author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte Roosevelt James UPSHAW. (In re Roosevelt James Upshaw v. State of Alabama).
    1120035.
    Supreme Court of Alabama.
    April 26, 2013.
    Rehearing Denied Aug. 30, 2013.
    Bryan A. Stevenson and Charlotte R. Morrison of Equal Justice Initiative, Montgomery, for petitioner.
    Luther Strange, atty. gen.; John C. Nei-man, Jr., deputy atty. gen.; and Anne Adams Hill, gen. counsel, and Elizabeth A. Sees, asst. atty. gen., Alabama Department of Corrections, legal division, for respondent.
   BOLIN, Justice.

Roosevelt James Upshaw petitions this Court for certiorari review of the judgment of the Court of Criminal Appeals affirming the Russell Circuit Court’s order denying Upshaw’s petition for a writ of habeas corpus. In his habeas corpus petition, Upshaw alleged that the Alabama Department of Corrections (“ADOC”) had erred in calculating the term of his sentence after he was arrested while on parole in that ADOC unlawfully denied him credit under § 15-22-32(a), Ala.Code 1975, for the time he was incarcerated in Georgia. We affirm.

Facts and Procedural History

On August 1, 1986, Upshaw pleaded guilty to 1 count of first-degree robbery and 3 counts of third-degree robbery and was sentenced to 15 years’ imprisonment for the first-degree-robbery conviction and for 2 of the third-degree-robbery convictions; those 3 sentences were to be served concurrently. Upshaw was also sentenced to 20 years’ imprisonment for the final third-degree-robbery conviction, which sentence was to run consecutively to the other 3 sentences. In 1993, Upshaw was released on parole to Georgia pursuant to the Interstate Compact for the Supervision of Parolees and Probationers. While Up-shaw was on parole, he was arrested on new charges in Georgia on December 24, 1994. On January 23, 1995, the Alabama Board of Pardons and Paroles (hereinafter “the Parole Board”) declared Upshaw delinquent on his parole. ADOC filed a de-tainer against Upshaw while he was incarcerated in Georgia. Upshaw pleaded guilty to the charges in Georgia and was sentenced to a total of 26 years in prison. The Georgia court ordered that his sentences be served concurrently with the sentences imposed following his parole revocation in Alabama. According to Up-shaw, the Georgia Superior Court issued an order in 1997 providing for his immediate release to Alabama.

Upshaw was granted parole in Georgia on September 24, 2009. Because ADOC had issued a detainer for Upshaw, he was returned to the custody of ADOC that same day. Upshaw was informed that his earliest release date was July 3, 2010. Subsequently, Upshaw was informed that his earliest release date was March 4, 2025, because ADOC was not giving him credit for the 14 years, 8 months, and 1 day he spent incarcerated in Georgia. Instead, ADOC considered the time Upshaw spent incarcerated in Georgia as “dead time.”

On August 25, 2010, Upshaw filed a pro se petition for a writ of habeas corpus in the Russell Circuit Court, arguing that ADOC had unlawfully denied him credit for the time he was incarcerated in Georgia. The circuit court ordered that ADOC be served with notice. ADOC did not respond. An attorney filed a notice of appearance on behalf of Upshaw and subsequently filed a memorandum in support of Upshaw’s habeas corpus petition. On November 28, 2011, the circuit court denied Upshaw’s petition. Upshaw appealed. The Court of Criminal Appeals affirmed the circuit court’s decision in an unpublished memorandum. Upshaw v. State (No. CR-11-0494, August 17, 2012), — So.3d - (Ala.Crim.App.2012) (table). Upshaw filed an application for rehearing, which was overruled. Upshaw timely sought certiorari review with this Court.

Discussion

Upshaw argues that the narrow question presented here is whether § 15-22-32, Ala.Code 1975, requires ADOC to credit an Alabama inmate with the time served in custody in Georgia after his parole is transferred to “Georgia’s supervision under the Interstate Compact and [the parolee is] later arrested and declared delinquent on the basis of new criminal activity under circumstances where he is ordered by both Alabama and Georgia authorities to be returned to begin serving time on his Alabama revocation.” (Reply brief, p. 2.) Upshaw argues that, pursuant to the plain language of § 15-22-32(a), the event triggering when a parolee is to be considered serving time on his sentence is a declaration that the parolee is delinquent, coupled with the parolee’s arrest. Upshaw contends that, because he was under arrest in Georgia when he was declared delinquent by ADOC and a detainer issued, he is entitled to credit for the days between the date he was declared delinquent on his parole in Alabama and the date he was returned to Alabama. Upshaw argues that the Court of Criminal Appeals erred in affirming ADOC’s calculation of his sentence on the basis that the time Upshaw spent in custody in Georgia was “dead time” and that he did not resume serving time on his Alabama sentences until he was physically returned to custody in Alabama. Upshaw states that the Court of Criminal Appeals in addressing this issue concluded that “because [Upshaw’s] arrest and incarceration in Georgia was not related to his delinquent parole status in Alabama, he is not entitled to credit for the time he served in Georgia.” Upshaw asserts that the “related to” requirement read into § 15-22-32 by the Court of Criminal Appeals is not supported by the plain language of the statute.

ADOC asserts that Upshaw was arrested in Georgia on December 24, 1994, on various new charges including robbery and that he was not arrested at that time “as a delinquent parolee” under § 15-22-32. Instead, Upshaw was declared delinquent on January 23, 1995, and was ultimately not arrested “as a delinquent parolee” until he was released on parole from the Georgia Department of Corrections on September 24, 2009, because the detainer did not spring into action until Upshaw was released from the Georgia prison. ADOC contends that a parolee begins receiving credit toward an existing sentence after delinquency is declared and that parolees are entitled to credit following a delinquency declaration only when the cause of their arrest and incarceration is their status as a delinquent parolee. Up-shaw argues that ADOC’s interpretation of § 15-22-32 would effectively delete the phrase “as a delinquent parolee,” violating, he says, rules of statutory construction and creating insurmountable practical problems because most delinquent parolees are arrested for new criminal violations and not for technical violations of their parole.

Upshaw also argues that the Court of Criminal Appeals’ interpretation of § 15-22-32 invites constitutional error because it discriminates between out-of-state parolees who are declared delinquent based on a new arrest and similarly situated in-state parolees based solely on geography. Up-shaw argues that the geographical problem implicates equal protection because, he says, the interpretation of when a parolee has been “rearrested as a delinquent parolee” turns on a question of geography. He argues that, to the extent there is any ambiguity about the meaning of the words “as a delinquent parolee,” the ambiguity must be resolved in the defendant’s favor. ADOC contends that Upshaw’s equal-protection argument is based on a bare assertion as to the alleged disparate treatment of in-state parolees and out-of-state parolees.

Section 15-22-32(a) provides:

“(a) Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his or her parole, the Board of Pardons and Paroles, at its next meeting, shall declare the prisoner to be delinquent, and time owed shall date from the delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his or her parole. Thereupon, the board, a single member of the board, a parole revocation hearing officer, or a designated parole officer shall, as soon as practicable, hold a parole court at the prison or at another place as it may determine and consider the case of the parole violator, who shall be given an opportunity to appear personally or by counsel before the board or the parole court and produce witnesses and explain the charges made against him or her. The board member, parole revocation hearing officer, or a designated parole officer, acting as a parole court, shall, within a reasonable time, conduct the parole revocation hearing to determine guilt or innocence of the charges and may recommend to the board revocation or reinstatement of parole. Upon revocation of parole, the board may require the prisoner to serve out in prison the balance of the term for which he or she was originally sentenced, calculated from the date of delinquency or the part thereof as it may determine. The delinquent parolee shall be deemed to have begun serving the balance of the time required on the date of his or her rearrest as a delinquent parolee.”

