author: BRYAN, Justice. MURDOCK, Justice

text:
    Daniel Ernest HEGARTY, M.D., and Monroeville Medical Clinic v. Dixie HUDSON.
    1110578.
    Supreme Court of Alabama.
    April 5, 2013.
    Robert P. MacKenzie III and Sybil Vog-tle Newton of Starnes Davis Florie LLP, Birmingham; and John P.C. McCall of Starnes Davis Florie LLP, Mobile, for appellants.
    M. Clay Alspaugh of Smith & Alspaugh, P.C., Birmingham, for appellee.
   BRYAN, Justice.

Daniel Ernest Hegarty, M.D., and the Monroeville Medical Clinic (“the Clinic”) appeal from a judgment entered by the Monroe Circuit Court in favor of Dixie Hudson in her medical-malpractice action. We reverse and render a judgment for Dr. Hegarty and the Clinic.

Facts and Procedural History

In 2004, Hudson moved from Montgomery to Monroeville shortly before she was to give birth, and Dr. Hegarty, a board-certified family practitioner working at the Clinic, agreed to treat her. Dr. Hegarty delivered Hudson’s baby via cesarian-section (“C-section”) on June 23, 2004. During the operation, but after the baby had been delivered, the placenta became detached from the baby’s umbilical cord. Dr. Hegarty searched within and beyond Hudson’s uterus but was unable to locate the placenta. Dr. Hegarty requested assistance from his partner at the time, Dr. Angela Powell, who also tried to locate the placenta but was unsuccessful. Dr. Powell placed a telephone call to Dr. Jeff Fahy, a board-certified obstetrician-gynecologist (“Ob-Gyn”), for advice and guidance regarding the missing placenta. Based on Dr. Fahy’s recommendations to Dr. Powell, which were relayed to Dr. Hegarty, Dr. Hegarty closed Hudson’s incision without retrieving the placenta, with a plan for follow-up care. Following the operation, Hudson experienced severe pain in her abdomen and dramatic weight loss. Dr. Hegarty eventually ordered a CT scan to be performed on July 15, 2004, and, at that time, a mass was located in Hudson’s abdomen. Dr. Hegarty then referred Hudson to Dr. Fahy, who subsequently referred her to a doctor in Mobile, who identified and surgically removed the retained placenta from Hudson’s abdomen.

In 2006, Hudson sued Dr. Hegarty, the Clinic, and the Monroe County Hospital (“the Hospital”), along with several fictitiously named defendants, alleging one count of medical negligence related to Dr. Hegarty’s failure to remove the placenta from Hudson. Hudson alleged that Dr. Hegarty, the Clinic, and the Hospital had breached the applicable standard of care in a number of ways. Dr. Hegarty, the Clinic, and the Hospital each filed an answer denying the allegation of negligence and denying any breach of the standard of care.

In 2010, the trial court entered a summary judgment dismissing the claim against the Hospital, which judgment was made final on August 17, 2011, by a Rule 54(b), Ala. R. Civ. P., certification. The case proceeded to trial against Dr. Hegarty and the Clinic (hereinafter referred to collectively as “the defendants”). Before trial, Hudson identified Dr. Gregory Banks as an expert witness who would testify on her behalf as to Dr. Hegarty’s alleged breach of the standard of care. After Dr. Banks was deposed, the defendants moved the trial court to preclude Dr. Banks from testifying at trial and to strike his affidavit and deposition testimony. The defendants argued that, pursuant to § 6-5-548, Ala. Code 1975, Dr. Banks, who was a board-certified Ob-Gyn, was not a similarly situated health-care provider to Dr. Hegarty and, therefore, could not testify as to the standard of care Dr. Hegarty should have exercised with regard to the removal of the placenta. The trial court denied the defendants’ motion. The defendants then filed a motion in limine seeking, among other things, to preclude Dr. Banks from testifying as an expert. The trial court denied the motion insofar as it related to Dr. Banks’s testimony.

The case was tried before a jury. Dr. Banks testified that, as a board-certified Ob-Gyn, he could deliver babies and that Dr. Hegarty, as a board-certified family practitioner, could also deliver babies. He testified further that, although there was commonality in how babies are delivered, Ob-Gyn and family practice are separate and distinct medical specialties and that he had never been trained, licensed, or board-certified as a family practitioner.

Dr. Banks testified that Dr. Hegarty was practicing obstetrics when he delivered Hudson’s baby. According to Dr. Banks, the practice of obstetrics “primarily ... involves taking care of a mom ... up to the time of her delivery, taking care of her through the delivery, and then after the delivery process.” He stated that Dr. Hegarty deviated from the applicable standard of care when he failed to remove the placenta from Hudson when he performed the C-section and that a second deviation from the standard of care, “which hinge[d] on the first,” occurred when Dr. Hegarty failed to perform a CT scan immediately after the conclusion of the C-section, or at least the next day.

However, Dr. Banks also testified that Dr. Hegarty’s obstetrical treatment of Hudson fell within the scope of practice for a board-certified family practitioner because Hudson was a low-risk obstetric patient. Dr. Banks also stated that, in performing the C-section on Hudson, Dr. Hegarty was doing what he was fully authorized to do based on his training and education as a family practitioner and that his actions were within the scope of family practice.

Hudson attempted to argue, however, that, in spite of his family-practice certification, Dr. Hegarty had held himself out as a specialist in obstetrics. Hudson relied on Dr. Hegarty’s curriculum vitae (“CV”), in which he had written that he had practiced “complete obstetrics and pediatrics and family medicine” while working at At-more Complete Family Health. Dr. He-garty testified that the term “complete” on his CV meant “from ... birth until old age.” Dr. Hegarty’s CV also stated that he had done a fellowship in rural family medicine, where he had received “intensive training in high risk and operative obstetrics.”

Dr. Banks testified that, based on Dr. Hegarty’s CV and his hospital credentials, Dr. Hegarty was a family practitioner who also practiced obstetrics. Dr. Banks also testified that performing “complete obstetrics” for a low-risk patient is within the scope of the family-practice specialty, that Hudson was a low-risk patient, and that Dr. Hegarty could care for Hudson within his experience and training as a board-certified family practitioner.

At the close of Hudson’s case, and again at the close of all the evidence, the defendants moved for a judgment as a matter of law, arguing, among other things, that Hudson had failed to proffer expert testimony from a similarly situated health-care provider, pursuant to § 6-5-548. The trial court denied both motions.

The trial court determined that a question of fact existed as to whether Dr. He-garty had held himself out as a specialist in obstetrics so as to bring himself within the standard of care expected of obstetricians and, therefore, whether Dr. Banks was qualified to testify against Dr. Hegarty as a similarly situated health-care provider. Thus, the trial court charged the jury with deciding whether Dr. Hegarty had acted “beyond that which a board certified family practitioner who had obstetrics training and delivered babies would typically participate in and that such was his status at the time he rendered care to Dixie Hudson.” The trial court noted that if Dr. Hegarty had acted beyond the scope of his specialty in his care of Hudson, Dr. Banks could testify as a similarly situated health-care provider as to the standard of care that should apply. However, the trial court’s instructions to the jury also stated that, if it determined that Dr. Banks’s testimony should not be considered, “there would be no evidence before [them] ... that Dr. Hegarty breached the applicable standard of care.” The defendants and Hudson objected to the trial court’s allowing the jury to determine the admissibility of Dr. Banks’s testimony.

On September 16, 2011, the jury returned a verdict in favor of Hudson in the amount of $150,000. The trial court entered a final judgment based on that verdict. The defendants filed a renewed motion for a judgment as a matter of law and, in the alternative, a motion for new trial. At the hearing on the postjudgment motion, the trial court stated:

“[T]he reason that I submitted [the question of Dr. Banks’s qualification as an expert] to the jury was because there was a contest in the facts about whether or not [Dr. Hegarty] did go beyond his specialty and I thought that was a fact question to be determined by the jury. However, if I had to rule as a matter of law, I would have allowed Dr. Banks to testify.
“So, if the Supreme Court wonders does this Judge think that [Dr. Hegarty] should have been allowed to testify, and if we told him, you have got to decide that, what would he decide? I would decide that he could testify, so, you know, if I erred in submitting the issue to the jury and if it should have been determined by me, my determination would be the same that the jury’s was.... ”

The trial court explained that, by stating in his CV that he did “complete obstetrics and pediatrics and family medicine,” Dr. Hegarty “held himself out to be more than he was and thus went outside of his specialty and I so hold [that] he held himself out as doing more than a family practitioner would do in my opinion.” Therefore, the trial court concluded, the jury could have considered Dr. Banks’s testimony as a similarly situated health-care provider, pursuant to § 6-5-548, as to the alleged breach of the standard of care. The trial court denied the defendants’ motions, and the defendants appealed.

Issues

The defendants contend that the trial court erred in allowing Dr. Banks to testify as an expert regarding the applicable standard of care and Dr. Hegarty’s alleged breach thereof. The defendants also argue that the trial court’s charge to the jury was improper and that the judgment against Dr. Hegarty violates public policy.

