author: PER CURIAM.

text:
    Michael K. BROWN v. DIXIE CONTRACTING COMPANY and Salter’s Exterminating Company, Inc.
    2120655.
    Court of Civil Appeals of Alabama.
    March 14, 2014.

      Frederick P. Gilmore of Gilmore Law Firm, Grove Hill, for appellant.
    Rudene B. Crowe of Crowe, Rainey & Austin, P.C., Mobile, for appellee Dixie Contracting Company.
   PER CURIAM.

Michael K Brown sued Dixie Contracting Company (“Dixie”) and Salter’s Exterminating Company, Inc. (“Salter’s”), in addition to several others, in connection with injuries he received in an automobile accident (“the accident”). In the action, Brown alleged that the accident occurred during the line and scope of his employment with Dixie and Salter’s, and he sought workers’ compensation benefits from them. In his first amended complaint, Brown alleged that Dixie did business as Salter’s. Both Dixie and Salter’s asserted that Brown was an independent contractor and not their employee and, therefore, that he was not entitled to receive workers’ compensation benefits from them.

Brown requested a separate trial on the workers’ compensation claim, and he asked that that claim be tried first. The trial court granted Brown’s request, but the matter remained “consolidated” for purposes of discovery. At trial, among the issues litigated were whether Brown’s employment with the defendants was as an employee or an independent contractor and the nature of the business relationship between Dixie and Salter’s. Brown asserted that he was an employee of both Dixie and Salter’s.

Evidence was disputed regarding the manner in which Brown was paid and how closely he was supervised. Salter’s payroll documents list him as an “employee.” The payroll documents pertaining to Brown’s employment before the accident indicate that Brown was paid at a rate of $80 a day, which is $400 for a five-day workweek.

Bobby Martin testified that he was Brown’s supervisor at Salter’s. Martin said that, in his opinion, Brown was an “employee at will” who could be fired at any time. Brown testified that his supervisor, Martin, would tell him on a given day whether he was to sell pest-control services or was to work construction.

Brown asserted that Dixie and Salter’s were essentially the same business. Evidence introduced by Salter’s indicates that both businesses are owned by John “Butch” Salter (“Butch”), that they are operated out of the same building, and that they share a secretary and receptionist. The insurance policy on the company vehicle issued to Brown indicates that Butch, doing business as Dixie and as Salter’s, owns the vehicle and is the policyholder.

At the trial evidence was presented indicating that Salter’s sells and services pest-control and termite-protection agreements and provides the services for those agreements. The evidence further indicates that Dixie makes repairs to homes and commercial structures that have been damaged by termites. Evidence suggests that Salter’s employees are instructed to tell clients to use Dixie to make repairs to any damage termites might have caused their homes or buildings.

Salter’s and Dixie presented evidence in support of their assertion that, although the two “were intertwined and may have fed off each other,” they were two separate businesses; Salter’s is incorporated, and Dixie is a sole proprietorship owned and operated by Butch. Evidence indicates that Brown was paid from Salter’s accounts and that he received no wages from Dixie. However, there is evidence indicating that a number of employees who were paid by Salter’s performed jobs for both Dixie and Salter’s.

After the trial, Brown sought leave from the trial court to amend his complaint to name as a defendant John L. Salter doing business as Dixie Contracting Company and Salter’s Exterminating Company, Inc. In his motion for leave to amend his complaint, Brown stated that he was seeking to conform his pleading to the evidence presented at trial. The trial court denied the motion.

Subsequently, the trial court entered the following order, which is set forth in its entirety:

“This case came before the court on November 28, 2012, on the bifurcated portion of the case, the worker’s com- • pensation action. After review of the pleadings and consideration of the evidence presented and the arguments of counsel, the court issues the following order:
“It is ORDERED, ADJUDGED, AND DECREED that the court finds that “1. The Plaintiff Michael K. Brown was an independent contractor of Salter’s Exterminating at any and all relevant times when the accident which is the subject of this action is alleged to have occurred, and therefore not subject to any worker’s compensation claim against Salter’s. It is noted that the accident is alleged to have occurred on either May 23rd or May 30th of 2008.
“2. Additionally, the court finds that [Brown] did not perform any work for the Defendant Dixie Contracting Company until after the accident occurred. Therefore, [Brown] does not have a claim for worker’s compensation benefits against the Defendant Dixie Contracting Company.
“3. Accordingly, [Brown] is not due to recover under the worker’s compensation claim(s) presented.
“4. The court does NOT reach the issues of:
“• The date of the accident
“• The fact of any injury
“• The extent of any injury
“• Any other claims or defenses that are reserved for the jury’s determination in this case
“DONE this 2nd day of January, 2013.”

(Capitalization in original.)

Brown filed a postjudgment motion, which was denied. He then appealed the trial court’s order denying his claim for workers’ compensation benefits. Because the trial court’s order of January 2, 2013, did not dispose of all the claims and controversies between all the parties, it was not a final judgment that would support an appeal. Powers v. Nikonchuk, 142 So.3d 713, 714 (Ala.Civ.App.2013); Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004). Accordingly, this court reinvested the trial court with jurisdiction to determine whether certifying the order as final pursuant to Rule 54(b), Ala. R. Civ. P., was appropriate and, if so, to enter a judgment to that effect. On October 30, 2013, the trial court entered a judgment certifying the January 2, 2013, order denying Brown’s claim for workers’ compensation benefits as final pursuant to Rule 54(b). Accordingly, we now review the propriety of the January 2, 2013, order denying Brown’s claim for worker’s compensation benefits.

