author: STUART, Justice.

text:
    Rodgetta Colvin JETT n/k/a Octavia R. Cantelow-Jett v. James M. WOOTEN and the Law Offices of James M. Wooten, P.C.
    1110731.
    Supreme Court of Alabama.
    Sept. 14, 2012.
    Rehearing Denied Nov. 9, 2012.

      Brian 0. Noble and Joshua A. Wrady of Noble & Wrady, LLC, Bessemer, for appellant.
    James M. Wooten, Birmingham, for ap-pellees.
   STUART, Justice.

Rodgetta Colvin Jett n/k/a Octavia R. Cantelow-Jett (“Jett”) appeals the summary judgment entered against her by the Jefferson Circuit Court in her legal-malpractice action against attorney James M. Wooten and his law firm, the Law Offices of James M. Wooten, P.C. (‘Wooten P.C.”). We reverse and remand.

I.

On approximately March 13, 2006, Jett was injured when she fell down the stairs while leaving a YMCA facility in Birmingham. On approximately May 6, 2006, she was injured again when a door struck her toe at Brookwood Medical Center (“Brook-wood”) in Birmingham. Jett sought and received medical treatment for injuries suffered in both incidents.

Jett thereafter contacted Wooten, who had represented her in approximately 10 other legal matters over the previous 12-year period, including at least one personal-injury action, to discuss possible claims based on the injuries she had suffered in her accidents at the YMCA and at Brook-wood. On February 20, 2007, Jett executed two substantially identical contracts for legal services with Wooten P.C. — one for the claim against the YMCA and one for the claim against Brookwood — in which Jett agreed to pay Wooten P.C. a percentage of any settlement or judgment obtained in connection with the claims, and Wooten P.C. in return agreed “to make immediate investigation of the claim or claims,” while reserving the right to “withdraw at any time from the case if investigation discloses that there is no liability or no assets or no insurance coverage on the part of the defendant.” The legal-services contracts further provided that Wooten P.C. made no promise or representation “as to the outcome of the claim, claims, or litigation, or as to what sums of money, if any, [Jett] may be entitled to recover.”

On October 25, 2007, Wooten sent Brookwood a letter demanding $25,000 to settle any and all claims Jett had against it as a result of her May 2006 accident. On November 15, 2007, Brookwood responded with a letter denying liability. Wooten asserts that he decided not to pursue a legal action against Brookwood based on the weakness of the case and that he promptly informed Jett via telephone that Brookwood had denied her claim and that he would not be pursuing her claim further; Jett denies that she was notified of either fact.

On February 26, 2009, Wooten sent a letter to the claims administrator for the YMCA’s insurance provider demanding $100,000 to settle any and all claims Jett had against the YMCA as a result of her March 2006 accident. On March 31, 2009, Wooten received a response denying liability and asserting that the statute of limitations applicable to personal-injury claims barred any claims asserted by Jett as a result of her accident. Wooten asserts that he decided not to pursue legal action against the YMCA based on the weakness of the case and that he so informed Jett at approximately this same time. He also asserts that he had previously made the strategic decision to pursue Jett’s case against the YMCA as a breach-of-contract claim instead of a negligence or premises-liability claim and that he accordingly informed Jett at the time he told her he would not pursue legal action that she would have six years from the date of her accident to initiate a breach-of-contract action against the YMCA if she decided to do so. Jett denies ever being told by Wooten that the YMCA had denied her claim or that he had decided not file any action against the YMCA. She also denies ever discussing his decision to pursue her case as a breach-of-contract claim and asserts that she was not a member of the YMCA at the time of her accident and accordingly had no contract with the YMCA that was capable of being breached.

On approximately March 13, 2009, Jett was at the Jefferson County courthouse with regard to an unrelated case when she learned for the first time that Wooten had not filed actions against either the YMCA or Brookwood. By this time, the statute of limitations applicable to personal-injury claims barred any negligence or premises-liability actions against either the YMCA or Brookwood because the two-year period in which to file those claims had expired on March 13, 2008, and May 6, 2008, respectively. In a subsequent deposition, Jett stated that Wooten had previously led her to believe that legal actions against the YMCA and Brookwood had been filed and that her cases were proceeding, testifying: “Wooten kept assuring me that ‘Oh, I filed things; don’t worry about it; everything is going to be fine; you know me, you know me; I filed.’ Giving me the assurances that things had been filed and they haven’t.” On June 4, 2009, Jett wrote Wooten to notify him that she was terminating their attorney-client relationship because of his “poor performance and misleading information,” including his failure to file “papers” in several cases. Jett subsequently contacted the claims administrator who had responded to Wooten’s letter regarding her claim against the YMCA to investigate Wooten’s efforts regarding that claim; in response, she was sent a copy of the letter that had been sent to Wooten denying the YMCA’s liability based upon, among other things, the fact that the two-year statute of limitations for filing a personal-injury action had elapsed.

On December 30, 2010, Jett sued Wooten, asserting breach-of-contract, negligence, and negligent-infliction-of-emotional-distress claims against him based on his failure to file lawsuits on her behalf against the YMCA and Brookwood. However, it appears that Jett failed to serve Wooten for some time. Wooten eventually responded to Jett’s lawsuit on April 12, 2011, by moving for a summary judgment, and, on April 26, 2011, he filed his answer to her complaint. Wooten noted in his answer that Jett’s claims against him, however denominated, were essentially legal-malpractice claims and therefore were governed by the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975 (“the ALSLA”). See Sessions v. Espy, 854 So.2d 515, 522 (Ala.2002) (“[T]he ALSLA applies to all actions against ‘legal service providers’ alleging a breach of their duties in providing legal services.”), and Cunningham v. Langston, Frazer, Sweet, & Freese, P.A., 727 So.2d 800, 803 (Ala.1999) (“[Fjrom a plaintiffs perspective, the ALSLA applies to any claim originating from his receipt of legal services.”). Jett thereafter filed a response opposing Wooten’s summary-judgment motion as well as an amended complaint naming Wooten P.C. as a defendant. On July 7, 2011, the trial court denied Wooten’s motion for a summary judgment.

The two sides thereafter engaged in discovery, serving interrogatories upon each other and taking each other’s deposition. On December 28, 2011, Wooten and Wooten P.C. (hereinafter referred to collectively as “the Wooten defendants”) again moved the trial court to enter a summary judgment in their favor, this time arguing that Jett’s claims against them were themselves barred by the two-year statute of limitations that generally applies to ALS-LA claims. See § 6-5-574, Ala.Code 1975 (“All legal service liability actions against a legal service provider must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards _”). Jett filed a response opposing that motion. A hearing was held on February 2, 2012, and, on February 15, 2012, the trial court entered a summary-judgment for the Wooten defendants, stating:

“The Court finds that the statute of limitations to file [Jett’s] suits expired on March 13, 2008, (YMCA) and May 6, 2008, ([Brookwood]). Therefore, she had until March 13, 2010, and May 6, 2010, to file suit against [the Wooten defendants]. This suit was not filed until December 30, 2010.”

On March 8, 2012, Jett filed her notice of appeal to this Court.

II.