(Emphasis added.)

The Court of Criminal Appeals has addressed § 15-22-32(a) in two recent cases. In Sundberg v. Thomas, 13 So.3d 43 (Ala.Crim.App.2009), the defendant was convicted of first-degree robbery and was sentenced to 20 years’ imprisonment. He was paroled in July 1993 and was rearrested in New Hampshire in August 1993. He was declared delinquent in September 1993 and was returned from New Hampshire to Alabama in September 1993. The Court of Criminal Appeals held that the defendant was entitled to credit for time between the date he was declared delinquent and the date he was returned to Alabama under § 15-22-32. “Based on the plain language of § 15-22-32(a), Ala.Code 1975, because [the defendant] had been arrested at the time he was declared delinquent, he was entitled to credit for the 15 days between the date he was declared delinquent and the date he was returned to Alabama.” 13 So.3d at 45.

In Writesman v. Alabama Department of Corrections, 54 So.3d 450 (Ala.Crim.App.2010), the defendant was sentenced to 18 years’ imprisonment. He was paroled in 1992 and was declared delinquent in March 1993 for failure to report to his parole officer. He was subsequently arrested in Tennessee in December 1996 for failing to report and was returned to Alabama. He escaped from work release in September 2000. He was captured and placed in jail in Florida in 2001 and was returned to Alabama in January 2002. The Court of Criminal Appeals held that the defendant was entitled to credit for the time between the date he was imprisoned in Tennessee and the date he was returned to Alabama and that he was entitled to credit for the time between the date he was incarcerated in Florida and the date he was returned to Alabama.

Writesman is distinguishable from the instant case because the parolee in that case was rearrested in Tennessee for violating the terms of his parole by failing to report. He was not arrested on new charges in Tennessee and subsequently declared delinquent based on the commission of new criminal charges. Stated differently, the parolee was “rearrest[ed in Tennessee] as a delinquent parolee.” § 15-22-32(a). The parolee in Writesman was entitled to credit against his original sentence from the time of his arrest for failing to report until he was returned to Alabama authorities. It is unclear why the parolee in Sundberg was arrested; therefore, that opinion is of limited prece-dential value in interpreting the phrase “rearrest as a delinquent parolee” found in § 15-22-32(a).

We recognize that parole does not allow a parolee full liberty or restore the parolee’s full liberty interest. Instead, a parolee remains technically in custody of the State until he or she satisfies the conditions of parole. Beavers v. State, 666 So.2d 868 (Ala.Crim.App.1995). Parole is a release from prison before completion of a sentence, on the condition that the parolee abide by certain parole rules, but parole does not end the original sentence imposed. Id.

In the present case, Upshaw was on parole when he was arrested by Georgia authorities for new crimes committed in Georgia. Because of Upshaw’s status as a parolee in Alabama, the Georgia authorities notified the Parole Board of Upshaw’s arrest. The Parole Board then declared Upshaw delinquent based on the new criminal charges because those charges were violations of the conditions of Upshaw’s parole. ADOC filed a detainer against Upshaw. After he had served part of his sentence in Georgia for the crimes he committed in Georgia, Georgia placed Upshaw on parole in Georgia. However, Upshaw was not released because the detainer filed by the Parole Board remained in place. Rather, after serving the incarceration portion of his Georgia sentence, Upshaw was returned to the custody of ADOC and his parole was revoked.

Section 15-22-32(a) provides that “[t]he delinquent parolee shall be deemed to have begun serving the balance of the time required on the date of his or her rearrest as a delinquent parolee.” This allows a parolee credit for time served against his original sentence when he is rearrested as a delinquent parolee. Up-shaw, however, was not rearrested as a delinquent parolee. Instead, Upshaw was arrested on new charges in Georgia and was declared delinquent because by committing the offenses that resulted in those new criminal charges Upshaw had violated the terms of his parole. A detainer was then filed against Upshaw. However, his liberty was not restrained by the detainer until he was rearrested by Alabama authorities following his parole by Georgia authorities. That is, his liberty was not restrained in connection with his delinquency until he was subsequently arrested by Alabama authorities as a delinquent parolee. Upshaw’s out-of-state incarceration was not the result of the detainer lodged against him, nor was it due to an arrest based on a parole delinquency; rather, it was a consequence of his arrest and conviction for criminal charges in Georgia. Accordingly, § 15-22-82 does not provide Upshaw credit for the time he spent incarcerated in Georgia.

We now turn to Upshaw’s argument that, under the construction given it by the Court of Criminal Appeals, § 15-22-32 as applied to in-state and out-of-state parolees violates the Equal Protection Clause. Under the Equal Protection Clause of the Fourteenth Amendment, “all persons similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To assert a viable equal-protection claim, a plaintiff must first make a threshold showing that he or she was treated differently from others similarly situated. Up-shaw’s pro se petition does not allege or demonstrate that in-state parolees and out-of-state parolees are treated differently by ADOC in determining credit for incarceration when they are rearrested as delinquent parolees. Likewise, the limited record on appeal does not support the allegation. “[T]his Court is bound by the record on appeal; an appellate court ‘ “may only consider the facts contained in the record on appeal, and it may not presume any facts not shown by that record and make them a ground for reversal.” ’ ” Johnson v. State, 823 So.2d 1, 22 (Ala.Crim.App.2001) (quoting Pressley v. State, 770 So.2d 115, 123 (Ala.Crim.App.1999), aff'd, 770 So.2d 143 (Ala.2000), quoting in turn Carden v. State, 621 So.2d 342, 346-47 (Ala.Crim.App.1992)). Accordingly, we will not address this argument.

Based on the foregoing, the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

STUART, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and MURDOCK, J., dissent.

MURDOCK, Justice

(dissenting).

Section 15-22-32(a), Ala.Code 1975, provides:

“Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his or her parole, the Board of Pardons and Paroles, at its next meeting, shall declare the prisoner to be delinquent, and time owed shall date from the delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his or her parole. Thereupon, the board, a single member of the board, a parole revocation hearing officer, or a designated parole officer shall, as soon as practicable, hold a parole court at the prison or at another place as it may determine and consider the case of the parole violator, who shall be given an opportunity to appear personally or by counsel before the board or the parole court and produce witnesses and explain the charges made against him or her. The board member, parole revocation hearing officer, or a designated parole officer, acting as a parole court, shall, within a reasonable time, conduct the parole revocation hearing to determine guilt or innocence of the charges and may recommend to the board revocation or reinstatement of parole. Upon revocation of parole, the board may require the prisoner to serve out in prison the balance of the term for which he or she was originally sentenced, calculated from the date of delinquency or the part thereof as it may determine. The delinquent parolee shall be deemed to have begun serving the balance of the time required on the date of his or her rearrest as a delinquent parolee.”

(Emphasis added.)

Based on the foregoing emphasized passages, as well as the decisions of the Court of Criminal Appeals in Sundberg v. Thomas,, 13 So.3d 43 (Ala.Crim.App.2009), and Writesman v. Alabama Department of Corrections, 54 So.3d 450 (Ala.Crim.App.2010), I believe the plain meaning of the statute is that a parolee is to be considered as resuming service of time on his or her sentence when there is a declaration that the parolee is delinquent coupled with a restraint of the parolee’s liberty because of that delinquency.

I acknowledge, as the main opinion notes, that Roosevelt James Upshaw’s arrest in Georgia initially occurred because of his alleged commission of new offenses in that state and, thus, before he was declared a delinquent parolee based on those new charges. The majority focuses on the moment Upshaw initially was taken into custody in Georgia and reasons that he “was not arrested at that time ‘as a delinquent parolee.’” 141 So.3d at 72 (emphasis added). Subsequently, however, Georgia authorities were made aware of Upshaw’s parole delinquency in Alabama. From that time forward, the State of Georgia necessarily held Upshaw in custody for two adequate and independent reasons: the new Georgia charges that were then pending and Upshaw’s parole delinquency in Alabama. Even if the Georgia charges had for some reason been dismissed, the Georgia authorities would have continued Upshaw’s “arrest” pursuant to the State of Georgia’s agreement with the State of Alabama.

