text:
    Deidra SMITH v. COTTON STATES MUTUAL INSURANCE COMPANY.
    2120506.
    Court of Civil Appeals of Alabama.
    April 11, 2014.

      Melvin Hasting, Cullman, for appellant.
    Larry B. Moore and Ian Michael Berry of Moore, Berry & Linville, Florence, for appellee.
   On Application for Rehearing

PITTMAN, Judge.

This court’s opinion of October 25, 2013, is withdrawn, and the following is substituted therefor.

Deidra Smith appeals from a summary judgment entered in favor of Cotton States Mutual Insurance Company (“Cotton States”) by the Cullman Circuit Court on Deidra’s claims alleging breach of contract, bad faith, misrepresentation, unfair and deceptive trade practices, and conversion. We affirm in part and reverse in part.

Procedural History

Deidra filed a complaint against Cotton States and a number of fictitiously named defendants, asserting claims of breach of contract, bad faith, misrepresentation, unfair and deceptive trade practices, and conversion, based on Cotton States’ alleged failure to pay Deidra insurance benefits for damage to her dwelling and personal property caused by a fire. Cotton States filed an answer to Deidra’s complaint. Cotton States subsequently filed a motion for a summary judgment, and, on the same date the motion was filed, the trial court entered an order directing Deidra to respond to the summary-judgment motion, stating that, if no proper response was filed within 30 days, a judgment might be entered in favor of Cotton States. Deidra filed a response to Cotton States’ motion for a summary judgment; that response did not include any exhibits or citation to authority. Cotton States filed a reply to Deidra’s response. Following a hearing, the trial court entered a judgment granting Cotton States’ summary-judgment motion. Deidra filed a postjudgment motion, which the trial court denied. Deidra timely appealed to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Facts

Cotton States submitted a transcript of Deidra’s deposition testimony. Deidra testified that she lives in Vinemont with her husband, Anthony Smith, and her two children in a two-story house that also has a basement. According to Deidra, she initially had insurance on the house with “Farm Bureau,” but she had later received a letter in the mail indicating that her coverage was being “switched over” to Cotton States. She testified that she was sure she had received an insurance policy from Cotton States, but, she said, she did not remember sitting down and reading it. Deidra testified that, on June 27, 2009, she and her family had left the house and that, when they returned, they walked in and discovered that the house was pitch black from soot. She stated that a fire had originated in the basement but that it had burned out by the time she and her family had arrived back at the house.

Deidra testified that the first time Travis Hill, the insurance adjuster for Cotton States, had come to the house, he had looked at the basement and talked about what was going to have to be done to repair the damage caused by the fire, including gutting the basement. She stated that Hill had told her and her husband to make notes of everything they had in the house. She testified that her understanding of what Hill had told them was that either they could get somebody to do the work to repair and clean the house or the insurance company “would get somebody to get estimates and stuff that need[ed] to be done.” She stated that Chris Cooper had later taken over handling their claim from Hill. Deidra testified that a business named PuroClean had done most of the cleaning in the house. She stated that the basement had been burned and that the main level of the house had been covered with soot. According to Deidra, the carpet in the basement was pulled up and replaced after the fire.

Deidra testified that, while the repairs were being performed, the family had lived in a rental house for close to a year, and she thought that Cotton States had reimbursed them for the rental payments. She testified that a business named Monk’s Carpet had replaced the hardwood floors and the carpet in the house, as well as the tile in the kitchen, that she was satisfied with the work that Monk’s Carpet had done, and that Cotton States had paid for that work. She testified that the doors and cabinets in the main part of the house had been sanded and refinished, that she was satisfied with that work, and that Cotton States had paid for that work as well. According to Deidra, the tile in the basement and the main part of the house had been stained by the fire. She testified that PuroClean had attempted to clean that tile but that the grout between the tiles was not holding and was turning white and that the tiles had cracked because of the cleaner used by PuroClean. Deidra testified further that the porches of the house had black soot residue on them from her and her family and the cleaning crew walking on them, that PuroClean had undertaken to clean the porches by pressure washing them, but that, as a result of the pressure washing, the “treatment” had been removed from the wood, causing it to crack. Deidra also stated that the coun-tertops in the kitchen had been damaged but had not been replaced because, she said, Cooper had told her that the damage to the countertops had not been caused by the fire.

Deidra testified that some of the contents of the house had been destroyed by the fire and that Cotton States had paid to replace some of those contents. She stated that she had not received the depreciation value on some of the items, that seasonal items had not been replaced, and that other items had not been replaced because she could not afford to replace them without first receiving the replacement-cost amount, rather than that amount minus depreciation, for those items from Cotton States. She testified that she and her husband had made an itemized list of the items damaged by the fire, that Cotton States had gone through the list, and that Cotton States had come up with an amount, less depreciation, depending on the age of the item, that Cotton States had paid them for each item. Shé stated that she and her husband had replaced some of the items themselves and had taken the receipts for those items to Cooper. She stated that them clothes had not been properly cleaned by PuroClean but that Cotton States had paid for the cleaning. She testified that she had been told that Cotton States would not replace their clothes.

Cotton States also submitted a transcript of Anthony’s deposition testimony. Anthony testified that, when the family had arrived back at the house on the day of the fire, he had opened the back door of the house and found that everything was pitch black and that the lights would not come on. He testified that Hill had contacted him and had met him at the house two days after the fire and that they “went over some things.” Anthony stated that Hill had told him and Deidra to make a list of everything in the house, whether it had been damaged or not. He testified that the county investigators had determined that a cordless telephone in the basement had started the fire. According to Anthony, Hill had told them that everything in the basement needed to be replaced; Hill had also recommended that they use Puro-Clean to clean the house, although, according to Anthony, Hill had told them that they could use whoever they wanted. Anthony testified that Hill had told him that it was up to the Smiths to make sure the job was done right if they elected to use a cleaner of their own choosing or that, if they used PuroClean, Cotton States would deal with the company directly and make sure the company did what it was supposed to do. Anthony stated that Hill had contacted PuroClean and that PuroClean had come out to the house within a couple of days after the fire. Anthony testified that he had signed an agreement with PuroClean. He also testified that he and Deidra had endorsed the first check they received from Cotton States to PuroClean but that they had not endorsed the second one they received. Anthony testified that CRDN was the company they had used to clean their clothes and that he had signed a document when the clothes had been brought back because, he said, he had spoken to a supervisor, who had told him that his signature meant only that he had received the clothes and that, if he was not satisfied with the cleaning of the clothes, he would not owe CRDN anything.

According to Anthony, Cooper, who had replaced Hill, had refused to replace the tile floors in the basement or anywhere other than in the kitchen. Anthony stated that the grout was stained and the tiles were grey, although they were beige before the fire. He testified that Cooper had told them that the tiles looked good as they were and that he refused to replace them. Anthony testified that Cotton States had had the hardwood floors on the main level of the house and the tile floors in the kitchen replaced. According to Anthony, the tile in the bathrooms and the basement should have been replaced as well.

Anthony testified that the countertops in the house had warped and buckled due to the heat of the fire and had needed to be replaced. He testified that two of the toilets had cracked and that all the toilets were stained. Anthony stated that Dave Cowan, the owner of PuroClean, had sent his nephew to the house with a pressure washer to clean the porches and that the pressure washing had caused the wood to splinter.

According to Anthony, Cotton States had the tile and the grout in the kitchen replaced. He testified that Rick Monk, of Monk’s Carpet, the company that had replaced the tile, stated that, due to the cleaner PuroClean had used to clean the tile, a greasy film had been left on the grout and that the grout could not be stained because the stain would not hold due to the film left by the cleaner. Anthony stated that the cabinets in the house are stained black from soot. He testified that PuroClean had attempted to clean the insulation in the basement but that the attempt had failed, so he had paid to have the insulation, along with a pegboard, replaced for approximately $700 or $800. He testified that he had replaced the coun-tertops with granite, rather than Formica, like the old countertops, because, he said, the price of the granite countertops had been only approximately $200 more than the price of the Formica countertops.

Anthony admitted that he had received a letter from Cooper stating that Cotton States did not guarantee the workmanship of the contractors or the vendors. He testified, however, that he had relied on Hill’s assertion that, if they used who Cotton States suggested, Cotton States would ' make sure the job was done right.

He testified that PuroClean had hired CRDN and that CRDN had not brought - back certain items that they had taken to clean, including shoes. He testified that the refrigerator had been damaged by the fire and that he had purchased a new refrigerator. With regard to the family’s clothes, he testified that Dave Cowan from PuroClean and Cooper had smelled the clothes after they had been returned by CRDN and that they had noted that the smell of smoke was still strong. He stated that CRDN had first returned the clothes six or seven months after the fire but then had picked up the clothes again to reclean them and that it was another three or four months before they were returned. He testified that CRDN had picked up the clothes the second time only after Cowan had taken certain articles back to CRDN to prove that they were not clean. Anthony testified that the Smiths never received their shoes back and that they had not been reimbursed for boots that he had purchased, although he had submitted receipts for the boots to Cooper.

