author: THOMPSON, Presiding Judge.

text:
    T.Y. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2110869.
    Court of Civil Appeals of Alabama.
    March 8, 2013.
    Rehearing Denied May 10, 2013.

      Christy McCain Taul, Birmingham, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua G. Lane, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

T.Y. (“the mother”) appeals a judgment terminating her parental rights to her child, D.J.Y.H. III (“the child”).

The record indicates that, immediately following the child’s birth in February 2011, the Jefferson County Department of Human Resources (“DHR”) filed a petition alleging that the child was dependent due to the mother’s mental illness. The juvenile court entered a pickup order, and it later entered additional review orders continuing custody with DHR pending a hearing on the merits of DHR’s dependency petition.

On December 1, 2011, DHR filed a petition seeking to terminate the mother’s parental rights to the child; that petition also sought to terminate the parental rights of the unknown father of the child. The juvenile court conducted an ore tenus hearing on the petition to terminate parental rights. On May 4, 2012, the juvenile court entered a judgment terminating the parental rights of the mother and of the child’s putative father. The mother filed a post-judgment motion that was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. The mother timely appealed.

The mother argues on appeal that the juvenile court erred in reaching some of the factual findings upon which it based'its termination judgment. The juvenile court found, among other things, that the mother had seven other children and that all of those children were in the custody of relatives. As the mother points out, she has six other children; the child at issue is the mother’s seventh child. Also, the record indicates that the mother’s other six children are in the custody of others; however, the record does not indicate the relationship of all of the custodians to the mother or her children. Accordingly, the mother is technically correct that the evidence does not support a finding that the children are in the custody of relatives.

We are inclined, however, to conclude that the errors in those factual findings are harmless. Although the specific details of those factual findings are inaccurate, their substance is supported by the record. The evidence indicates that the mother has numerous children, that she has been unable to maintain custody of any of them, and that they are all in the custody of other people or, in the case of the child at issue in this appeal, in the custody of DHR.

In its termination judgment, the juvenile court specifically found that “[t]he child herein has been in the custody of [DHR] for three years and has been placed in numerous foster homes.” As the mother points out, however, the child at issue was only 15 months old at the time of the May 4, 2012, termination judgment. Further, the record contains no mention of the child’s history in foster homes and whether the child has had more than one foster home. Thus, that factual finding is not supported by any evidence in the record on appeal and does not appear to relate to the child at issue in this action. Accordingly, we conclude that that factual finding is clearly erroneous.

The mother also argues on appeal that the juvenile court erred in relying, in its judgment terminating her parental rights, on evidence pertaining to her mental-health condition. In its termination judgment, the juvenile court found that the mother “has been diagnosed with Intermittent Explosive Disorder, Mood Disorder, Psychosis NOS, and Mild Mental Retardation.” The mother argues that the evidence upon which the juvenile court relied in making that factual finding was presented in the form of inadmissible hearsay.

The record indicates that DHR questioned Sabrina Boswell, a DHR social worker, concerning the mother’s mental-health diagnoses. The juvenile court initially sustained the mother’s objection that that evidence constituted inadmissible hearsay, concluding that it would not consider that evidence in determining whether the child was dependent. However, after finding that the evidence supported a determination that the child was dependent, the juvenile court allowed Boswell to testify regarding the diagnoses reached by two mental-health professionals from whom the mother had sought treatment. In allowing Boswell to testify regarding that issue, the juvenile court determined that the evidence was admissible as part of what it characterized as the “dispositional” portion of the termination hearing. We also note that the juvenile court specifically questioned Boswell about the sources of the diagnoses.

The juvenile court is correct that otherwise inadmissible evidence, such as hearsay, may be considered in determining the disposition of a dependent child. § 12-15—311(b), Ala.Code 1975. However, as the mother argued before the juvenile court, an action seeking to terminate parental rights is adjudicatory, not disposi-tional, in nature. Y.M. v. Jefferson Cnty. Dep’t of Human Res., 890 So.2d 103, 112 (Ala.Civ.App.2003) (plurality opinion) (“We hold that when a juvenile court hears evidence on a petition to terminate parental rights, it is conducting an adjudication, not making a disposition, and hearsay is ‘not competent in a hearing on the [termination-of-parental-rights] petition.’ ”). In Ex parte State Department of Human Resources, 890 So.2d 114, 117 (Ala.2004), our supreme court agreed that a termination-of-parental-rights action is adjudicatory rather than dispositional and that, in such a hearing, a court may not rely upon hearsay evidence.