In addition, I see nothing in the language of the statute that draws any distinction between arrests occurring within the State of Alabama and those occurring outside the State of Alabama. Accordingly, under the statutory interpretation adopted in the main opinion, § 15-22-32(a) would not apply to a parolee arrested within the State of Alabama on some new criminal charge for which he is held in custody until the completion of his trial and any ensuing prison sentence, even if the parole board declared him to be delinquent promptly after his arrest on the new charge. We could no more say in that circumstance than we can in the present case that the parolee was arrested “at that time ‘as a delinquent parolee.’ ” I believe this interpretation conflicts with the plain meaning of § 15-22-32(a) and, in effect, reduces that statute from one that governs any parole delinquency to one that applies only to parole delinquencies not involving the commission of a new crime.

Although I believe that the statute plainly applies to the present case, even if we were to assume an ambiguity exists, the rule of lenity would require this Court to construe the statute in the foregoing manner in any event. See, e.g., generally, Ex parte Bertram, 884 So.2d 889, 892 (Ala. 2008) (‘“[T]he fundamental rule [is] that criminal statutes are, construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993).’ Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000) .... The ‘rule of lenity requires that “ambiguous criminal statute[s] ... be construed in favor of the accused.” ’ Castillo v. United States, 530 U.S. 120, 131, 120 S.Ct. 2090, [2096,] 147 L.Ed.2d 94 (2000)....” (emphasis omitted)).

Finally, although not presented as a direct ground for relief in Upshaw’s petition for a writ of habeas corpus, I believe that interpreting § 15-22-32(a) as applying to an in7state incarceration on a new charge but not to an out-of-state incarceration on a new charge does implicate equal-protection concerns and the rule that we are to construe a statute, if possible, to avoid constitutional infirmities. See, e.g., City of Homewood v. Bharat, LLC, 931 So.2d 697, 701 (Ala.2005).

Based on the foregoing, I respectfully dissent.

MOORE, C.J., concurs.

      . A petition for a writ of habeas corpus is the proper method by which to test whether ADOC has correctly calculated the time an inmate must serve in prison. Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996); Swicegood v. State, 646 So.2d 158 (Ala.Crim.App.1993). We note that in his appeal to the Court of Criminal Appeals, Upshaw named the State of Alabama as the appellee. In this Court, the respondent's briefs have been filed by ADOC.

      . The interstate compact is an agreement among participating states that allows parolees in those states, under certain circumstances, to transfer from one state to another for supervision. See § 15-22-1, Ala.Code 1975 (repealed and replaced by § 15-22-1.1 and § 15-22-1.2, Ala.Code 1975).

      .Upshaw was arrested on various charges of robbery, entering an automobile, theft by taking, obstructing a law-enforcement officer, no proof of insurance, and fleeing or attempting to elude a police officer. He was sentenced in Georgia to 20 years’ imprisonment for counts 1, 2, 4, 7, and 9 (robbery charges), to 5 years for counts 3, 5, 8, 10, 11, and 12 (robbery/entering-an-automobile charges), and 12 months for counts 6, 13, 14, 15 (theft by taking, obstructing a law-enforcement officer, no proof of insurance, and eluding a police officer), the sentences to be served concurrently.

      . In Writesman, the Court of Criminal Appeals gave Writesman credit under § 15-22-32 for time he spent in Florida after being arrested following his escape from work release. Work release is not parole; therefore, § 15-22-32 is inapplicable. Section 15-18-6, Ala.Code 1975, addresses credit toward sentences for recaptured escapees.

      . Black's Law Dictionary 124 (9th ed. 2009), defines "arrest” as "[t]he taking or keeping of a person in custody by legal authority.”


source: Caselaw Access Project

license: Public Domain

text:
    Jessica EASTMAN, as dependent widow of David Bentley, deceased, and on behalf of David Bentley’s three minor children v. R. WAREHOUSING AND PORT SERVICES, INC.
    1111323.
    Supreme Court of Alabama.
    Aug. 30, 2013.

      J. Cole Portis and R. Graham Esdale, Jr., of Beasley, Allen, Crow, Methvin, Por-tis & Miles, P.C., Montgomery, for appellant.
    J. Mitchell Frost, Jr., and Steven R. Colclough of Ferguson, Frost & Dodson, LLP, Birmingham, for appellee.
   BOLIN, Justice.

Jessica Eastman, as the dependent widow of David Bentley, deceased, and on behalf of Bentley’s three minor children (hereinafter “the plaintiff’), appeals the judgment entered on a jury verdict in favor of R. Warehousing and Port Services Inc. (hereinafter referred to as “R. Warehousing”). The plaintiff asserts (1) that she is entitled to a judgment as a matter of law (“JML”) on R. Warehousing’s affirmative defense based on the “loaned-servant” doctrine and (2) that she is entitled to a new trial because, she claims, counsel for R. Warehousing implied during opening statements, in violation of the collateral-source rule, that she had recovered workers’ compensation benefits from Richway Transportation Services, Inc (“Richway”). We affirm.

I. Facts and Procedural History

Richway is a trucking company that operates a facility in Mobile. Richway also has a facility in Georgiana and a facility in Greenville. On May 11, 2009, David Bentley, a truck driver employed with Richway, was scheduled to deliver a load of steel coils to Tennessee. Before leaving Rich-way’s Mobile facility, Bentley requested that Robbie Shaw, the operation and sales manager for Richway, examine the two front steering tires on the tractor-trailer truck he would be driving. The truck at issue was actually owned by Robin International Transport, Inc., and leased and/or loaned to Richway. According to Shaw, the left front driver’s side tire was worn, but the right passenger side tire appeared fine. Shaw nonetheless agreed that both tires should be replaced, and he provided Bentley with two new tires. As is customary, Shaw instructed Bentley to have the tires installed at Richway’s Georgiana facility, where Richway’s maintenance staff is located. On the day of the accident forming the basis of this action, Bentley had allegedly asked Shaw on three different occasions if he could have the tires installed at McGriff Tires in Mobile so that the tires could also be balanced. Shaw denied that Bentley requested to have the tires installed at McGriff Tires. While traveling on Interstate 65 from Mobile to the Georgiana facility, the right front steering tire of the truck blew out, causing Bentley to lose control of the truck. Bentley died as a result of the accident.

The plaintiff filed a •wrongful-death action, pursuant to § 6-5^410, Ala. Code 1975, against R. Warehousing. R. Warehousing is a brokerage company that hires outside trucking companies to pick up and deliver loads for its customers. R. Warehousing does not own trucks, nor does it employ any truck drivers. R. Warehousing and Richway are both family-owned businesses that share some of the same officers and shareholders. Nolan Richardson is the father of Chance Richardson and Michael Richardson. Nolan Richardson is employed by R. Warehousing; he also serves as vice president of Richway. Chance Richardson is the owner of R. Warehousing; he also serves as president of Richway. Michael Richardson is employed solely by R. Warehousing, and he receives his paychecks from R. Warehousing. Beginning in 2001, Nolan Richardson sent Michael to Richway to oversee and/or to manage the day-to-day operations at Richway.