Jett argues that the trial court erred by entering a summary judgment in favor of the Wooten defendants. We review her claim pursuant to the following standard of review:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12, Ala.Code 1975. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

Jett argues that the trial court erred in concluding that her claims against the Wooten defendants were barred by the statute of limitations because, she argues, the trial court failed to give effect to § 6-2-3, Ala.Code 1975, which generally provides that, if a defendant has acted fraudulently to conceal a claim, the statute of limitations applying to that claim will not begin to run until the plaintiff discovers, or should have discovered, the claim. The ALSLA specifically provides that § 6-2-3 applies to legal-malpractice claims, as the Court of Civil Appeals explained in Rutledge v. Freeman, 914 So.2d 364, 368-69 (Ala.Civ.App.2004):

“Section 6-5-574(a) sets out a two-year limitations period for the commencement of all legal-service-liability actions. Section 6-5-574(b) states that
“ ‘[sjubsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitations for the commencement of actions, namely, Section[ ] ... 6-2-8 ...; provided, that notwithstanding any provisions of such section[ ], no action shall be commenced more than four years after the act, omission, or failure complained of ..... ’
“The supreme court has recognized that the savings provision of § 6-2-3 applies in ALSLA actions. See Dennis [v. Northcutt], 887 So.2d [219,] 221 n. 4 [ (Ala.2004) ]; Ex parte Seabol, 782 So.2d [212,] 214-15 [ (Ala.2000) ]; and Leighton Ave. Office Plaza, Ltd. v. Campbell, 584 So.2d 1340, 1344 (Ala.1991). Section 6-2-3 reads as follows:
“‘In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.’
“Although the wording of § 6-2-3 indicates that it applies only to fraud actions, that section and its predecessor have long been held to apply to any cause of action that has been fraudulently concealed from a plaintiff. See Tonsmeire v. Tonsmeire, 285 Ala. 454, 457, 233 So.2d 465, 467 (1970); Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73 (1941); and Hudson v. Moore, 239 Ala. 130, 133, 194 So. 147, 149 (1940), superseded by statute on other grounds, as noted in Ex parte Sonnier, 707 So.2d 635, 638 (Ala.1997); see also Dennis, 887 So.2d at 221 n. 4 (indicating that § 6-2-3 applies to toll the statute of limitations in legal-malpractice claims, but not deciding whether § 6-2-3 applied because the six-month tolling provision of § 6-5-574(a) applied to make the plaintiffs claim timely).”

Jett accordingly argues that § 6-2-3 applies in this case and that her action against the Wooten defendants was timely filed because, she argues, there is evidence in the record — specifically her deposition testimony — indicating that Wooten concealed from her the fact that he had not initiated legal actions on her behalf against the YMCA and Brookwood and because she initiated her action against the Wooten defendants on December 30, 2010, within the two-year period following the date (March 13, 2009) she alleges she first learned of his failure to file those actions.

The Wooten defendants argue that § 6-2-3 should not be applied in this case for two reasons. First, they argue that Jett failed to raise this argument or to produce any evidence of fraudulent concealment in the trial court; thus, they argue, the issue is outside the scope of this Court’s review. See Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992) (“[A]n issue raised on appeal must have first been presented to and ruled on by the trial court.”). However, even while making this argument, the Wooten defendants acknowledge that Jett did in fact raise this argument in the trial court, because they state in their brief that “the word ‘fraud’ appears nowhere in the record until [Jett] realized in responding to [our] second motion for summary judgment of the fatal flaw.” Wooten defendants’ brief, p. 21. In fact, Jett’s response to the Wooten defendants’ second motion for a summary judgment contained the following argument urging the trial court to apply § 6-2-3:

“[Jett] learned on or about March 2009 that [Wooten] had not timely commenced a lawsuit against the YMCA and/or Brookwood Medical Center before the statute ran.... When [Jett] learned of the misrepresentation of the material fact, [Jett] had two years from the date of the discovery of the material fact and/or fraud or deception to commence an action in court. Here, [Jett] learned of this deception in March of 2009; the statute would have run on or about March 2011. [Jett] commenced this action in December 2010, which is •within the time frame for this case to be filed.
“Therefore, in the present action [Jett] has filed this action within the allowed time frame provide[d] by Code of Alabama [1975,] § 6-2-3: ‘In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.’
“[Jett’s] time of action would have run on or about March 2011. Therefore [the Wooten defendants’] assertion that [Jett’s] case was filed erroneously is grossly incorrect and is due to be denied.”

The Wooten defendants appear to believe that Jett’s invocation of § 6-2-3 in her response to their second motion for a summary judgment somehow came too late; however, because they did not assert a statute-of-limitations defense until that second motion for a summary judgment, Jett’s citation of § 6-2-3 for the first time in her response to that motion was appropriate. Moreover, the Wooten defendants have cited no authority that would indicate that Jett waived the right to invoke § 6-2-3 by failing to cite it earlier. Finally, Jett’s argument that § 6-2-3 applies in this case is supported by her deposition testimony indicating that Wooten misled her with regard to whether legal actions had been filed against the YMCA and Brookwood. The issue whether § 6-2-3 should be given effect is accordingly properly before this Court.

The Wooten defendants next argue that § 6-2-3 should not apply because Jett acknowledges that she discovered on March 13, 2009, that Wooten had not filed actions on her behalf against the YMCA or Brookwood — at which point she still had approximately a year in which to file a legal-malpractice claim against the Wooten defendants before the limitations period of § 6-5-574 expired. However, as the Court of Civil Appeals explained in Rutledge when it rejected a similar argument, the savings provision of § 6-2-3 extends the statute of limitations for two years after the discovery of a cause of action even if the statute of limitations has not yet run on that cause of action when it is discovered:

“Despite [the appellee’s] argument to the contrary, § 6-2-3 does not require the applicable limitations period to have expired on the plaintiffs claim; rather, it provides an additional two years for the plaintiff to file an action when the plaintiff discovers the cause of action less than two years before the expiration of the applicable limitations period. See Butler v. Guaranty Sav. & Loan, 251 Ala. 449, 451, 37 So.2d 638, 639 (1948); Van Antwerp [v. Van Antwerp], 242 Ala. [92,] 100, 5 So.2d [73,] 80 [ (1941) ]. The Supreme Court stated the purpose of the predecessor to § 6-2-3, which granted plaintiffs an additional one year after the discovery of the fraud to file an action, as follows:
“ ‘Section 42, Title 7, Code of 1940 [the predecessor to § 6-2-3], does not fix a limitation in the first instance. It does not cut down the limitation fixed in some other statute. It serves no purpose where plaintiff discovered the existence of his right of action as much as one year before it was barred by an appropriate statute. But when plaintiff discovered the existence of his right of action after it has become completely barred or within one year before it is so barred, this statute makes provision for a limitation of one year from the date of such discovery, provided its discovery was concealed by some activity of defendant, amounting to a fraud.’
“Van Antwerp, 242 Ala. at 100, 5 So.2d at 80. In 1985, § 6-2-3 was amended to provide an additional two years during which a plaintiff could file an action. Thus, to paraphrase Van Antwerp, under § 6-2-3 a plaintiff who does not discover his cause of action until two years before its being barred by the applicable statute of limitations has two years from the date he discovers, or should have discovered, the fraud to file his action.
“[The appellee] calls our attention to Williams v. Mertz, 549 So.2d 87 (Ala.1989), in which the supreme court stated that ‘[s]ection 6-2-3 does not even apply to an action until the expiration of the time allowed by the applicable statute of limitations would appear to have created a bar to the suit,’ Williams, 549 So.2d at 88, and that ‘[§ 6-2-3] does not act as a limit upon an action when the applicable limitations period has not run.’ Id. at 89. Those statements run counter to the purpose and operation of the statute as expressed in Van Antwerp. In addition, and even more importantly, based on the fact that § 6-2-3 did not apply to toll the statute of limitations in Williams because there was no statute of limitations to toll in that action to quiet title, id. at 88-89, the statements quoted above are dicta.
“Ryan v. Charles Townsend Ford, Inc., 409 So.2d 784 (Ala.1981), illustrates how the savings provision of § 6-2-3 works. In Ryan, the plaintiff, who on January 8, 1980, had purchased a previously leased automobile relying on the salesman’s representation that it delivered a certain gas mileage, sued the car dealership on February 13,1981. Ryan, 409 So.2d at 785. The dealership argued that the then one-year statute of limitations for fraud barred her action. Id. at 786. The plaintiff alleged that she had discovered that she had been defrauded on February 19, 1980, after having the car serviced because she originally thought it might have a mechanical problem. Id. at 786. She said that she did not realize that the salesman’s statements were false until the mechanic told her that the automobile was not designed to and would never get the mileage that had been represented to her. Id. The Supreme Court reversed the summary judgment based on the statute-of-limitations defense that the trial court had entered in the dealership’s favor. Id. The Court noted that there existed a question of fact regarding when the plaintiff discovered that her cause of action for fraud existed. Id.
“Notably, the one-year statute of limitations had not yet run when the plaintiff in Ryan discovered her cause of action. ‘Alabama does recognize that a fraudulent concealment by a defendant tolls the running of the statute until the tort or injury is discovered or could have been discovered by due diligence.’ Garrett v. Raytheon Co., 368 So.2d 516, 521 (Ala.1979), superseded by statute on other grounds, as noted in Johnson v. Garlock, Inc., 682 So.2d 25, 26 (Ala.1996). Thus, based upon that general principle and the construction of § 6-2-8 and its predecessor found in cases like Van Antwerp and Ryan, the savings provision of § 6-2-3 extends the statute of limitations for a period of two years after the discovery of the cause of action even if the statute of limitations has not yet run on that cause of action. The reading of the statute urged by [the appellee] — that the savings provision of § 6-2-3 is not applicable until the statute of limitations has already expired— would make filing suit impossible for a plaintiff who discovers a fraudulently concealed cause of action mere hours before the applicable limitations period is due to expire. Certainly, such a result would not comport with the purposes of tolling principles generally. Thus, we reject [the appellee’s] argument that § 6-2-3 has no application here.”