Standard of Review

“ ‘ “The standard of review applicable to whether an expert should be permitted to testify is well settled. The matter is ‘largely discretionary with the trial court, and that court’s judgment will not be disturbed absent an abuse of discretion.’ Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 889, 850 (Ala.2002). We now refer to that standard as a trial court’s ‘exceeding its discretion.’ See, e.g., Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 106 (Ala.2004) (‘Our review of the record supports the conclusion that the trial court did not exceed its discretion in finding that Jones was properly qualified as an expert under Rule 702[, Ala. R. Evid.,] and in considering his testimony.’). However, the standard itself has not changed.”
‘Kyser v. Harrison, 908 So.2d 914, 918 (Ala.2005).’
“Robinson v. Baptist Health Sys., Inc., 24 So.3d 1119, 1125 (Ala.Civ.App.2009).
“ ‘ “ ‘The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now referred to as a pre-verdict and a postverdict motion for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court’s ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-movant.’ ”
‘Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 581 So.2d 860, 863 (Ala.1988)).’
“Parker v. Williams, 977 So.2d 476, 480 (Ala.2007).”

Springhill Hosps., Inc. v. Critopoulos, 87 So.3d 1178, 1180-81 (Ala.2011).

Discussion

The defendants first argue that they are entitled to a judgment as a matter of law because, they argue, Dr. Banks was not a similarly situated health-care provider to Dr. Hegarty under § 6-5-548, and, thus, he should not have been permitted to testify against Dr. Hegarty as to the alleged breach of the standard of care. In Holcomb v. Carraway, 945 So.2d 1009, 1012-13 (Ala.2006), this Court stated:

“The plaintiff in a medical-malpractice action must prove by substantial evidence that the defendant health-care provider ‘failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.’ § 6-5-548(a), Ala.Code 1975. To meet this burden, a plaintiff ordinarily must present expert medical testimony; however, such expert testimony is allowed only from a ‘similarly situated health care provider.’ See § 6-5-548(e), Ala. Code 1975; Leonard v. Providence Hosp., 590 So.2d 906 (Ala.1991).
“Section 6-5-548, a provision of the Alabama Medical Liability Act, § 6-5-504 et seq., Ala.Code 1975 (‘the AMLA’), provides two definitions of a ‘similarly situated health care provider,’ depending upon whether the defendant health-care provider is a ‘specialist’ or a ‘nonspeeialist.’ See § 6-5-548(b) and (c), Ala.Code 1975....”

Section 6-5-548(c) provides:

“(c) Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is certified by an appropriate American board as a specialist, is trained and experienced in a medical specialty, and holds himself or herself out as a specialist, a ‘similarly situated health care provider’ is one who meets all of the following requirements:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same specialty.
“(3) Is certified by an appropriate American board in the same specialty.
“(4) Has practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred.”

Regarding the applicability of § 6-5-548(c), this Court has stated:

“In order to determine whether the defendant health-care provider qualifies as a specialist, we must first determine the field of medical practice in which the negligence is alleged to have occurred. If the defendant health-care provider is a specialist in the field of practice in which the alleged negligence occurred, then the proffered expert witness must also be a specialist in that field, under § 6-5-548(c), Ala.Code 1975. See also Medlin v. Crosby, 583 So.2d 1290, 1293 (Ala.1991).”

Holcomb, 945 So.2d at 1013.

In this case, it was undisputed that Dr. Hegarty was certified by an American board as a specialist in family practice, that he was trained and experienced as a specialist in family practice, and that he held himself out as a specialist in family practice. Hudson alleged that Dr. Hegarty breached the applicable standard of care during his performance of her C-section when he failed to remove the placenta from her abdomen. Dr. Banks testified, and it was not disputed, that Dr. Hegarty’s performance of Hudson’s C-seetion fell within the scope of his family-practice specialty. Because it was undisputed that Dr. Hegarty was certified in and practicing his specialty of family prae-tice when the alleged breach of the standard of care occurred, we conclude that subsection § 6 — 5—548(c) applied.

Because Dr. Hegarty was a specialist for purposes of § 6-5-548(c), § 6-5-548(e), Ala.Code 1975, also applies. See Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001) (holding that, if the defendant health-care provider “is not a specialist under subsection (c), § 6-5-548(e) of the [AMLA] does not apply .... ”). Section 6-5-548(e) provides:

“(e) The purpose of this section is to establish a relative standard of care for health care providers. A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a ‘similarly situated health care provider’ as defined above. It is the intent of the Legislature that in the event the defendant health care provider is certified by an appropriate American board or in a particular specialty and is practicing that specialty at the time of the alleged breach of the standard of care, a health care provider may testify as an expert witness with respect to an alleged breach of the standard of care in any action for injury, damages, or wrongful death against another health care provider only if he or she is certified by the same American board in the same specialty.”

(Emphasis added.)

Dr. Hegarty is certified by the American Board of Family Medicine; Dr. Banks is certified by the American College of Obstetrics and Gynecology. Clearly, Dr. Hegarty and Dr. Banks are not certified in the same specialty by the appropriate American board. Because Dr. Hegarty is certified by the American Board of Family Medicine, because he was practicing in that specialty at the time he performed the C-section on Hudson, and because Dr. Banks was not certified by the same American board in the same specialty, pursuant to § 6-5-548(e) Dr. Banks was not permitted to testify as a similarly situated health-care provider to the standard of care to which Dr. Hegarty was to be held. The fact that there is some overlap or commonality in the practice of a board-certified family practitioner and a board-certified Ob-Gyn (i.e., that both were trained to perform C-sections) is irrelevant. In Johnson v. Price, 743 So.2d 436, 438 (Ala.1999), this Court held:

“The fact that [two certifying boards] may have the same purpose, that they may certify providers for the same procedures, or that they may require the same qualifications would be irrelevant. Section 6-5-548(e) plainly states that if the two providers are not certified by the same organization, then one cannot testify as to the standard of care applicable to the other. All questions of propriety, wisdom, necessity, utility, and expediency of legislation are exclusively for the Legislature and are questions with which this Court has no concern.”

(Emphasis added.)

For these reasons, we conclude that the trial court exceeded its discretion when it permitted Dr. Banks to testify as a similarly situated health-care provider in this case. The only evidence indicating that Dr. Hegarty breached the applicable standard of care came from Dr. Banks. Because that testimony was improperly admitted into evidence and because there was no other testimony as to the standard of care, the trial court erred in denying the defendants’ motions for a judgment as a matter of law. Accordingly, we reverse the trial court’s judgment and render a judgment as a matter of law in favor of the defendants.

REVERSED AND JUDGMENT RENDERED.

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

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur. I write separately to address a procedural issue and to explain my agreement with the main opinion as to the merits.

A. The Jury Charges

Because questions existed as to whether Daniel Ernest Hegarty, M.D., the physician defendant, held himself out as a specialist and whether the plaintiffs proffered expert was a “similarly situated health care provider,” the trial court gave instructions that allowed the jury to decide for itself whether it could consider the testimony of the plaintiffs expert witness. Both sides objected to this procedure. Understandably so.

It is fundamental that it is the task of the trial court, not the jury, to decide whether the testimony of a witness is admissible. A jury does not decide whether it may hear evidence; the trial court makes that decision. See Rule 104(a), Ala. R. Evid. (“Preliminary questions concerning the qualifications of a person to be a witness ... or the admissibility of evidence shall be determined by the court.”); Star Freight, Inc. v. Sheffield, 587 So.2d 946, 956-57 (Ala.1991) (holding that the admissibility of evidence is a question of law for the trial court to decide).

A fortiori, it was not for the jury in this medical-malpractice case to decide for itself whether an expert witness proffered by one of the parties was competent under our legal standards to testify. Deciding whether the jury should have heard this testimony in the first place was a gate-keeping function peculiarly within the province of the trial court itself. If a factual question must be resolved for purposes of performing this gate-keeping function, then the trial court must resolve it. See, e.g., Medlin v. Crosby, 583 So.2d 1290 (Ala.1991) (discussing the standard to be applied by the trial court in deciding the competence of an expert witness in a medical-malpractice case).

Because the trial court allowed the jury to hear the testimony of the plaintiffs expert and then, having already heard that testimony, decide for itself whether it could consider that testimony, a legal error was committed. Normally, a new trial would be required. The disposition of this case made by the Court today, however, obviates the need for a remand and a new trial.

B. The Merits

In Medlin, Ex parte Waddail, 827 So.2d 789 (Ala.2001), and Holly v. Huntsville Hospital, 865 So.2d 1177 (Ala.2003), this Court appeared to treat the emergency-room practice of the physician defendant in each case as part of a discipline or school of practice beyond or different from the field of family practice in which the defendant was board-certified. See, e.g., Holly, 865 So.2d at 1186 (discussing the Court’s earlier holdings in Medlin and Waddail and stating that “[w]e held that, because the defendant doctor had been practicing outside his speciality in committing the alleged medical negligence, he was not a ‘specialist’ in the case then before us”). Based on my reading of these three eases, the manner in which the last sentence of § 6-5-548(e), Ala.Code 1975, is worded, and the fact that the legislature added the last sentence of subsection (e) to that statute soon after this Court’s decision in Olsen v. Rich, 657 So.2d 875, 880 (Ala.1995), I am compelled to concur in the main opinion.