At trial, the plaintiff alleged that R. Warehousing, through its employee, Michael Richardson, was in complete control of Richway’s day-to-day operations, including the maintenance of tires. More specifically, the plaintiff alleged that Michael Richardson was responsible for instituting the policy at Richway that led to Shaw’s ordering Bentley to drive from Mobile to Georgiana on worn front steering tires. In other words, the plaintiff sought to fasten liability for Bentley’s death on R. Warehousing on the theory that R. Warehousing reserved the right to control Rich-way’s operations and that R. Warehousing exercised that right through the conduct of R. Warehousing employee Michael Richardson. R. Warehousing, on the other hand, asserted that Michael Richardson, at all times relevant to the plaintiffs claim, was a “loaned servant” to Richway.

At trial, the evidence was undisputed that Michael Richardson was employed solely by R. Warehousing and that he answered to his father Nolan Richardson. The jury heard the video deposition of Nolan Richardson, who testified that Michael oversaw the day-to-day operations at Richway, that Michael ran the maintenance shop at Richway, and that Michael directed the repairs that were needed at Richway. Michael Richardson testified in his deposition that R. Warehousing “loans” him out at Richway to help supervise the operations and/or to manage the business. Chance Richardson testified as follows regarding R. Warehousing, Riehway, and Michael’s role at both companies:

“Q. Mr. Richardson, isn’t it true that back in 2009, May of 2009, that your brother, Mike Richardson, was the person most in charge of Richway Transportation in Alabama?
“A. Yes, he was the manager in Alabama, yes, sir.
“Q. Your dad sent Mike over to Alabama to manage Richway Transportation, correct?
“A. Yes, sir.
“Q. And would you agree then that Mike Richardson is [an] employee [of] R. Warehousing, isn’t he?
“A. Yes, sir; he is an employee of R. Warehousing.
“Q. So, you would agree then that R. Warehousing, through Mike Richardson, controlled Richway Transportation?
“A. I don’t agree with that.
“Q. You disagree that Mike’s responsibilities are to direct repairs that are needed on Richway trucks?
“A. He doesn’t direct repairs.
“Q. And you disagree that your dad sent him to oversee maintenance of Richway trucks?
“A. He sent him over [there] to manage, not oversee maintenance.
“Q. [Chance], do Richway Transportation and R. Warehousing ... share the same officers and directors?
“A. Some, yes.
“Q. Chance, as I understand, you own a hundred percent of R. Warehousing; is that right?
“A. Yes, sir.
“Q. And you are president of Richway Transportation; is that right?
“A. That is correct.
“Q. To your knowledge, did Richway Transportation ever consent in any way to have R. Warehousing control its operations in Mobile, Alabama?
“A. No, sir.
“Q. Now, does R. Warehousing own any trucks?
“A. No, sir.
“Q. Does it employ any truck drivers?
“A. No, sir.
“Q. Are you familiar with DOT [Alabama Department of Transportation] regulations that relate to R. Warehousing?
“A. Yes sir.
“Q. Can R. Warehousing under DOT regulations run or control a truck company like Richway?
“A. No, sir.
“Q. Well, does R. Warehousing provide any benefits to any Richway employees in Mobile, Alabama?
“A. No, sir.
“Q. Do you know anything about any kind of work your brother might do for R. Warehousing in Mobile for its Houston operation?
“A. The only thing Michael would do would maybe broker loads....
“Q. Well, let me ask it this way, it is your understanding that your family sent Mike Richardson, your brother, over [to Richway] as a loaned servant to manage Richway’s operations in Mobile. “A. That’s correct.
“Q. What is a loaned servant?
“A. A loaned servant is somebody that works for one company that helps another company, you know, serve — what they need done.
“Q. ... Mike Richardson has been overseeing Richway Transportation since 2001 and he is still doing it today, correct?
“A. Well he was in college until 2004.
“A. My father sent him over [to Rich-way]. Michael came over here [in 2004], more often than he did in 2001.
“Q. And he has been here constantly from 2004 managing Richway Transportation?
“A. No, not constantly.
“Q. Well, it has not been a temporary assignment has it?
“A. It’s not constant, no.
“A. No, off and on, right.
“Q. I think you mentioned your father is the one that sent Mike over here?
“A. Yes, sir.
“Q. Is that who Mike reports to is your dad?
“A. Yes.”

There was also testimony introduced at trial demonstrating that Michael Richardson was the “head” person at Richway and that he had instituted the policy at Rich-way regarding the inspection and installation of tires. Richway1 s operation and sales manager, Robbie Shaw, testified that Michael had hired him, that Michael was his supervisor, that Michael was the “head” person at Richway, and that Michael had the authority to hire and fire Richway employees. Shaw testified that, although he could make the decision regarding whether tires needed to be replaced, it was his practice to check with Michael to make sure it was okay. On the day of Bentley’s accident, Michael was not present at the Richway office. Shaw testified that he made the decision to provide Bentley with two new steering tires because the “tread depth was getting close.” Shaw also testified that Richway truck drivers normally had new tires installed at the Georgiana facility because that is where Richway’s maintenance staff is located. Shaw testified that, on the morning of Bentley’s accident, he could have sent Bentley to McGriff Tires to have his tires installed, but, he said, Bentley never asked for that. Richway truck driver Randy Matthews testified that Michael Richardson was his boss. Matthews also testified that, on the morning of Bentley’s accident, he overheard Bentley on three different occasions ask Shaw if he could have his tires installed at McGriff Tires in Mobile and that, each time, Shaw denied Bentley’s request. Richway safety administrator Keenan Bishop testified that Michael was his boss, that Michael was the head of Richway, that the Georgiana facility maintenance director, Randall Matthews, reported to Michael, and that Richway dispatchers reported to Michael. Patrick Freeman, terminal manager at the Rich-way facility in Greenville, testified that Michael was his boss, that Michael had instituted the policy requiring truck drivers to have their tires inspected by management in Mobile, and that Michael had told him to direct all truck drivers to the Georgiana facility to have tires installed because the cost of having tires installed at McGriff Tires in Mobile “was a little high.”

At the close of the evidence, the plaintiff moved for a JML on R. Warehousing’s defense based on the loaned-servant doctrine. The trial court denied the plaintiffs motion and submitted the case to the jury on the plaintiffs negligence claim and R. Warehousing’s defense that Michael Richardson was a loaned servant to Richway. The jury returned a verdict in favor of R. Warehousing, and the trial court entered a judgment based on the verdict. The plaintiff filed a motion to alter, amend, or vacate the judgment or, alternatively, for a new trial. The trial court denied that motion, and the plaintiff appealed.

II. Discussion

A. JML: The Loaned-Servant Doctrine

The plaintiff first contends that the trial court erred in denying her motion for a JML because, she claims, R. Warehousing failed to offer substantial evidence that would support a jury charge on the loaned-servant defense. This Court’s standard of review on a ruling on a motion for a JML is well settled.

“ ‘When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmov-ant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’
“Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).”

Ex parte Howell Eng’g & Surveying, Inc., 981 So.2d 413, 418 (Ala.2006).

In Alabama Power Co. v. Smith, 273 Ala. 509, 521-22,142 So.2d 228, 239 (1962), this Court elaborated as follows on the loaned-servant doctrine:

“An employee may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that the employee becomes the servant of such third person with all the legal consequences of the new relation. Whether one who is usually the servant of one master has become specially and temporarily the servant of another is ordinarily a question of fact. If, under the circumstances only one inference can be properly drawn, the court will determine the issue, but if reasonable men may fairly come to different conclusions respecting the inference to be drawn from the facts, the case will be one for the jury. United States Steel Corp. v. Mathews, 261 Ala. 120, 73 So.2d 239 [(1954)].
“... The result will be determined by answer to the questions: Whose work was the servant doing and under whose control was he doing it? It is the reserved right of control rather than its actual exercise that furnishes the true test of relationship. He is master who has the supreme choice, control, and direction of the servant and whose will the servant represents in the ultimate result and in all its details. There must be careful distinguishing between authoritative direction and control, and mere suggestion as to details or the necessary cooperation where the work furnished is part of a large undertaking. The fact that the borrower gives information and directions to the servant as to details of work or the manner of doing it does not make this general servant of the employer the servant of such other person. Where the evidence does not clearly establish who the employer is, consideration must be given to the character of the service to be rendered, the duration of employment, and the one who is paying the employee. United States Steel Corp. v. Mathews, supra.