The Alabama Juvenile Justice Act (“AJJA”), § 12-15-101 et seq., Ala.Code 1975, provides that a juvenile court determines whether a child is dependent at an adjudicatory hearing, see § 12-15-310(a), and that the court must determine that the child is dependent from “clear and convincing evidence, competent, material, and relevant in nature.” § 12-15-Sll(a). Similarly, with regard to a hearing on the termination of a parent’s parental rights, § 12-15-319(a) provides that a juvenile court may terminate parental rights if it “finds from clear and convincing evidence, competent, material, and relevant in nature,” that grounds exist for termination.

Our supreme court has explained that in an adjudicatory termination-of-parental-rights proceeding, hearsay is inadmissible if it does not fall within one of the recognized exceptions to the hearsay rule:

“Because of the finality of a trial court’s determination to terminate a parent’s rights, the proceeding in the trial court is clearly an adjudicatory proceeding. Therefore, we agree with the Court of Civil Appeals that a proceeding to terminate a parent’s rights pursuant to § 26-18-7, Ala.Code 1975 [now § 12-15-319, Ala.Code 1975], is an adjudication.
‘We further recognize, as did the Court of Civil Appeals, that only competent, material, and relevant evidence may be admitted during an adjudicatory proceeding to terminate a parent’s rights. See § 12-15-65(f) and § 26-18-7(a), Ala.Code 1975 [now § 12-15-310, § 12-15-311, and § 12-15-319]. Additionally, we acknowledge, as did the Court of Civil Appeals, that hearsay evidence is not considered competent evidence in an adjudicatory proceeding, unless it falls within one of the exceptions provided by the Alabama Rules of Evidence, other rules adopted by this Court, or by statute. Rule 802, Ala. R. Evid. Hearsay evidence is admissible at an adjudicatory hearing if it falls within one of the exceptions provided in Rules 803 and 804, Ala. R. Evid. For example, Rule 803(6), Ala. R. Evid., provides that records of regularly conducted activity are not excluded by the hearsay rule. See L.A.C. v. State Dep’t of Human Res., 890 So.2d 1026 (Ala.Civ.App.2003) (analyzing a report prepared by employee of a hospital intervention program to determine if it was admissible as a business record pursuant to Rule 803(6), Ala. R. Evid.). Thus, hearsay evidence is admissible at a termination-of-parental-rights proceeding only if it falls within one of the exceptions recognized in Rule 802, 803, or 804, Ala. R. Evid.”

Ex parte State Dep’t of Human Res., 890 So.2d at 117-18 (footnote omitted).

Boswell’s testimony setting forth diagnoses made by other people constituted inadmissible hearsay because it was offered to establish the truth of the matters asserted. See Rule 801(c), Ala. R. Evid. (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). DHR does not argue on appeal that that evidence was admissible under any exception to the hearsay rule. See L.A.C. v. State Dep’t of Human Res., 890 So.2d 1026, 1032 (Ala.Civ.App.2003) (“The ... statement was an extrajudicial assertion offered to prove the truth of the matter asserted; it was, therefore, hearsay by definition.”).

DHR argues, however, that the doctrine of curative admissibility allowed it to introduce the hearsay evidence regarding the mother’s mental-health condition. See Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 960 (Ala.2004) (An appellate court “can affirm a judgment on a basis not asserted in the trial court.”). “Curative admissibility is a doctrine which holds that if a party introduces illegal evidence, the opponent has the right to rebut such evidence with other illegal evidence.” 1 Charles W. Gamble and Robert J. Goodwin, McElroy’s Alabama Evidence § 14.01(1) (6th ed.2009). The doctrine of curative admissibility is also referred to as the “reply in kind” doctrine. Bruno’s Supermarkets, Inc. v. Massey, 914 So.2d 862 (Ala.Civ.App.2005). However, if no prejudice occurs by the admission of the original inadmissible evidence, the doctrine of curative admissibility should not apply. Cook v. Latimer, 274 Ala. 283, 287, 147 So.2d 831, 834 (1962).