On appeal, Brown contends that the January 2, 2013, order does not include adequate findings of fact and conclusions of law, as required by § 25-5-88, Ala.Code 1975. He also asserts that the trial court’s finding that he is an independent contractor is not supported by substantial evidence.

In Weaver v. Pilgrim’s Pride Corp., 106 So.3d 417 (Ala.Civ.App.2012), this court discussed § 25-5-88:

“Section 25-5-88 requires a trial court to make findings of fact and conclusions of law in workers’ compensation judgments. Alabama law requires only substantial compliance with § 25-5-88, and meager or omissive findings of fact or conclusions of law do not necessarily require a reversal of a workers’ compensation judgment. See Ex parte Curry, 607 So.2d 230, 232 (Ala.1992); Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 (1969) (construing the predecessor statute to § 25-5-88). A trial court, however, must make findings of fact and state conclusions of law that are responsive to the issues presented at trial. Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129-30 (Ala.Civ.App.2008).
“‘“The purpose of Ala.Code 1975, § 25-5-88, is to ‘ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts.’ ” Farris v. St. Vincent’s Hasp., 624 So.2d 183, 185 (Ala.Civ.App.1993) (quoting Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So.2d 1049, 1052 (Ala.Civ.App.1985)). “[T]he trial court has a duty to make a finding on each issue presented and litigated before it. In instances where the trial court fails to make a finding responsive to the issue presented, the case must be reversed.” Thomas v. Gold Kist, Inc., 628 So.2d 864, 867 (Ala.Civ.App.1993); see also Harbin v. United States Steel Corp., 356 So.2d 179 (Ala.Civ.App.1978); and Dun & Bradstreet Corp. v. Jones, 678 So.2d 181 (Ala.Civ.App.1996). In Harbin v. United States Steel Corp., this court reversed the trial court’s judgment and remanded the case because the trial court had failed to address or to make findings regarding the issue of notice of injury to the employer, despite the issue being presented and litigated.’ ”

106 So.3d at 419 (quoting Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129 (Ala.Civ. App.2008)).

We agree with Brown that the findings of fact set forth in the order are meager at best. Our supreme court has held that appellate courts can review the record in workers’ compensation cases in which the findings of fact are meager or omissive. Ex parte Curry, 607 So.2d 230, 232 (Ala.1992). This court also has held that, “[i]f the trial court’s findings are meager or omissive, this court may look to the record to determine if the trial court’s judgment should be upheld.” McCutcheon v. Champion Int’l Corp., 623 So.2d 742, 743 (Ala.Civ.App.1993); see also Massey Chevrolet, Inc. v. Aderhold, 991 So.2d 750, 751 (Ala. Civ.App.2008) (same); Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144 (Ala. Civ.App.2007) (same). Therefore, pursuant to the standard of review set forth below, we will review the evidence in the record to see whether substantial evidence supports the trial court’s determination that Brown was an independent contractor and not an employee of Salter’s and/or Dixie.

“Section 25-5-81(e), Ala.Code 1975, provides the standard of review in a workers’compensation case:
“‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on con- , flicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).’
“Landers v. Lowe’s Home Ctrs., Inc., [14] So.3d [144, 151] (Ala.Civ.App.2007). ‘This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.’ Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).”

MasterBrand Cabinets, Inc. v. Ruggs, 10 So.3d 13,16-17 (Ala.Civ.App.2008).

In his brief on appeal, Brown makes the conclusory assertion that Salter’s and Dixie are the same business entity; however, Brown cites no authority and makes no legal argument to support that proposition. At trial, the issue of the relationship between Salter’s and Dixie was litigated, but the trial court made no explicit findings regarding that issue in its order. As mentioned, the trial court found that Brown was an independent contractor of Salter’s and also found that Brown had not performed any work for Dixie at the time the accident occurred. The trial court also stated that it did not reach the issue of the date of the accident, among other issues. To the extent the order can be read as making an implicit finding that Salter’s and Dixie were two separate entities, Brown has failed to make a legal argument that such a finding was error. “Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support that party’s position. If they do not, the arguments are waived.” WMie Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). Accordingly, we affirm that portion of the order concluding that Brown had not worked for Dixie at the time of the accident and that Dixie was not liable to Brown for workers’ compensation benefits.

Additionally, in his statement of the issues, Brown includes the issue whether the trial court erred in failing to allow him leave to substitute “John L. Salter d/b/a/ Dixie Contracting Company and Salter’s Exterminating in lieu of Dixie Contracting Company; Dixie Contracting Company d/b/a Salter’s Exterminating.” He does not refer to that issue in the argument portion of his brief, however. When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). Thus, this court will not consider this issue.