R. Warehousing in this case had the burden of producing substantial evidence that Michael Richardson was a loaned servant to Richway. See Hosea O. Weaver & Sons, Inc. v. Towner, 663 So.2d 892, 897 (Ala.1995) (“the loaned servant doctrine is an affirmative defense and ... the defendant has the burden of proof on such a defense”). The plaintiff argues that Chance Richardson’s conclusory statement that Michael Richardson was a loaned servant to Richway, without any evidence of which company controlled him, does not constitute substantial evidence. The plaintiff emphasizes that there was no evidence of an oral or written contract between R. Warehousing and Richway regarding the services that Michael performed at Rich-way, that there was no evidence indicating that Michael’s service at Richway was temporary, that there was no evidence indicating that R. Warehousing was reimbursed by Richway for Michael’s services, and that there was no evidence that Michael was under the control and direction of Richway.

“The ultimate test in determining whether an employee has become a loaned servant is a determination of whose work the employee was doing and under whose control he was doing it.” United States Fid. & Guar. Co. v. Russo Corp., 628 So.2d 486, 489 (Ala.1993). The crucial question to be determined in this case is which employer had the right to control the particular act giving rise to Bentley’s death. In this respect, the Restatement (Second) of Agency § 227, Comment a (1958), states: “Since the question of liability is always raised because of some specific act done, the important question is not whether or not he remains the servant of the general employer as to matters generally, but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other.” (Emphasis added.) And, when the evidence does not clearly establish who the employer is, consideration can be given to the character of the service rendered. Alabama Power Co., supra.

It is undisputed that Michael Richardson was an employee of R. Warehousing and that Michael received his paychecks from R. Warehousing. As previously stated, Chance Richardson is the owner of R. Warehousing and serves as president of Richway. Chance testified that Michael was sent to Richway as a loaned servant to manage Richway and that Michael had been managing and/or overseeing the day-to-day operations at Richway on and off since 2001. Chance testified regarding the distinct differences between R. Warehousing and Richway. Chance testified that R. Warehousing was a brokerage company, that R. Warehousing arranged for cargo loads to be shipped from one location to another, that R. Warehousing did not own any trucks, that R. Warehousing did not employ any truck drivers, that R. Warehousing was not permitted under Alabama Department of Transportation (“DOT”) regulations to either run or control a trucking company like Richway, and that Richway never consented in any way to have R. Warehousing control its operations in Mobile. Chance also testified that the only job that Michael possibly performed for R. Warehousing was “maybe broker loads.”

As previously stated, the crucial question in this case is which employer had the right to control the particular act giving rise to Bentley’s death. The plaintiff alleged that the institution of the policy by Michael Richardson that led to Shaw’s ordering Bentley to drive from Mobile to Georgiana on worn tires is the act that gave rise to Bentley’s death. Suffice it to say, the jury could have inferred from Chance’s testimony that, although Michael Richardson was generally employed by R. Warehousing, Michael had become the special servant of Richway. Specifically, the jury could have inferred from the evidence that R. Warehousing had surrendered control and direction over Michael because Michael was sent to Richway to manage its day-to-day operations, which included instituting the policy relating to inspection and installation of tires. The jury could have further inferred from the evidence that the services Michael performed at Richway were totally outside the scope of the services conducted by R. Warehousing. This is especially true in light of the testimony that Richway never consented in any way to have R. Warehousing control Richway’s operations and that R. Warehousing was not permitted under DOT regulations to control a trucking company like Richway. As previously noted, the plaintiff also emphasizes that there was no evidence indicating that Michael was under the control and direction of Richway. We note that the question of control in this case was apparently a close question in light of the testimony that R. Warehousing and Richway were separate and distinct companies yet shared some of the same officers and directors. The jury heard evidence indicating that Michael answered solely to Nolan Richardson, who was employed by R. Warehousing and who also served as vice president of Richway. However, there was no evidence indicating that Michael ever consulted with Nolan Richardson regarding the work he performed at Richway. The jury could have inferred from the testimony presented in this case that Michael, being in a managerial position, i.e., acting as “head” person at Richway, simply answered to no one while working at Richway but was performing the work of Richway at all times relevant to the plaintiffs claim. We conclude that, under the unique circumstances of this case, there was substantial evidence presented to create a jury question regarding whose work Michael was performing and under whose control he was performing it. Accordingly, the trial court’s instruction to the jury on the loaned-servant doctrine was not error. Moreover, the jury verdict in this case is strengthened by the trial court’s denial of the plaintiffs motion for a new trial. McKinney v. Alabama Power Co., 414 So.2d 938 (Ala.1982).

B. New Trial: The Collateral-Source Rule

The plaintiff also contends that she is entitled to a new trial because, she says, “the defendant violated Alabama’s long held rule that prohibits the introduction of workers’ compensation at trial.” Specifically, the plaintiff contends that, before trial, she had filed a motion in limine to exclude any evidence indicating that the plaintiff had received workers’ compensation benefits from Richway and that, during opening statements, counsel for R. Warehousing repeatedly implied that the plaintiff had sued for and recovered workers’ compensation benefits from Richway.

In Baldwin County Electric Membership Corp. v. City of Fairhope, 999 So.2d 448 (Ala.2008), this Court stated:

“Two fundamental principles govern the standard by which this Court reviews a trial court’s rulings on the admission of evidence. Middleton v. Lightfoot, 885 So.2d 111, 113 (Ala.2003). ‘ “ ‘The first grants trial judges wide discretion to exclude or admit evidence.’ ” ’ 885 So.2d at 113 (quoting Mock v. Allen, 783 So.2d 828, 835 (Ala.2000), quoting in turn Wal-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala.1998)). However, ‘a trial court exceeds its discretion where it admits prejudicial evidence that has no probative value.’ 885 So.2d at 113 (citing Powell v. State, 796 So.2d 404, 419 (Ala.Crim.App.1999), aff'd, 796 So.2d 434 (Ala.2001)).
“ ‘ “ ‘The second principle “is that a judgment cannot be reversed on appeal for an error [in the improper admission of evidence] unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” ’ ” ’ Middleton, 885 So.2d at 113 (quoting Mock, 783 So.2d at 835, quoting in turn Wal-Mart Stores, 726 So.2d at 655). See also Rule 45, Ala. R.App. P. ‘ “The burden of establishing that an erroneous ruling was prejudicial is on the appellant.” ’ Mid dleton, 885 So.2d at 113-14 (quoting Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala.1991)).”

Id. at 453.

In Illinois Central Gulf R.R. v. Haynes, 592 So.2d 536 (Ala.1991), this Court stated:

“[We have] strictly adhered to the collateral source rule and that under the rule any showing that the plaintiff received payments from a source wholly independent of the wrongdoer, such as workmen’s compensation or disability payments, constitutes reversible error.”

Id. at 541.

The complained-of statements by R. Warehousing’s counsel during opening statements were made without objection:

“This is Chance Richardson. He owns 100 percent of R. Warehousing. He is president of Richway Transportation Company. I can guarantee you Richway ... accepted full responsibility for Mr. Bentley’s death.
“But the plaintiffs in this case are unfortunately wanting, I guess, what you would call two bites at the apple.
“Mr. Bentley’s employer, Richway, took full responsibility and did what it was supposed to do.
“... You have got two separate companies and the plaintiffs want to make them one company so they get a second bite at the apple.
“They have already sued Richway Transportation before. You can look over here at every box they brought in this courtroom and every box they brought in here says, [the plaintiff] versus Richway Transportation Company.
“And not only has [the plaintiff] sued Richway before, she also sued Mr. Shaw, who made the decision to have him go to Georgiana. But he is not here either. The only company here today is R.