Cotton States submitted a letter dated July 30, 2009, from Cooper to Deidra, which stated that Cotton States “does not guarantee the workmanship of any contractors or vendors.”

Analysis

Deidra argues on appeal that the trial court erred in entering a summary judgment in favor of Cotton States.

“In General Motors Corp. v. Kilgore, 858 So.2d 171, 173 (Ala.2002), our supreme court outlined the appropriate standard of review of a summary judgment:

“‘“We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:
“ ‘ “ We apply the same átandard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material facts exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. “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.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’ ”
‘“American Liberty Ins. Co. v. Am-South Bank, 825 So.2d 786, 790 (Ala. 2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)).’ ”

Jarrett v. Alabama Dep’t of Indus. Relations, 9 So.3d 501, 503 (Ala.Civ.App.2008).

Deidra first asserts that the trial court erred in entering a summary judgment on her breach-of-contract claims with regard to Cotton States’ failure to replace, or, in the alternative, to reimburse her for replacing, the countertops, the floors, the cabinets, the' toilets, the porches, the clothes and boots, and the insulation and pegboard. “ ‘The elements of a breach-of-contract claim under Alabama law are (1) a valid contract binding the parties; (2) the plaintiff’s performance under the contract; (3) the defendant’s nonperformance; and (4) resulting damages.’” Shaffer v. Regions Fin. Corp., 29 So.3d 872, 880 (Ala. 2009) (quoting Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala.2002)). The parties dispute whether Cotton States failed to perform under the otherwise valid contract between the parties, i.e., the insurance policy. In his deposition testimony, Anthony listed'the toilets, the insulation, the pegboard, the countertops, the cabinets, the porches, the tile, and the boots as items that had not been properly repaired or for which the Smiths had not received reimbursement. Cotton States argues that Deidra’s cause of action should have been brought against the individual contractors, rather than Cotton States, for their failure to perform the repairs to Dei-dra’s satisfaction. The insurance policy states that Cotton States will adjust any losses with Deidra. Cooper sent a letter to Deidra stating that Cotton States “does not guarantee the workmanship of any contractors or vendors.” Deidra’s contract with CRDN states that “CRDN has no connection with [Cotton States].” Deidra’s contract with PuroClean states that she understood that “PuroClean is working for me (us) and not the insurance company, adjuster and/or agent.” In light of those contracts and the language in the insurance policy, we agree that, with regard to the porches, because PuroClean had undertaken to repair them, Deidra should have sought reimbursement from PuroCle-an, not Cotton States. See Mitchell v. State Farm Fire & Cas. Co., 642 So.2d 462, 465 (Ala.1994). Similarly, because CRDN had undertaken to clean the clothes and they had not been cleaned satisfactorily, Deidra should have sought reimbursement from CRDN rather than Cotton States. Therefore, the trial court properly entered a summary judgment as to Deidra’s breach-of-contract claim relating to the porches and to the clothes that had not been properly cleaned by CRDN.

However, the deposition testimony indicated that Cooper, Cotton States’ agent, had refused to replace certain items listed by Anthony. There is no assertion that any independent contractor had undertaken to repair the insulation, the toilets, or the cabinets. Anthony testified that Cotton States had refused to pay for the replaced countertops and had failed to reimburse him for the insulation he had purchased. He also testified that, although the tiles other than in the kitchen had been cleaned, the cleaning had not worked, the tiles needed to be replaced, and Cooper had refused to replace them. With regard to Anthony’s boots, Anthony asserted that he had purchased a new pair of boots and that Cotton States had failed to reimburse the Smiths for them. Deidra testified that they had not received reimbursement for new clothes they had purchased. Cotton States failed to rebut that evidence in its motion for a summary judgment and supporting materials.

The insurance policy states that Cotton States will repair or replace damaged property “using standard new construction materials of like kind and quality.” There is nothing in the policy, however, that defines “of like kind and quality.” Insofar as Cotton States argues that the countertops had been replaced with granite rather than with Formica, the material of the counter-tops before the fire, Anthony testified that the two materials were similarly priced. Cotton States failed to offer any evidence indicating that the granite countertops are significantly different in kind and quality from the countertops replaced in the house. Therefore, a question of fact exists as to whether the granite countertops and the Formica countertops are of like kind and quality for purposes of determining the obligation of Cotton States to pay for the replacement of the countertops pursuant to the insurance policy.

Cotton States also argues that Dei-dra’s insurance policy indicates that Cotton States would first pay any claim for an item on a cash-value basis but that it would pay the replacement-cost value of an item after the item was replaced. There is no indication in Cotton States’ summary-judgment motion, however, that Cotton States had given Deidra the cash value of the items discussed by Anthony or Deidra in their depositions. Thus, reviewing the evidence in the light most favorable to Deidra, as we are required to do, see, e.g., Malone v. Noblitt, 65 So.3d 404, 409 (Ala. Civ.App.2010), we conclude that Cotton States failed to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law on Deidra’s breach-of-contract claims as to these items. Therefore, with the exception of Deidra’s claim relating to the repair of the porches and the cleaning of their clothes, we reverse the trial court’s summary judgment in favor of Cotton States with regard to Deidra’s breach-of-contract claims.

Cotton States based its argument in its summary-judgment motion regarding Deidra’s bad-faith claim on its assertion that it was entitled to a judgment as a matter of law on her breach-of-contract claims. Cotton States argued that it had paid the Smiths for the damaged contents of their house, that the costs of repairing or replacing damaged items and parts of the house had been paid, and, thus, that there had been no refusal to pay Deidra’s claims. As discussed above, however, Cotton States failed to submit evidence in support of its summary-judgment motion indicating that it had paid for certain items discussed by Deidra and Anthony in their depositions. Moreover, to the extent Dei-dra and Anthony stated that Cooper had refused to replace certain items, Cotton States failed to submit any evidence in support of its summary-judgment motion indicating that Cooper had not made those refusals or that a legitimate reason existed for those refusals. See Watson v. Life Ins. Co. of Alabama, 74 So.3d 470, 475-76 (Ala. Civ.App.2011) (discussing elements of a claim of bad faith). Because Cotton States failed to make a prima facie showing that no genuine issue of material fact remained as to Deidra’s bad-faith claim, we also reverse the summary judgment as to that claim.

With regard to Deidra’s claim of misrepresentation, Cotton States argued in its summary-judgment motion that Deidra had failed to state that claim with particularity.

“Rule 9(b), Á[la]. R. Civ. P., provides that when fraud is alleged, the circumstances constituting the fraud must be stated with particularity. This does not mean that every element must be pleaded with particularity. The pleader, however, must use more than generalized or conclusionary statements when setting out the allegations of fraud. The pleader must state the place, the time, the contents of the false misrepresentations, the fact misrepresented, and an identification of what has been obtained. Robinson v. Allstate Ins. Co., 399 So.2d 288 (Ala.1981).”

Lyde v. United Ins. Co. of America, 628 So.2d 665, 670 (Ala.Civ.App.1993). In her complaint, Deidra asserted that the “defendants misrepresented and committed fraud unto the plaintiffs by representing that upon a loss of their property and/or dwelling, they would be fully compensated for the loss up to the limits set forth in their policy”; that the “defendants accepted the premiums paid by the plaintiffs and upon notice of a claim made by the plaintiffs, they refused to pay the amounts of coverage to which the plaintiffs were entitled”; and that “[a]gents of the said defendants also misrepresented that acceptance of benefit payments for the loss of their property would not release all claims under the dwelling policy.” Deidra failed to indicate the agents who allegedly made the misrepresentations or the time or place of the alleged misrepresentations. Thus, the trial court properly entered a summary judgment as to her misrepresentation claim. See Crum v. Johns Manville, Inc., 19 So.3d 208, 218-19 (Ala.Civ.App.2009).

Deidra fails to make any argument on appeal with regard to her conversion claim or her claim of unfair and deceptive trade practices; thus, we affirm the trial court’s summary judgment in favor of Cotton States on those claims as well.

Conclusion

We affirm the trial court’s summary judgment in favor of Cotton States with regard to Deidra’s claims alleging misrepresentation, conversion, and unfair and deceptive trade practices; we also affirm the summary judgment on Deidra’s breach-of-contract claim relating to the porches and the clothes. We reverse the trial court’s summary judgment in favor of Cotton States with regard to Deidra’s remaining claims of breach of contract and bad faith, and we remand the case to the trial court for further proceedings.

APPLICATION GRANTED; OPINION OF OCTOBER 25, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The insurance policy covering the house was issued only to Deidra.

      . That document-is titled "Judgment” in the record, but it is clearly a response by Deidra to Cotton States' motion for a summary judgment.


source: Caselaw Access Project

author:
THOMAS, Judge.
      DONALDSON, Judge,

license: Public Domain

text:
    Ex parte C.T. (In re C.T. v. L.T.)
    2130439.
    Court of Civil Appeals of Alabama.
    April 25, 2014.