As to the issue whether the trial court erred in determining that Brown was an independent contractor of Salter’s, in determining a similar issue, this court has stated:

“It is well established law that, in the context of a workers’ compensation case, when determining whether an employer-employee relationship exists, the courts will look to whether the purported employer has reserved the right to control the manner in which the worker performs the duties of the work. Atchison v. Boone Newspapers, Inc., 981 So.2d 427, 431 (Ala.Civ.App.2007).
“ ‘ “ ‘[F]or one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the result to be accomplished or, in other words, not only what shall be done, but how it shall be done.’ ”
‘White v. Henshaw, 363 So.2d 986, 988 (Ala.Civ.App.1978) (quoting Weeks v. C.L. Dickert Lumber Co., 270 Ala. 713, 714, 121 So.2d 894, 895 (1960)). In determining “whether [an individual] is an independent contractor or whether an employer-employee relationship exists, the court looks to the reserved right of control rather than the actual exercise of control.” Tur-nipseed, v. McCafferty, 521 So.2d 31, 32 (Ala.Civ.App.1987). If the right of control extends no further than directing what is to be ultimately accomplished, an employer-employee relationship is not established; however, “if an individual retains the right to direct the manner in which the task is to be done or if that individual does in fact dictate the manner of operation, then an employer-employee relationship is established.” Id. at 33. The factors to be considered in determining whether an individual or an entity has retained the right of control include: (1) direct evidence demonstrating a right or an exercise of control; (2) the method of payment for services; (3) whether equipment is furnished; and (4) whether the other party has the right to terminate the employment. See Ex parte Curry, 607 So.2d 230 (Ala.1992).’

“Atchison v. Boone Newspapers, Inc., 981 So.2d at 431-32. Furthermore, ‘ “[t]he retention of control necessary to establish employee status is determined on a case-by-case basis.” Luallen v. Noojin, 545 So.2d 775, 776 (Ala.Civ.App. 1989).’ Sartin v. Madden, 955 So.2d 1024,1027 (Ala.Civ.App.2006).”

Susan Schein Chrysler Dodge, Inc. v. Rushing, 77 So.3d 1203, 1208 (Ala.Civ.App.2011). Furthermore, “[n]o one fact by itself can create an employer-employee relationship.” Luallen v. Noojin, 545 So.2d 775, 776 (Ala.Civ.App.1989); see also Hooker Constr., Inc. v. Walker, 825 So.2d 838, 843 (Ala.Civ.App.2001).

Brown presented evidence indicating that Butch, the owner of Salter’s, Butch’s son Johnny Salter (“Johnny”), and Martin had talked to him about coming to work for them. Brown, who had previously worked as a manager for another pest-control company, testified that the three' men came to his house to talk and that Martin told Brown he would be hired to work “in sales.” Brown said that, at the time he was hired, Butch, Johnny, and Martin did not specify whether they were hiring him as an employee or as an independent contractor. None of the parties contends that Brown signed a contract with Salter’s or Dixie. Brown said he considered himself to be an employee of Salter’s and/or Dixie. He also testified that he was supervised by Martin, that he had to report to the office each morning, that he was told when to be at work, and that he was “pretty much” told when he could leave. Brown said that he was expected to do the sales, exterminating, or construction jobs Martin told him to do and to follow the sales leads provided by Martin. If he was not provided with sales leads, he said, he could make “cold calls.”

Brown had worked only about two months before the accident occurred. After the accident, Brown said, he was “put on a route” to perform pest control. On the route, Brown said, he was to complete 100 “tickets” a month. When he completed his route, he said, Martin would then have him do work on the construction side of the business, i.e., for Dixie. Brown testified that, at any given time, Martin would know the contacts he had remaining on his route because, he said, Martin kept a running total based on the paperwork Brown turned in to him. Brown further testified that if he found termite damage, his instructions were to call Dixie so that someone from Dixie could immediately go to the site and provide the customer with a quote to repair the damage. Martin confirmed Brown’s understanding that Brown was to call him if he discovered termite damage, and he stated that when he received such a call he would go to the site as quickly as possible to provide an estimate of the cost of repairs.

Salter’s and Dixie presented evidence indicating that, when Brown was hired, Salter’s provided him with a company vehicle and included him as an insured on the company’s automobile-insurance policy. Salter’s gave Brown an insurance card to use in connection with the company vehicle. Salter’s payroll sheets list Brown as an employee.

Martin was the only individual from Salter’s or Dixie to testify. He said that he hired Brown to work for Salter’s as a “subcontractor” in sales, and he also testified that Brown was an “at-will employee” who could be fired for any reason. Martin said that he was Brown’s supervisor. He testified that Brown was required to report to work by 8 a.m. Martin also said that, “if we had any leads for that day, [Brown] would be issued those leads.” Otherwise, Brown was to make cold calls. Martin did not go out on those calls with Brown.

As to the method of Brown’s pay, Martin testified that Brown was hired as a “1099 employee” who “would have been on draw against commissions and sales.” There is no dispute that Brown was issued a Form 1099 for income-tax purposes. In addition, Salter’s did not provide Brown with health insurance. We note that in Sartin v. Madden, 955 So.2d 1024, 1030 (Ala.Civ.App.2006), this court reversed a summary judgment in favor of the employer, holding that, although the employer deducted no taxes from the worker’s paychecks and provided the worker with no benefits, that evidence alone was not controlling as to a determination of the existence of an employer-employee relationship.