DHR argues that, in her direct testimony, the mother introduced hearsay evidence when she testified concerning what DHR alleges are her mental-health diagnoses. In its brief on appeal, DHR quotes a portion of the mother’s testimony in which she testified regarding her effort to obtain the psychiatric evaluation and treatment required to meet DHR’s goals for reunification of the mother with the child. In her testimony on that issue, the mother explained that the first facilities from which she sought treatment were “booked,” that is, they had no availability. The mother also testified that another facility, referred to as “UAB Psychiatric Community Care Program” (hereinafter “UAB”), refused to treat her. In that portion of the mother’s testimony on this issue to which DHR refers in its brief submitted to this court, the mother stated that UAB explained its refusal to treat her by informing her that “it was only for severe mental illness.” The mother stated that, although she went to UAB several times, she was informed each time that she did not meet that mental-health program’s criteria for treatment.

Even assuming that that evidence was sufficiently prejudicial to DHR’s case to warrant the application of the doctrine of curative admissibility, we cannot agree with DHR’s characterization of that testimony as pertaining to a diagnosis of the mother’s mental-health condition. In her testimony, the mother did not deny that she had a mental-health condition or that her condition had been diagnosed. To the extent that the mother might have implied that UAB did not conclude that she had a “severe mental illness,” we note that DHR did not, in its submission of the hearsay evidence to which the mother objected, rebut any such implication by presenting evidence concerning the severity of the mother’s mental-health diagnoses. On direct questioning from the juvenile court, Boswell testified that one of the mother’s mental-health conditions, Intermittent Explosive Disorder, was diagnosed by someone affiliated with the UAB mental-health program and that the other two conditions were diagnosed by a doctor affiliated with another facility. DHR did not present any evidence indicating that UAB considered its diagnosis of the mother to be a “severe mental illness” or that the mother did, in fact, meet UAB’s criteria for treatment. Accordingly, we conclude that the hearsay evidence DHR presented concerning the mother’s mental-health diagnoses did not rebut the mother’s testimony concerning the reason UAB refused to treat her.

DHR also argues that any error in admitting Boswell’s testimony concerning the mother’s mental-health diagnoses was harmless error. See Rule 45, Ala. R.App. P. (“No judgment may be reversed ... unless in the opinion of the court to which the appeal is taken ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”). Specifically, DHR contends that the hearsay evidence it presented concerning certain professionals’ diagnoses of the mother’s mental-health condition was cumulative of other testimony. See L.A.C. v. State Dep’t of Human Res., 890 So.2d at 1034-35 (holding that the admission of inadmissible evidence was not reversible error when the mother had failed to timely object to the admission of other evidence containing the same information); A.W.G. v. Jefferson Cnty. Dep’t of Human Res., 861 So.2d 400, 407 (Ala.Civ.App.2003) (“[I]t has long been the rule that any consideration of inadmissible written evidence constitutes harmless error whenever properly admitted testimony substantially duplicates the evidence contained in the inadmissible writings.”). DHR points out that the mother admitted that she has an extensive mental-health history, that she has been prescribed medications for her mental-health condition in the past, and that she has not maintained custody of her other six children, apparently because of her mental-health condition. However, we cannot agree that general evidence pertaining to the mother’s history of mental-health treatment is cumulative of the hearsay testimony concerning specific diagnoses of the mother’s condition made by mental-health professionals. Accordingly, we cannot agree with DHR’s argument that any error in the admission of the hearsay evidence pertaining to the mother’s mental-health diagnoses or in the juvenile court’s reliance on that evidence was harmless error.