      Melissa L. Isaak, Montgomery; and Jacquelyn D. Tomlinson, Montgomery, for petitioner.
    Roianne Houlton Conner and Preston L. Presley of Law Offices of Roianne Conner, Montgomery, for respondent.
   THOMAS, Judge.

C.T. (“the father”) and L.T. (“the mother”) were divorced in September 2013 by a judgment of the Montgomery Circuit Court. That judgment awarded the parties joint legal custody of their child, awarded the mother sole physical custody, and awarded the father liberal visitation rights. On February 4, 2014, the mother filed a petition for modification and a verified emergency ex parte petition to suspend the father’s visitation, in which she averred that the father had perpetrated physical and sexual abuse on the child. The trial court entered an ex parte order suspending the father’s visitation that same day, and it also entered an order setting a review hearing on the matter for February 21, 2014. The father filed an answer, a counterclaim seeking to hold the mother in contempt, and a counterclaim seeking a modification of custody on February 6, 2014.

At February 21, 2014, hearing, the judge assigned to this action determined that the child had been interviewed by someone employed by Child Protect, a local organization whose employees perform forensic interviews of children who have allegedly been abused. That judge entered an order recusing himself from further involvement in this action. According to that order, the judge recused himself from the action to avoid the appearance of impropriety based on the fact that his wife is the director of Child Protect and based on the fact that the person who had interviewed the child for Child Protect is a personal friend.

On February 24, 2014, the father filed a motion requesting a “72-hour hearing.” In that motion, the father relied on former Ala.Code 1975, § 12-15-153, which required that, if an emergency protection order is entered without notice, a hearing on the matter must be held within 72 hours after notice is given to the parent. The mother responded to the father’s motion by arguing that the father had not acquiesced to the judge’s suggestion that visitation be supervised by a neutral third party and that, because of his decision not to engage in visitation under that parameter, the father was not entitled to a hearing. The mother also noted that an investigation concerning the abuse allegations was ongoing.

The action was reassigned to another circuit-court judge, who, on February 24, 2014, denied the father’s motion for a hearing. The trial court then entered an order that same day setting a final hearing in the action for June 30, 2014, and July 1, 2014. The father sought reconsideration of the denial of his motion for a hearing, arguing that this court’s opinion in Ex parte Couey, 110 So.3d 378 (Ala.Civ.App. 2012), required the trial court to hold a hearing within 72 hours after the entry of the ex parte order affecting the custody of the child. The mother opposed the father’s motion requesting the trial court to reconsider its denial of the father’s motion seeking a hearing, arguing, without citation to authority, that “custody and visitation are two (2) separate and distinct issues” and contending, therefore, that the father’s reliance on Ex parte Couey was misplaced. The father then timely filed his petition for the writ of mandamus with this court on February 27, 2014.

“ ‘A writ of mandamus is an extraordinary remedy ... that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner.’ Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998). The petitioner must demonstrate:
“ ‘ “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
“Ex parte Edwards, 727 So.2d at 794 (quoting Ex parte Adams, 514 So.2d 845, 850 (Ala.1987)).”

Ex parte D.J.B., 859 So.2d 445, 448 (Ala. Civ.App.2003).

In his petition, the father seeks an order compelling the Montgomery Circuit Court to hold a hearing on the mother’s motion to suspend his visitation. He argues that the ex parte order, although appropriately entered, cannot be maintained indefinitely without providing the father notice, a hearing, and an opportunity to be heard on the matter. He further argues that, under recent precedent established by this court, a hearing should be held within 72 hours after a parent receives notice of an ex parte order affecting his or her rights to the custody of his or her child. As noted earlier, the father relies on this court’s recent pronouncement in Ex parte Couey, 110 So.3d at 381, that,

“[although [Ala.Code 1975,] § 12-15-308(a)[,] applies only in dependency actions,- we believe it to be instructive in nonjuvenile custody cases as well because the serious nature of removing a child from the custody of a parent without giving that parent notice and an opportunity to be heard is the same whether in the context of a juvenile proceeding or a nonjuvenile proceeding. The requirement in dependency cases that a hearing be conducted within 72 hours of a child’s removal from the custody of his or her parent supports a conclusion that, even when it is necessary to remove a child from his or her parent’s custody without first giving the parent notice or an opportunity to be heard, that parent should be given notice and an opportunity to be heard as expeditiously as possible — certainly sooner than 10 weeks after a child has been removed from the parent’s custody.

The mother and the trial court answered the father’s petition. Both assert that Ex parte Coney is inapposite. The mother argues that the father is not entitled to the due-process protections recognized in Ex parte Coney because he was not a custodial parent and has only visitation rights and not custody rights. The trial court first states in its response that this case is a domestic-relations action, presumably to point out to this court that the 72-hour-hearing requirement set out in the Alabama Juvenile Justice Act is not applicable to this action. The trial court further explains that, based on Rule 65(b), Ala. R. Civ. P., which provides that a temporary restraining order in a domestic-relations case does not expire automatically within 10 days, it was permitted to set the hearing on the father’s motion at a later date. Based on this conclusion and the fact that the investigation of the abuse allegations is ongoing, the trial court asserts that its decision to set the hearing on the father’s motion 18 weeks after he first requested a hearing and nearly 21 weeks after his right to visit with the child, was suspended in an ex parte order entered without notice to the father “are not contrary to the findings in Ex parte Coney.” We cannot agree with the mother or the trial court.

We have stated before that

“[o]rdinarily a parent’s right to custody (or visitation) of his minor child cannot be cut off except after due notice to the parent and an opportunity to be heard. To allow such would be to deprive the parent of his legal rights without due process of law. Ex parte White, 245 Ala. [212,] 215, 16 So.2d [500,] 503 [ (1944) ]. However, due process does not require that in every case the determination of the parent’s rights must precede any interference therein. Ex parte White, 245 Ala. 212, 16 So.2d 500. In situations where it appears that the actual health and physical well being of the child are in danger, the court has authority to make a temporary ruling concerning custody (or visitation) until a final determination can be made. Ex parte White, 245 Ala. 212, 16 So.2d 500; Thorne v. Thorne, 344 So.2d 165 (Ala. Civ.App.1977).”

Ex parte Harris, 506 So.2d 1003, 1005 (Ala.Civ.App.1987) (first and third emphasis added). The public policy of this state is to “encourag[e] interaction between noncustodial parents and their children.” Pratt v. Pratt, 56 So.3d 638, 641 (Ala.Civ. App.2010); see also Ala.Code 1975, § 30-3-150 (stating in the article of the Code governing joint custody that “[i]t is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage”). Although an award of sole custody to one parent favors that parent, we cannot agree that the noncustodial parent’s right to visitation is somehow less deserving of due-process protections because it is not labeled “custody.” Thus, we cannot agree with the mother that the fact that the father has lost only visitation rights somehow prevents the father from being entitled to due-process protections or makes the precedents applying those due-process protections to prevent the abuse of ex parte custody orders inapplicable.

Similarly, we reject the trial court’s determination that Rule 65(b) provides a basis for not holding a timely hearing to afford the father the due-process rights to which he is entitled. Although we agree that Rule 65(b) plainly states that the 10-day limitation on temporary restraining orders in Rule 65(b) does not apply in domestic-relations cases, see also Falk v. Falk, 355 So.2d 722, 725 (Ala.Civ.App. 1978), it does not follow that a trial court may ignore the due-process rights of a parent and decline to set a hearing on a matter involving child custody or visitation earlier than four months after the parent requested a hearing. Indeed, a trial court entertaining a petition seeking ex parte custody may act on that petition despite a lack of notice if the allegations contained in that petition demonstrate a likelihood that the health and welfare of the child is in danger. See Thorne v. Thorne, 344 So.2d 165, 170-71 (Ala.Civ.App.1977) (“In the few situations where it appears the actual health and physical well-being of the child are in danger, the court has authority under Ex parte White, [245 Ala. 212, 16 So.2d 500 (1944) ], to make a temporary grant of custody until a final determination can be made.”). However, the right to transfer custody in a “summary proceeding” is limited by the requirement that “ ‘an adequate remedy [be] available by which the parent may afterward have his [or her] rights presented to a proper tribunal.’ ” Ex parte White, 245 Ala. 212, 215, 16 So.2d 500, 503 (1944) (quoting 39 Am.Jur. 604, § 17); see also Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005) (Pittman, J., concurring in part and dissenting in part as to the rationale and concurring in the judgment).

One hallmark of an adequate remedy is its timely availability. See Barry v. Bar-chi, 443 U.S. 55, 66, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (holding, in the administrative context, that a postdeprivation hearing must be “prompt” and should be “concluded without appreciable delay”); see also Burton v. Alabama Dep’t of Agric. & Indus., 587 F.Supp.2d 1220 (M.D.Ala. 2008) (applying Barry in discussing whether a suspended state employee received an adequate postsuspension remedy). This court has recently held that a parent must “be given notice and an opportunity to be heard as expeditiously as possible ” after the entry of an ex parte custody order, even as soon as 72 hours after notice is given, when practicable. Ex parte Couey, 110 So.3d at 381 and n. 2. This requirement applies even in a domestic-relations action, we explained, “because the serious nature of removing a child from the custody of a parent without giving that parent notice and an opportunity to be heard is the same whether in the context of a juvenile proceeding or a nonjuvenile proceeding.” Id.