914 So.2d at 369-70. Thus, the Wooten defendants’ argument that § 6-2-3 should not apply in this case because the limitations period had not yet run when Jett discovered her cause of action is without merit.

IV.

Jett filed a legal-malpractice action against the Wooten defendants as a result of their failure to initiate legal actions on her behalf against the YMCA and Brook-wood before the limitations period expired on those claims on March 13, 2008, and May 6, 2008, respectively. The trial court thereafter entered a summary judgment in favor of the Wooten defendants, holding that Jett’s claims against them were themselves barred by the two-year statute of limitations that applies to ALSLA claims because Jett did not initiate her action until December 30, 2010, more than two years after March 13, 2008, and May 6, 2008. We now reverse that judgment, holding that § 6-2-3 tolled the statute of limitations and that the two-year period in which Jett could initiate an action against the Wooten defendants based on Wooten’s failure to file actions against the YMCA and Brookwood did not begin to run until March 13, 2009, when Jett discovered that Wooten had not filed the legal actions she alleges he told her he had filed. Accordingly, her lawsuit against the Wooten defendants, initiated December 30, 2010, was timely filed. The judgment of the trial court is accordingly reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Nancy McDUFFIE v. MEDICAL CENTER ENTERPRISE.
    2110696.
    Court of Civil Appeals of Alabama.
    Sept. 14, 2012.
    Certiorari Denied Nov. 9, 2012 Alabama Supreme Court 1111657.

      David W. Rousseau of Cobb, Boyd, White & Cobb, Dothan, for appellant.
    Stephen D. Christie of Miller, Christie & Kinney, P.C., Vestavia Hills, for appellee.
   THOMPSON, Presiding Judge.

On March 29, 2011, Nancy McDuffie filed a complaint seeking workers’ compensation benefits from her employer, Medical Center Enterprise (“MCE”), for an injury she alleged she sustained on March 12, 2010, in the course of her employment. MCE filed an answer, but that answer is not contained in the record on appeal. MCE later moved for a summary judgment, arguing that McDuffie had failed to demonstrate that her injury arose out of and in the course of her employment. McDuffie opposed that summary-judgment motion.

On February 24, 2012, the trial court entered a summary judgment in favor of MCE. MCE filed a postjudgment motion in which it argued that the trial court’s February 24, 2012, summary judgment did not comply with the requirements of § 25-5-88, AJa.Code 1975. Thereafter, on March 15, 2012, the trial court entered an amended judgment detailing the undisputed facts and its legal conclusions based on those facts. McDuffie timely appealed.

The relevant facts are undisputed. The testimony from McDuffie’s deposition indicates that she has been employed as a patient-care attendant, or PCA, for MCE since November 2009. The record indicates that a PCA assists nurses in performing their job duties.

Also in 2009, McDuffie began attending Enterprise Community College to earn her registered-nurse (“RN”) degree. In January 2010, McDuffie was admitted into the nursing program at Wallace Community College (“Wallace”). As part of Wallace’s program, McDuffie was to attend classes and participate in “clinicals” in which she and other nursing students worked, under the supervision of a Wallace instructor, in the hospital from 7:00 a.m. until 12:00 p.m. The record does not indicate how frequently those clinicals were conducted. McDuf-fie explained that Wallace allowed its students to select from three area hospitals in which to perform their clinicals and that she chose MCE because it was convenient for her to perform clinicals at the same place at which she was employed. It is undisputed that MCE had not provided benefits to pay for McDuffie’s schooling to become an RN and that the clinicals were not connected to McDuffie’s employment at MCE.

McDuffie testified that on March 12, 2010, she was to attend her fourth or fifth day of clinicals. McDuffie worked the night shift at MCE from 7:00 p.m. on March 11, 2010, until 7:00 a.m. on March 12, 2010. McDuffie testified that shortly before 7:00 a.m. on the morning of March 12, 2010, she changed from the “scrubs” she was required to wear for her job with MCE into the nursing “whites” that Wallace requires its nursing students to wear while performing clinicals in a hospital. According to McDuffie, after she changed into her whites, she clocked out at 7:01 a.m. and said goodbye to a supervisor. McDuffie acknowledged that, at that point, she had no further job duties to perform as a PCA for MCE.

McDuffie testified that, after she clocked out, she proceeded to the MCE lobby to meet her clinical supervisor and the other nursing students taking part in clinicals that day. McDuffie agreed that the supervisor and several other Wallace students were present in the MCE lobby and were waiting to start clinicals when she arrived. McDuffie stated that, as she reached the lobby, she realized that she had left a folder that contained materials she needed for clinicals in her vehicle. McDuffie testified that “I did speak to Dr. Kelley [ (the clinicals supervisor) ] and [told] her I forgot my folder in my car, and she told .me to go get it.”

In support of its summary-judgment motion, MCE also submitted the affidavit of Sabrina Kelley, the clinicals supervisor for Wallace. Kelley testified, among other things, that:

“When Ms. McDuffie reported to the lobby at [MCE] shortly after 7:00 a.m. on the morning of March 12, 2010, she immediately informed me that she had forgotten her notebook, which was in her car. I agreed to delay the start of clinicals for her to go to her car and retrieve the notebook....”

It is undisputed that, after McDuffie left the lobby to go to her vehicle, she fell on some stairs in the hallway leading to the parking lot where her vehicle was located. McDuffie is not certain what caused her fall, and she stated she might have tripped on a stair or on an anti-slip strip in the hallway. McDuffie broke her arm in that fall.

Before the trial court, McDuffie sought workers’ compensation benefits under the theory that she had fallen while leaving her employer’s place of business. MCE argued that McDuffie’s injury arose during the course of her college clinicals and was not connected to her employment. In reaching its March 15, 2012, judgment in favor of MCE, the trial court determined that McDuffie failed to demonstrate that the injury arose out of and in the course of her employment. In addition, the trial court concluded that McDuffie had failed to present evidence indicating that her fall was caused by a condition of her employment.

With regard to the standard for reviewing a summary judgment, this court has stated:

“ We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a- matter of law.” Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Manners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992).’ ”

Barrett v. Lee Brass Co., 883 So.2d 227, 228 (Ala.Civ.App.2003) (quoting Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002)).

McDuffie argues that the trial court erred in entering a summary judgment in favor of MCE. Specifically, she contends that an injury that occurs on the employer’s premises as the employee is leaving work can be compensable under the Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975. An injury is compensable under the Act if the accident that caused the injury arose out of and in the course of employment. § 25-5-31, Ala.Code 1975. Our supreme court has held that “[a]n injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.” Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1955).