If this were a matter of making a policy choice, one could question the strictness of the rule chosen by the legislature and argue that, in a case such as this, Dr. Gregory Banks, assuming he could tailor his testimony to the standard of care for a physician in the position of Dr. Hegarty, should be deemed competent to do so. This, however, is not the prescription for competence that has been written by our legislature. Having been presented no argument as to the constitutionality of this prescription — and assuming for the sake of this case that there is none — it is not our role to prescribe some different rule. See, e.g., Ex parte T.D.T., 745 So.2d 899, 904 (Ala.1999) (“[I]t is not the duty of this Court to question the wisdom, or the lack thereof, used by the Legislature in enacting the laws of this State.”); People v. McIntire, 461 Mich. 147, 159, 599 N.W.2d 102, 109 (1999) (“[A] legislature is free to make inefficacious or even unwise policy choices. The correction of these policy choices is not a judicial function as long as the legislative choices do not offend the constitution.”). I therefore must concur.

      . Dr. Hegarty had been certified in family practice by the American Board of Family Practice, which is now known as the American Board of Family Medicine. Family practice is a defined medical specialty that, Dr. Hegarty testified, includes training in various practice areas, including geriatrics, pediatrics, pulmonology, cardiology, obstetrics, gynecology, and emergency medicine.

      . A “retained placenta” is an "incomplete separation of the p[lacenta] and its failure to be expelled at the usual time after delivery of the child.” Stedman's Medical Dictionary 1389 (27th ed.2000).

      . The pertinent parts of § 6-5-548 are quoted infra.

      . Dr. Banks had been board-certified as an Ob-Gyn by the American College of Obstetrics and Gynecology.

      . Hudson and the trial court relied on statements in Dr. Hegarty’s CV that he practiced "complete obstetrics” as evidence indicating that he was practicing outside his family-practice specialty. However, statements in a CV as to the scope of his practice at a prior facility do not constitute evidence indicating that Dr. Hegarty acted outside his specialty at the time of the alleged breach of the standard of care in this case.

      . Our decision to reverse and to render a judgment on this basis pretermits discussion of the remaining issues raised by the defendants on appeal.


source: Caselaw Access Project

author: SHAW, Justice. MURDOCK, Justice MOORE, Chief Justice

license: Public Domain

text:
    Ex parte Bruce Lavell JOHNSON. (In re: Ex parte Bruce Lavell Johnson (In re: State of Alabama v. Bruce Lavell Johnson)).
    1120026.
    Supreme Court of Alabama.
    April 5, 2013.
    Bruce Lavell Johnson, pro se.
   SHAW, Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, PARKER, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MOORE, C.J., dissents.

MAIN, J., recuses himself.

MURDOCK, Justice

(concurring specially).

I am concerned about the issues addressed by Chief Justice Moore in his dissent relating to the current procedure for determining whether an inmate should be granted in forma pauperis status. Because I do not believe these concerns are presented by the petition for certiorari review in this case, however, and seeing no other ground for review properly presented in that petition, I concur in the decision to deny further review.

MOORE, Chief Justice

(dissenting).

Bruce Lavell Johnson sought a writ of mandamus from the Court of Criminal Appeals to compel the Baldwin Circuit Court, among other things, to grant him informa pauperis status to file a petition for post-conviction relief under Rule 32, Ala. R.Crim. P. The Court of Criminal Appeals denied his petition by an order, stating:

“Currently, the fee for filing a post-conviction petition in the Baldwin Circuit Court is $249.50. Johnson’s inmate account summary that was attached to this mandamus petition shows that for the 12 months preceding the filing of this petition Johnson had $561 deposited into his inmate account. Johnson could have saved the money to pay the filing fee and is not indigent. See Ex parte Wyre, 74 So.3d 479 (Ala.Crim.App.2011).”

In Ex parte Wyre, 74 So.3d 479 (Ala.Crim.App.2011), the Court of Criminal Appeals held that a petitioner who “had over two times the amount necessary to satisfy the filing fee deposited to his account” in the previous 12 months was not indigent because he “could have saved the money to pay the filing fee.” 74 So.3d at 481. Johnson, who falls within this parameter, petitioned this Court for a writ of certiora-ri to review the Court of Criminal Appeals’ denial of his petition. He argues that the Wyre decision violates his right of access to the courts and equal protection of the laws. Because I believe this Court should grant Johnson’s petition and address the 12-month look-back rule of Wyre, I dissent from the order denying certiorari review.

“ ‘Indigent prisoners must be allowed to file appeals and habeas corpus petitions without payment of docket fees.’” Hoppins v. State, 451 So.2d 363, 364 (Ala.Crim.App.1982) (quoting Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). An indigent is “a person who is financially unable to pay for his or her defense.” Rule 6.3(a), Ala. R.Crim. P. “[A] court considering an indigency request may consider the deposits to a petitioner’s inmate account for the 12 months preceding the filing.” Ex parte Wyre, 74 So.3d at 481 (citing Rule 32.6(a), Ala. R.Crim. P.).

Rule 32.6(a), as applied in Wyre, potentially would require a prisoner whose average monthly deposit is $42 to save up to 50% of his monthly account balance for a year (one-half of $500). Johnson averaged only $47 per month in deposits. If he had started saving 12 months before he filed his petition, he would have had to limit himself to $26 per month for commissary expenditures, or $6 per week.

A Rule 32 petition generally has to be filed

“(1) [i]n the case of a conviction appealed to the Court of Criminal Appeals, within one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, Ala. R.App. P.; or (2) in the case of a conviction not appealed to the Court of Criminal Appeals, within one (1) year after the time for filing an appeal lapses.”

Rule 32.2(c), Ala. R.Crim. P. The current look-back rule of Wyre may thus impede access to the courts by requiring a prisoner like Johnson to predict at least a year in advance that he will be filing a Rule 32 petition and also to possess the clairvoyance to predict his future account deposits. For instance, Johnson might have discovered a potentially favorable statute or ruling nine months after the time to file a Rule 32 petition began to run, and only then made the decision to file. Under the 12-month look-back rule, he could have been precluded from filing had he failed to start saving his money well before he learned of the new opportunity for relief.

This case presents significant constitutional issues. “The Fourteenth Amendment weighs the interests of rich and poor criminals in equal scale.” Smith v. Bennett, 365 U.S. 708, 714, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). “To require the prisoner to part with a substantial portion of meager monthly income ... creates a deterrence to litigation incompatible with at least the spirit of the in forma pauperis statute.” In re Epps, 888 F.2d 964, 968 (2d Cir.1989) (reducing levy on prisoner’s account from 30% of average monthly income to 10%). In sharp contrast to Epps, the application of Wyre in this case required Johnson to pay 500% of his average monthly income as a filing fee.

Because Wyre’s disqualification of prisoners for informa pauperis status may be unconstitutional under the Due Process Clause (impeding access to the courts) and also under the Equal Protection Clause (disfavoring poor prisoners), I would grant Johnson’s petition for a writ of certiorari.

      . By contrast, the federal in forma pauperis statute requisitions 20% of the inmate’s monthly account balance until the filing fee is paid off. 28 U.S.C. § 1915(b). Under that regimen, Johnson would have paid $9 per month.


author: PITTMAN, Judge.

text:
    L.V. III v. I.H. and Jefferson County Department of Human Resources.
    2110961.
    Court of Civil Appeals of Alabama.
    Feb. 8, 2013.

      Donna J. Beaulieu of S. Phillip Bahakel & Associates, Pelham, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources.
   PITTMAN, Judge.

This appeal concerns a child-support order issued in the Federal Republic of Germany that was transmitted to Alabama for registration under the Alabama Uniform Interstate Family Support Act (“UIFSA”), § 30-8A-101 et seq., Ala.Code 1975.

Facts and Procedural History

In April 1999, the German Institute for Guardianship sent the following documents to the Baldwin Juvenile Court: three German-language copies and three English translations of a February 3, 1989, statement by L.V. Ill to the judicial clerk of the Local Court of Würzburg, Germany, acknowledging paternity of I.H.’s unborn child and agreeing to support the child as required by German law; three German-language copies and three English translations of a May 16, 1995, order of the Local Court of Nürnberg, Germany (“the German child-support order”), directing that L.V. provide support for the child, who was born on April 4, 1989, in specific monthly installments that increased with the age of the child; a child-support-payment history indicating that L.V. had failed to make any payments, that current monthly payments of $198 were due under the German child-support order, and that L.V. had accrued a child-support arrearage in the amount of $22,509.11; a sworn statement by the records custodian for the German Institute of Guardianship that the “facts concerning the arrearage accrued under the [May 16, 1995,] order are true and correct”; a complaint for support and reimbursement; and a registration statement.