In its brief submitted to this court, DHR argues in favor of affirming the juvenile court’s termination judgment on the basis that, it says, the remainder of the evidence was sufficient to demonstrate grounds warranting the termination of the mother’s parental rights. However, as already discussed, the juvenile court relied upon inadmissible hearsay evidence presented by DHR in support of its claim regarding the mother’s mental illness. The juvenile court also made the erroneous factual finding that the child had been in foster care for more than twice as long as he had been; in fact, that finding indicated that the child had been in foster care for approximately two times the length of the child’s life.

We conclude that the juvenile court’s reliance on the inadmissible hearsay evidence, together with its reliance on a clearly erroneous factual determination, was prejudicial to the mother and warrants a reversal. Although the mother challenges other factual findings made by the juvenile court, we note that there was at least some conflicting evidence presented with regard to those issues. The juvenile court, as the trier of fact, is in the best position to resolve conflicts in the remaining admissible evidence in the record on appeal. See D.C.S. v. L.B., 84 So.3d 954, 962 (Ala.Civ.App.2011) (“The trier of fact, and not this court, has the duty of resolving conflict in the evidence”). Given the posture of this case and the holding that the juvenile court erroneously relied on hearsay evidence in reaching its termination judgment, we conclude that it is not appropriate for this court to make the factual determination regarding whether the remainder of the evidence presented to the juvenile court supports the termination of the mother’s parental rights. We reverse the termination judgment and remand the cause for the juvenile court to determine whether the admissible evidence in the record demonstrates that DHR met its burden in support of its petition seeking to terminate the mother’s parental rights. We pretermit discussion of the remaining issues raised in the mother’s brief on appeal.

REVERSED AND REMANDED.

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

      . Y.M. v. Jefferson County Department of Human Resources, supra, and Ex parte State Department of Human Resources, supra, relied on earlier versions of juvenile statutes. The current Alabama Juvenile Justice Act has not altered the pertinent language or requirements of the law under which those two cases were decided.

      . DHR concedes that it did not object to the introduction of that purported hearsay, and it points out that under the doctrine of curative admissibility, it was not required to do so. See Kroger Co. v. Puckett, 351 So.2d 582, 588 (Ala.Civ.App.1977).


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte WEST FRASER, INC. (In re Michael Hunt v. West Fraser, Inc.).
    2120432.
    Court of Civil Appeals of Alabama.
    May 10, 2013.

      Michael B. Beers and Christopher S. Berdy of Butler, Snow, O’Mara, Stevens & Cannada, PLLC, Birmingham for petitioner.

      Jeffrey P. Leonard of Heninger Garrison Da-vis, LLC, Birmingham, for respondent.
   THOMPSON, Presiding Judge.

West Fraser, Inc., petitions this court for a writ of mandamus ordering the Chambers Circuit Court to transfer this civil action to the Lee Circuit Court.

In support of its petition, West Fraser submitted documents indicating the following. Michael Hunt worked as a “gang saw operator” in West Fraser’s Opelika saw mill. Opelika is in Lee County. On April 4, 2011, while working in the Opelika saw mill, Hunt suffered a severe injury to his right arm. After receiving initial first aid at the saw mill, Hunt was taken to East Alabama Medical Center in Lee County for emergency medical treatment. Hunt did not return to work at West Fraser for more than a year after the accident. On June 27, 2012, West Fraser terminated Hunt’s employment. The notice of termination was mailed from Lee County, and Hunt received the notice at his home in Chambers County.

On March 1, 2012, before his employment was terminated, Hunt filed a complaint in the Chambers Circuit Court seeking workers’ compensation benefits from West Fraser. West Fraser moved for a change of venue from Chambers County to Lee County. Hunt did not oppose the motion, and the Chambers Circuit Court transferred the workers’ compensation action to the Lee Circuit Court.

On August 3, 2012, slightly more than a month after his employment had been terminated, Hunt filed a civil action in Chambers Circuit Court against West Fraser alleging retaliatory discharge in connection with his workers’ compensation claim. West Fraser moved for a change of venue of the retaliatory-discharge action to the Lee Circuit Court. Hunt opposed the motion. On January 17, 2018, the Chambers Circuit Court denied West Fraser’s request for a change of venue without explanation. On February 27, 2013, West Fraser filed a petition for writ of mandamus with this court.