We expressly extend the due-process protections afforded a parent whose custodial rights are impacted by an ex parte order to parents whose visitation rights are impacted by such orders. Accordingly, because the father has demonstrated a clear, legal right to the relief he seeks, we grant his petition for the writ of mandamus and order the trial court to immediately set a hearing regarding the suspension of the father’s visitation rights.

PETITION GRANTED; WRIT ISSUED.

THOMPSON, P.J., concurs.

DONALDSON, J., concurs specially.

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

DONALDSON, Judge,

concurring specially.

I concur fully in the holdings of the main opinion that the visitation rights of a noncustodial parent with a child cannot be deprived without due process of law; that those rights should not be deprived without notice and an opportunity to be heard in advance except under the extraordinary circumstances cited; and that the parent whose visitation rights have been suspended in such extraordinary circumstances should be given “notice and an opportunity to be heard as expeditiously as possible.” Ex parte Couey, 110 So.3d 378, 381 (Ala. Civ.App.2012). I write separately to address two issues that might arise from those holdings.

In Ex parte Dean, 137 So.3d 341, 346 (Ala.Civ.App.2013), we were presented with the issue of the trial court’s award of pendente lite visitation over objections from the custodial parent pending resolution of the noncustodial parent’s request to modify of a divorce judgment, which had not awarded the noncustodial parent visitation with the child. We held that

“due process dictates that, even before the trial court can award [a noncustodial parent who had been denied visitation] pendente lite visitation with the child, an evidentiary hearing must be conducted to determine whether that visitation is in the best interests of the child and, given the facts of this case, if pendente lite visitation is to be awarded, what measures should be taken to ensure the safety of the child and the [custodial parent].”

Id. at 346. The right to an evidentiary hearing discussed in Dean should also extend to the notice and opportunity to be heard to be afforded a noncustodial parent following the entry of an ex parte order suspending visitation. I note, however, that a pendente lite hearing is an interlocutory hearing only, and the scope of and extent of the proceedings will often be more limited than the final hearing. The party seeking to continue the suspension of visitation after the entry of an ex parte order should bear the initial burden of presenting sufficient facts from which the trial judge could find that the health and welfare of the child would be adversely affected if visitation is restored. The party opposed to the order should have an opportunity to challenge the assertions. But the trial judge remains vested with the authority to exercise “reasonable control over the mode and order of interrogating witnesses and presenting evidence,” Rule 611(a), Ala. R. Evid., and must balance the interests of the parents and the child based on the circumstances presented. For example, if a criminal investigation is pending, the interlocutory hearing might need to be adjourned, if appropriate, while the investigation proceeds.

Second, what constitutes an expeditious opportunity to be heard is within the discretion of the trial judge to determine without reference to the “72-hour” expectation of Ex parte Couey. Suspending visitation will often differ from changing custody in that there might be less of an immediate impact upon the noncustodial parent and child as result of the suspended visitation. As a practical matter, the affected visitation might not be imminent and, thus, there might be less urgency for the hearing to occur. Also, although the “72-hour” expectation established in Ex parte Couey is not directly before us, I question whether this court has the authority to impose upon the trial court a specific period in which a hearing must be held. The supreme court is empowered “to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction” and to “make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts....” Ala. Const. 1901, Art. VI, §§ 140(b) and 150; see also § 12-2-7, Ala.Code 1975. I also recognize that the legislature may enact a statute requiring the trial court to conduct a hearing within a certain time. See § 12-15-308(a), Ala.Code 1975 (requiring a hearing to be held within 72 hours of removing a child from the custody of a parent in dependency proceedings). This court has “the power to issue all writs necessary or appropriate in aid of appellate jurisdiction-” Ala. Const.1901, Art. VI, § 141(c). Establishing a specific period in which a hearing must be held appears to me to fall within the “general supervision and control” and rule-making authority granted to the supreme court and/or within the power of the legislature, hopefully following input from the trial courts on the issue, but would not be “necessary or appropriate” to aid this court’s appellate jurisdiction. As such, I would leave it to the trial court’s discretion to schedule the hearing expeditiously. In this case, the time for the hearing exceeds the bounds of that discretion, and I therefore concur in granting the petition for the writ of mandamus.

      . By Act No. 2008-277, Ala. Acts 2008, the . provisions of the former Alabama Juvenile Justice Act, Ala.Code 1975, § 12-15-1 et seq., were either repealed or amended, renumber- - ed, and incorporated into the current Alabama Juvenile Justice Act, Ala.Code 1975, § 12-15-101 et seq. Former § 12-15-153 has been renumbered as Ala.Code 1975, § 12-15-141. The 72-hour requirement has been retained in § 12-15-141.

        “ 2We acknowledge that there may be circumstances in which it would be impossible for a circuit court to schedule a hearing within 72 hours of entering an ex parte custody order, although mere difficulty in scheduling such a hearing would not excuse a delay. We cannot overemphasize that a hearing should be conducted as close to within 72 hours as possible after an ex parte custody order has been entered.”


author: THOMPSON, Presiding Judge.

text:
    JESSE STUTTS, INC. v. William H. HUGHEY.
    2130041.
    Court of Civil Appeals of Alabama.
    May 16, 2014.

      Frederick L. Fohrell and Katie Gran-lund Mooty of Wilmer & Lee, P.A., Huntsville, for appellant.
    J. Barton Warren of Warren & Simpson, P.C., Huntsville, for appellee.
   THOMPSON, Presiding Judge.

Jesse Stutts, Inc. (“Stutts”), appeals from a judgment entered by the Madison Circuit Court (“the trial court”) finding that a recent back injury suffered by William H. Hughey was caused by injuries that Hughey had received in a 2002 accident that arose out of his employment with Stutts. The trial court ordered Stutts to approve and pay for the treatment of the current injury, including surgery. The trial court also found Stutts and its workers’ compensation claims administrator in contempt for violating the “future-medical provisions” of a 2004 settlement agreement into which the parties had entered to resolve issues arising out of the 2002 accident.

The record indicates the following. Hu-ghey suffered a number of injuries in the 2002 accident, including three compression fractures to his spine at the T6, Til, and L2 levels. In May 2003, Hughey underwent kyphoplasty surgery to ease the pain caused by the compression fractures. According to the record, kyphoplasty surgery involves injecting “medical cement” into the fractures. After that procedure, Hu-ghey went to physical therapy. Because he was still experiencing back pain, Hu-ghey was referred to Dr. John Roberts, a pain-management specialist, in 2004. Dr. Roberts has provided treatment to Hu-ghey continuously from 2004 and was still treating him at the time of the trial.

Dr. Roberts testified in his deposition that, when he first began treating Hughey, Hughey complained of back pain and left-leg pain “that was in an L5-S1 distribution.” Dr. Roberts explained that, although the compression fractures were higher in Hughey’s back than the L5-S1 level, anything that affects components of the spine “can ultimately impact the nerve,” causing nerve pain down one’s leg. As part of his treatment for managing Hughey’s pain, Dr. Roberts provided Hu-ghey with numerous injections and blocks at intervals of time. Through the years, Dr. Roberts has also prescribed numerous pain medications, including some narcotics, to relieve Hughey’s pain.

In August 2006, Hughey wrote a letter, addressed to “To Whom It May Concern,” stating that the injections he received from Dr. Roberts helped not only with his back pain, but also “with the problem with my right and left legs just losing all stability.” He went on to say in the letter that he had fallen several times because his legs “collapse” on him. In his deposition, Dr. Roberts testified that the residual pain Hu-ghey continues to have as a result of the compression fractures “can make you feel weak or feel like you can’t support your body and need to sit down.”

On June 6, 2011, Dr. Roberts saw Hu-ghey and gave him his regularly scheduled set of injections. Hughey returned to Dr. Roberts on July 11, 2011. According to a nursing note made on that visit, Hughey reported that he had fallen at work and hurt his back. At that time, Hughey was working as a cook and dishwasher at a Cracker Barrel restaurant. In his deposition, which is included in the record, Hu-ghey was asked whether he was ever injured while working for Cracker Barrel. He said that in September 2011 his legs “gave out” on him, causing him to fall “flat on [his] back.” He said that the fall hurt his head and his “whole back area, especially in my butt area.” Hughey said that he reported the incident to his supervisor and that his supervisor filled out an incident report. Hughey testified that, after his fall, he was “given a paper” to go see a doctor at Athens Hospital. However, Hu-ghey said, he decided not to seek treatment or workers’ compensation benefits from Cracker Barrel as a result of that fall, because, he said, “it wasn’t Cracker Barrel’s fault.” Instead, Hughey said, his leg gave out on him because he had not had his injection. He explained that he had to have his injections at least every three or four months or his “legs go out.” Hughey said that he told his supervisor that he fell because his legs “gave out.”