The 1989 acknowledgment of paternity contains L.V.’s name, Social Security number, religious preference, marital status, date and place of birth in the United States, military unit and Army Post Office number, and the number of the identification card by which L.V. identified himself to the German authorities. The 1989 acknowledgment bears the seal of the Local Court of Würzburg accompanied by the phrase “Für die Richtigkeit der Abschrift,” which, according to the English translation, means “for the correctness of the copy.” Each English translation states that it is a “certified translation from German” and contains the seal of the “Translation-Interpreter Office,” with the name and signature of the translator and the attestation: “I certify that this is a true and correct translation to the best of my knowledge and belief.”

On June 21, 1999, the German child-support order requiring L.V. to pay child support in the amount of $198 per month, supported by the documents reflecting a past-due arrearage of $22,509.11, was registered in the Baldwin Juvenile Court in case number CS-99-131. After unsuccessful attempts to serve L.V. with notice of the registration of the German child-support order, the Baldwin County District Attorney, based on information and belief that L.V. resided in Mobile County, moved the Baldwin Juvenile Court to transfer the case to the Mobile Juvenile Court. On July 7, 2000, the Baldwin Juvenile Court transferred the case to the Mobile Juvenile Court. On October 5, 2000, the Mobile Juvenile Court reviewed the procedural history of the case and adopted and affirmed the German child-support order that had been registered in Baldwin County-

In June 2008, following unsuccessful attempts to serve L.V. with notice of the registration in Mobile County, the case was transferred to the Jefferson Family Court, where it was assigned ease number CS-08-912. No further action was taken in case number CS-08-912. On July 14, 2008, the Jefferson County Department of Human Resources (“DHR”) filed in the Jefferson Family Court a petition on the relation of I.H., seeking a finding of contempt against L.V. and alleging that L.V. was $89,388.23 in arrears in the payment of the child support ordered by the Local Court of Nürnberg, Germany. The petition was assigned case number CS-08-912.01. On January 13, 2009, the family court entered a notation, following a January 12, 2009, hearing, indicating that L.V. had been “served this date.” On May 11, 2009, following a May 8, 2009, hearing on the contempt petition, the family court entered an order stating that “[L.V.] acknowledges contempt,” ordering L.V. to pay $1,200 on or before June 30, 2009, and thereafter to pay $300 per month on the arrearage, and setting the case for review in 90-180 days.

L.V. appeared at review hearings on February 19 and September 24, 2010. On September 27, 2011, the family court determined that L.V. had not made a child-support payment for one year and ordered him to pay $3,000 by November 2, 2011. When L.V. failed to comply with the order by November 2, the family court ordered that he be incarcerated and set a $3,000 cash bond to purge the contempt. On November 4, 2011, L.V. paid $3,000 and was released from jail.

On April 9, 2012, L.V., acting through counsel, filed an answer to the contempt petition and a motion to challenge the registration of the German child-support order, alleging that he had never been served with notice of the registration of the order, denying paternity of the child, and requesting a genetic test. On April 10 and May 30, 2012, L.V. appeared with counsel at compliance hearings, paying $1,500 and $300, respectively, and stating that, from that time forward, he would pay $500 each month. In an order rendered on May 30, 2012, and entered on June 8, 2012, the family court denied L.V.’s April 9, 2012, motion challenging the registration of the German child-support order and requesting a paternity test.

On June 20, 2012, L.V., acting through new counsel, filed a motion to vacate the family court’s June 8, 2012, order or, in the alternative, to dismiss the contempt action for lack of subject-matter jurisdiction. That motion was set for a hearing on June 28, 2012. L.V. did not attend the hearing, but he was represented by counsel. The record contains no transcript of the hearing. On June 28, 2012, the family-court referee denied L.V.’s motion, and that order was adopted by the family-court judge on June 29, 2012. L.V. appealed to this court on the same day. The family-court judge certified the record on appeal as adequate on August 2, 2012. See Rule 28(A)(1)(a), Ala. R. Juv. P.

On appeal, L.V. argues that the family court lacked subject-matter jurisdiction to enforce the German child-support order because, he says, that foreign judgment was not properly registered, as required by § 30-3A-602, Ala.Code 1975, and, he says, he was never served with notice of the registration, as required by § 30-3A-605, Ala.Code 1975.

Standard of Review

L.V.’s argument regarding registration of the German child-support order implicates subject-matter jurisdiction. “Only strict compliance with [the UIFSA] registration procedure confers subject-matter jurisdiction upon an Alabama circuit court to enforce or to modify a foreign child-support judgment. See Mattes v. Mattes, 60 So.3d 887 (Ala.Civ.App.2010), and Ex parte Owens, 65 So.3d 953 (Ala.Civ.App.2010).” Ex parte Ortiz, 108 So.3d 1046, 1050 (Ala.Civ.App.2012). Our review of the registration issue is de novo. Id.

L.V.’s argument concerning service of the notice of registration, however, implicates the issue whether the family court lacked personal jurisdiction over L.V. — a defense that, unlike lack of subject-matter jurisdiction, is waived if not timely asserted. See § 30-3A-605 (Alabama Comment) (stating that “subsection (b)(2) [of § 30-3A-605] ... requires that service be obtained under the Alabama Rules of Civil Procedure”) and Rule 12(h)(1), Ala. R. Civ. P. (providing that a defense of insufficiency of service of process is waived if it is not included in a Rule 12 motion, a responsive pleading, or an amended responsive pleading). Our review of the issue whether a party has waived personal jurisdiction is de novo. Foster v. Foster, 709 So.2d 1301, 1302 (Ala.Civ.App.1998).

Discussion

Registration: Section 30-3A-602, which sets out the procedure for registration of a foreign child-support judgment, provides:

“(a) A support order or income-withholding order of another state[] may be registered in this state by sending the following documents and information to the appropriate court in this state:
“(1) a letter of transmittal to the court requesting registration and enforcement;
“(2) two copies, including one certified copy, of all orders to be registered, including any modification of an order;
“(3) a sworn statement by the party seeking registration or a certified statement by the tribunal or collection agency showing the amount of any arrearage;
“(4) the name of the obligor and, if known:
“(i) the obligor’s address and Social Security number;
“(ii) the name and address of the obligor’s employer and any other source of income of the obligor; and “(iii) a description and the location of property of the obligor in this state not exempt from execution; and
“(5) the name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.
“(b) On receipt of a request for registration, the registering court shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of their form.
“(c) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.”

L.V. contends that the German child-support order was not properly registered because, he says, it was not filed in the appropriate Alabama court. See § 30-3A-602(a). He makes no cogent argument concerning this issue, other than to assert that because service could not be accomplished — first, in Baldwin County, and later, in Mobile County — that the juvenile courts of Baldwin County' and Mobile County were not the proper courts in which to have registered the order. Although we need not consider the issue further, see Rule 28(a)(10), Ala. R.App. P., we note that the materials transmitted from Germany to the Baldwin Juvenile Court show a Baldwin County address for L.V. and that the subsequent transfers to the Mobile Juvenile Court and to the Jefferson Family Court were based upon information received by the transferor courts that L.V. was residing in Mobile County and, subsequently, Jefferson County. See generally Mattes v. Mattes, 60 So.3d 887, 890 (Ala.Civ.App.2010) (noting that UIFSA requires “ ‘the obligee ... to register the existing order ... in a state which has personal jurisdiction over the obligor’” (quoting § 30-3A-611 (Official Comment))).

L.V. also maintains that it cannot be discerned from the record on appeal whether a “letter of transmittal ... requesting registration and enforcement” of the German child-support order was filed, see § 30-3A-602(a), or how many copies of the order were filed or whether any certified copies of the order were filed, see § 30-3A-602(a)(2). It is true that the record does not specifically indicate that the packet of materials sent by the German Institute of Guardianship to the Baldwin Juvenile Court contained a “letter of transmittal ... requesting registration and enforcement” of the German child-support order. (Emphasis added.) The record clearly demonstrates, however, that the packet itself was a “transmittal” from the German Institute of Guardianship and that the materials contained within the packet specifically, the “registration statement” and the “complaint for support and reimbursement under the Reciprocal Enforcement of Support Act” — “requested] ... registration and enforcement” of the order.

In Bank of Anniston v. Farmers & Merchants State Bank of Krum, Texas, 507 So.2d 927 (Ala.1987), our supreme court rejected the argument that, because the defendant’s address was incorrectly listed on a certificate of judgment, the statutory requirements for filing the certificate had not been strictly observed. The court stated:

“[T]he statutory requirement that the contents of the certificate of judgment be strictly observed must be viewed in relation to the purpose of that requirement. That purpose is to provide notice of the judgment to anyone searching title to the real property.... Here, ... the certificate of judgment was within the chain of title and would have given notice to anyone searching title to the property.”

507 So.2d at 929. The court concluded: “We cannot say that the trial court erred in finding that the certificate of judgment complied with the requirements of § 6-9-210[, Ala.Code 1975]. To hold otherwise would be a triumph of form over substance.” 507 So.2d at 930.