“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for a writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). ‘When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). ‘A writ of mandamus is an extraordinary remedy, requiring the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte Nichols, 757 So.2d 374, 376 (Ala.1999).”

Ex parte Yocum, 963 So.2d 600, 602 (Ala.2007).

As legal authority for its assertion that venue should be changed from Chambers County to Lee County, West Fraser relied on § 6-3-7(a), Ala.Code 1975, which governs venue of actions against corporations, and § 6-3-21.1, Ala.Code 1975, the forum non conveniens statute. _ In opposing the motion to transfer the action to Lee County, Hunt argued that, pursuant to § 6-3-7(a)(1) and (a)(3), the action should remain in the Chambers Circuit Court. The portions of § 6-3-7(a) at issue in this case provide:

“(a) AU civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence. ...”

As to the requirements of subsection (a)(1), the parties disagree on whether “a substantial part of the events or omissions giving rise to the claim” occurred in Lee County, as West Fraser asserts, or in Chambers County, as Hunt asserts. Hunt contends that, “[i]n no uncertain terms,” his employment was terminated in Chambers County. He explains that, because he was at his home in Lafayette, in Chambers County, when he received the letter informing him that his employment had been terminated, a substantial portion of events, i.e., the termination of his job with West Fraser, occurred in Chambers County. West Fraser, on the other hand, argues in its brief to this court that the decision to terminate Hunt’s employment was made in Lee County, based on acts Hunt performed in Lee County, and notes that the letter was mailed from Lee County; therefore, it says, “all material facts giving rise to [HuntJ’s retaliatory discharge claim occurred in Lee County.”

West Fraser argues that Hunt’s focus on where he received the termination letter is misplaced. In Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356 (Ala.1993), William Pritchett defaulted on the loan he had obtained from SouthTrust Bank of Tuscaloosa County (“the bank”) to purchase a vehicle, and the bank repossessed the vehicle. The bank informed Pritchett that it had sold the vehicle for $500 and applied that amount to the balance of Pritchett’s loan. Pritchett alleged that the vehicle had been sold for more than $500, but only $500 was applied to his balance. He filed a civil action in the Montgomery Circuit Court alleging against the bank claims of fraud, conversion, abuse of process, wanton/willful conduct, and malicious prosecution. The bank sought to have the action transferred to the Tuscaloosa Circuit Court. When the Montgomery Circuit Court denied the motion, the bank filed a petition for a writ of mandamus. Id. at 1358.

The bank asserted that the alleged misrepresentations to Pritchett about the actual resale value of the vehicle were made through telephone calls and through mail sent from Tuscaloosa. However, Pritchett argued that he received those communications in Montgomery and that, therefore, his “injuries” “occurred” in Montgomery County. Id. Our supreme court wrote:

“In Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1922), a libel action, this Court established that the term ‘injury’ for purposes of § 6-3-7 refers to the wrongful act or omission of the corporate defendant, not to the resulting damage to the plaintiff, and thus determined that venue for such an injury is proper where a wrongful act was committed, not where the damage resulted. We note that the Court deviated from its Age-Herald rule in the later case of Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923). There, this Court held that where libelous matters are passed through the mail from one individual to another, the ‘injury’ takes place where the matter is received. Unlike the holding in Age-Herald, however, the Kenney holding did not hinge upon § 6-8-7; rather, it was based upon a libel action between individuals, and its fact-specific rationale is inapposite here.”

Id. at 1358.

Our supreme court went on to hold that Pritchett’s alleged injuries occurred in Tuscaloosa County, where the bank made telephone calls and sent mail to Pritchett, not in Montgomery County, where Pritch-ett received those communications. Id. We note that the only authority Hunt relies on in support of his contention that the termination occurred in Chambers County, where he received the letter, is Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923), which the supreme court rejected in Ex parte SouthTrust Bank of Tuscaloosa County, supra, as a basis for determining venue pursuant to § 6-3-7.