McDuffie maintains that the injury occurred on MCE’s premises as she was leaving work and, therefore, that her injury is compensable. In support of her argument, McDuffie cites Massey, supra, and Brunson v. Lucas, 5 So.3d 1274 (Ala.Civ.App.2008). In Massey, supra, the evidence indicated that, after he completed his work shift, Massey walked quickly across the employer’s premises to take a cold shower in a facility owned by the employer; Massey suffered an aneurysm as he was exiting the shower. The court determined that “[t]he use of the unheated water after a rapid walk on a warm day increased the employee’s blood pressure and caused the diseased or weakened blood vessel wall to break,” causing the aneurysm. Massey, 264 Ala. at 229, 86 So.2d at 377. The trial court found that the aneurysm was caused by Massey’s employment but that it did not arise out of the employment, and it entered a judgment in favor of the employer. Our supreme court agreed that the employment caused the accident, but it reversed that part of the trial court’s judgment denying workers’ compensation benefits. Our supreme court determined that Massey was entitled to benefits because the aneurysm arose out of his employment. The court explained that Massey was entitled to benefits because, when he was injured, he was “an employee, while in the act of leaving his employer’s premises, where his service has been performed, at an appropriate time after the completion of his actual service, [who was] engaged in an act naturally related and incidental to the service or work which he was engaged to perform.” Massey, 264 Ala. at 232, 86 So.2d at 380.

In Brunson, supra, the plaintiff worker was injured when, as he was crossing a street to the employer’s parking lot, he was struck by a co-employee’s vehicle. This court held that, because he had sought workers’ compensation benefits from his employer, the injured worker could not maintain an action against a co-employee absent an allegation of willful conduct on the part of the co-employee. In reaching its holding on that issue, this court noted that, “[i]n general, an employee is not entitled to workers’ compensation benefits for an injury sustained while traveling to and from his or her place of employment; however, one exception to that rule permits an employee to recover compensation benefits if he or she is injured while in a parking lot owned and maintained by his or her employer.” Brunson v. Lucas, 5 So.3d at 1277.

Our supreme court has explained other exceptions allowing the recovery of workers’ compensation benefits when an employee is traveling to or from work:

“Generally, Alabama law has held that injuries sustained in accidents that occur while an employee is traveling to and from work are not covered under the Act because those injuries do not meet the ‘arising out of and in the course of employment’ requirement. See Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987); Exchange Distrib. Co. v. Oslin, 229 Ala. 547, 158 So. 743 (1935); Tucker v. Die-Matic Tool Co., 652 So.2d 263 (Ala.Civ.App.1994); Walker v. White Agencies, Inc., 641 So.2d 795 (Ala.Civ.App.1993); Terry v. NTN-Bower Corp., 615 So.2d 629 (Ala.Civ.App.1992); Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ.App.1987). Alabama courts have carved out only a few exceptions to this general rule:
“ ‘Such exceptions include situations where the employer furnishes the employee transportation or reimburses him for his travel expenses; where the accident occurs on the employer’s property or on public property that is tantamount to the employee’s ingress to and egress from the employer’s property; or where the employee is injured crossing a public street between the main premises of the employer and the parking lot owned by the employer.’
“Terry v. NTN-Bower Corp., 615 So.2d at 631 (citations omitted). See also Meeks v. Thompson Tractor Co., 686 So.2d 1213, 1216 (Ala.Civ.App.1996). An additional exception to the general rule arises when an employee, during his travel to and from work, is engaged in some duty for his employer that is in furtherance of the employer’s business. See Tucker v. Die-Matic Tool Co., 652 So.2d at 265.”

Ex parte Shelby Cnty. Health Care Auth., 850 So.2d 332, 336 (Ala.2002).

McDuffie also cites Ex parte Strickland, 553 So.2d 593 (Ala.1989), as further support for her argument that her injury should be compensable. In that case, Strickland, a construction worker, was required to be on call and available to move to a new workplace on short notice. After leaving one workplace, Strickland remembered he had left some tools he needed for work at that workplace. The evidence indicated that if Strickland were called to a different work site the next day, his employer would expect him to have those tools; however, Strickland, expected to work at the same workplace at which he left his tools the next day. Strickland climbed a fence to reenter the locked workplace to retrieve the tools, and he was injured. This court affirmed the trial court’s judgment denying benefits, concluding that Strickland had failed to demonstrate that his injury arose out of and in the course of his employment. Strickland v. Marshall Constr. & Repair, Inc., 553 So.2d 593 (Ala.1989). Our supreme court reversed, explaining:

“The proximate cause of Strickland’s injury was his desire to have his work-belt, as well as his personal effects, at hand should he be called to Florida [to work] on short notice. The fact that he intended to be [at the original workplace] the next day is not determinative of whether Strickland had a work-related objective when he was injured. Instead, the inquiry is whether Strickland’s injury naturally related to his employment. We determine that Strickland’s injury was naturally related to his employment.”

Ex parte Strickland, 558 So.2d at 595.

This court has recently addressed an appeal in which an employee was injured while returning to work from the employee parking lot. In Ex parte Advantage Resourcing, Inc., 109 So.3d 170 (Ala.Civ.App.2012), this court held, in part, that an employee’s injury was compensable when he fell and was injured as he returned to work. In that case, the evidence indicated that the employee had gone to his vehicle in the employee parking lot to retrieve a radio necessary for his employment and that he fell on his way back to his workplace and was injured. This court concluded

“[tjhat the fall in this case stemmed from a PVC pipe that had been allowed to remain in close proximity to a walkway leading to a shop at which the employee and his coworkers were to report for work each day and that the employee’s fall occurred at a time and place at which he would reasonably be expected to have reported in furtherance of the employment relationship both support the trial court’s determination that the employee’s fall indeed arose out of and in the course of his employment.”

Ex parte Advantage Resourcing, Inc., 109 So.3d at 170.

McDuffie relies on the foregoing authorities to support her argument that her injury is compensable. In making that argument, McDuffie contends that she “was injured while exiting the hospital to go to her car at the end of the workday while taking her normal route.” MCE contends, however, that McDuffie was injured after she arrived to begin her clini-cals and, therefore, that her injury did not arise out of and in the course of her employment. MCE relies on the analysis in McMillan v. County of Mobile, 721 So.2d 230 (Ala.Civ.App.1998), in support of its argument that McDuffie’s injury did not arise out of and in the course of her employment. In that case, McMillan, a minor, sought to recover workers’ compensation benefits for the death of his father, Tricksey. The employer denied that the death arose out of or in the course of Tricksey’s employment. Tricksey was killed in an automobile accident while traveling to attend a college class. Although the employer paid for one-half of Trick-sey’s education, the employer had no control over the subject of the education, and it did not specify that the education had to be related to Tricksey’s job. The trial court denied McMillan’s claims for workers’ compensation benefits, and this court affirmed. In reaching that holding, this court explained:

“Pursuant to Alabama’s workers’ compensation law, compensation is available only for ‘injuries by an accident arising out of and in the course of the employment.’ Section 25-5-1(8), Ala. Code 1975, defines that phrase as follows:
“‘INJURIES BY AN ACCIDENT ARISING OUT OF AND IN THE COURSE OF THE EMPLOYMENT. Without otherwise affecting either the meaning or interpretation of the clause, the clause does not cover workers except while engaged in or about the premises where their services are being performed or where their service requires their presence as a part of service at the time of the accident and during the hours of service as workers.’
“This court set out the general test for determining whether an injury arises out of and in the course of employment, in Cummings Trucking Co. v. Dean, 628 So.2d 902, 904 (Ala.Civ.App.1993):
“ ‘To determine whether an employee’s injuries arose out of his employment, it is only necessary to show that the employment was the cause and the source of the accident. Gold Kist, Inc. v. Jones, 537 So.2d 39 (Ala.Civ.App.1988); Massey v. United States Steel Corp., 264 Ala. 227, 86 So.2d 375 (1955).’
“ ‘Courts in other jurisdictions which have passed upon the compens-ability of injuries sustained outside the formal scope of the employee’s duties have evolved a number of criteria which may be resorted to in determining whether the employment and the recreation are related with sufficient closeness to be held within the terms of workmen’s compensation acts. For convenience, they were enumerated in Moore’s Case, 330 Mass. 1,110 N.E.2d 764, 766 [ (1953) ], as follows:
“ ‘ “(1) The customary nature of the activity.... (2) The employer’s encouragement or subsidization of the activity.... (3) The extent to which the employer managed or directed the recreational enterprise .... (4) The presence of substantial pressure or actual compulsion upon the employee to attend and participate.... (5) The fact that the employer expects or receives a benefit from the employees’ participation in the activity, whether by way of improved employer-employee relationships, ...; through greater efficiency in the performance of the employees’ duties, ...; by utilizing the recreation as partial compensation or additional reward for their work, or for advertising the employer’s business, or as an actual adjunct of his business.... Apart from the existence of employer compulsion, which often might warrant or even require a finding in favor of the employee, the presence or absence of any one of the other factors listed would not necessarily determine the issue. Nor, indeed, is the foregoing enumeration meant to be exclusive of other factors which might appear in a given case. What is required in each case is an evaluation of the significance of each factor found to be present in relation to the enterprise as a whole. Upon such an evaluation must the decision as to the closeness of the connection between the employment and the recreation ultimately rest.” (Citations omitted.)’
“Wooten v. Roden,] 260 Ala. [606,] 610-11, 71 So.2d [802,] 806 [ (1954) ].”

McMillan, 721 So.2d at 231-32. This court concluded that because there was no evidence indicating that the employer benefited from Tricksey’s furthering his education, that continuing his education was a requirement of Tricksey’s employment, or that the employer exercised any control over Tricksey’s education, the evidence did not support a conclusion that Tricksey’s death arose out of and in the course of his employment. Id.

McDuffie relies on the fact that her injury occurred on her employer’s premises after she finished work for the day. We agree that, in certain circumstances, such injuries may be compensable. Brunson v. Lucas, supra; Massey, supra. However, in order for an injury to be compensable in such a situation, the employee must have been “engaged in an act naturally related and incidental to the service or work which he was engaged to perform.” Massey, 264 Ala. at 232, 86 So.2d at 380; see also Ex parte Strickland, 553 So.2d at 595 (“the inquiry is whether [the employee’s] injury naturally related to his [or her] employment”). Relevant to a determination whether the accident was incident to or related to McDuffie’s employment is the nature of the activity; whether MCE managed, directed, or encouraged the activity; or whether it would benefit MCE. McMillan v. County of Mobile, 721 So.2d at 233. McDuffie contends that the mere fact that the accident occurred on the way to the parking lot shortly after she finished her shift at MCE requires that the courts determine her injury to be compensable.

On the morning of March 12, 2010, McDuffie had clocked out from her shift working for MCE and had proceeded to the hospital lobby to report for the beginning of her clinicals for Wallace. It is undisputed that, similar to the facts in McMillan, supra, MCE did not contribute toward McDuffie’s education, did not direct the manner in which she obtained that education, and did not benefit by McDuf-fie’s participating in clinicals in order to further her education. McDuffie realized that she had forgotten materials necessary for the clinicals, and she obtained permission from her clinicals supervisor to retrieve those materials from her vehicle. Thus, MCE made a prima facie case that, at the time of her injury, McDuffie was pursuing her education and that the accident did not arise out of or in the course of her employment (or the completion of her employment).

McDuffie has not identified to this court any evidence indicating that her trip to her vehicle was related to her employment. McDuffie acknowledges that, had she not been injured, she would have retrieved the materials for her clinicals from her vehicle and returned to rejoin the clinicals; her work duties for MCE were complete for the day. Also, McDuffie agreed that the materials she was seeking to recover from her vehicle were related to her clinicals. Thus, unlike the employee in Strickland, supra, McDuffie’s injury cannot be said to be related to her attempt to retrieve work-related items. Unlike the employees in Brunson, supra, and Massey, supra, McDuffie was not attempting to leave the employer’s premises after completing her work when she was injured.

McDuffie argues that, had she been leaving on a “normal” day, i.e., one on which she did not have clinicals, her injury would likely be deemed to be compensable. However, March 12, 2010, was not a “normal” workday because McDuffie had clini-cals immediately following her work shift. Nothing in the record indicates that McDuffie would have traveled to her vehicle until after the completion of her clini-cals had she not left the clinicals materials in her vehicle. We note that McDuffie agreed before the trial court that if the accident had happened later in the morning, or after her clinicals were completed, the accident would not have been compen-sable.

McDuffie bases her argument that her injury is compensable on the short lapse of time between her leaving her work shift and her injury on MCE’s premises. However, that short period does not determine compensability. The fact that the distance between McDuffie’s workplace and the lobby in which she met with others to attend clinicals, and thus the time to travel that distance, was short does not defeat the fact that McDuffie had left work and had begun to engage in a different activity, i.e., college clinicals, at the time of her injury. McDuffie testified that she elected to perform her clinicals at MCE for her own convenience.

“[T]he inquiry is whether [McDuffie’s] injury naturally related to [her] employment.” Ex parte Strickland, 553 So.2d at 595. In this case, McDuffie had left her employment with MCE and had started her participation in her clinicals for the furtherance of her education. See McMillan, supra. The fact that her participation was interrupted almost immediately by the need to retrieve materials relevant to the clinicals from her vehicle does not alter the conclusion that McDuffie’s leaving the MCE building to go to her vehicle had no relation to her employment. There is no indication that, if she had not needed to retrieve her materials for her clinicals, McDuffie would have left the MCE building to travel to her vehicle until after the completion of the clinicals. It is undisputed that the “proximate cause” of McDuf-fie’s injury was her desire to have her materials for her clinicals program, Ex parte Strickland, 55B So.2d at 595, and we conclude that the record contains no evidence indicating that MCE managed, directed, or encouraged McDuffie in performing her clinicals or other college coursework, or that it would benefit from McDuffie’s obtaining her RN degree. McMillan v. County of Mobile, 721 So.2d at 238. McDuffie has not demonstrated on appeal that she presented evidence to the trial court sufficient to create a genuine issue of material fact on the issue whether her accident was related to her employment so as to have arisen out of and in the course of that employment. Accordingly, we affirm the summary judgment in favor of MCE.

On appeal, McDuffie also argues that the trial court erred in determining that she could not recover because, she says, it determined that she “had no idea what caused her fall.” However, we have affirmed the trial court’s summary judgment by concluding that it correctly determined that McDuffie’s injury did not arise out of or in the course of her employment. Accordingly, because we have concluded that McDuffie’s injury is not compensable under the Act, we pretermit any discussion of whether she was required to have demonstrated with certainty what caused her to fall.

We affirm the trial court’s summary judgment in favor of MCE. ,

AFFIRMED.

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


author: BRYAN, Judge.

text:
    Dennis E. BLASDEL v. Jennifer L. BLASDEL.
    2110032.
    Court of Civil Appeals of Alabama.
    Sept. 21, 2012.
    Certiorari Denied Nov. 9, 2012 Alabama Supreme Court 1120028.

      Joan-Marie Dean, Huntsville, for appellant.
    Jennifer L. Blasdel, pro se.
   On Application for Rehearing

BRYAN, Judge.

This court’s opinion of June 15, 2012, is withdrawn, and the following is substituted therefore.

