (Ala.2005); and Lee v. YES of Russellville, Inc., 784 So.2d 1022, 1028 (Ala.2000).
“In order to demonstrate that the right to arbitrate a dispute has been waived, the party opposing arbitration must demonstrate both (1) that the party seeking arbitration substantially invoked the litigation process, and (2) that the party opposing arbitration would be substantially prejudiced by an order requiring it to submit to arbitration. Curren, 779 So.2d at 1174; Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995).”

SouthTrust Bank v. Bowen, 959 So.2d 624, 632-33 (Ala.2006). In Bowen, the Alabama Supreme Court determined that, because “Bowen presented no evidence proving he would be substantially prejudiced, he has failed to meet his ‘heavy burden’ in demonstrating that SouthTrust waived its right to arbitration.” 959 So.2d at 633.

In Southern Energy Homes, Inc. v. Harcus, 754 So.2d 622 (Ala.1999), the Har-cuses sued Southern Energy, asserting claims against it stemming from the Har-cuses’ purchase of a mobile home manufactured by Southern Energy. 754 So.2d at 623-24. Southern Energy moved to compel arbitration based on a provision in the written warranty contained in a “Home Owner’s Manual” delivered with the mobile home; the Harcuses opposed arbitration. Id. at 623-25. A hearing was held, but no transcript of the hearing on the motion was contained in the record on appeal, and there was no indication as to whether the parties had presented testimony or other evidence at the hearing. Id. at 625. The trial court denied the motion to compel arbitration; it made no findings of fact or conclusions of law in its order. Id. Southern Energy appealed the trial court’s denial of its motion to compel arbitration. Id. In remanding the cause to the trial court, the Alabama Supreme Court stated:

“We cannot determine, from the scant record before us, whether the Harcuses agreed, either by ratification or otherwise, to submit their claims against Southern Energy to arbitration. Although the record on appeal contains some evidence, we do not have a sufficient basis to resolve conflicts in that evidence. Therefore, we must remand this case for the trial court to make specific factual findings. On remand, the trial court is to conduct further proceedings and to take evidence as may be necessary, including testimony from such witnesses, by deposition or otherwise, as the parties choose to present. The trial court shall file a return to this remand within 42 days of the date of this opinion. The return to remand shall include a transcript of any proceedings conducted by the trial court on remand, any evidence submitted by the parties, and the trial court’s findings of fact and conclusions of law. See Eubanks v. Hale, 752 So.2d 1113, 1120 (Ala.1999).”

754 So.2d at 626-27.

In the present case, we are similarly charged with determining whether the trial court erred in denying a motion to compel arbitration. Discover asserts that Todd substantially invoked the litigation process, waiving his right to arbitrate Discovers claims. Like in Southern Energy Homes, there is no transcript of the hearing on Todd’s motion to compel arbitration and there is no indication whether evidence was presented at that hearing. Thus, we cannot determine from the record before us, which contains no written order from the trial court and, thus, no findings of fact or conclusions of law regarding its reasoning for denying Todd’s motion to compel arbitration, whether Discover would be substantially prejudiced by an order requiring it to submit to arbitration. Therefore, like in Southern Energy Homes,

“we must remand this case for the trial court to make specific factual findings. On remand, the trial court is to conduct further proceedings and to take evidence as may be necessary, including testimony from such witnesses, by deposition or otherwise, as the parties choose to present. The trial court shall file a return to this remand within 42 days of the date of this opinion. The return to remand shall include a transcript of any proceedings conducted by the trial court on remand, any evidence submitted by the parties, and the trial court’s findings of fact and conclusions of law.”

Id.

Although we are remanding on the arbitration issue, we address Todd’s remaining issues to the extent those issues do not directly attack the entry of the trial court’s summary judgment in favor of Discover but remain relevant regardless of whether the case is submitted to arbitration.

Todd next argues that the trial court violated his due-process rights by allowing the hearing on Discovers summary-judgment motion to continue despite Discover’s failure to produce documentary evidence to Todd. Because this argument relates solely to Todd’s rights in relation to the summary judgment, which may be a nullity depending on the trial court’s actions upon remand, we decline to address this issue.

We interpret Todd’s final argument on appeal as asserting that the trial court erred in failing to transfer the action. Because “[objections to improper venue are waived if not raised in the first responsive pleading,” Den-Tal-Eze Mfg. Co. v. Gosa, 388 So.2d 1006, 1008 (Ala.Civ.App.1980), and because Todd failed to raise the issue of venue in his initial motion to dismiss or in his answer, that objection was waived, and we decline to reverse the trial court’s ruling on this issue.

As stated above, we remand the case to the trial court for the trial court to make factual findings regarding Todd’s motion to stay and to compel arbitration and to conduct further proceedings and to take evidence as may be necessary. The trial court shall file a return to remand within 42 days of the date of this opinion. We affirm as to the remaining issues addressed in this opinion.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

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

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

      . We note that the “Cardmember Agreement” is not signed by Todd.