Brown testified that when he was hired he was told he would earn a salary of $400 a week. When questioned by Salter’s attorney, Brown said that when he was in sales he earned $400 each week; when he was on a “pest route” after the accident, he was paid based on his production, which, Brown said, sometimes resulted in his earning less than $400 a week. From the record, it appears that Brown was not paid more than $400 a week regardless of the number of sales he made. The payroll sheets from the weeks leading up to the date of the accident, whether it was May 23 or May 30, 2008, indicate that Brown was to -be paid at a rate of “$80/day.” When asked whether he was paid commissions on his sales, Brown said: “If I got paid commissions on anything that I sold, I should have made more than $400, but I didn’t.” Brown also testified that when he performed construction work he was paid hourly. Salter’s did not present any evidence to dispute Brown’s testimony that he was paid differently depending on whether he was performing sales, pest-control, or construction work.

In considering the factors used to determine whether an individual or an entity has retained the right of control — i.e.,' “ ‘(1) direct evidence demonstrating a right or an exercise of control; (2) the method of payment for services; (3) whether equipment is furnished; and (4) whether the other party has the right to terminate the employment,’ ” Susan Schein Chrysler Dodge, Inc., 77 So.3d at 1208 — we find that Salter’s controlled nearly every aspect of Brown’s employment. Applying the foregoing factors, we note that Salter’s dictated whether Brown would perform tasks in sales, pest control, or construction as Salter’s or Dixie needed. Salter’s controlled the manner in which Brown would be paid for the different jobs he did, and it capped his weekly pay at $400 regardless of the amount of sales Brown may have made, undermining Salter’s contention that it .paid Brown on a commission basis when he was making sales for Salter’s. Salter’s also provided Brown with a company vehicle and issued an insurance card to Brown that included him as an insured on Salter’s automobile-insurance policy. Martin testified that he considered Brown an “at-will employee” whose employment could be terminated at any time; likewise, Brown said he believed he could quit the job at any time.

In reviewing the totality of the evidence in this case, see Sartin, supra, we conclude that the trial court’s order holding that Brown was an independent contractor of Salter’s is not supported by substantial evidence. Accordingly, that portion of the order finding that Brown was an independent contractor of Salter’s is reversed, and the cause is remanded for further proceedings consistent with this opinion.

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

All the judges concur.

      . Brown and his wife, Lois, sued Memory Brantley Wallace, the driver of the other vehicle involved in the accident, alleging negligence and wantonness. Also named as defendants in the action were Brown’s insurance carrier, GEICO General Insurance Company, and the underinsured-motorist insurance carrier for Dixie and Salter's, Allstate Indemnity Company. In their briefs on appeal, the parties have not set forth any of the details regarding the accident itself.

      . In its order, the trial court explicitly stated that it had not reached the issue of the date of the accident.


source: Caselaw Access Project

license: Public Domain

text:
    Gary TRIPP and Christine Tripp v. Amber Leigh OWENS.
    2120663.
    Court of Civil Appeals of Alabama.
    March 14, 2014.
    T. Mark Maclin of Wilmer & Lee, PA, Athens, for appellants.
    Joel L. Sullivan III, Huntsville, for ap-pellee.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua G. Lane, asst. atty. gen., Department of Human Resources, for amicus curiae State Department of Human Resources, in support of the appellants.
   PER CURIAM.

Gary Tripp and Christine Tripp (“the grandparents”) appeal from a judgment of the Madison Circuit Court dismissing their petition against Amber Leigh Owens (“the mother”) seeking grandparent 'visitation with them grandson, who is the mother’s son (“the child”).

The grandparents filed a petition in the trial court seeking grandparent visitation. According to the grandparents’ petition, the child was born to their son and the mother on November 13, 2009, and the mother and their son married in June 2011. The grandparents alleged that their son, the mother, the child, and the mother’s daughter had lived with the grandparents from November 2009 until February 2012; that their son, the mother, the child, and the mother’s daughter moved out of the grandparents’ residence in February 2012; and that, in March 2012, their son had filed for a divorce against the mother. They stated further that, while that divorce action was pending, their son had died in an automobile collision on May 30, 2012. According to the grandparents’ petition, the mother had failed to allow the grandparents to have regular, unsupervised contact and visitation with the child. The grandparents asserted that contact and visitation with the grandparents was in the child’s best interest, and they sought an order from the trial court granting them contact and visitation with the child. The grandparents also filed a motion seeking pendente lite contact and visitation with the child.

On February 13, 2013, the trial court entered a judgment dismissing the grandparents’ petition because, it stated, “the Alabama Grandparent Visitation Act was declared unconstitutional pursuant to Ex parte E.R.G. and D.W.G., 73 So.3d 634 (Ala.201'1).” The grandparents filed a motion to vacate the dismissal of their petition, asserting, among other things, that the Alabama Supreme Court’s opinion in Ex parte E.R.G., 73 So.3d 634 (Ala.2011), had been issued on June 10, 2011; that, one day later, the Governor of Alabama had signed into law Ala. Acts 2011, Act No. 2011-562, amending the Grandparent Visitation Act (“the new Act”), § 30-3^1.1, Ala. Code 1975; and that the new Act had become effective on September 1, 2011. The grandparents requested that the trial court vacate its dismissal of their petition and adjudge that petition under the new Act rather than under the former Grandparent Visitation Act (“the former Act”), former § 30-3-4.1, Ala.Code 1975, which had been held unconstitutional in Ex parte E.R.G.

On February 20, 2013, the mother’s attorney filed a notice of appearance in the trial court. On April 1, 2013, the trial court entered an order denying the grandparents’ motion to vacate the dismissal of their petition. The grandparents timely appealed to this court.