Likewise, holding that there was not “strict compliance with [the UIFSA] registration procedure” and that an Alabama court did not have subject-matter jurisdiction to enforce the German child-support order, see Ex parte Ortiz, 108 So.3d at 1050, because a perfunctory cover letter does not appear in the record before us would also represent a triumph of form over substance. The self-evident purpose of a “letter of transmittal ... requesting registration and enforcement” of a foreign order is to convey a request by the issuing “state” to register and enforce the issuing tribunal’s order. That purpose was accomplished by the materials contained within the packet transmitted from Germany.

L.V.’s argument that it cannot be discerned from the record on appeal how many copies of the German child-support order were filed is without merit. As previously discussed, the packet of materials contained a more than sufficient number of copies and all of them were filed.

L.V.’s last argument directed to the allegedly improper registration of the German child-support order is that the copies of the order were not certified. The 1995 court order contains the seal of the Local Court of Nürnberg. According to the English translation of the words appearing on the order, a preprinted, stamped writing immediately above the seal states: “The above official copy, which is identical with the original document, is issued for the petitioner for the purpose of forcible execution against the respondent.” Below those words appears the signature of “Marx, Justice Secretary,” who is designated as the “recorder of the office” of the Local Court of Nürnberg, and the date: “28 June 1995.”

A certified copy of a public record is one that is “signed and certified as a true copy by the officer who has lawful custody of the original.” II Charles W. Gamble and Robert J. Goodwin, McElroy’s Alabama Evidence § 218.01(2) (6th ed.2009). We conclude that the document in question is a “certified copy” of the 1995 German child-support order issued by the Local Court of Nürnberg, because it was signed and acknowledged to be “identical [to] the original document” by one who was evidently the custodian of records for that court.

The registration of the German child-support order complied with § 30-3A-602.

Service of the Notice of Registration: Section 30-8A-605 provides:

“(a) When a support order or income-withholding order issued in another state is registered, the registering court shall notify the nonregistering party as provided under the Alabama Rules of Civil Procedure. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
“(b) The notice must inform the non-registering party:
“(1) that a registered order is enforceable as of the date of registration in the same manner as an order issued by a court of this state;
“(2) that a hearing to contest the validity or enforcement of the registered order must be requested within 30 days after the date of service obtained under the Alabama Rules of Civil Procedure;
“(3) that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages and precludes further contest of that order with respect to any matter that could have been asserted; and
“(4) of the amount of any alleged arrearages.
“(c) Upon registration of an income-withholding order for enforcement, the registering tribunal shall notify the obli-gor’s employer pursuant to the income-withholding law of this state.”

The family court recorded a notation in case number CS-08-912.01 that L.V. was served on January 12, 2009. The record does not indicate whether L.V. was served only with the contempt petition filed by DHR or whether he was also served with notice of the registered German child-support order and “the documents and relevant information accompanying th[at] order.” § 30-3A-605(a). However, even if L.V. was not served with notice of the registered German child-support order and the documents associated with the registration of that order at the time he was served with the contempt petition, he waived the defense of lack of notice of the registered German child-support order by submitting to the jurisdiction of the Jefferson Family Court on May 8, 2009, when he appeared at a hearing on the contempt petition and “acknowledge!)! that he was in] contempt [of the German child-support order]” without challenging the family court’s exercise of personal jurisdiction over him. Cf. Hall v. Hall, 122 So.3d 185 (Ala.Civ.App.2013) (holding that, in 2010, when husband filed a petition to modify a default judgment of divorce that had been entered against him in 2004 without challenging the court’s exercise of personal jurisdiction over him in 2004, the husband waived the defense of lack of personal jurisdiction); and D.B. v. M.A., 975 So.2d 927, 937-38 (Ala.Civ.App.2006) (holding, in consolidated proceedings involving adoption and registration of a Nebraska child-custody judgment, that Alabama adoptive couple had waived the right to service of notice of registration of the Nebraska judgment by failing to object to the lack of notice until the filing of their postjudgment motion in the adoption proceeding). “ ‘[I]f a defendant intends to rely on want of jurisdiction over his person, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court. An appearance for any other purpose is usually considered general.’” R.M. v. Elmore Cnty. Dep’t of Human Res., 75 So.3d 1195, 1200 (Ala.Civ.App.2011) (quoting Persons v. Summers, 274 Ala. 673, 681, 151 So.2d 210, 215 (1963)). Consequently, L.V. waived any claim as to the insufficiency of service of process.

The Jefferson Family Court had subject-matter jurisdiction of this UIFSA enforcement action and properly exercised personal jurisdiction over L.V. Its judgment is affirmed.

AFFIRMED.

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

      . "[T]he Jefferson Family Court [is] a division of the Jefferson Circuit Court. See Act No. 674, Ala. Acts 1967 (renaming the 'Juvenile and Domestic Relations Court of Jefferson County' the 'Family Court of Jefferson County'); Act No. 478, Ala. Acts 1935 (establishing in certain counties a 'Juvenile and Domestic Relations Court’ and providing that those courts would exercise jurisdiction over juvenile matters and also exercise 'all the power, jurisdiction and authority’ of the circuit courts).”

        Placey v. Placey, 51 So.3d 374, 375 n. 2 (Ala.Civ.App.2010).

      . The arrearage amount was based on a May 20, 2008, letter from Natalie Harten, a representative of the German Institute for Youth, Human Services, and Family Law in Heidelberg, Germany, informing Bonnie Odell, an employee of the DHR Child-Support-Enforcement Unit in Birmingham, that the current arrearage was $39,462.33. The record contains no explanation for the discrepancy between the arrearage alleged in DHR's petition and the arrearage reported by Harten.

      .Section 30-3A-315, Ala.Code 1975, provides:
      "A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this chapter, rather, such issue must be pursued in the appropriate forum of the jurisdiction in which paternity was established, and according to the law of that jurisdiction.”

      . A “state” includes “a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this chapter [i.e., UIF-SA], the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.” Ala.Code 1975, § 30-3A-101 (20)(ii). The English translation of the German-language complaint that was included in the packet of materials sent to the Baldwin Juvenile Court by the German Institute of Guardianship states: "This is a petition for support under the Reciprocal Enforcement of Support Act as adopted by the State of Alabama. The Federal Republic of Germany has a substantially similar reciprocal law concerning the enforcement of support.”


author: DONALDSON, Judge. MOORE, Judge,

text:
    Robert Daniel LEVERETT v. Debra Edmondson LEVERETT.
    2111042.
    Court of Civil Appeals of Alabama.
    March 22, 2013.
    Walter L. Gray III of Gray Legal Firm, P.C., Phenix City, for appellant.
   DONALDSON, Judge.

Robert Daniel Leverett (“the husband”) appeals from an order of the Dallas Circuit Court (“the trial court”) altering its judgment divorcing the husband and Debra Edmondson Leverett (“the wife”) and entering a judgment separation in response to the wife’s motion to alter, amend, or vacate the divorce judgment.

The husband and the wife were previously married and divorced. The couple remarried on May 7, 1993. The wife filed a complaint on June 16, 2011, seeking a divorce on the grounds of adultery, incompatibility, and an irretrievable breakdown of the marriage. See § 30-2-1, Ala.Code 1975. The husband answered and counterclaimed for a divorce on August 2, 2011, denying adultery as a ground for a divorce but seeking a divorce on the grounds of incompatibility and an irretrievable breakdown of the marriage. After engaging in discovery, the husband and the wife voluntarily mediated their claims and reached an agreement, entitled “Stipulations of Agreement” (“the stipulation”), which the trial court adopted and incorporated into its judgment of divorce, entered on February 7, 2012. The stipulation provides, in pertinent part:

“The parties agree that the Husband shall designate the Wife as his irrevocable spousal beneficiary for the sole purpose of obtaining health insurance benefits through the Husband’s miliary benefit as it applies to CHAMPUS/TRI-CARE and the Husband further agrees to pay the sum of $39.00 .. .per month toward the costs associated with this benefit pending approval by CHAM-PUS/TRICARE, which shall be subject to all military rules, guidelines, exemptions, limitations, and regulations with regard to the remarriage of the Wife and/or the retirement of the Husband. Further, the Husband shall execute any and all documents, registration forms, certificates, or other documents necessary to comply with the application of said benefits, and the Wife shall be responsible for making application through the [Defense Enrollment Eligibility Reporting System] and coordinating with the Husband for institution of the benefits.”

The stipulation further provides:

“Both the legal and practical effect of this agreement in each and every respect and the financial status of the parties have been fully explained to both parties by legal counsel of each party’s independent choice, and both parties acknowledge that the agreement is fair and not the result of any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon either, and they further agree that this agreement contains the entire understanding of the parties, there being no representations, promises, warranties, covenants or undertakings other than those expressly set forth herein.”