This is the third time that Dennis E. Blasdel (“the husband”) and Jennifer L. Blasdel (“the wife”) have appeared before this court in an appeal related to the entry of a divorce judgment by the Limestone Circuit Court (“the trial court”). See Blasdel v. Blasdel, 27 So.3d 1288 (Ala.Civ.App.2009) (“Blasdel I ”), and Blasdel v. Blasdel, 65 So.3d 428 (Ala.Civ.App.2010) (“Blasdel II”).

Procedural History

In Blasdel I, we dismissed the husband’s appeal because it was taken from a nonfi-nai judgment. 27 So.3d at 1291. After the trial court entered a final judgment, the husband appealed again, and in Bias-del II we affirmed the judgment in part, reversed the judgment in part, and remanded the cause for further proceedings consistent with the opinion issued by this court. 65 So.3d at 435. In this appeal, the husband challenges the judgment entered by the trial court on remand from this court’s decision in Blasdel II. In Blasdel II, the husband argued that the trial court had erred by determining that the wife’s interest in Triangles Energy Consulting, Inc. (“TEC”), a corporation that was jointly owned by the parties, was valued at $100,000. Id. at 431. This court discussed this issue raised by the husband in Blasdel II as follows:

“The wife owned a 51% interest in TEC, and the husband owned a 49% interest in TEC. The husband, who worked in the nuclear-engineering field, organized TEC, which was a consulting company for power-related companies, in such a manner so that he could take advantage of incentives offered to minority-owned corporations. The husband maintained that, despite the wife’s majority ownership of TEC, the corporation was based on his consulting skills and that TEC would not exist without him. He further alleged, and the wife disputed, that the wife contributed very little to the business activity of TEC.
“Roan Bradley, a certified public accountant that prepared tax documents for TEC and for the parties in their individual capacities, testified that she was not qualified to make a valuation of TEC. During two days of trial, the parties presented the trial court with numerous financial documents and financial summaries in an effort to present evidence of the value of TEC. The wife unequivocally stated that she was not interested in controlling TEC after the parties divorced.”

Id.

In support of his argument that the trial court had erred in valuing the wife’s interest in TEC, the husband argued that the trial court had failed to utilize one of the three valuation methods set forth in Shewbart v. Shewbart, 19 So.3d 223 (Ala.Civ.App.2009) (“Shewbart /”) (quoting Birmingham News Co. v. Horn, 901 So.2d 27, 65-66 (Ala.2004)). However, this court could not consider that argument in Blasdel II because the record revealed that the husband had not first presented the argument to the trial court. Id. at 432 (citing Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992)). In addressing the husband’s argument that the trial court had erred in valuing the wife’s interest in TEC, without considering the argument as to the failure to utilize one of the valuation methods set forth in Shewbart I that he failed to present to the trial court, we concluded:

“At the final hearing, the majority of the testimony regarding the financial condition of TEC was presented by Bradley. From her testimony it was clear that the parties, from 2003 through 2007, had earned substantial income from TEC, including salary and income distributions. However, the husband also testified that, at the time of the final hearing, TEC was ‘upside down’ and that TEC had a negative net worth of approximately $100,000.
“Our review of the evidence presented by the parties fails to lead us to evidence supporting the trial court’s judgment. Although the trial court is generally afforded broad discretion in making factual determinations in ore tenus proceedings, we are unable to ascertain, from our review of the record, how the trial court determined that the value of the wife’s 51% interest in TEC was $100,000. Accordingly, we must reverse that aspect of the divorce judgment and remand the cause with instructions to the trial court to reconsider its valuation of the wife’s interest in TEC and to enter a new judgment indicating the method by which the value of the wife’s 51% interest in TEC is determined. Cf. Mullins v. Sellers, 58 So.3d 817, 823 (Ala.Civ.App.2010) (reversing a judgment awarding child-support arrearage because this court could not determine from the record on appeal how the trial court arrived at its child-support-arrear-age award). Because we are reversing the aspect of the divorce judgment that sought to equitably divide the jointly owned property of the parties, we must also reverse those aspects of the divorce judgment that divided the remainder of the jointly owned property of the parties so that the trial court can reconsider its property division in light of its proper valuation of the wife’s interest in TEC. See Grelier v. Grelier, 44 So.3d 1092 (Ala.Civ.App.2009).”

Id. at 482-33.

Also in Blasdel II, the husband challenged the trial court’s division of certain items of personal property in light of a valid antenuptial agreement that applied to the divorce action. See Blasdel II, 65 So.3d at 430, for a recitation of the pertinent parts of the parties’ antenuptial agreement. In the parties’ divorce judgment,

“[t]he trial court found that the parties had a joint interest in 32 pieces of personal property, and the husband was awarded that personal property. The trial court ordered the husband to pay the wife $35,000 as her equitable interest in the 32 pieces of jointly owned personal property awarded to the husband.”

Id. at 430-31.

Included in the 32 pieces of personal property awarded to the husband were a 2005 Chevrolet truck, a 1995 Cadillac automobile, and a 2000 Corvette automobile. We concluded that

“the trial court should not have considered the Chevrolet truck or the Cadillac in its determination of the wife’s equitable interest in the personal property awarded to the husband because those vehicles were owned by TEC and should have been included in the determination of the value of the wife’s interest in TEC. We must also agree that the evidence produced at trial does not support a conclusion that the wife had a joint interest in the Corvette. Even if the trial court believed the wife’s testimony that the Corvette had been purchased by TEC, as we stated above the trial court should have included the value of the Corvette in its determination of the value of the wife’s interest in TEC....
“Accordingly, we conclude that the trial court erred by considering the Chevrolet truck, the Cadillac, and the Corvette to be jointly owned property for purposes of determining the wife’s equitable interest in the 32 pieces of jointly owned property awarded to the husband. On remand, the trial court should reconsider the evidence presented and determine whether the Corvette was owned by TEC or by the husband in his individual capacity, and award the property accordingly.”

Id. at 434-35 (footnote omitted).

After this court issued a certificate of judgment in Blasdel II, the trial court entered an amended judgment in light of our instructions on remand. In that judgment, the trial court set forth the evidence presented at trial regarding the earned income and income distributions the husband and the wife had received from 2003 through 2007 based on their ownership interest in TEC. The trial court found that the wife earned, on average, $60,770 a year between 2003 and 2007. The trial court further stated that, in considering the value of the corporation, it had also taken into account testimony presented by TEC’s accountant, Roan Bradley, which indicated that TEC was thriving, that it was an ongoing business, and that income and profits of TEC for the coming year could be the best ever. The trial court further found that the 2005 Chevrolet truck, the 1995 Cadillac, and the 2000 Corvette were owned by TEC and that the cumulative value of those three vehicles totaled $44,000. Based on that evidence, the trial court determined that the value of the wife’s equitable interest in TEC was $122,400. The trial court divested the wife of her 51% ownership of TEC, awarded the husband exclusive ownership of TEC, and ordered the husband to pay the wife $122,440 as her equitable interest in TEC.

The trial court also reduced the wife’s equitable interest in the personal property that was awarded to the husband in light of the fact that the values of the 2005 Chevrolet truck, the 1995 Cadillac, and the 2000 Corvette had been accounted for in the valuation of TEC. The trial court reduced the wife’s original award of $35,000 as her equitable interest in the personal property by $22,000 (one-half of the cumulative value of the three vehicles). Accordingly, the husband was ordered to pay the wife $13,000 as her equitable interest in the personal property awarded to the husband ($35,000 - $22,000 = $13,000).

The husband subsequently filed a post-judgment motion arguing, among other things: (1) that the trial court failed to utilize one of the three valuation methods discussed in Shewbart I, supra, and Birmingham News, supra, when making a valuation of TEC; (2) that it was impossible to ascertain how the trial court determined the value of the wife’s equitable interest in TEC; and (3) that the division of property was manifestly unjust and against the great weight of the evidence. The wife subsequently filed a motion to appoint a special master to make a determination as to the value of TEC. Both motions were scheduled for a hearing. The trial court denied the wife’s motion for a special master on August 26, 2011, and the husband’s postjudgment motion was denied by operation of law on September 20, 2011. See Rule 59.1, Ala. R. Civ. P. The husband timely filed a notice of appeal.