Records from Cracker Barrel do not contain a report indicating that Hughey fell or was injured in September 2011. There is, however, an “Incident Abstract” indicating that on the evening of July 10, 2011 — the day before Hughey reported to Dr. Roberts’s nurse that he had fallen at work and hurt his back — Hughey reported that he had hurt his back when he tripped on an object while “carrying [a] disher from grill to dish.” Dr. Roberts was asked during his deposition whether, assuming Hughey’s fall at the Cracker Barrel restaurant occurred on July 10, 2011, Hu-ghey’s statement that his legs “gave out” on him because he had not timely received his injections would be correct. Dr. Roberts said no, “that certainly is not a valid statement.”

In addition to the reported July 10, 2011, incident at the Cracker Barrel restaurant, the record contains an “Emergency Physician Record — Fall” from Athens-Limestone Hospital dated June 14, 2011— approximately one week after Hughey received his June 6, 2011, injections from Dr. Roberts. The “Emergency Physician Record” indicates that, on that occasion, Hu-ghey was complaining of lower back pain and pain to both knees. The “context” portion of the record contains three options for the fall, “tripped/slipped/lost balance.” The word “slipped” is circled, and there is a notation: “@ Hardee’s Sts wet floor.” Hughey was diagnosed with contusions to his knees and lumbosacral strain and released to return home and take prescribed Norco, a narcotic pain reliever. Athens-Limestone Hospital emergency-department records indicate that Hughey returned to the emergency department on June 17, 2011. At that time, X-rays were taken of his spine and both knees. Hu-ghey was given Toradol, a nonsteroidal anti-inflammatory drug used to decrease pain or swelling, and instructed to return to the emergency department if his pain grew worse. He was also told to follow up with pain medication as needed and to ice sore areas.

Hughey testified that, on Father’s Day 2011, he slipped and fell in water on the floor at a fast-food restaurant and landed on his back. An ambulance took him to the hospital, Hughey said. X-rays were taken, and Hughey said that, as a result of the fall, he was “bruised up” but nothing was broken. He said that the fast-food restaurant paid his medical bills for his treatment related to the incident.

Hughey visited Dr. Roberts again on October 11, 2011. Records from that visit indicate that Hughey had tested positive for the use of cocaine in a drug screen routinely given to Dr. Roberts’s patients. Dr. Roberts testified that his usual practice is to dismiss patients who test positive for illegal drugs. In this case, however, Hughey told Dr. Roberts that he had not taken cocaine and that he believed someone had given it to him without his knowledge. Dr. Roberts recommended to Hu-ghey that he report his suspicions to police and told Hughey that another positive test for illegal drugs would result in his dismissal from Dr. Roberts’s care.

The notes from Hughey’s October 11, 2011, visit show that Hughey told Dr. Roberts’s nurse that he had been hit in the back with debris from a tornado in April 2011. In his deposition, taken August 29, 2012, Hughey testified that he had been in his house when a tornado hit the house. He said that the house was “gone” but that he had not been injured. He also stated that a wall had fallen on him.

The October 2011 record also indicates that Hughey stated that his lower back and leg pain was not responding to the injections like it had in the past. Hughey requested Percocet of 10 mg rather than the 7.5 mg pills that he had been taking to relieve pain because, he said, the 7.5 mg pills did not last long enough. According to the medical record, Dr. Roberts did not want to “escalate” the controlled substances Hughey was taking. Dr. Roberts ordered an MRI for Hughey. The MRI was performed on December 1, 2011. It indicated that Hughey had a disk protrusion, also known as a herniated disk, and annular tear on the right side at the L5-S1 level, which is the lower back. Dr. Roberts testified that the herniated disk and annular tear were new injuries that were not attributable to the June 2002 accident. He explained that he believed that, “with respect to [Hughey’s] lower back, the low back, right lower extremity symptoms are probably not related [to the 2002 accident] based on the new findings.”

After receiving the results of the MRI, Dr. Roberts referred Hughey to Dr. Curt Freudenberger, a neurosurgeon. Hughey testified that, in completing a form for Dr. Freudenberger, in response to a question asking him to explain how his injury occurred, he wrote: “fell resulting from legs giving out on me.” On May 2, 2012, Dr. Freudenberger recommended a microdis-kectomy to repair the annular tear. Hu-ghey also told Dr. Freudenberger that, although his back had hurt for the past ten years, the symptoms had become worse during the last several months.

Hughey asked Stutts to pay for the surgery. When Stutts learned that Hughey had been hit in the back by tornado debris and that he had fallen at the Cracker Barrel restaurant and the fast-food restaurant, Stutts filed in the trial court a motion for a determination of whether it was obligated to pay for further medical benefits for Hughey, including the surgery to repair the annular tear, in light of Hughey’s current condition. Discovery on the issue was conducted. On May 15, 2013, Hughey filed a motion to compel Stutts to pay for his medical treatment. He also sought to have Stutts and its claims administrator, Construction Claims Management, held in contempt.

The trial court held an evidentiary hearing on June 26, 2013. At the hearing, Stutts stipulated that it would remain obligated to pay for the injections and blocks Dr. Roberts provided to Hughey, as well as the pain medications he prescribed, to treat Hughey’s back pain. Hughey testified that Stutts had paid all of his medical bills related to his back pain, except for those bills he had received immediately before the trial. He had not yet had the surgery to repair the annular tear.

At the hearing, Hughey testified that his legs, especially his right leg, would unexpectedly “give out” and that “[i]t’d just feel like there ain’t nothing there.” He said that he had fallen numerous times without tripping or slipping on anything. He related incidents in which he had fallen at work but had not been hurt. Before the 2002 accident, Hughey said, he had never experienced problems with his legs or falling unexpectedly.

On July 12, 2013, the trial court entered its findings of fact, conclusions of law, and final judgment. In the judgment, the trial court said that it found Hughey’s testimony to be credible and worthy of belief. It further found that Hughey’s “annular tear at L5-S1 is a direct result of an unexpected fall resulting from weakness and instability in his legs. The instability and weakness in [Hughey’s] legs are a direct result of the original work accident” in June 2002.

The trial court also stated that

“there is no credible evidence submitted by [Stutts] that [Hughey] sustained a new work related injury at Cracker Barrel or a low back injury due to a fall at Hardee’s [fast-food restaurant]. After carefully reviewing the records, the subsequent work accident at Cracker Barrel consisted of (1) a cut to [Hughey’s] abdomen and (2) injuries to [Hughey’s] knees and neck. [Hughey] never filed a lawsuit for worker’s compensation benefits against Cracker Barrel nor did he seek medical treatment from Cracker Barrel for any condition in his low back.”

Based on its findings, the trial court ordered Stutts to approve and pay for the surgery to repair Hughey’s annular tear. It also found Stutts and its workers’ compensation claims administrator in contempt “for violating the future medical provisions of the 2004 Settlement Agreement,” and, as sanctions, it ordered Stutts to pay Hu-ghey’s attorney fee and costs totaling $5,779.10. Stutts filed a motion to alter, amend, or vacate the July 12, 2013, judgment. It also sought to stay enforcement of the judgment pending appeal. The trial court denied both motions on September 20, 2013. Stutts timely appealed.

Stutts contends that substantial evidence does not support the trial court’s finding that Hughey’s herniated disk and annular tear at L5-S1 were the direct consequence of the 2002 work-related accident. Stutts also asserts that the trial court applied the incorrect standard of proof in reaching its conclusion that Stutts was obligated to pay for the surgery to repair the annular tear.

The standard this court uses to review workers’ compensation cases is well settled:

“Section 25-5-81(e), AIa.Code 1975, provides the standard of review in workers’ compensation cases:
“ ‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘ “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).”

White Tiger Graphics, Inc. v. Clemons, 88 So.3d 908, 910 (Ala.Civ.App.2012).

In determining that Stutts was responsible for paying for the surgery to repair Hughey’s annular tear, the trial court relied on Erwin v. Harris, 474 So.2d 1125 (Ala.Civ.App.1985). In Erwin, this court reversed a judgment denying an employee workers’ compensation benefits because, this court determined, the evidence indicated that the injuries the employee had sustained in a fall at home were caused by weakness in the employee’s leg stemming from a previous work-related injury. Therefore, this court held, the “new” injuries were compensable as a direct and natural consequence of the original, com-pensable injury, -writing:

“It is well established that, under general workmen’s compensation law, an injury which occurs subsequent to an original, compensable injury is itself compensable if it is the direct and natural result of the original, compensable injury. 1 A. Larson, The Law of Workmen’s Compensation, §§ 13.10, 13.11, 13.12 (2d ed.1985). This rule applies regardless of whether the subsequent injury is an aggravation of the initial compensable injury or a new and distinct injury. Larson, supra. Therefore, if an injury occurs as the direct and natural result of the original, compensa-ble injury, it is a reasonable conclusion that any medical expenses incurred by the employee for the subsequent injury are those that the employer is required to pay as ‘reasonably necessary’ under § 25-5-77(a)[, Ala.Code 1975].”