On February 28, 2012, the wife moved the trial court, pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment in part. The wife alleged that after, the entry of the judgment, the husband notified the provider of his military health-insurance benefits of their divorce, which caused her health care benefits to be terminated, contrary to the provisions of the stipulation. The wife claimed that “[fit was the clear intent of the parties that [there] be no interruption in the health-care coverage of the [wife] who is currently disabled and completely dependent upon her current health benefit as a spouse.” The wife alleged that the husband had not complied with the terms of the stipulation regarding health insurance for the wife. In her motion, the wife argued that the trial court “retain[ed] jurisdiction to grant relief from the judgment entered to provide that these parties are legally separated rather than divorced to allow and indeed to require that the [husband] continue military-based health services and insurance for the [wife] as contemplated by the parties and their mediator.” The husband, who is in the United States Air Force, responded to the wife’s motion, averring that he had in fact made arrangements for the wife to contact the appropriate military agency to continue her benefits, and that he had attempted to contact the wife to communicate to her that he had done so but that she, too, would have to communicate and cooperate with the agency, but that the wife had failed to take the necessary steps to continue her benefits. Further, he noted that the wife had failed to provide any documentation indicating that she had been denied any benefits. The trial court held a hearing on the motion on May 17, 2012, which the parties continued by agreement to June 25, 2012. Because the husband was being deployed to Kuwait, he filed a motion for the trial court to proceed to ruling on the wife’s motion in his absence. In that motion, the husband further averred that the wife was ineligible to receive the desired military health benefits because the length of their marriage failed to meet the Department of Defense’s requirement of a 20 year marriage that overlaps with twenty years of military service during which the military spouse accumulates 20 years of “creditable service.” The husband attached as an exhibit to that motion a letter addressed to the wife from Edna Talley, a customer service representative with the United States Air Force. The letter was dated April 2, 2012, and stated that multiple attempts to contact the wife regarding her eligibility for benefits were unsuccessful and briefly explained the twenty-year requirements for qualifying to receive benefits.

The trial court held a hearing on June 25, 2012, at which the parties’ attorneys made brief statements regarding their positions on the case, but no testimony was taken and no documents were admitted into evidence. The trial court entered an order that day, altering its prior judgment; that order states, in its entirety:

“This matter came on to be heard on motion of the [wife] to ‘alter, amend, or [v]acate the Decree in part’ and this Court considering the arguments of counsel, the original Decree in this case signed on the 6th day of February, 2012 and filed for record on the 7th day of February, 2012 and the notations of the mediator attached to the Decree, finds that there is reason to alter the form of relief granted to the [wife] to accomplish the original intent of the parties hereto and therefore the prior Decree of the Court is amended hereby and shall become and the same is a Decree of Legal Separation.”

The husband timely filed this appeal.

The standard of review of a post-judgment motion is well settled:

“The trial court has broad discretion in disposing of such motions, and its exercise of that discretion is presumed correct. Smith v. Smith, 656 So.2d 814 (Ala.Civ.App.1994). ‘Abuse of discretion by a trial court in granting a Rule 59(e)[, Ala. R. Civ. P.,] motion can be found only where a legal right was abused and the record plainly and palpably shows the trial court was in error.’ Lockhart v. Phenix City Investment Co., 488 So.2d 1353 (Ala.1986).”

Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996).

The husband raises one issue on appeal: whether the trial court exceeded its discretion in substituting a judgment of legal separation for the previously entered judgment of absolute divorce. The husband argues, and the record supports, that “neither of the parties requested a legal separation and in fact, both the [wife] and the [husband] requested a Decree of Divorce in their individual pleadings.... It was only after the entry of the final decree of divorce that the [wife] filed her post-judgment motion to amend and therein ask[ed] for a Legal Separation.”

This court previously addressed the legal basis for entering a judgment of legal separation in place of a judgment of absolute divorce in Lockridge v. Lockridge, 77 So.3d 148 (Ala.Civ.App.2011).

“First, the husband argues that the trial court erred in entering a judgment of legal separation instead of an absolute divorce. The husband contends that because the wife had obtained employment and health-insurance coverage by the time of the May 2010 hearing, and because he had lost his job and his ability to maintain health-insurance coverage for the wife beyond what COBRA would allow, there was no longer any justification for a legal separation rather than an absolute divorce.
“ ‘Legal separations in Alabama are governed by § 30-2-40, Ala.Code 1975. That section of the Alabama Code was adopted by the Alabama Legislature with an effective date of January 1, 1999. Pursuant to that statute, a legal separation is a “court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship,” and a “legal separation does not terminate the marital status of the parties.” See § 30-2-40(b), Ala.Code 1975.’
“D.L.J. v. B.R.J., 887 So.2d 242, 246 (Ala.Civ.App.2003).
“Before January 1,1999, Alabama recognized a divorce a mensa et thoro, also known as a divorce from bed and board, which was the common-law predecessor to a legal separation. Id. See also Drummond v. Drummond, 466 So.2d 974, 976 (Ala.Civ.App.1985) (‘Divorce a mensa et thoro, a divorce from bed and board, is a legal separation allowing the marriage to continue as to everything not withdrawn by the decree.’). In D.L.J., this court considered Alabama precedent concerning a divorce a mensa et thoro in deciding, in the affirmative, whether the trial court had jurisdiction to modify judgments of legal separation under § 30-2-40. Id. at 247. However, this court rejected the argument that § 30-2-40 codified all preexisting common law that related to a divorce a mensa et thoro. Id. at 248.
“Before the enactment of § 30-2-40, which became effective on January 1, 1999, this court had held ‘that when a trial court has before it a request for a divorce from bed and board and a divorce from the bonds of matrimony, the court can exercise its discretion and determine which type of divorce is best for the parties under the facts of their case.’ Drummond, 466 So.2d at 976. Section 30-2-40(c), Ala.Code 1975, provides that ‘[i]f a party files a complaint for a decree of legal separation rather than a decree of dissolution of marriage, the court may grant the legal separation.’ (Emphasis added.) Accordingly, the enactment of § 30-2-40(c) is a codification of the common-law rule that the decision whether to grant a legal separation or an absolute divorce lies within the sound discretion of the trial court. ‘[T]his court will not reverse a part of a trial court’s judgment that is left to its discretion unless it is shown that the trial court exceeded its discretion or that the judgment is plainly or palpably wrong.’ B.R.F. v. A.V.F., 70 So.3d 412, 419 (Ala.Civ.App.2011) (citing Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997)).
“The husband argues that the trial court had no legal basis for continuing the legal separation because the wife could elect to continue health-insurance coverage through COBRA whether the parties were divorced or operating under the legal separation. See, generally, 29 U.S.C. § 1162 and § 1163. It was undisputed that, under the facts as they were presented to the trial court, even if the parties remained only legally separated, the wife’s (and the husband’s) health-insurance coverage through COBRA would end 18 months after the husband’s employment with Ventura Foods was terminated.3
“At trial in May 2009, the wife unequivocally stated that the only reason she desired a legal separation was in order to maintain health insurance. At that time she was unemployed and did not have access to health insurance through an employer. At trial in May 2010, the wife did not indicate that she thought a legal separation was still necessary; she only stated that, if she was required to utilize her employer’s health-insurance coverage, she would need assistance from the husband in financing the monthly cost of her medication. The wife stated that she had enough savings so that she did not need the husband to pay the up-front cost of $2,000 a month for her medication. There was some indication during the May 2010 trial that the parties thought that it would be more economical for the husband to continue to pay health insurance for the family through COBRA rather than pay for single coverage for himself through COBRA and also pay the wife’s $400-a-month medication expense. We understand that such reasoning may have been the trial court’s justification for continuing the legal separation; however, there is no indication that this arrangement — the husband’s paying for family coverage through COBRA while that coverage was available — could not have been utilized if the parties were divorced rather than operating under a legal separation.
“Based on the evidence presented, we agree with the husband that, at the time of the May 2010 trial, there no longer existed any basis to support the legal separation and that the trial court exceeded its discretion by failing to enter a judgment dissolving the marriage of the parties. Accordingly, we reverse the judgment insofar it failed to enter an absolute judgment of divorce, and we remand the cause with instructions to the trial court to enter a judgment divorcing the parties.
“3It is possible that, if the parties divorced, the wife would be entitled to an additional 18 months of COBRA coverage. See 29 U.S.C. § 1162(2)(A)(ii) (special rule for multiple qualifying events). However, because neither party presented the trial court with this argument, we will not consider it in determining whether the trial court exceeded its discretion by failing to grant the husband an absolute divorce.”

77 So.3d at 154-56. As in Lockridge, the explicitly stated sole reason for the wife’s seeking a legal separation rather than a judgment of absolute divorce is so that she can continue receiving health-insurance coverage. However, there are significant distinctions between the cases. In Lock-ridge, this court made its decision based on the fact that, by the time that matter came to trial, whether the couple was divorced or legally separated would have no impact on the wife’s ability to maintain health-insurance coverage. Therefore, this court held that the trial court had no legal basis for not entering a judgment of absolute divorce.

Further, in Lockridge, the court was presented with a situation in which the wife had filed for a divorce in October 2008 and, in his answer, the husband had stated that he did not want a divorce and, instead, asked for a legal separation. The wife then amended her complaint, also requesting a legal separation, and the trial court entered a judgment of legal separation after conducting a trial on the matter. Subsequently, the husband filed a motion to review the order of legal separation and requested an absolute divorce. After the trial court denied the husband’s motion, he appealed to this court.