      . Although there is no entry in the State Judicial Information System regarding the trial court’s denial of Todd’s motion for a stay and to compel arbitration and although there is no transcript of the hearing on that motion, the parties agree that that motion was denied at the hearing on June 23, 2011. We interpret the trial court’s July 20, 2011, judgment as an implicit denial of Todd’s motion.

      . Rule 17(a), Ala. R. Civ. P., provides, in pertinent part:
      “Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought."

      . To the extent that Todd asserts this issue in regard to the propriety of the summary judgment in favor of Discover, we note that Todd failed to file a response to Discover’s summary-judgment motion and failed to raise any violation of the FDCPA before the trial court at the January 6, 2011, hearing or the May 12, 2011, hearing on Discover’s summary-judgment motion. Thus, we limit our discussion on this issue to Todd's motion to dismiss.


author: PITTMAN, Judge.

text:
    ALABAMA DEPARTMENT OF INDUSTRIAL RELATIONS v. Tonya FRAZIER.
    2110467.
    Court of Civil Appeals of Alabama.
    Dec. 7, 2012.

      Frank D. Marsh, gen. counsel, Alabama Department of Industrial Relations, for appellant.
    Charlotte Trimble, Legal Services Alabama, Inc., Mobile, for appellee.
   PITTMAN, Judge.

The Alabama Department of Industrial Relations (“the Department”) appeals from a judgment of the Mobile Circuit Court (“the trial court”) insofar as it sets aside the Department’s order requiring Tonya Frazier to reimburse the Department for an overpayment of employment compensation. We reverse and remand.

Frazier sought unemployment compensation after voluntarily leaving her job at a fast-food restaurant. Before the Department issued a final ruling on the matter, Frazier received $2,421 in unemployment compensation. The Department initially denied Frazier’s request for unemployment compensation. Frazier appealed from that decision, and, eventually, the Department issued a final administrative ruling denying Frazier’s request for unemployment compensation and ordering Frazier to reimburse the $2,421 previously paid to her. Having exhausted her administrative remedies, Frazier thereafter appealed to the trial court. In October 2011, following a trial on the merits of the case, the trial court entered a judgment affirming the Department’s decision denying Frazier’s request for unemployment compensation, but it ruled that the $2,421 in payments previously made was not due to be repaid to the Department. In November 2011, the Department filed a post-judgment motion to amend the trial court’s judgment to the extent that it had not required Frazier to repay the $2,421 in unemployment compensation she had already received. Following the trial court’s denial of that motion in January 2012, the Department appealed.

The facts of the case are undisputed, and the sole issue on appeal is whether the trial court erred in declining to require Frazier to repay the $2,421 in unemployment compensation paid to her. We, therefore, “ ‘must determine if the trial court misapplied the law to the undisputed facts’ thus, “ ‘the standard of review is de novo,’ ” and we afford the trial court’s judgment no presumption of correctness. Alabama Dep’t of Revenue v. Jim Beam Brands Co., 11 So.3d 858, 859-60 (Ala.Civ.App.2008) (quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513 (Ala.2003)); see also State Dep’t of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001), and Ex parte Graham, 702 So.2d 1215 (Ala.1997).

The Department argues that the trial court lacked the statutory authority to set aside that portion of the Department’s order requiring repayment. In support of that argument, the Department argues that the trial court’s action was contrary to Ala.Code 1975, § 25-4-145(c), which provides:

“(1) Any individual who has received any sum as benefits or payments under this chapter while any conditions for the receipt of benefits or payment imposed by this chapter were not fulfilled by such person, or while he was disqualified from receipt of benefits; or by reason of nondisclosure or misrepresentation by him or another of a material fact (irrespective of whether such nondisclosure was known or fraudulent) or for any other reason causing him to receive benefits to which he was not entitled, shall be required to repay such sum in cash or by offset against any future benefits if payable or a combination of both.
“(2) Such person shall be promptly notified of the determination of overpayment and the reasons therefor. Unless such person, within 15 calendar days immediately following the date such notification was mailed to his last known address, files an appeal from such determination, such determination shall be final. Any appeal therefrom pursuant to the provisions of this chapter shall be limited solely to the overpayment issue.
“(3) If the indebtedness is not paid by such person within 30 calendar days after the determination has become final, the director shall proceed to effect collection of the overpayment and shall have available to him all civil actions available to him under the laws of this state to collect the overpayment as well as those provisions contained in subsection (b) of Section 25-4-134 applying to the collection of contributions.”