Issue

In this appeal, the husband argues that the trial court erred by awarding the wife $122,440 as her equitable interest in TEC. Specifically, he argues that the trial court did not adhere to this court’s instructions on remand in Blasdel II; that the trial court erred by failing to utilize one of the three valuation methods set forth in Shew-bart I, supra; that there is no evidence to support the trial court’s valuation; and that the trial court erred by relying on the historical income of TEC when determining its value.

Standard of Review

“ ““ “[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.”’” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). “ ‘The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’ ” Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). “Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.” Waltman v. Rowell, 913 So.2d at 1086.’ ”

Blasdel II, 65 So.3d at 431 (quoting Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007)).

Discussion

First, we will address the husband’s contention that the trial court failed to adhere to our instructions on remand in Blasdel II. As we stated above, in Blasdel II we reversed the trial court’s valuation of the wife’s interest in TEC and instructed the trial court “to reconsider its valuation of the wife’s interest in TEC and to enter a new judgment indicating the method by which the value of the wife’s 51% interest in TEC is determined.” 65 So.3d at 433. In Ex parte Edwards, 727 So.2d 792 (Ala.1998), our supreme court held:

“ ‘ “It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered .... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence.

727 So.2d at 794 (quoting Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983), quoting in turn 5 Am.Jur.2d Appeal & Error § 991 (1962)).

The husband contends that the trial court failed to strictly comply with the instructions on remand because it failed to indicate the method by which it valued the wife’s interest in TEC. We disagree. The trial court entered a detailed judgment in response to our instructions on remand, and, in that judgment, the trial court identified the specific financial information produced by the parties that it had relied on to determine the value of the wife’s interest in TEC. Furthermore, the trial court stated that it had considered testimony from Bradley when making a valuation, and the judgment indicates that the trial court considered the value of the 2005 Chevrolet truck, the 1995 Cadillac, and the 2000 Corvette when it made its determination of the value of the wife’s interest. Accordingly, we conclude that the trial court complied with our instructions on remand because the trial court indicated the method by which it determined the value of the wife’s interest in TEC, and this court is able to ascertain from a review of the record how the trial court arrived at its determination of the value of the wife’s interest in TEC. See discussion, infra.

Next, we will consider the husband’s argument that the trial court erred by failing to utilize one of the valuation methods discussed in ShewbaH I and Birmingham News in making its determination of the value of the wife’s interest in TEC. Assuming that the husband properly preserved this argument for appellate review of the judgment entered on remand, we cannot conclude that the trial court committed reversible error by failing to specifically state in its judgment that it utilized a valuation method set forth in ShewbaH I. In ShewbaH I, we reversed a trial court’s judgment because it valued a sole proprietorship owned by the husband using only the value of the tangible assets of the sole proprietorship, which equaled $14,000. 19 So.3d at 232. This court noted that “the sole proprietorship has provided a significant and consistent stream of income sufficient to support this family for many years and has consistently produced a profit. That substantial stream of income continued to the date of the trial, and the evidence indicates that it will continue into the future.” Id. We then set forth the three valuation approaches that are accepted methods of determining the fair market value of a privately held business, as discussed in Birmingham News, supra: the income approach, the asset approach, and the market approach. Id. We held that the trial court erred by failing to “assess some value to the business apart from the value of the materials used in the business,” and we remanded the cause with instructions to the trial court to determine the fair market value of the sole proprietorship after “taking into consideration all of [the] assets [of the sole proprietorship] ....” Id. at 233.

In Shewbart v. Shewbart, 64 So.3d 1080 (Ala.Civ.App.2010) (“Shewbart II”), the wife filed an appeal from the judgment entered by the trial court on remand from Shewbart I that determined that the value of the sole proprietorship was $69,986 using the income approach. The wife appealed the trial court’s determination that she was entitled to one-half of that amount less the value of one-half of the tangible assets of the sole proprietorship that the wife had already been awarded. To determine the value of the sole proprietorship, the trial court averaged the husband’s income as it appeared on his income-tax returns over a period of three years and multiplied that number by two — a multiple that was determined by the court after hearing testimony from a business-valuation expert indicating that average income was usually multiplied to determine an estimated value of a business under the “income approach.” Id. at 1083-84. During his testimony, the expert had multiplied the husband’s average income by four to determine an estimated value of the sole proprietorship. However, this court held that the trial court had not exceeded its discretion by using only a multiplier of two to determine the value of the sole proprietorship because the trial court considered the long hours the husband worked in the sole proprietorship and the poor economic conditions prevailing in the location of the sole proprietorship. Id. at 1086. Furthermore, although the specific award to the wife had to be reversed because of a mathematical error in the judgment, we concluded that it was permissible for the trial court to award the wife an even dollar amount after “rounding up.” Id. at 1087 n. 5.

In the present case, the trial court determined that the average yearly income the wife received as the 51% owner of TEC over a period of five years was $60,770. If the trial court multiplied the wife’s average yearly income by 1.64 to determine the present value of the projected future earnings of the wife from TEC, the wife’s interest in TEC would be valued at approximately $99,663, or approximately $100,000. Although there is no indication in the trial court’s judgment on remand that it specifically multiplied the wife’s average yearly income by 1.64 to determine the value of the wife’s interest in TEC, it is clear from the judgment that the trial court used the wife’s average yearly income to project the future value of the wife’s interest in TEC. Considering the evidence indicating that the husband, as the consultant, was the only party to actually bring in income and that TEC had outstanding tax liabilities totaling approximately $65,000, but also considering the evidence indicating that TEC was thriving at the time of trial and that TEC was on track to have its best year ever, we find no error in the trial court’s determination that the wife’s interest in TEC equaled $100,000. According to the judgment entered on remand, it appears that the trial court also awarded the wife 51% of the value of the three vehicles owned by TEC, or $22,440 ($44,000 X .51 = $22,440). The sum of $100,000 and $22,440 equals $122,440, i.e., the amount awarded to the wife as the value of her interest in TEC. Accordingly, we reject the husband’s argument that the trial court’s determination of the value of the wife’s interest in TEC was unsupported by the evidence.

We also reject the husband’s argument that the trial court erred by relying on the wife’s historical income to determine the value of the wife’s interest in TEC. In support of his argument, the husband quotes from this court’s opinion in Shewbart I, supra, where we quoted from an article from the Massachusetts Bar Association that stated: 19 So.3d at 282 n. 6 (quoting Robert J. Rivers, Jr., “The ‘Double-Dipping’ Concept in Business Valuation For Divorce Purposes,” Massachusetts Bar Association (2006)).

“ ‘It is basic valuation theory that the value of a business is equal to the present worth of the future benefits of ownership....
“ ‘This fundamental theory of business valuation is sometimes misinterpreted by courts due to the misconception that business valuation is based upon an averaging of past income, rather than a projection as to what the future income will be based upon a review of the historical earnings of the company.... [T]he role of past earnings is simply to provide an indication as to projected future earnings ....’”

We cannot conclude that the trial court’s consideration of the wife’s historical earnings from TEC was used by the trial court for any purpose other than to provide an indication as to the wife’s projected future earnings. We note that the trial court did not value the wife’s interest in TEC based solely on the average of the wife’s past income; instead, the record indicates that the trial court used the wife’s average income to project the worth of the future benefits of ownership.

The husband also contends that the trial court’s valuation does not take into account evidence indicating that he had lost one of his biggest clients in 2007. The husband testified that one of his biggest clients reorganized in 2007 and that there was a period of two or three months in 2007 that he did not do any work for them. However, those facts were accounted for in the trial court’s calculations because the evidence the trial court used to calculate the wife’s average income from TEC reflected that the income distributions paid to the wife in 2007 and the wages earned by the wife in 2007 were low compared to some earlier years. Accordingly, the loss of business in 2007 lowered the wife’s average earnings, which the trial court used to determine the projected future earnings of TEC.