474 So.2d at 1127.

“The burden is upon the claimant to establish the causal connection between the initial, compensable injury and the subsequent injury for which benefits are sought. Houston v. Louisiana Land Exploration Company, 459 So.2d 912 (Ala. Civ.App.1984).” Erwin, 474 So.2d at 1127.

In this case, there is no dispute that Hughey suffered a compensable injury to his back in the 2002 accident and that he was still receiving treatment for the pain he continued to have because of that injury. The issue the trial court had to decide was whether Hughey presented substantial evidence indicating that the annular tear for which Hughey sought surgical treatment and the herniated disk were a direct and natural result of the original injury. As mentioned, in the judgment, the trial court found that the herniated disk and annular tear were a direct result of a fall or falls that were caused by the weakness and instability of his legs and that the weakness and instability were a direct result of the 2002 accident. The trial court went on to find that “there is no credible evidence submitted by [Stutts] that [Hughey] sustained a new work related injury at Cracker Barrel or a low back injury due to a fall at [the fast-food restaurant].”

There is evidence in the record to support the finding that, as a result of his 2002 injury, Hughey sometimes suffers from weakness and instability in his legs, causing him to fall. However, there is also evidence indicating that at least some of Hughey’s falls in the months leading to his feeling of increased back pain were the result of his tripping over an object or slipping in water.

The “incident abstract” from Cracker Barrel indicates that on July 10, 2011, Hughey tripped over something as he was carrying a “disher” from the grill to a dish. The next day, Hughey saw Dr. Roberts and reported that he had fallen at work and hurt his back. There is no evidence tending to indicate that Hughey’s July 2011 fall was the result of his legs “giving out.” Hughey testified that he fell at the Cracker Barrel restaurant in September 2011 — and he may have — but objective evidence also indicates that he fell hard enough on July 10, 2011, to warrant written documentation of the incident. If Hu-ghey fell at the Cracker Barrel restaurant in September 2011, there is no record of it. Other than the cause of the fall, the details that Hughey gave regarding the September 2011 fall — for example, the name of the supervisor who completed the incident abstract and the fact that Hughey was given a slip of paper and told to go to the hospital — match the details of the July 2011 fall.

The documented July 2011 fall, which, as mentioned, was significant enough that Hughey mentioned it to Dr. Roberts, occurred only one month after Hughey received his last injections from Dr. Roberts. In his testimony, Hughey said that the fall occurred when his legs “gave out,” which he attributed to not having had his injections within the last three or four months before the fall. Dr. Roberts, in talking about the July 2011 fall mentioned in Hu-ghey’s records, said that Hughey’s explanation was “certainly not a valid statement.”

Hughey also said that, when he fell at the Cracker Barrel restaurant in September 2011, he fell “flat on [his] back” and hurt his “whole back area, especially in [his] butt area.” He declined treatment, however, because, he said, he thought the fall was not Cracker Barrel’s fault. A review of the evidence, including Hughey’s own testimony, does not support the trial court’s finding that the injuries Hughey received while working for Cracker Barrel consisted only of a cut to his abdomen and injuries to his knees and neck. Instead, substantial evidence indicates that Hughey hurt his back in the July 2011 fall.

As to the fall at the fast-food restaurant, Hughey’s own testimony was that, on Father’s Day 2011, he slipped in water that was on the floor, fell, and landed on his back. That fall was significant enough that Hughey had to be transported to the hospital by ambulance. Hospital emergency-department records from the date of the incident indicate that Hughey complained of lower back pain. The records also indicate that Hughey told hospital personnel that day that he slipped and fell in water. Hughey returned to the emergency department a few days later, again complaining of lower back pain. The fast-food restaurant paid for Hughey’s treatment. The fall at the fast-food restaurant occurred approximately one week after Hughey received injections from Dr. Roberts. There was no evidence indicating that Hughey’s legs gave out on him on that occasion.

Given the evidence in the record, we have no choice but to disagree "with the trial court’s conclusion that there was no “credible” evidence to indicate that Hu-ghey suffered a new injury to his lower back in either the 2011 fall at the Cracker Barrel restaurant or the fall at the fast-food restaurant on Father’s Day 2011, especially when Hughey himself testified that he hurt his back in both incidents.

As mentioned, as the party seeking benefits, Hughey-bore the burden of demonstrating that the herniated disk and annular tear at the L5-S1 level of his spine, i.e., his lower back, were the direct result of the injuries he received in the 2002 accident. This court does not doubt Hughey’s testimony that he sometimes falls because his legs “give out.” However, the evidence indicates that the two most noteworthy falls Hughey suffered in the months just before he began experiencing more pain in his back occurred not because his legs “gave out,” but because he tripped over something or slipped in water. Furthermore, even if we were to hold that substantial evidence supported a finding that the 2011 fall at the Cracker Barrel restaurant occurred because Hughey’s legs “gave out,” there is no dispute that the fall at the fast-food restaurant occurred because he slipped in water. We note that the fall at the fast-food restaurant was the only one for which Hughey sought medical treatment. There is also evidence, namely Hu-ghey’s own testimony, indicating that debris hit him in the back or a wall fell on him when his house was destroyed by a tornado in April 2011.

Although it is possible that Hughey’s herniated disk and annular tear occurred from a fall when his legs “gave out,” it is equally possible that those injuries occurred in one of the incidents discussed above. Dr. Roberts, who has been treating Hughey for back pain for a decade, said that the annular tear was a new injury, and he did not testify as to a specific cause for the annular tear. “ ‘It is a well established principle that evidence presented by a [workers’] compensation claimant must be more than evidence of mere possibilities that would only serve to “guess” the employer into liability.’ ” Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1122 (Ala.2003) (quoting Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989)). Additionally, the appellate courts have often repeated that evidence that serves only to guess an employer into liability is not substantial evidence sufficient to support a compensability determination. Wal-Mart Stores, Inc. v. Orr, 29 So.3d 210, 220 (Ala.Civ.App. 2009) (holding that evidence demonstrating a mere possibility that plaintiffs left-hip injury was the natural consequence of her left-knee injury did not constitute substantial evidence to support judgment against employer); see also SouthernCare, Inc. v. Cowart, 146 So.3d 1051, 1063 (Ala.Civ.App. 2013).

Because the evidence in this ease demonstrates only a possibility that Hughey’s herniated disk and annular tear were caused by a fall that was a natural consequence of the injuries he sustained in the 2002 accident, it does not constitute substantial evidence to support the trial court’s judgment ordering Stutts to pay for the surgery needed to repair the annular tear. Accordingly, the judgment as to this issue must be reversed.

Stutts also contends that the trial court abused its discretion by holding Stutts in contempt for violating the future-medical provisions of the 2004 settlement agreement by not paying for the surgery to repair Hughey’s annular tear.

“When no statute applies, workers’ compensation actions are governed by the Alabama Rules of Civil Procedure. See § 25-5-88, Ala.Code 1975, and Rule 81, Ala. R. Civ. P. Rule 70A, Ala. R. Civ. P., governs the procedure for finding a party in contempt of court, and an employer who is a party to a workers’ compensation case may be sanctioned for contempt by a trial court’s following that rule. See Travelers Indem. Co. of Illinois v. Griner, 809 So.2d 808, 814-15 (Ala.2001).”

Dollar Tree Stores, Inc. v. Ates, [Ms. 2120577, Feb. 21, 2014] - So.3d -, -(Ala.Civ.App.2014).

“Rule 70A, Ala. R. Civ. P., has governed contempt proceedings in civil actions since July 11, 1994. Rule 70A(a)(2)(D) defines ‘civil contempt’ as a ‘willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.’ ”

Stamm v. Stamm, 922 So.2d 920, 924 (Ala. Civ.App.2004). Moreover, to hold a party in contempt under Rule 70A(a)(2)(D), Ala. R. Civ. P., the trial court must find that the party willfully failed or refused to comply with a court order. See T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App.2002).

“The issue whether to hold a party in contempt is solely within the discretion of the trial court, and a trial court’s contempt determination will not be reversed, on appeal absent a showing that the trial court acted outside its discretion or that its judgment is not supported by the evidence. Brown v. Brown, 960 So.2d 712, 716 (Ala.Civ.App. 2006) (affirming a’trial court’s decision not to hold a parent in contempt for failure to pay child support when the parent testified that he had deducted from his monthly child-support payment the amount he had expended to buy clothes for the children).”

Poll v. Poh, 64 So.3d 49, 61 (Ala.Civ.App. 2010).

Pursuant to the 2004 settlement agreement, Stutts was obligated to pay for any future medical treatment that Hughey required in connection with injuries arising from the 2002 accident. An employer

“is required to pay for only that medical treatment reasonably necessary to treat [an employee’s] work-related, injury and associated symptoms. See Ala.Code 1975, § 25-5-77(a) (stating, among other things, that an employer must pay for ‘reasonably necessary medical and surgical treatment’). Of course, if a dispute arises over whether a particular course of medical treatment is reasonable, the issue may be submitted to the trial court for resolution. § 25-5-77(a) (providing that disputes as to the necessity of medical services requested are to be determined by the court).”