In this case, neither party filed a complaint seeking a legal separation. Section 30-2-40(c), Ala.Code 1975, provides:

“If a party files a complaint for a decree of legal separation rather than a decree of dissolution of marriage, the court may grant the legal separation. The terms of a legal separation can be modified or dissolved only by written consent of both parties and ratification by the court or by court order upon proof of a material change of circumstances. A proceeding or judgment for legal separation shall not bar either party from later instituting an action for dissolution of the marriage.”

(Emphasis added.) In this case, the record does not indicate that either the husband or the wife ever filed a complaint seeking a legal separation. In fact, the only request for a legal separation came by way of a postjudgment motion, rather than a complaint, in which the wife requested the trial court to enter a judgment of legal separation for the express purpose of requiring the husband to “continue military-based health services and insurance for the [wife] as contemplated by the parties and their mediator.” Although the facts of this case otherwise satisfy the statutory conditions under which a trial court may enter a judgment of legal separation, there is no indication that either party “file[d] a complaint for a decree of legal separation rather than a decree of dissolution of marriage,” before or after the mediation, the entry of the judgment, or the filing of the wife’s motion to alter, amend, or vacate. § 30-2-40(c); see also § 30-2-40(a).

Further, the stated rationale offered by the trial court for granting a legal separation was “to accomplish the original intent of the parties hereto,” presumably as evidenced by the stipulation containing the parties’ mediated agreement. There was no trial in this matter, and the only basis in the record on which the trial court could legally have considered granting either a judgment of divorce or a judgment of legal separation was the information contained in the stipulation. In reviewing the stipulation, although the parties clearly intended to execute all documents necessary to accomplish continued military health-care coverage for the wife, there is no indication that either party entered into any part of the stipulation with the understanding that they were negotiating a legal separation rather than an absolute divorce or that the failure of any of the agreed provisions in the stipulation would result in the entry of a judgment of legal separation. In the absence of a complaint from at least one of the parties requesting a legal separation, there was no legal basis for the trial court to frustrate the intent of the parties to be divorced simply to accommodate the wife’s desire to maintain military health-care benefits. In fact, aside from the bare allegations of the wife in her motion to alter, amend, or vacate, the record indicates that the only evidence before the trial court regarding the availability of continued coverage for the wife demonstrated that the wife had not maintained or responded to communication with the Air Force. Although the trial court’s discretion is broad with respect to postjudgment matters, that discretion does not extend to rewriting the parties’ mediated agreement to craft relief that neither party properly requested in a complaint and that frustrates the fundamental intent of the agreement — to enter into a divorce — in order to prevent frustrating a single provision in the agreement — to provide the wife continued military health-care coverage. Upon finding that the intent of the parties was deliberately frustrated or administratively unavailable, the trial court could have vacated its prior judgment to allow the parties to mediate a mutually agreed-upon result, set the matter for trial, or fashioned other appropriate relief. However, where neither party has filed a complaint seeking a legal separation prior to the entry of a judgment of divorce, there is no statutory basis for granting that relief. Therefore, we reverse the order of the trial court granting the parties a legal separation, and we remand this case for further proceedings consistent with this opinion.

The husband’s request for attorney fees on appeal is denied.

REVERSED AND REMANDED.

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

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

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

I agree that the trial court’s judgment is due to be reversed; however, my reasoning for reversing is different from that of the main opinion.

“Under the provisions of Rule 54(c) of the Alabama Rules of Civil Procedure it is the duty of the court to grant relief to which a party is entitled irrespective of the request for relief contained in the pleadings. Penney v. Carden, [356 So.2d 1188 (Ala.1978) ]. See 6 Moore’s Federal Practice § 54.62 (1976). However, Rule 54(c) does not sanction the granting of relief not requested in the pleadings where it appears that a party’s failure to ask for particular relief has substantially prejudiced the opposing party. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Rental Development Corporation of America v. Lavery, 304 F.2d 839 (9th Cir.1962); Penney v. Carden, supra. Moreover, if the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal. See 10 Wright & Miller, Federal Practice and Procedure § 2662 (1973). Accordingly, logic dictates that in those situations where an opposing party has no notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. See United States v. Hardy, 368 F.2d 191 (10th Cir.1966). Indeed, such a rule is fundamental to the essentials of due process and fair play. Sylvan Beach, Inc. v. Koch, 140 F.2d 852 (8th Cir.1944).”

Carden v. Penney, 362 So.2d 266, 268-69 (Ala.Civ.App.1978).

In the present case, Robert Daniel Lev-erett (“the husband”) does not argue that he was prejudiced by not having had an opportunity to defend against the request for a legal separation set forth in the postjudgment motion filed by Debra Edmondson Leverett (“the wife”). The husband does, however, correctly argue that the wife failed to present any evidence to support the judgment of legal separation. Thus, I conclude that the trial court’s judgment of legal separation was not supported by the evidence and is due to be reversed. See, e.g., Lockridge v. Lockridge, 77 So.3d 148, 155-56 (Ala.Civ.App.2011) (holding that there was insufficient evidence to support a judgment of legal separation as opposed to an absolute divorce); Carden, 362 So.2d at 269 (holding that judgment must be reversed if not justified by proof).

      . Following the entry of the judgment of legal separation, the wife’s counsel filed a motion to withdraw, which the trial court granted. The wife has not retained counsel during this appeal, nor has she submitted an appellee brief.


text:
    Angie E. STEWART v. Richard F. WILLIAMS.
    2110725.
    Court of Civil Appeals of Alabama.
    March 22, 2013.
    Robert E. McDonald, Jr., Mobile, for appellant.

      David P. Shepherd, Fairhope, for appel-lee.
   PITTMAN, Judge.

Angie E. Stewart appealed to the Supreme Court of Alabama from a judgment of the Baldwin Circuit Court that awarded Richard F. Williams $59,500 in damages for Stewart’s slander of title to property owned by Williams. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. We reverse.

On September 25, 2008, Williams filed a complaint alleging that Stewart had slandered the title to rental property he owned in Robertsdale and had interfered with the contractual or business relations between him and his tenant, Troy Anders. Williams asserted that he and Anders had executed a written contract on March 3, 2008, pursuant to which Anders had agreed to renovate the house that Anders was leasing from Williams and to purchase the house from Williams for $125,000, with Anders paying Williams $100,000 at the closing of the sale on July 14, 2008, and Williams financing the balance of $25,000 at 10% interest. Williams further asserted that Stewart had agreed to help Anders with the renovation project by allowing Anders to charge materials for the project on her Lowe’s and Home Depot store credit cards and to pay Stewart back over time. Finally, Williams alleged that, on July 11, 2008 (three days before the alleged closing), Stewart had filed in the probate court of Baldwin County a lien in the amount of $50,000 against Williams’s property, thereby preventing, according to Williams, the sale of the property because the lender had refused to loan Anders the funds to purchase the house.

Stewart answered, generally denying the material allegations of the complaint, and counterclaimed, seeking to enforce the lien or to require Williams to pay her $50,000, the amount by which, Stewart said, Williams had been unjustly enriched. In addition, Stewart filed a third-party complaint against Anders, alleging that Anders had agreed to finance the purchase of the property in an amount sufficient not only to pay Williams but also to repay her for the materials that she had provided for the renovation project. On January 5, 2009, after Anders had failed to answer or otherwise defend Stewart’s third-party complaint, the trial court entered a default judgment against Anders and in favor of Stewart in the amount of $44,961.78.

In deposition testimony, Stewart stated that she and Williams had accompanied Anders to Lowe’s and Home Depot stores when the renovation materials had been purchased. She testified that Williams had been present when she had paid for the materials with her credit cards and that Williams had used his truck to haul the materials to the rental house. Stewart explained that her agreement with Anders required Anders to make the minimum monthly payments on her credit-card indebtedness for the renovation materials and to pay her the balance of the indebtedness, plus 25% interest as an interior-design fee, at or near the time of the closing. Stewart said that Anders had stopped communicating with her on May 24, 2008, and had failed to make any further monthly payments on her credit-card indebtedness.

When the case was called for a bench trial on September 26, 2011, the trial court stated that it was entering a default because neither Stewart nor her attorney had appeared and that Williams would present testimony, presumably as to damages. Soon thereafter, the court noted for the record that Stewart’s attorney had “just walked into the courtroom,” after which the parties presented evidence as to the merits of the case.

At trial, Stewart acknowledged that she had never informed Williams that, if An-ders did not repay her, she would look to Williams for payment. She also acknowledged that she had filed the lien against Williams’s property in order to stop the closing on the sale of the property because, she said, she had received information indicating that Anders would not have sufficient funds at the closing both to purchase the house from Williams and to pay her what he owed her.