Warehousing.”

R. Warehousing asserts (1) that a fair reading of the above statements indicates that R. Warehousing did not inject the issue of the plaintiffs receipt of workers’ compensation benefits into the trial; (2) that the record contains no ruling by the trial court on the plaintiffs motion in li-mine; and (3) that, because the plaintiff failed to make any objection at the time the comments were made, she failed to preserve any error for appellate review. See Reusch v. Seaboard Sys. R.R., 566 So.2d 489, 491 (Ala.1990)(“Reusch argues that the trial court erred in admitting [the challenged] testimony. He never objected to the introduction of that testimony, however, and accordingly, because there had been no ruling on the motion in limine either, the record contains no ruling by the trial court concerning the admissibility of the testimony that Reusch now challenges. Reusch’s argument fails, because no adverse rulings are presented for review.”).

The plaintiff on the other hand contends in her reply brief that if a trial court’s order granting a motion in limine is absolute and unconditional, there is no need for a party to make any further objection to preserve error. See Perry v. Brakefield, 534 So.2d 602, 606 (Ala.1988) (“[U]nless the trial court’s ruling on [a] motion in limine is absolute or unconditional, the ruling does not preserve the issue for appeal.”). The record does not reflect the trial court’s ruling on the motion in limine. The plaintiff, however, contends that, based on the trial transcript and the history of the collateral-source rule, it can be inferred that there was a ruling on the motion in limine and that the ruling was absolute and unconditional. The plaintiff relies of the following portion of the trial transcript:

“[Counsel for the plaintiff]: Judge, the court granted a motion in limine a while back, in fact [R. Warehousing] didn’t object to it, to exclude any evidence of worker’s compensation paid in. this case. In opening argument counsel [for R. Warehousing] said on two or three occasions that the plaintiffs were trying to get two bites at the apple and went on to say that Richway is taking responsibilities.
“So we think that that violates the motion in limine and at this point we would ask that the court would instruct [R. Warehousing’s] counsel not to get back in that in any way, not to mention it, not to infer to it.
“[The Court]: I think pushed in — I think it is okay. Don’t go a whole lot further.
“[Counsel for R. Warehousing]: No, sir; we are not going to mention [workers’ compensation] or anything.
“[The Court]: Okay. I was waiting for an objection, but there was none.
“[Counsel for the plaintiff]: I guess at this point we would ask the court to instruct them not to do it again, not to speak about other parties that were in the lawsuit.
“[The Court]: Unless it is otherwise material or relevant.”

We cannot conclude from the above colloquy that if there was a ruling on the motion in limine, the ruling was absolute and unconditional. If anything, the trial court’s comment — “I was waiting for an objection, but there was none” — suggests that, if there was a ruling, the ruling might have been only preliminary rather than absolute or unconditional. More importantly, it appears from the above colloquy that plaintiffs counsel seemed satisfied merely with asking the trial court to instruct defense counsel “not to get back in that in any way, not to mention it, not to infer it,” rather than obtaining a ruling on an objection to preserve error. See Harley-Davidson, Inc. v. Toomey, 521 So.2d 971, 972 (Ala.1988)(“ ‘A party who invokes no further action by the court, thereby indicating his satisfaction, cannot complain of the court’s failure to do what [it] was not asked to do.’” (quoting C.C. Hooper Cafe Co. v. Henderson, 223 Ala. 579, 582, 137 So. 419, 422 (1931))).

The Court of Civil Appeals, in Johnson v. L.O., 42 So.3d 759 (Ala.Civ.App.2010), addressed a similar factual situation:

“Roy next claims that the trial court erroneously allowed L.O.’s attorney to reveal to the jury during his opening statement that Steven had been indicted for rape, sexual abuse, or domestic violence arising out of the Baldwin County incident. Before trial, Steven filed a motion in limine to prevent L.O. from presenting evidence of the specific allegations underlying Steven’s arrest and indictment. After L.O.’s attorney stated that he would indicate merely that Steven had been indicted, which led to the August 13, 2006, negotiations between Roy and L.O., the trial court granted the motion and instructed the attorneys to approach the bench if ‘somebody wants to get into that.’ During his opening statement, L.O.’s attorney nevertheless stated:
“ ‘[T]he evidence will be when she moved down here, things began to escalate, and in July of ’06, there was an incident at a condo in Gulf Shores, Alabama, which Steve was ultimately indicted by the grand jury of Baldwin County for rape and sexual abuse — I am sorry — domestic violence, of this young lady, his wife, and they had been talking divorce, the evidence is going to be, but it was just kind of lagging along.’
“Neither Roy nor Steven objected to the statement, moved for a mistrial at that time, asked for any limiting instruction to the jury, or took any other action to cure the alleged violation of the order granting the motion in limine. Roy now asserts on appeal that he was ‘severely prejudiced’ by that statement.
“By ordering the parties to first approach the bench before ‘getting into’ the details of the indictment, the trial court did not absolutely prevent the parties from bringing to the jury’s attention the details of the indictment; it merely entered a prohibitive preliminary order. See Charles Gamble, The Motion in Limine [:] A Pretrial Procedure That Has Come of Age, 33 Ala. L.Rev. 1, 12 (1981). Therefore, when L.O.’s counsel referred to the underlying offenses of which Steven had been indicted, the burden rested on Roy to object to that statement at that time to the extent he deemed it prejudicial to his case in order to preserve that issue for appellate review. See Cromie Investments, Inc. v. Reid, 740 So.2d 400 (Ala.1999) (holding that grant of a motion in limine does not relieve a moving party of the burden of making a timely and specific objection at the moment evidence made the subject of the motion is introduced at trial); Bowens v. Southern Ry., 599 So.2d 588 (Ala.1992) (failure of moving party to object during trial to evidence made the subject of a motion in limine preliminarily granted before trial waived appellate review of that evidentiary issue). Because Roy did not object during the opening statement, he cannot now claim that the trial court erred in allowing L.O.’s attorney to refer to the underlying offenses in the indictment.”

Id. at 765-66.

Accordingly, because there is no indication in the record that the trial court’s ruling on the motion in limine was absolute and unconditional, see Perry, supra, and because there is no adverse ruling presented for our review, the plaintiffs argument fails and, thus, cannot serve as the basis for a new trial. Reusch, supra.

Based on the foregoing, the judgment of the trial court is due to be affirmed.

AFFIRMED.

MOORE, C.J., and MAIN and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion’s affirmance of the judgment in favor of R. Warehousing and Port Services, Inc., including that portion of the main opinion holding that the evidence was sufficient to submit to the jury the defense asserted by R. Warehousing based on the so-called “loaned-servant doctrine.” In so doing, however, I do not mean to imply, and I do not read the main opinion as implying, that, if such a defense was not available, Alabama law would recognize a cause of action in tort and outside the restrictions on recovery prescribed by our workers’ compensation statutes against R. Warehousing under the circumstances presented in this case.