Ex parte El Reposo Nursing Home Grp., Inc,, 81 So.3d 370, 374 (Ala.Civ.App.2011); see also Ex parte Steve Cagle Trucking Co., 989 So.2d 560, 562-63 (Ala.Civ.App. 2008) (holding that an employer is not financially responsible for medical and surgical treatment obtained by an employee for conditions unrelated to an accident arising out of and in the course of the employee’s employment).

The Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala. Code 1975, contemplates that disputes will arise between employers and employees as to the necessity and reasonableness of medical treatment. The Act sets forth a mechanism by which injured workers can challenge employers’ contentions that certain medical treatment is not necessary or reasonable and by which employers can challenge workers’ contentions that it is.

“In case of a dispute as to the necessity of medical or surgical treatment, § 25-5-77(a), Ala.Code 1975, provides that the circuit court having jurisdiction over the compensation claim of the employee shall determine the controversy. The power of the trial court to determine the ‘necessity’ of medical or surgical treatment naturally includes the power to determine whether the treatment is necessary due to injuries arising out of and in the course of the employee’s employment or whether the treatment is necessitated by conditions unrelated to the employee’s employment.”

Ex parte Publix Super Markets, Inc., 963 So.2d 654, 658 (AIa.Civ.App.2007) (emphasis added).

Stutts clearly had the right to dispute whether the surgery to repair Hu-ghey’s annular tear was reasonably necessary as part of its obligations pursuant to the 2004 settlement agreement. Id.; see also Ex parte Massey Chevrolet, Inc., 23 So.3d 33, 41-42 (Ala.Civ.App.2009). Given the facts of this case, Stutts had a reasonable basis for bringing the dispute before the trial court for a resolution, as provided for in the Act. As previously discussed, Hughey failed to meet his burden of demonstrating that the surgery to repair the annular tear was necessitated by conditions that were a direct result of the 2002 accident. Based on the record before us, we hold that there was no evidence indicating that, in disputing its obligation to pay for the surgery — -which it had every right to do — Stutts wilfully failed to comply with the 2004 settlement agreement. Therefore, the trial court abused its discretion in finding that Stutts was in contempt for “violating” the 2004 settlement agreement and ordering it to pay “contempt sanctions” of $5,779.10. Accordingly, the trial court’s judgment as to this issue must be reversed.

For the reasons set forth above, the judgment of the trial court is reversed, and the cause is remanded for the trial court to enter a judgment consistent with this opinion.

Hughey’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

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

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

      . The 2002 accident occurred when Hughey was working as an electrician’s helper at a construction site. Two rolls of wire weighing about 250 pounds each fell from a forklift onto Hughey.

      . Evidence also indicates that on March 7, 2012, Hughey again fell while working at the Cracker Barrel restaurant. The "Employer’s First Report of Injury” form that was completed the next day indicates that, on that occasion, a water hose or "liquid/grease spill” caused Hughey to slip and fall. In that fall, Hughey injured his knees and neck. Because the March 7, 2012, fall occurred after the MRI showed the annular tear, it can definitely be ruled out as the cause of the tear. Hughey testified that, in addition to his falls, he cut his abdomen while he was employed by Cracker Barrel. At the time of trial, Hughey's employment with Cracker Barrel had been terminated for reasons unrelated to this case.


author: WELCH, Judge.

text:
    Michael Darnell OLIVER v. STATE of Alabama.
    CR-10-1605.
    Court of Criminal Appeals of Alabama.
    June 29, 2012.

      Michael Darnell Oliver, pro se.
    Luther Strange, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   WELCH, Judge.

Michael Darnell Oliver appeals from the denial of his Rule 32, Ala. R.Crim. P., petition seeking postconviction relief from his November 18, 2010, conviction, pursuant to a guilty plea, of second-degree assault and his sentence of 20 years’ imprisonment. Oliver did not pursue a direct appeal. This petition, Oliver’s first, was timely filed on May 10, 2011.

Oliver’s petition, though not artfully drafted, presents the following claims:

1.That Oliver’s plea of guilty was unlawfully induced or not made voluntarily with an understanding of the nature of the charge and the consequences of the plea because, the sentence imposed 20 years’ imprisonment — did not comply with the plea agreement made with the district attorney that Oliver would receive a split sentence and serve only 3 years in prison. Oliver asserted that splitting the 20-year sentence was not mentioned to Judge Reese, the judge who presided over Oliver’s guilty plea and sentencing. Additionally, Oliver claims that counsel Brett Harrison was ineffective because he neglected to advise Judge Reese about the guilty-plea agreement. Oliver also claims that counsel’s deception about the Oliver’s true sentence misled Oliver into entering a guilty plea.

2. That his conviction was obtained as a result of the unconstitutional failure of the prosecution to disclose favorable evidence to Oliver. Oliver also argues that his counsel withheld newly discovered facts from him until after his sentencing. At that time, according to Oliver, his counsel, Brett Harrison, told him that Ursula Fields had stated at a pretrial conference that she started the altercation along with several others and that she assaulted Oliver with a stick first and that her boyfriend pulled a pistol on Oliver and fired several shots in Oliver’s direction before Oliver committed an assault. Oliver asserted that this information was favorable to him and had he been given this information before his sentencing he would have filed a motion to withdraw his guilty plea. Oliver asserted that this information was material and that it would have resulted in a not-guilty verdict.

3. That his counsel was ineffective. Oliver stated that he fired his first counsel, Trina S. Williams but that she continued to conspire with his new counsel, Brett Harrison, to convince Oliver to plead guilty to a 20-year mandatory sentence. Oliver also stated that counsel’s actions deprived him of a speedy trial. Oliver asserted that Harrison was also ineffective because he failed to enforce the guilty-plea agreement with the district attorney at sentencing on November 18, 2010.

4.That he was denied the right to appeal his conviction. Oliver claimed that his failure to appeal was not his fault because, after Oliver received the information set forth above, Harrison told Oliver that he would come to the jail to talk about an appeal or about the possibility of getting Oliver’s sentence reduced. Oliver asserted that Harrison never came to the jail. Oliver claimed that he mailed a letter to Harrison on November 22, 2010, concerning court issues such as an appeal and a possible sentence reduction, but Harrison did not respond to this letter.

The State filed a response to Oliver’s Rule 32 petition, asserting the following:

1. The claims in the petition do not comply with the pleading requirements found in Rules 32.3 and 32.6(b).

2. Oliver’s ineffective-assistanee-of-counsel claims are not pleaded with sufficient specificity to show that counsel’s performance was deficient and that Oliver suffered prejudice as a result of counsel’s alleged deficient performance — the two requirements set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), necessary to establish ineffective assistance of counsel. Thus, the State asserted that the ineffective-assistance-of-counsel claims also fail to comply with Rules 32.3 and 32.6(b).

3. The burglary charge was nolle prossed (see footnote 1). Therefore, all claims regarding this alleged conviction is moot.

4. The State responded to Oliver’s claim that his guilty plea was induced by a plea agreement that was not honored by asserting that, prior to sentencing, Oliver’s attorney explained the consequences of pleading guilty and Judge Reese confirmed that Oliver understood his rights. Moreover, the State asserted that Oliver pleaded no example of how he was misled or deceived into entering the plea. Thus, according to the State, this claim is a bare assertion and should be dismissed for failure to comply with Rule 32.6(b).

5. The State responded to Oliver’s claim that his conviction was obtained by the unconstitutional failure of the prosecution to disclose newly discovered favorable evidence by asserting that the State has an open-file policy and, thus, that all discovery was provided to Oliver. Moreover, the State asserted that Oliver actually pleaded only that a defense witness had a different account of the incident than a State witness. The State further asserted that this claim should have been raised at trial and that, therefore, it is procedurally barred pursuant to Rule 32.3.

6. The State responded to Oliver’s claim that he received ineffective assistance of counsel because his counsel conspired to convince him to plead guilty to a 20-year sentence by asserting that the 20-year sentence was within the statute and within the sentencing guidelines. As to Oliver’s claim that his counsel denied him a fair and speedy trial, the State asserted that Oliver did not plead any specifics to support this claim. As to Oliver’s claim that his counsel failed to enforce the plea agreement during sentencing, the State asserted that Oliver did not prove that an agreement existed and he did not assert this claim in a timely manner. The State asserted that Oliver’s dissatisfaction with his sentence does not impact the voluntariness of the plea. The State further asserted that Oliver’s claims of ineffective assistance of counsel are bare allegations unsupported by pleaded facts and, as such, do not entitle him to relief. Rules 32.3 and 32.6(b).

7. As to Oliver’s claim that the failure to appeal his conviction was through no fault of his own, but was his counsel’s fault, the State asserted that Oliver claimed only that his counsel did not visit him in jail or respond to his letter concerning filing an appeal. According to the State, because Oliver did not state that he “followed up” with his attorney to confirm that the letter was received or to reschedule a jail visit, this claim should be dismissed pursuant to Rule 32.6(b). (C. 43.)