The grandparents argue on appeal, among other things, that the trial court erred in dismissing their petition for grandparent visitation sua sponte; they contend that, given their reliance upon the new Act, which has yet to be adjudicated unconstitutional, the trial court erred in dismissing the case without giving them an opportunity to present evidence proving that visitation would serve the best interest of the child, thereby rebutting the statutory presumption in favor of the mother. We find that issue to be dispositive.

“ Tn Nance v. Matthews, 622 So.2d 297 (Ala.1993), [the supreme court] stated the standard of review applicable to a ruling on a motion to dismiss:
“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may possibly prevail. We note that a Rule 12(b)(6) 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.”
“ ‘622 So.2d at 299 (citations omitted).’
“Knox v. Western World Ins. Co., 893 So.2d 321, 322 (Ala.2004).”

Westwind Techs., Inc. v. Jones, 925 So.2d 166, 170-71 (Ala.2005). Thus, we apply no presumption of correctness to the trial court’s judgment.

In Ex parte E.R.G., the Alabama Supreme Court declared unconstitutional the former Act, which did not include any presumption in favor of a fit parent’s decision as to whether grandparent visitation served the best interest of the child. 73 So.3d at' 648^9. Although the trial court did not specify in its judgment whether it was addressing the new Act or the former Act in dismissing the grandparents’ petition, it appears that the trial court purported to apply Ex parte E.R.G. as having conclusively established the unconstitutionality of the new Act. In doing so, the trial court erred and misapplied the holding in Ex parte E.R.G. The new Act amended § 30-3-1.1 such that the grandparents may be entitled to relief following an evi-dentiary hearing. We conclude, therefore, pursuant to our standard of review, that the judgment of the trial court is due to be reversed. We remand the case with instructions to the trial court to vacate its dismissal of the grandparents’ petition and to allow the grandparents the opportunity to prove that visitation would serve the best interest of the child through an evi-dentiary hearing, unless the constitutionality of the new Act is duly challenged and the new Act is ruled unconstitutional in accordance with the ordinary rules of civil procedure and applicable Alabama statutes.

REVERSED AND REMANDED.

All the judges concur.

      . Because our disposition of this case obviates the need to address the arguments of the attorney general and the grandparents that the trial court erred in failing to serve the attorney general pursuant to § 6-6-227, Ala. Code 1975, we pretermit discussion of that issue.


author: THOMPSON, Presiding Judge.

text:
    M.D. and S.W. v. S.C.
    2120861 and 2120862.
    Court of Civil Appeals of Alabama.
    March 14, 2014.

      Charlie A. Bottoms, Jr., Florence, for appellants.
    John B. Baugh, Florence, for appellee.
   THOMPSON, Presiding Judge.

In April 2010, E.C. (“the maternal grandmother”) and her husband, S.C., filed a petition in the Lauderdale Juvenile Court (“the juvenile court”) alleging that their grandson, C.C.W. (“the child”), was dependent as a result of the conduct of his mother, S.W. (“the mother”); the mother is the daughter of the maternal grandmother and the stepchild of S.C. In the dependency petition, the maternal grandmother and S.C. alleged, among other things, that the mother often left the child with them for extended periods without checking on the child and that the mother had no job and no residence; moreover, in their dependency petition, the maternal grandmother and S.C. alleged that the child’s father was “unknown.” On May 4, 2010, the juvenile court entered an order awarding pendente lite custody of the child to the maternal grandmother and S.C. During the pendency of the underlying action, the juvenile court entered several interim orders, all of which continued pen-dente lite custody of the child with the maternal grandmother and S.C.

On May 21, 2010, M.D. filed in the juvenile court a document asserting that he was the child’s father and seeking to intervene in the dependency action. The record contains no order specifically establishing M.D.’s paternity, but none of the other parties disputed M.D.’s assertion that he is the child’s father. A January 6, 2011, order of the juvenile court required the “parents” to pay child support for the benefit of the child. A later, July 11, 2012, order awarded “the mother, S.W., and the father, M.D.,” pendente lite custody of the child after the maternal grandmother died in a house fire; we note that that order was set aside on the same day it was entered. Accordingly, we hereinafter refer to M.D. as “the father.”

The juvenile court conducted hearings over five separate days between October 2011 and June 2013. After the first three of those hearings, and after the death of the maternal grandmother, D.D. (“the paternal grandmother”) filed a petition in February 2013 seeking to intervene in the dependency action. In her petition, the paternal grandmother alleged that the child was dependent, and she sought an award of custody of the child.

On June 24, 2013, the juvenile court entered a judgment awarding custody of the child to S.C., the child’s stepgrandfa-ther, awarding the mother and the father visitation, and dismissing the paternal grandmother’s motion to intervene. The mother and the father each filed a separate timely notice of appeal; this court consolidated the appeals.

In their joint brief submitted to this court, the mother and the father assert various arguments to the effect that the juvenile court erred in finding the child dependent. S.C. has responded to those arguments by asserting that the evidence supports a dependency finding. In its June 24; 2013, judgment the juvenile court found that the child “was a dependent child under the legal definition provided in § 12-15-102(8), Ala.Code 1975, at the commencement of this case.” (Emphasis added.) The June 24, 2013, judgment contains no finding regarding whether the child was dependent at or near the time of the entry of that judgment.