Williams presented the testimony of Robert McCorkindale II, a mortgage consultant who had worked with a lender to secure a loan for Anders. McCorkindale said he had ordered an appraisal of the renovated house. Edward Bufkin presented documentary evidence indicating that at the direction of Fidelity Mortgage Company (“Fidelity”) he had appraised the renovated house for $187,000 on August 7, 2008.

Williams testified that Anders had continued to remain in the house as a tenant until May 2010, 22 months after the date he claimed the parties had planned to close the sale of the house. Although Williams referred throughout the trial to the “closing date” of July 14, 2008, he presented no evidence indicating (a) that Fidelity or any other lender had actually agreed to loan funds to Anders, (b) that a closing date had ever been scheduled, or (c) that the existence of the lien had caused a lender not to make a loan to Anders. At the time of trial, neither party had been able to locate Anders and his whereabouts were unknown. Williams testified that, before Anders had left the rental house, Anders had removed many of the improvements he had made to the house, including appliances, interior doors, flooring, light fixtures, and a bathtub. Williams acknowledged that he had not investigated Anders’s credit history before he had agreed to sell the house to Anders. Stewart presented evidence indicating that judgment liens totaling nearly $54,000 had been filed against Anders in the probate court of Baldwin County in 2004 and 2005.

During the parties’ closing arguments at trial, the following occurred:

“THE COURT: Okay. All right, Mr. Shepherd [counsel for Williams], what evidence is there that this closing would have taken place but for the lien?
“MR. SHEPHERD: Your Honor, the judgments don’t stop Mr. Anders, if that is the same Mr. Anders. One can buy property with the judgment, it’s the selling of the property—
“THE COURT: He can buy it, but /all haven’t proved that he would have gotten a mortgage loan.
“MR. SHEPHERD: Judge, with Fidelity—
“THE COURT: With what?
“MR. SHEPHERD: With Fidelity. Fidelity — Judge, what we have shown is that Fidelity sent an appraiser out there to get an appraisal for this property.
“THE COURT: Right. And, Fidelity would have had a title check run and they would have seen the statement of lien, and I agree, that would stop the closing. I mean, there are two separate questions. One is, would [Anders] have qualified for a mortgage loan. And, I mean, there is no evidence that there was a commitment from any mortgage company other than that an appraisal company was hired.
“MR. SHEPHERD: That’s correct. We have an appraised value and we have a contract showing what the purchase amount was to be. We could not locate — so I couldn’t produce a closing agent.
“THE COURT: All right. I suspect because there wasn’t one.
“MR. SHEPHERD: Well, it didn’t happen. That’s true, there wasn’t.
“THE COURT: I mean, a mortgage package was never sent to any closing agent or at least there is no evidence that one was.
“Well, what is clear from the evidence is that [Anders] took advantage of two people to their detriment. And the Court will take the case under submission and enter a judgment as soon as I can.”

On October 13, 2011, the trial court rendered and entered the following judgment:

“1. The Court finds from the evidence that [Stewart] willfully and maliciously filed a statement of lien on the property of [Williams] at a time when she knew that he had entered into a contract to sell the property to Anders. The Court also finds from the evidence that [Stewart] knew that she had no legal basis for filing the statement of lien. Moreover, she never filed suit within six months to enforce the lien.
“2. The Court finds from the evidence that because of the filing of the statement of lien the sale of the house did not close.
“3. An examination of the statutory warranty deed from Regions Bank to [Williams] discloses that deed tax was paid in the amount of $65.50. The Court deems that to represent a purchase price of $65,000.00 for the property in April of 2004 while the house was in an uncompleted state. The contract of sale between [Williams] and Troy Anders was for $125,000.00; therefore, the special damages suffered by [Williams] as a proximate result of [Stewart’s] wrongful conduct is $59,500.00. The Court enters judgment in favor of [Williams] and against [Stewart] in the sum of $59,500.00 plus the cost of court.
“4. The Court denies [Williams’s] request for punitive damages.”

On appeal, Stewart contends that she had a lawful right to file the lien; that her filing the lien was not malicious; and that Williams failed to prove that the filing of the lien was the legal cause of the loss Williams claimed.

Our review of the trial court’s judgment is governed by the following principles:

‘When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error. Griggs v. Driftwood Landing, Inc., 620 So.2d 582 (Ala.1993); First National Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987). However, where the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness. Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994). Because no material facts are disputed and this appeal focuses on the application of the law to the facts, no presumption of correctness] is accorded to the trial court’s judgment. Therefore, we review de novo the application of the law to the facts of this case. Beavers, supra; Lake Forest Property Owners’Ass’n v. Smith, 571 So.2d 1047 (Ala.1990).”

Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996).

Section 6-5-211, Ala.Code 1975, provides: “The owner of any estate in lands may commence an action for libelous or slanderous words falsely and maliciously impugning his title.”

“The elements constituting a slander of title as a basis for the recovery of damages are as follows: (1) Ownership of the property by plaintiff; (2) falsity of the words published; (3) malice of defendant in publishing the false statements; (4) publication to some person other than the owner; (5) the publication must be in disparagement of plaintiffs property or the title thereof; and (6) that special damages were the proximate result of such publication (setting them out in detail). The amount of loss in each of the particulars of special damages claimed need not be stated.”

Womack v. McDonald, 219 Ala. 75, 76-77, 121 So. 57, 59 (1929) (emphasis added; citations omitted).

The trial court’s finding that “because of the filing of the statement of lien the sale of the house did not close” is unsupported by the evidence and is plainly and palpably erroneous. As previously discussed, Williams failed to show that any lender had made a loan commitment to Anders, that a closing on the sale of the property had ever been scheduled, or that the existence of the lien was a factor that had caused a lender not to make a loan to Anders. Consequently, Williams did not prove that Stewart’s alleged slander of title was the legal cause of the loss he suffered. Comments b. and c. to Section 632 of the Restatement (Second) of Torts, which deals with the issue of legal causation in slander-of-title and trade-libel cases, state, in pertinent part:

“[T]he publication of an injurious falsehood must not only affect the person or property concerning which it is published, but it must also be a legal cause of pecuniary loss. This means that it must be a substantial factor in determining the conduct of third persons which brings about the loss.
“.... In order for the false statement to be a substantial factor in determining the conduct of an intending or potential purchaser or lessee, it is not necessary that the conduct should be determined exclusively or even predominantly by the publication of the statement. It is enough that the disparagement is a factor in determining his decision, even though he is influenced by other factors without which he would not decide to act as he does. Thus many considerations may combine to make an intending purchaser decide to break a contract or to withdraw or refrain from making an offer. If, however, the publication of the disparaging matter is one of the considerations that has substantial weight, the publication of the disparaging matter is a substantial factor in preventing the sale and thus bringing financial loss upon the owner of the thing in question.”

In Farmers’ State Bank of Harris v. Hintz, 206 Iowa 911, 221 N.W. 540 (1928), the trial court directed a verdict on the defendant’s slander-of-title counterclaim. The Supreme Court of Iowa affirmed, concluding that the evidence did not show either that the defendant could have obtained a first mortgage loan required by the prospective purchasers or that the prospective purchasers were ready and able to buy the property on the terms proposed. In Ross v. Jarrett, 146 S.W.2d 219, 221 (Tex.Civ.App.1940), a Texas jury rendered a verdict in favor of plaintiffs who alleged “that they had made a tentative sale of an oil lease on the properties to one McCullough, which sale was lost because of the cloud cast upon their titles by the defendants.” The Texas appellate court reversed, holding that the plaintiffs had not established damages because the evidence indicated that “McCullough was willing to buy the lease but was unable to pay for it.” Id. In Gardner v. West-Col, Inc., 136 Vt. 381, 392 A.2d 383 (1978), the trial court dismissed as unsupported by the evidence a seller’s slander-of-title counterclaim against a buyer. The Supreme Court of Vermont affirmed, stating the following:

“An essential element of the cause of action for slander of title is special damages. W. Prosser, The Law of Torts § 128, at 920 (4th ed.1971). These damages must be proved by the injured party as a prerequisite to recovery. Id. § 128, at 922. At minimum, the injured party must demonstrate that any damages result from the ‘slander’ and not from other factors. See Id. § 128, at 923-24.... No evidence was presented to tie any damages to the alleged ‘slander.’

136 Vt. at 387, 392 A.2d at 386-87 (emphasis added).

Because Williams failed to prove the causation element of his slander-of-title claim, the trial court’s judgment is reversed, and the cause is remanded for entry of a judgment in favor of Stewart.

REVERSED AND REMANDED.

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

      . Stewart does not argue that Williams cannot prevail on his slander-of-title claim based on the principle stated in Dent v. Batch, 213 Ala. 311, 104 So. 651 (1925):
      "The law is well settled that if there is in existence, before the perpetration of the alleged slander of title, a valid and enforceable contract for the sale of the land in question, no recovery can be had against the slanderer for the damage resulting from the executory purchaser’s breach of his contract to purchase.
      "In such a case the law presumes that the vendor can recover any resulting loss from the defaulting purchaser, and he is left to that remedy.”
      213 Ala. at 312, 104 So. at 652 (citations omitted).