On June 11, 2011, the circuit court entered a written order denying Oliver’s requested relief and stating the following:

“This matter is before the Court on [Oliver’s] Petition For Relief From Conviction Or Sentence, filed pursuant to Rule 32, Ala. R.Crim. P., and the State’s Answer to Petition for Relief and Motion to Dismiss.
“[Oliver] was indicted by the Montgomery County Grand Jury in August 2010 for one count of Assault in the Second Degree and one count of Burglary in the First Degree. On October 23, 2010, the Petitioner pleaded guilty to Assault in the Second Degree. The Burglary in the First Degree charge was nolle prossed. On November 18, 2010, this Court sentenced [Oliver] to twenty years’ imprisonment. [Oliver] filed the present petition on, or about, May 10, 2011.
“As a basis for this Petition, [Oliver] claims the following grounds for relief: That his conviction was obtained by a guilty plea which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea; th[at] his conviction was obtained by the unconstitutional failure of the prosecution to disclose to [Oliver] evidence favorable to [him]; that he was denied effective assistance of counsel; and that his failure to appeal within, the prescribed time was without fault of his own.
“1. [Oliver] made a lawful and voluntary guilty plea to Assault in the Second Degree; the Burglary in the First Degree charge was nolle prossed by the State of Alabama.
“2. [Oliver’s] conviction was not obtained by any failure of the prosecution to disclose to [Oliver] evidence favorable to him.
“3. [Oliver] was provided effective assistance of counsel.
“4. [Oliver] failed to file a timely appeal of his sentence or conviction.
“It is the finding of this Court that there is no evidence to support [Oliver’s] claims.
“Therefore, upon consideration thereof, and having taken judicial notice of the Court’s own records, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Petition for Evi-dentiary Hearing is hereby SUMMARILY DISMISSED without an evidentiary hearing pursuant to Rule 32.7(d) of the Alabama Rules of Criminal Procedure.”

(C. 45-46.)

I.

Oliver essentially reiterates on appeal the claims presented in his Rule 32 petition. However, on appeal, Oliver provides additional facts in support of his claims in his appellate brief.

“[T]hese factual allegations were not included in his petition or amended petition; therefore, they are not properly before this Court for review and will not be considered. See, e.g., Bearden v. State, 825 So.2d 868, 872 (Ala.Crim.App. 2001) (‘Although Bearden attempts to include more specific facts regarding his claims of ineffective assistance of counsel in his 'brief to this Court, those allegations are not properly before this Court for review because Bearden did not include them in his original petition before the circuit court.’). See also Hodges v. State, 147 So.3d 916 (Ala. Crim.App.2007), and Hyde v. State, 950 So.2d 344 (Ala.Crim.App.2006).”

Bryant v. State, [Ms. CR-08-0405, February 4, 2011] — So.3d-(Ala.Crim.App. 2011).

II.

To the extent Oliver intended to present a speedy-trial claim, it is not supported by a sufficient factual basis and, thus, as the State pleaded, it does not comply with Rules 32.3 and 32.6(b).

III.

To the extent that Oliver intended to present the claim that the prosecution withheld exculpatory evidence, it is also unsupported by a sufficient factual basis and also fails to comply with Rules 32.3 and 32.6(b).

IV.

To the extent the circuit court dismissed the petition because “there is no evidence to support [Oliver’s] claims,” we note that the court did so in error. Oliver had no burden of proof at the pleading stage. See Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001).

V.

Contrary to the State’s response, other than the claims referenced in Parts I through III above, Oliver sufficiently pleaded all of his remaining claims except his claim seeking an out-of-time appeal. However, neither the State nor the circuit court addressed all of Oliver’s claims. The sufficiently pleaded undisputed claims “must be taken as true.”. Lee v. State, 723 So.2d 774, 775 (Ala.Crim.App.1998).

VI.

Oliver pleaded the substantive claim that he was not sentenced in accordance with his plea agreement. This claim challenged the voluntariness of his plea, and if proven to be true, would entitle Oliver to relief. “It is well settled that a challenge to the voluntariness of a guilty plea may be raised for the first time in a timely filed Rule 32 petition. See Cantu v. State, 660 So.2d 1026 (Ala.1994); Baker v. State, 717 So.2d 859 (Ala.Cr.App.1996).” Waddle v. State, 784 So.2d 367, 369 (Ala. Crim.App.2000). He also presents this claim as an ineffective assistance of counsel claim — that counsel was ineffective for allowing him to be sentenced outside the plea agreement. He asserted that counsel’s doing so prevented his having a jury trial and a speedy trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), states that to prove ineffective assistance, a party must show 1) that counsel’s performance was deficient and 2) that that deficiency prejudiced the defendant. “In the context of guilty plea proceedings, a petitioner must also show that but for counsel’s error, the petitioner would not have pleaded guilty, but would, instead, have insisted on proceeding to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The State’s assertion.that Oliver’s attorney explained the consequences of pleading guilty and that Judge Reese confirmed that Oliver understood his rights does not address Oliver’s claim that he was sentenced contrary to his plea agreement. The circuit court’s finding that “[Oliver] made a lawful and voluntary guilty plea to Assault in the Second Degree” does not address this claim.

VII.

Oliver claimed that his counsel was ineffective because, according to Oliver, counsel withheld information from Oliver regarding exculpatory statements made by Ursula Fields that, had Oliver been aware of, would have prevented him from entering a guilty plea. The State’s assertion that the prosecutor has an open-file policy and that all discovery was turned over to Oliver does not address Oliver’s claim that his counsel withheld information from Oliver that affected his decision to enter a guilty plea. Moreover, because Oliver pleaded that his counsel withheld information from him, the State’s assertion that Oliver had actually pleaded only that a defense witness had a different account of the incident than a State witness is not accurate. The circuit court’s ruling that “[Oliver’s] conviction was not obtained by any failure of the prosecution to disclose to [Oliver] evidence favorable to him” did not address this claim.

VIII.

Oliver also claimed that he is entitled to an out-of-time appeal. However, Oliver failed to plead in is petition that he instructed counsel to appeal his conviction. The claim seeking an out-of-time appeal fails because Oliver did not plead that he instructed his counsel to pursue a direct appeal. Rules 32.3 and 32.6(b).

IX.

Oliver’s claims that he did not receive the benefit of his plea bargain and that his counsel was ineffective for failing to assure that he was sentenced in accordance with his plea bargain and for failing to disclose favorable information to Oliver that would have prevented him from entering a guilty plea were not addressed by the State or the circuit court. These claims are deemed to be meritorious on their face because they were sufficiently pleaded, they were undisputed by the State, they were not addressed by the circuit court, and they are subject to no procedural bar. From Oliver’s pleadings, it appears that Judge Reese presided over Oliver’s guilty-plea proceeding and his Rule 32 petition. We are aware that “[t]he Alabama Supreme Court has held that the circuit judge who presided over the petitioner’s trial and observed the conduct of the petitioner’s attorneys at trial need not hold a hearing on the effectiveness of those attorneys based upon conduct that he observed.” Holloway v. State, 848 So.2d 1017, 1019 (Ala.Crim.App.2002), citing Ex parte Hill, 591 So.2d 462, 463 (Ala.1991). However, Judge Reese would have no knowledge of what was said outside his presence regarding the alleged plea agreement.

Based on the foregoing, we remand this case for the circuit court to provide Oliver an opportunity to present evidence to support those claims listed above. The circuit court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a). After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Oliver’s claims and may grant whatever relief it deems necessary. Due return shall be filed within 56 days of the date of this opinion, and shall include the circuit court’s written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received or relied on by the court in making its findings.

REMANDED WITH DIRECTIONS

KELLUM, BURKE, and JOINER, JJ., concur. WINDOM, P.J., concurs in the result.

      . Oliver appears to also challenge what he believes to be a conviction for first-degree burglary. However, this charge was nolle pressed.

      . To the extent that the State’s motion to dismiss the petition indicates that Oliver bore the burden of "proving” his claims, we note that a petitioner has no burden of proof at the pleading stage. See Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001).

      . See footnote 2.

      . Oliver’s petition was denied on June 11, 2011. He filed a notices of appeal on June 29, 2011, and on July 11, 2011. On February 16, 2012, Oliver filed with the clerk of this Court a "List of Adverse Rulings — Appendix.” This "appendix” contains documents allegedly from Oliver’s guilty-plea proceedings. However, this document cannot be considered by this Court because it was not made part of the Rule 32 record. " ‘[T]his Court is bound by the record on appeal and cannot consider facts not contained in the record.' ’’ McCary v. State, 93 So.3d 1002 (Ala.Crim. App.2011) (quoting Morrow v. State, 928 So.2d 315, 320 n. 5 (Ala.Crim.App.2004)). This document is akin to attachments to a brief. " '[Attachments to briefs are not considered part of the record and therefore cannot be considered on appeal.’ " McCary v. State, 93 So.3d at 1008 (quoting Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991.))