      . The plaintiff filed for, and received, workers’ compensation benefits from Richway; however, Richway is not a party to this appeal. The plaintiff also sued Robin International Transport, Inc. The trial court entered a summary judgment in favor of Robin International. The notice of appeal to this Court indicates that the plaintiff also appealed the summary judgment entered in favor of Robin International. However, the plaintiff fails to address the summary judgment entered in favor of Robin International in her briefs to this Court. "Issues not argued in a party’s brief are waived.” Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1167 (Ala.2003). We therefore do not address the summary judgment in favor of Robin International; we address only those issues raised by the plaintiff as they pertain to R. Warehousing.


author: MOORE, Judge.

text:
    V.L. v. T.T.L.
    2110832.
    Court of Civil Appeals of Alabama.
    March 1, 2013.
    Rehearing Denied May 17, 2013.
    Certiorari Denied Sept. 6, 2013 Alabama Supreme Court 1121005.

      Chris Malcom, Moulton, for appellant.
    David W. Langston, Decatur, for appel-lee.
   MOORE, Judge.

V.L. (“the mother”) appeals from a judgment of the Lawrence Circuit Court (“the circuit court”) declining to modify custody of her children, L.M.L. and M.L.L. (“the children”).

Procedural History

On October 23, 2009, T.T.L., the children’s former stepfather, filed in the Lawrence Juvenile Court (“the juvenile court”) separate petitions alleging that L.M.L. (case no. JU-09-152.01) and M.L.L. (case no. JU-09-153.01) were dependent and requesting custody of the children. In both petitions, he specifically alleged the following facts in support of his allegations that the children were dependent:

“The child’s mother has a history of alcohol and drug abuse. The child’s mother has maintained no steady employment. The child has resided in numerous locations while in the custody of her mother. The child’s mother has had numerous arrests and convictions. The child’s mother withdrew herself from a rehabilitation] center in mid-May, 2009, after two (2) months of treatment, in a program which was designed to last for a period of eight (8) months. The Lawrence County DHR [Department of Human Resources] has investigated the home of the child’s mother, and she gave DHR legal permission to take custody of the said child, if they elected to do so. The child’s mother lives with a man to whom she is not married. The child’s mother has no driver’s license. The child’s mother has a history of domestic violence. The child’s mother maintains a lifestyle which is detrimental to the welfare of the said minor child.”

That same day, the juvenile court entered separate ex parte orders awarding T.T.L. pendente lite custody of the children. After a pendente lite hearing, the juvenile court entered separate orders on November 12, 2009, by agreement of the parties, continuing custody of the children with T.T.L. After a final hearing, the juvenile court entered judgments on May 27, 2010, awarding custody of the children to T.T.L. and awarding the mother standard visitation. In those judgments, the juvenile court specifically stated, in pertinent part:

“It is hereby ORDERED, ADJUDGED AND DECREED as follows:
“The physical custody of the minor child shall remain with [T.T.L.]. The Court realizes the great strides the [mother] has made in recent months in gaining her independence by getting her own home, car, driver’s license, and two jobs. The Court commends the [mother] on this and realizes the amount of work and courage it has taken for her. However, the [mother’s] history with alcoholism is such that the short period of time wherein she has done these accomplishments is not sufficient for her to receive the physical custody of the children.
“The [mother] has twice left a treatment facility without finishing treatment. Although she testified she did complete the [intensive outpatient program], she has by her own testimony relapsed three times since then.
“During the children’s short lives they have lived with [relatives of the mother’s former boyfriend] for almost two years and have lived with [T.T.L.] for over a year. The [mother] has had her own home for two months. The DHR [Department of Human Resources] records reveal that she has lived with at least two boyfriends and one male acquaintance since the children were born. Ms. Arthur[, a friend of the mother’s,] testified that she lived with her for a period of time. She now works two jobs to save money, but this was after years of no employment and no stable lifestyle.
“The Court is aware that for the past month the [mother’s] Sunday visits have been unsupervised and without incident. She requested that if she is not allowed custody of her children that her visitation be expanded. [T.T.L.] stated that he would prefer more time with the visitation as is and then graduate into more. Approximately two (2) months have passed since the hearing. These months have been without incident. Therefore, the [mother] shall begin regular visitation pursuant to the Court’s Standard Visitation Schedule. The Court admonishes the parties to be flexible with this schedule to insure that the [children] are able to attend all activities, parties, etc. ... As no request for child support has been made, no Order concerning same will be entered; however, the [mother] testified of her contributions to the [children] and the Court intends for her to provide clothing, school supplies and other things the [children] might need to assist [T.T.L.] and his wife.”

On August 12, 2011, the mother filed separate petitions requesting that the juvenile court vacate its orders entered in case no. JU-09-152.01 and case no. JU-09-153.01 due to lack of subject-matter jurisdiction; those petitions were assigned case no. JU-09-152.03 and ease no. JU-09-153.03, respectively. She also requested a modification of the previous custody judgments or a vacation of those judgments and that T.T.L. not be allowed to relocate with the children. T.T.L. responded to the mother’s petitions on September 6, 2011.

On September 23, 2011, the juvenile court entered an order, referencing both case no. JU-09-152.03 and case no. JU-09-153.03, in which it stated:

“Pursuant to [Ex parte T.C., 63 So.3d 627] (Ala.Civ.App.[2010]), this Court lacks subject-matter jurisdiction to hear this cause. It is therefore ORDERED, ADJUDGED AND DECREED as follows:
“These matters are transferred to the Circuit Court of Lawrence County, Alabama where they are to be given a DR designation with a filing fee for an original DR, not a DR modification. The Clerk is ORDERED to adjust the filing fee.”

The transferred actions were assigned case no. DR-11-213 in the circuit court. On January 12, 2012, the circuit court entered a judgment permitting T.T.L. to relocate with the children, denying the mother’s request for custody, and modifying the mother’s visitation. The circuit court specified that it had applied the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), in making its determination.

On January 27, 2012, the mother filed a postjudgment motion; that motion was denied by operation of law on April 26, 2012. See Rule 59.1, Ala. R. Civ. P. On May 30, 2012, the mother filed her notice of appeal.

Discussion

On appeal, the mother argues that the juvenile court’s May 27, 2010, judgments were entered without subject-matter jurisdiction and were, therefore, void, and, thus, she asserts, the circuit court improperly applied the McLendon custody-modification standard to her petitions to modify custody. The mother specifically argues that, because the juvenile court did not explicitly find the children dependent in 2010, it lacked jurisdiction to make any custodial disposition of the children.

T.T.L.’s petitions alleged facts that, if proven, would support a finding of dependency. M.W.H. v. R.W., 100 So.3d 603, 607 (Ala.Civ.App.2012) (holding that the allegations in the initial dependency petition were sufficient to invoke the dependency jurisdiction of the juvenile court because “[t]he ... dependency petition specifically alleged that the child was dependent, and it also alleged specific facts that, if proven to be true, could show that the child was dependent”). Further, the specific findings in the juvenile court’s May 27, 2010, judgments indicate that the juvenile court made an implicit finding of dependency as to each child. See M.W.H., 100 So.3d at 607 (“ ‘[T]his court has held that when the evidence in the record supports a finding of dependency and when the trial court has made a disposition consistent with a finding of dependency, in the interest of judicial economy this court may hold that a finding of dependency is implicit in the trial court’s judgment.’ ” (quoting J.P. v. S.S., 989 So.2d 591, 598 (Ala.Civ.App.2008))); and L.L.M. v. S.F., 919 So.2d 307, 311 (Ala.Civ.App.2005) (“Given the factual findings contained in the ... judgment, we conclude that a finding of dependency was implicit in the trial court’s judgment.”). The mother has not challenged the sufficiency of the evidence supporting implied findings of dependency, and, even if she did, such a challenge would not be timely. See M.W.H., 100 So.3d at 608 (“To the extent that the mother, in her brief on appeal, challenges the sufficiency of the evidence to support an implicit finding of dependency in the juvenile court’s ... judgment, we will not consider that argument because the time for making such an argument has long passed.”). Based on the foregoing, we conclude that the juvenile court implicitly found the children dependent and that it, therefore, had jurisdiction to enter its May 27, 2010, judgments.