On the other hand, Frazier contends that the trial court, although not expressly authorized to set aside an administrative order requiring reimbursement to the Department for overpayments under Ala. Code 1975, § 25-4-145(c), is not expressly prohibited from doing so; Frazier asserts that the trial court properly exercised its general authority under Ala.Code 1975, § 12-11-31(1), which provides that the trial court’s equitable jurisdiction extends to “civil actions in which a plain and adequate remedy is not provided in the other judicial tribunals.” Frazier further asserts that, in exercising that authority, the trial court properly reached its determination to set aside the order requiring her to reimburse the Department for the overpayment because that determination was consistent with the guidelines under which the director of the Department may exercise discretion to waive the requirement to repay overpayments set forth in Ala. Admin. Code, r. 480-4-4-.07 (Dep’t of Indus. Relations). We are, therefore, presented with the issue whether the trial court had the authority to apply an equitable remedy while reviewing the final decision of the Department, which, in turn, raises the broader question whether a trial court exercises equitable jurisdiction when reviewing administrative determinations.

In this case, the trial court concluded that Frazier was disqualified from receiving unemployment compensation, just as the Department had concluded. The trial court then went a step further, however, and addressed the equity of the requirement that Frazier pay back the compensation she had already received, electing to set aside that requirement. We must determine whether the trial court, in doing so, acted in a manner not contemplated by Ala.Code 1975, § 25-4-145(c), governing the Department’s review of an application for unemployment compensation.

Under Ala.Code 1975, § 25-4-145(c)(l), a payee of unemployment compensation who is later determined to be disqualified from receiving such compensation “shall” reimburse the Department the amount he or she received. Section 25-4-145(c)(2) provides the disqualified party an avenue through which he or she may be relieved from the repayment requirement; that subsection sets forth instructions for appealing from the Department’s order to reimburse it. The subsection further provides that a disqualified party appealing from the Department’s order with respect to the repayment requirement must seek review of the order as to that issue in a manner separate from that of the Department’s denial of his or her application for unemployment compensation; however, under Ala.Code 1975, § 25-4-145(c)(2), any appeal of a Department order compelling repayment is limited solely to whether the overpayment was demonstrated. Thus, the Department’s denial of an application for unemployment compensation and the Department’s requirement to repay an overpayment are subject to separate review.

We note that § 25-^4 — 145(d)(1) vests the director of the Department with the authority to waive the requirement that a disqualified party repay compensation he or she has received. Just as the legislature has drawn a distinction between the issues of benefit entitlement and overpayment, the express language vesting authority to set aside a repayment requirement exclusively in the director indicates that whether a payee should be granted relief from an order requiring reimbursement of a benefit overpayment is a question to be decided in the first instance by the director in his or her discretion.

In light of the intent expressed in Ala. Code 1975, § 25-4-145, to vest in the director the primary duty of assessing whether a repayment order should be waived, the trial court in this case acted outside its discretion by purporting to waive Frazier’s obligation to reimburse the Department for the overpayment. Frazier’s appeal to the trial court presented the issues whether she was disqualified from receiving benefits and whether she had a duty to repay benefits she had been paid before it was determined that she was disqualified. See § 25-4-95 and § 25-4-145(c)(2).

Further, the statute upon which Frazier relies, which gives the trial court equitable jurisdiction when “a plain and adequate remedy is not provided in the other judicial tribunals,” Ala.Code 1975, § 12-11-31(1), does not confer any additional power upon the trial court in this setting, where it is exercising appellate jurisdiction only in an area where an administrative agency has already acted:

“A fundamental concept of judicial review of administrative action is that it is a limited review, delineated by statute and court-established standards which relate to the nature of the issues or questions open to judicial review....
“ ‘It is well-settled that courts of equity, in the absence of fraud or gross abuse, will not interfere with the exercise of discretion by administrative boards in the determination of the necessity and requirements of public accomplishment, much less control the judgment of such boards in respect to matters within the technical field of their duties and powers.’ ”

Custred v. Jefferson Cnty., 360 So.2d 285, 289 (Ala.1978) (quoting Carson Cadillac Corp. v. City of Birmingham, 232 Ala. 312, 317, 167 So. 794, 798 (1936)).

The record reveals that, in this case, the trial court likely sympathized with Frazier; although Frazier voluntarily left her employment, her unfortunate circumstances at the time undoubtedly left her with little or no choices other than to quit her job. Presumably, the trial court affirmed the Department’s ruling to disqualify Frazier from unemployment compensation but set aside the repayment requirement in an attempt to give Frazier some relief. Though the trial court’s judgment may reflect noble intentions, Ala.Code 1975, § 25-4-145(d), provides that the director, not the trial court, has the discretion to confer the type of relief given to Frazier here.

We reverse the decision of the trial court insofar as it reversed the Department’s order requiring reimbursement of the overpayment, and we remand the cause for that court to enter a judgment affirming the Department’s administrative determinations. Our judgment is, however, without prejudice to Frazier’s right to properly request the director, pursuant to § 25-4-145(d), to review and consider her obligation to repay the Department’s overpayment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BRYAN, THOMAS and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.