It is clear that the allegations in the dependency petition filed by the maternal grandmother and S.C. in this case properly, invoked the jurisdiction of the juvenile court. See T.K v. M.G., 82 So.3d 1, 4 (Ala.Civ.App.2011) (“The allegations in the father’s petition were sufficient to invoke the dependency jurisdiction of the juvenile court.”); and Ex parte S.P., 72 So.3d 1250, 1252-53 (Ala.Civ.App.2011) (same). “Once the dependency jurisdiction of a juvenile court has been properly invoked, the juvenile court has an imperative statutory duty to conduct an evidentiary hearing to determine the dependency of the child.” K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala.Civ.App.2010). If the juvenile court finds, based on clear and convincing evidence presented at the evidentiary hearing, that the child is dependent, it has jurisdiction to order a disposition, such as an award of custody, of the child. See § 12-15-311(a), Ala.Code 1975 (“If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that a child is dependent, the juvenile court may proceed immediately ... to make proper disposition of the case.”); K.C.G. v. S.J.R., 46 So.3d at 502 (“[I]f, and only if, a juvenile court finds that the child is dependent, the court may then conduct proceedings to determine the custodial disposition of the child.”). However, if, after receiving evidence, the juvenile court determines that the child at issue is not dependent, it lacks jurisdiction “ ‘to enter a judgment affecting the custody of the child.’ ” J.A v. C.M., 93 So.3d 953, 955 (AIa.Civ.App.2012) (quoting L.R.J. v. C.F., 75 So.3d 685, 687 (Ala.Civ.App.2011)); see also C.C. v. B.L., 142 So.3d 1126, 1129 (Ala.Civ.App.2013) (same).

This court has explained:

“Juvenile courts are purely creatures of statute and have extremely limited jurisdiction. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). That limited jurisdiction allows a juvenile court to make a disposition of a child in a dependency proceeding only after finding the child dependent. V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala. Civ.App.2004) (Murdock, J., concurring in the result)) (‘ “[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.” ’).”

T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009) (some emphasis added).

In this case, the juvenile court conducted an evidentiary hearing, or hearings, on the parties’ respective positions with regard to the dependency allegations. At those hearings, the parties disputed, among other things, whether the mother and'the father had maintained contact with and had regularly visited the child and whether the mother’s and the father’s explanations regarding why they had failed to visit the child during certain periods were valid. In addition, the parties disputed whether the mother and the father were dependent on others for their own support and whether the parents’ recent employment was indicative of a sustained ability to meet the child’s needs; it was undisputed that, in contravention of a child-support order, the parents had made only a nominal contribution to the support of the child during the three years he had been in S.C.’s custody. Thus, the evidence pertaining to those questions, as well as others that might indicate whether the child was dependent, was in dispute. The resolution óf that dispute dictates whether the juvenile court had jurisdiction to enter a dispositional custody award.

In its judgment, the juvenile court found that the child was dependent at the time the dependency proceedings were initiated, which was more than three years before the entry of the June 24, 2013, judgment. However, the juvenile court did not make a finding that the child was dependent such that it could exercise jurisdiction to enter a custody award, or a disposition of the child, pursuant to § 12-15-311(a), Ala.Code 1975, in its June 24, 2013, judgment. Accordingly, we reverse the judgment and remand the cause for the juvenile court to enter written findings as to whether the child was dependent at the time of the disposition.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.


author: LEWIS, C.J. BENTON, J.,

text:
    Dana David JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2441.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2011.
    Nancy A. Daniels, Public Defender, and Zachary F. Lawton, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, C.J.

Appellant, Dana David Johnson, appeals his convictions and sentences for the sale of cocaine and the manufacture of crack cocaine, arguing that the convictions violate the prohibition against double jeopardy because both offenses are violations of section 893.13(l)(a), Florida Statutes. For the following reasons, we affirm.

A double jeopardy violation constitutes fundamental error which may be raised for the first time on appeal. Stowe v. State, 66 So.3d 1015,1016 (Fla. 1st DCA 2011). In order to determine if a defendant’s convictions violate double jeopardy, it must first be ascertained if the offenses were based on an act or acts that occurred within the same criminal transaction and/or episode. Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010). If the offenses occurred during the same transaction or episode, it must then be determined if the convictions were predicated on distinct acts. Id. If the offenses are not predicated on distinct acts and occurred within the same criminal episode, it must be decided if the offenses survive a “same elements” test as defined by section 775.021, Florida Statutes, which is commonly referred to as the Blockburger analysis. Id. Section 775.021, Florida Statutes (2011), provides in part:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Section 893.13(l)(a), Florida Statutes (2011), provides that “[i]t is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.” The term “sell” means “to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.” Fla. Std. Jury. Instr. (Crim.) 25.2. The term “manufacture” means the “production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis ....”§ 893.02(15)(a), Fla. Stat. (2011).

According to Appellant, the Legislature defined a “single statutory offense” in section 893.13(l)(a). We disagree. The plain language of the statute prohibits four different acts — the sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver a controlled substance. Although Appellant cites State v. McCloud, 577 So.2d 939 (Fla.1991), on appeal, the case supports affirmance in this case. In McCloud, the supreme court addressed the certified question of whether convictions “based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband” violate the prohibition against double jeopardy. Id. at 940. In answering the question in the negative, the supreme court concluded that “because there are situations ... where a sale can occur without possession, possession is not an essential element of sale and is therefore not a lesser-included offense.” Id. at 941.