After a review of the record and consideration of the arguments presented by the husband on appeal, we cannot conclude that the trial court committed reversible error by valuing the wife’s interest in TEC at $122,440. Although we recognize that the wife’s motions to appoint a special master were denied, nothing in the record indicates that either party attempted to tender an expert at trial to offer an opinion as to the value of TEC. Therefore, the parties left to the trial court the extremely difficult task of valuing a privately held service-based corporation without the assistance of expert testimony. This court does not expect the trial-court judges in this state to be experts in making valuations of such business organizations; in this case, even the accountant for TEC unequivocally stated that she was not qualified to make a valuation of TEC. Based on the evidence presented by the parties, we cannot conclude that the trial court’s determination of the value of the wife’s interest in TEC was so unsupported by the evidence as to be plainly or palpably wrong. See Blasdel II, 65 So.3d at 431 (quoting Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007)). Accordingly, we affirm the trial court’s judgment.

APPLICATION FOR REHEARING OVERRULED; OPINION OF JUNE 15, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

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

      . Although the divorce judgment appealed in Blasdel II was entered in case no. DR-07-414.00, the judgment entered by the trial court after remand from Blasdel II was entered in case no. DR-07-414.01.

      . We note, as we did in Blasdel II, that this court has subsequently decided that, "in the context of valuing a divorcing spouse’s interest in a closely held business organization, a trial court should not apply a minority or marketability discount to the fair value of the business organization.” 65 So.3d at 432 n. 3. (citing Grelier v. Grelier, 44 So.3d 1092 (Ala.Civ.App.2009)).

      . We make this determination based on the evidence actually presented to the trial court. We find it notable that the husband did not argue to the trial court that a valuation method set forth in Shewbart I and Birmingham News, supra, should have been utilized until after the trial court had entered a judgment on remand, long after the conclusion of the ore tenus hearing.

      . The record indicates that the wife requested the appointment of a special master before trial in the divorce action and, as noted supra, that she requested appointment of a special master after the trial court issued its judgment on remand.


author: THOMAS, Judge.

text:
    William Roger KING v. Cathy Ann KING.
    2110660.
    Court of Civil Appeals of Alabama.
    Nov. 2, 2012.

      Allen K. Mitchell, Dothan, for appellant.
    Matthew C. Lamere, Dothan, for appel-lee.
   THOMAS, Judge.

William Roger King (“the husband”) and Cathy Ann King (“the wife”) were married on July 29, 1978. On May 24, 2011, the wife filed a complaint in the Houston Circuit Court seeking a divorce from the husband, an equitable distribution of the marital assets and debts, temporary exclusive possession of the marital residence, and that the husband be made responsible for all expenses regarding the marital residence during the pendency of the divorce proceedings. She further sought an award of permanent periodic alimony, an award of “alimony in gross and/or rehabilitative alimony both pendente lite and permanently,” and attorney fees.

That same day, the wife filed three other motions. She filed a “motion for the temporary possession and use of the marital home” in which she alleged that the husband’s employment required him to travel, that he had engaged in “numerous adulterous affairs,” and that she was entirely dependent upon the husband for her financial support. She filed a “motion to freeze accounts and assets” in which she alleged that the husband was taking steps to move certain marital assets into his own name and “expending funds” and “disposing of assets” in which she said that she had an interest. The wife also filed “plaintiffs motion for pendente lite spousal support” in which she alleged that the husband had “total and complete” control of the parties’ finances; she sought an order requiring the husband pay pendente lite alimony and to continue to provide her health-insurance coverage.

On May 31, 2011, the circuit court entered a pendente lite order in which it enjoined either party from harassing the other party and required the parties to preserve the marital assets and their insurance policies during the pendency of the action. The parties were required to divide monthly expenses according to their respective incomes.

On June 16, 2011, the husband answered the wife’s complaint and filed a counterclaim seeking a divorce and an equitable division of the marital assets. That same day, the husband filed three responses in which he denied the allegations in the wife’s pendente lite motions.

On June 20, 2011, the wife filed a motion for an evidentiary hearing contending that the husband should be held in contempt because, she said, he had failed to abide by the circuit court’s May 31, 2011, pendente lite order. The circuit court set an eviden-tiary hearing for July 26, 2011.

The circuit court entered a status quo order on August 8, 2011, and ordered the husband to pay the wife temporary support in the monthly amount of $800. On September 7, 2011, the wife filed a motion for contempt alleging that the husband had refused to pay the wife temporary support in the monthly amount of $800. A trial was held on February 13, 2012.

On March 1, 2012, the circuit court entered its judgment divorcing the parties, dividing the marital assets and debts, and awarding the wife alimony in the monthly amount of $800. The wife was ordered to employ counsel for “the purpose of advancing her claim for [Social Security] disability.” The parties were ordered to pay their own attorney fees. The record on appeal does not contain an order or a judgment explicitly ruling on the wife’s September 7, 2011, motion for contempt, there is no indication that the motion was withdrawn or implicitly ruled on by the circuit court, and the divorce judgment does not include a general denial of all relief requested but not addressed in the divorce judgment.

On March 9, 2012, the husband filed a purported motion to alter, amend, or vacate the circuit court’s March 1, 2012, order, seeking an amendment requiring the wife to provide documentation of her efforts to qualify for Social Security disability benefits and for a hearing to review whether the wife had made an effort to' pursue Social Security disability benefits. He further requested 30 days to vacate the marital residence and an order regarding the division of the “household goods.” On March 12, 2012, the circuit court amended its March 1, 2012, order, requiring the wife to provide documentation to the husband regarding her application for Social Security disability benefits and to allow the husband to secure his “personal items.” On March 30, 2012, the husband filed a second purported motion to alter, amend, or vacate the March 1, 2012, order or, in the alternative, for a new trial. In that motion he claimed that the circuit court’s order dividing the marital property was inequitable and an abuse of its discretion. The circuit court denied the husband’s March 30, 2012, motion on April 2, 2012. The husband appealed to this court on April 11, 2012.

Although the parties have not raised any arguments on appeal regarding the wife’s September 7, 2011, motion for contempt, we must first address whether, because the circuit court has failed to rule on that motion, we have jurisdiction over the appeal from the circuit court’s March 1, 2012, judgment. See Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987) (stating that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu ”).

Because the circuit court has failed to rule on the wife’s September 7, 2011, contempt motion alleging that the husband had refused to pay the temporary support ordered on August 8, 2011, we determine that the circuit court has not completely adjudicated all issues between the parties.

“The trial court’s failure to rule on the pending [contempt] motions renders the judgment nonfinal. Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007). The judgment is not final because the judgment fails to completely adjudicate all issues between the parties. See Butler v. Phillips, 3 So.3d 922, 925 (Ala.Civ.App.2008). Subject to a few exceptions not relevant here, an appeal ordinarily lies only from a final judgment. Ala. Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990).”

Allen v. Allen, 97 So.3d 786, 787 (Ala.Civ.App.2012). Because the circuit court’s March 1, 2012, order does not completely adjudicate all the issues between the parties, it in not a final judgment. Accordingly, we dismiss the husband’s appeal.

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

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . We determine that the circuit court implicitly ruled on the wife’s contention that the husband should be held in contempt of the May 31, 2011, pendente lite order because the August 8, 2011, order settled the issues the wife had raised without holding the husband in contempt. Gore v. White, 96 So.3d 834, 840 (Ala.Civ.App.2012) (concluding that the absence of a specific ruling on a pending petition does not render a judgment nonfinal if the trial court’s judgment sufficiently included an implicit denial).

      . The wife’s testimony indicated that at the time of the trial the husband had failed to pay $1,600 in pendente lite support.