The mother makes no additional arguments on appeal; however, “[a]s we are permitted to do, ... we have noticed, ex mero motu, a jurisdictional defect that requires us to dismiss this appeal.” P.D.S. v. Marshall Cnty. Dep’t of Human Res., 32 So.3d 1288, 1290 (Ala.Civ.App.2009). In J.W. v. C.B., 68 So.3d 878, 880 (Ala.Civ.App.2011), this court reasoned:

“Because the child in the present case had been previously adjudicated dependent by the juvenile court in July 2008, § 12-15-117(a) [, Ala.Code 1975,] afforded the juvenile court continuing jurisdiction over the child until the child attained the age of 21 or until the juvenile court terminated its jurisdiction over the case involving the child before the child’s attainment of the age of 21. The record demonstrates that, at the time the mother filed her custody-modification petition in June 2009, the child had not yet attained the age of 21 and the juvenile court had not terminated its jurisdiction over the case involving the child. Accordingly, we conclude that the juvenile court had continuing jurisdiction over the child, and, thus, it had continuing jurisdiction to consider the mother’s custody-modification petition. Therefore, we conclude that the juvenile court erred in determining that it did not have subject-matter jurisdiction over the mother’s custody-modification petition.”

Similarly, in the present case, because the juvenile court had implicitly adjudicated the children dependent in its May 27, 2010, judgments, “§ 12 — 15—117(a)[, Ala.Code 1975,] afforded the juvenile court continuing jurisdiction over the child[ren] until the child[ren] attained the age of 21 or until the juvenile court terminated its jurisdiction over the case[s] involving the child[ren] before the child[ren]’s attainment of the age of 21.” J.W., 68 So.3d at 880. In this case, the children had not attained the age of 21 and the juvenile court had not terminated its jurisdiction over the cases involving the children. Thus, just like in J.W., “the juvenile court erred in determining that it did not have subject-matter jurisdiction over the mother’s custody-modification petition[s].” Id. Because the juvenile court and not the circuit court had jurisdiction over the mother’s petitions for custody and objecting to the relocation of the children, the circuit court’s January 12, 2012, judgment, as well as any pendente lite orders entered by the circuit court, are void. A void judgment will not support an appeal. See, e.g., Hall v. Hall, 122 So.3d 185, 192 (Ala.Civ.App.2013). Thus, we dismiss this appeal, albeit with instructions to the circuit court to vacate its void judgment and orders. Id. All matters pertaining to the custody of the children should be heard by the juvenile court unless and until the exceptions set forth in § 12-15-117(a), Ala. Code 1975, are met.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . In a September 24, 2010, order assessing guardian ad litem fees, the juvenile court specifically stated that the children had been declared dependent.


author: THOMPSON, Presiding Judge.

text:
    Ex parte L.S. (In re L.S. v. Madison County Department of Human Resources).
    2120751.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2013.
    Christina L. Dixon, Huntsville, for petitioner.
    Patricia Dunn Demos, Huntsville, for respondent.
   THOMPSON, Presiding Judge.

L.S. (“the mother”) petitions this court for a writ of mandamus directing the Madison Juvenile Court (“the trial court”) to vacate its order of January 29, 2013, as void for lack of jurisdiction and to reinstate a judgment the trial court entered on December 17, 2012.

The case-action summary indicates that on December 17, 2012, the trial court entered a judgment ratifying the juvenile-court referee’s recommendation of December 11, 2012, that custody of the mother’s two children (“the children”) be awarded to C.B., the children’s paternal grandmother (“the grandmother”), subject to visitation by the mother. The grandmother lives in Kentucky. The referee further recommended that the Madison County Department of Human Resources (“DHR”) be relieved of temporary custody of the children and that the case be closed to further court action.

On January 3, 2013, 17 days after the judgment was entered, DHR filed a “Motion to Review Custody Status.” In the motion, DHR stated that the parties had entered an agreement pursuant to which custody of the children was to be awarded to the grandmother. According to DHR, the Kentucky Cabinet for Families and Children (“KCFC”) had approved a study on the grandmother pursuant to the Interstate Compact on the Placement of Children (“ICPC”), but, at - the time of the children’s permanency hearing on December 11, 2012, KCFC had not yet made a recommendation regarding the transfer of custody of the children. DHR stated that “[tjransfer of custody of the children before recommendation by [KCFC] is outside of [DHR] policy and may jeopardize the children’s ICPC placement.” DHR asked the trial court to return the children to DHR’s custody until KCFC recommended the transfer of custody to the grandmother.

On January 28, 2013, the trial court held a hearing on the motion to review the status of the children. During that hearing, it was brought to the court’s attention that the mother’s visitation with the children “was not going smoothly.” On January 29, 2013, the trial court entered an order allowing the children to continue residing with the grandmother but reinvesting DHR with legal custody of the children. The order also terminated the mother’s visitation with the children and ordered the mother to attend parenting classes at her own expense. DHR and the grandmother were to work with the appropriate Kentucky officials to arrange supervised visitation between the mother and the children. An evidentiary hearing was scheduled for February 20, 2013, on the issue of visitation.

On February 4, 2013, the mother filed a motion to dismiss, asserting that DHR’s motion to review the children’s custody status was untimely filed and that the trial court no longer had jurisdiction over the matter. She asked that the evidentiary hearing be canceled and that the January 29, 2013, order suspending her visitation rights be set aside as void. The trial court did not rule on the mother’s motion to dismiss, and the evidentiary hearing was held as scheduled. On February 25, 2013, the mother renewed her motion to dismiss for lack of subject-matter jurisdiction. As of June 10, 2013, the date the petition for a writ of mandamus was filed with this court, the trial court still had not ruled on the mother’s motion to dismiss. From the materials provided to this court in support of and in opposition to the petition, it does not appear that the trial court entered an order or judgment after the February 20, 2013, hearing.

In seeking a writ of mandamus, the mother asserts that the trial court no longer has jurisdiction over this matter and that the order of January 29, 2013, is void and must be set aside because the trial court did not have jurisdiction to enter the order.

The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000). “Mandamus is a drastic and extraordinary writ, to be issued only where there is (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 Integon Corp., 672 So.2d 497, 499 (Ala.1995).

Rule 1(B), Ala. R. Juv. P., provides that all postjudgment motions in juvenile proceedings must be filed within 14 days after entry of the judgment or order. See J.E v. State Dep’t of Human Res., 103 So.3d 807, 809 (Ala.Civ.App.2012) (A motion to set aside filed more than 14 days after the entry of the order at issue was not a valid postjudgment motion.). The 14th day after the entry of the December 17, 2012, order was December 31, 2012. DHR’s “Motion to Review Custody Status” was not filed until January 3, 2013; therefore, it was untimely.

Because DHR’s postjudgment motion was untimely, the trial court had no jurisdiction to rule on it. Burgess v. Burgess, 99 So.3d 1237, 1239-40 (Ala.Civ.App.2012). An order entered by a trial court without jurisdiction is a nullity. J.B. v. A.B., 888 So.2d 528, 532 (Ala.Civ.App.2004). Accordingly, the order of January 29, 2013, that, among other things, suspended the mother’s visitation with the children is void and due to be set aside.

The mother has demonstrated that she has a clear legal right to the relief requested and that the trial court has failed to rule on her motion to dismiss this action or to set aside the January 29, 2013, order as void. Accordingly, we grant the mother’s petition and issue a writ of mandamus directing the trial court to vacate its order of January 29, 2013, and to reinstate the final judgment of December 17, 2012.

PETITION GRANTED; WRIT ISSUED.

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

      . We take judicial notice of the fact that the Madison County courthouse was open on December 31, 2012.