While Appellant attempts to distinguish McCloud on the basis that the defendant in that case was convicted of crimes under “two distinct subsections” of section 893.13 while he was convicted of two crimes under a single subsection, the certified question included the offense of possession with intent to sell, an offense prohibited by the same subsection of section 893.13 as the sale of a controlled substance. In Thomas v. State, 61 So.3d 1157,1158 (Fla. 1st DCA 2011), we rejected the appellant’s argument that his convictions for selling cocaine within 1000 feet of a school and possession of cocaine with intent to sell within 1000 feet of a school, both violations of section 893.13(l)(c), violated the prohibition against double jeopardy. In doing so, we relied upon McCloud, reasoning that “[a]s the [certified] question is worded and answered in McCloud, the instant convictions would not constitute double jeopardy.” Id. at 1158-59; see also State v. Oliver, 581 So.2d 1304,1305 (Fla.1991) (relying on McCloud in holding that convictions for possession with intent to sell cocaine and sale of cocaine did not violate the prohibition against double jeopardy); McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004) (citing McCloud in support of its holding that the offenses of sale of cocaine within 1000 feet of a place of worship and possession of cocaine with the intent to sell or deliver within 1000 feet of a place of worship, both violations of section 893.13(l)(e)l, did not violate the prohibition against double jeopardy); Huey v. State, 722 So.2d 286, 286 (Fla. 5th DCA 1998) (“There is no double jeopardy violation when a defendant is convicted of the crime of delivery of a- controlled substance and possession with intent to sell the same substance, because each crime contains an element that the other does not”).

Based upon the foregoing authorities and the fact that the offenses at issue in this case each contain an element that the other does not, we reject Appellant’s argument that his convictions violate the prohibition against double jeopardy. We, therefore, AFFIRM.

SWANSON, J., concurs; BENTON, J., concurs with opinion.

BENTON, J.,

concurring in the judgment. .

As the majority opinion explains, a necessary, preliminary inquiry is whether distinct acts were charged and proven. Where one act constitutes one crime and another act constitutes another, no double jeopardy problem arises. In the present case, a confidential informant approached the appellant, gave him $60, and received cocaine powder in exchange. Only thereafter did the appellant “cook” some of the powder, rendering it crack cocaine, and hand the crack cocaine (back) to the informant. In my view, appellant has not shown why the state was not entitled to view the sale and the “manufacturing” as distinct acts.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: PER CURIAM. WARNER, J.,

text:
    C.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2086.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2014.

      Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

In this Anders appeal, C.C., a juvenile, appeals an order withholding adjudication and sentencing him to probation, following his plea to possession of marijuana. In our independent review of the record, we identify two errors, but affirm because they have not been preserved for appeal.

First, the trial court did not inquire into C.C.’s understanding of the rights he was waiving by entering the plea, nor did the trial court make any findings as to the voluntariness of the plea as required by Florida Rule of Juvenile Procedure 8.080. See also Koenig v. State, 597 So.2d 256, 258 (Fla.1992). Second, the trial court did not specify the duration of the probation term. One is unable to determine from the record whether the trial court intended an indefinite period of probation or whether by oversight it omitted to state the period of probation. See J.M.W. v. State, 935 So.2d 630, 631 (Fla. 2d DCA 2006). However, C.C. did not preserve these issues by filing a petition for writ of habeas corpus challenging the voluntariness of his plea or by moving to correct the disposition order. See DM. v. State, 84 So.3d 1242, 1244 (Fla. 2d DCA 2012); Fla. R. Juv. P. 8.135(b). Because these issues have not been preserved pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii), we affirm without prejudice to C.C. seeking relief in the trial court.

Affirmed.

MAY and LEVINE, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur in the affirmance. However, I would note that disposing of the sentencing issue in an Anders appeal as unpre-served is somewhat problematic. Appellate counsel should have brought the error to the attention of the trial court pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), which allows for the filing of a motion to correct a disposition pending appeal. In A.F.E. v. State, 853 So.2d 1091 (Fla. 1st DCA 2003), a similar case, the First District noted that the function of Anders was to preserve the defendant’s Sixth Amendment right to counsel in an appeal as of right so that the review procedure “reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” Id. at. 1093 (quoting Smith v. Robbins, 528 U.S. 259, 276-77, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). The appellate court is required to conduct its own full and independent review of the record to assure that counsel has performed adequately even though no issues of arguable merit had been discovered. The court noted the dilemma when the court finds a fundamental sentencing error which has not been preserved by appellate counsel:

In Washington v. State, 814' So.2d 1187 (Fla. 5th DCA), rev. dismissed, 831 So.2d 675 (Fla.2002), the reviewing court discovered a fundamental sentencing error in an Anders appeal. Despite that fundamental sentencing error, - the Washington court concluded that it was constrained to affirm under Maddox v. State, 760 So.2d 89 (Fla.2000), the Criminal Appeal Reform Act of 1996, and the rules adopted to implement that act. 814 So.2d at 1189. The Washington court, however, reached such a conclusion “with misgivings and concerns for how [it] as an appellate court can faithfully carry out [its] constitutional duties pursuant to Anders and Causey.” Id. We share those misgivings and concerns. That a party may seek collateral relief, such as making a claim that he received an ineffective assistance of counsel, is of little practical assistance in juvenile cases, where the sentence imposed may be completed before any relief is granted.
Had appellate counsel found that a good faith basis existed to argue that appellant’s disposition was erroneous, competent counsel would have filed a motion pursuant to rule 8.135. Anders and its progeny suggest that an appellate court is not bound by counsel’s view of a case when an Anders brief is filed. In re Anders Briefs, 581 So.2d [149] at 151 [ (Fla.1991) ]; see also State v. Causey, 503 So.2d [321] at 322-323 [ (Fla.1987) ] (“While courts should not assume the role of appellate counsel, reversible error should not be ignored simply because an indigent appellant or a public defender failed to point it out.”). The question posed here is whether an appellate court likewise should not be bound by the consequence of counsel’s failure to file a motion under rule 8.135, lest independent appellate review under An-ders be frustrated.

A.F.E., 853 at 1093-94. The court certified the following question to the supreme court:

NOTWITHSTANDING MADDOX, SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAU-SEY IN SUCH A CASE?

Id. at 1095. It does not appear that a notice to invoke the jurisdiction of the supreme court was filed.

The court again faced the same issue in A.L.B. v. State, 23 So.3d 190 (Fla. 1st DCA 2009), and certified the same question as it had in A.F.E. It recently certified the same question in Powell v. State, 133 So.3d 594 (Fla. 1st DCA 2014). It does not appear from a check of the history of the case on Westlaw that a notice to invoke the jurisdiction of the supreme court was filed in A.L.B.

The Fifth District has also taken the position of the First District that the failure to preserve a sentencing error by moving to correct pursuant to Florida Rule of Criminal Procedure 3.800(b) precludes the appellate court from raising the issue even in an Anders case. See Dunbar v. State, 35 So.3d 54, 54 (Fla. 5th DCA 2010). In Dunbar, the appellate court acknowledged that the sentence imposed was clearly in excess of the statutory maximum (by ten years), but it still could not be corrected, because appellate counsel had not filed a 3.800(b) motion to correct the sentence pending appeal. Id. at 55. Appellant was left to a postconviction remedy, a remedy that the defendant must pursue without the entitlement to counsel.

A remedy to the dilemma that the courts face in performing their review function under Anders, where a sentencing error is found but not preserved, may be to strike the Anders brief filed by counsel due to the failure to recognize the sentencing error. By striking the brief, it would be as though the initial brief had not been filed. Appellate counsel could then file a motion to correct the sentence, pending appeal, as is allowed prior to the filing of the initial brief pursuant to Rule 8.135(b)(2) and Rule 3.800(b)(2). The sentencing error would then either be resolved by the trial court or would be preserved as an issue for appeal. By striking the brief, the appellate court would be fulfilling its review duty under Anders without running afoul of the preservation issue precluding review. The supreme court should consider such a resolution if and when this issue is addressed upon one of the certified questions.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . It may be that the appellate court granted a motion to withdraw by the public defender after the Anders brief was filed, thus leaving the defendant without an attorney to file the notice to invoke the jurisdiction of the supreme court.


author: WALLIS, J.

text:
    Martin J. PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4071.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.

      James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   WALLIS, J.

Martin J. Peterson (“Appellant”) appeals his judgment and life sentence after he was found guilty of five counts of sexual battery and one count of lewd or lascivious molestation on his adopted daughter. Appellant raises multiple issues on appeal, all of which are without merit except one — whether the trial court applied the correct legal standard when evaluating Appellant’s motion for a new trial pursuant to Florida Rule of Criminal Procedure 3.600.

Appellant argues — and the State expressly admits — that the trial court erred by stating it would not reweigh credibility, as follows:

THE COURT: All right. Then on the amended motion having to do with me reweighing the credibility of the victim witness, the amended motion is gonna be denied.
DEFENSE: As to argument one, the first argument I presented?
THE COURT: Yes.
DEFENSE: Okay.
THE COURT: With regard to conflicts in the testimony and the credibility of the victim witness, I’m not going there. That was for the jury to decide and they decided those issues.

We previously held in Fulword v. State, 29 So.3d 425, 426 (Fla. 5th DCA 2010), that where a criminal defendant moves for a new trial pursuant to Florida Rule of Criminal Procedure 3.600(a)(2), the “trial court must exercise its discretion to determine ‘whether a greater amount of credible evidence supports one side of an issue or the other.’ ” (quoting Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002)). This requires the trial judge to act, in effect, as an additional juror by weighing the evidence and evaluating the credibility of witnesses. Id. Here, the trial court did not apply this standard. Accordingly, we affirm Appellant’s meritless issues but reverse and remand for the trial court to apply the correct legal standard when considering Appellant’s motion for new trial.

AFFIRMED in part; REVERSED in part, and REMANDED with instructions.

PALMER and COHEN, JJ., concur.

      . "Although appellate courts generally review a trial court’s ruling on a motion for new trial based upon an abuse of discretion standard, a trial court’s failure to apply the correct legal standard to a motion for new trial is a legal error subject to de novo review.” Geibel v. State, 817 So.2d 1042, 1044-45 (Fla. 2d DCA 2002).