In Ex parte Pikeville Country Club, 844 So.2d 1186, 1189 (Ala.2002), our supreme court explained that it found the analysis of SouthTrust Bank particularly persuasive in interpreting the current version of § 6 — 3—7(a)(1), stating:

“We construe ‘the events or omissions giving rise to the claim’ to be a clear reference to the wrongful acts or omissions of the corporate defendant. Having so construed the statute, we see no reason to abandon the holding of Ex parte SouthTrust Bank. Therefore, we conclude that venue in this case is improper in Covington County as to the [defendant], because the event giving rise to [the plaintiffl’s claims — the mailing of the letter containing the alleged misrepresentations — occurred in Marion County, where the letter was mailed, and not in Covington County, where [the plaintiff] received the letter. See also
Ex parte Wiginton, 743 So.2d 1071 (Ala. 1999).”

In this case, Hunt alleged that West Fraser fired him from his job operating a gang saw at its Opelika saw mill in retaliation for his having filed a workers’ compensation action. The evidence was undisputed that the decision to terminate Hunt’s employment was made in Opelika, and the letter notifying Hunt of West Fraser’s decision was mailed from Opelika. Accordingly, we conclude that all of West Fraser’s alleged wrongful acts occurred in Lee County, not in Chambers County.

West Fraser also disputes Hunt’s contention that venue is proper in Chambers County, pursuant to § 6-3-7(a)(3). Because Hunt resides in Chambers County, if West Fraser does business by agent in Chambers County, then venue in that county would be proper.

West Fraser is an integrated forest-products company that produces lumber, wood chips, fiberboard, plywood, pulp, and news print. Hunt points out that, in response to interrogatories he propounded, West Fraser stated that from September 1, 2009, to September 1, 2012, 16.2% of the total timber it purchased was bought in Chambers County. During that same time, West Fraser purchased $306,106 worth of “parts and supplies” in Chambers County. Those purchases constituted 2.6% of the total West Fraser spent on parts and supplies during that time.

“To establish that a corporation does business in a particular county for purposes of venue, past isolated transactions are inconclusive. Ex parte Harrington Mfg. Co., 414 So.2d 74 (Ala.1982). A corporation does business in a county for purposes of § 6-3-7 if it performs with some regularity in that county some of the business functions for which the corporation was created. Ex parte SouthTrust Bank of Tuscaloosa Cnty., N.A., 619 So.2d 1356, 1358 (Ala.1993). However, this Court has considered extraneous relationships insufficient to constitute ‘doing business.’ For example, in Ex parte Parsons & Whittemore Alabama Pine Construction Corp., 658 So.2d 414 (Ala.1995), and Ex parte Real Estate Financing, Inc., 450 So.2d 461 (Ala.1984), this Court held that for a construction company and real-estate financing company, respectively, retaining the services of an attorney in a county on a case-by-case basis did not constitute doing business in that county. Hiring an attorney was tangential to the fulfillment of their primary business functions.”

Ex parte Elliott, 80 So.3d 908, 912 (Ala.2011).

Hunt relies on our supreme court’s decision in Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002), to support his contention that venue is proper in Chambers County. In that case, our supreme court wrote:

“Scott Bridge notes that it is in the business of constructing bridges and it argues that because it has not built a bridge in Chambers County, it has not ‘done business by agent’ there. The business of Scott Bridge, however, should not be considered so narrowly. To fulfill its principal corporate function of building bridges, Scott Bridge must purchase parts, tools, and equipment with which to perform that principal corporate function. Bond asserts, and Scott Bridge does not refute, that Scott Bridge buys from businesses located in Chambers County supplies that cost in excess of $50,000 a year.”

Id. at 81.

The court noted that, although the record did not include a

“detailed ... description of Scott Bridge’s interactions with its parts supplier in Chambers County ..., the information that this Court does have regarding Scott Bridge’s interactions with its supplier in Chambers County is that Scott Bridge ‘purchased handrail pipe, handrail posts, protection anchors, supports, and shoes which are used in Scott Bridge’s business [of bridge building].’ (Trial court’s order denying the motion for a change of venue.) Scott Bridge could presumably have purchased these materials elsewhere, and thus fulfilled its corporate purpose entirely outside of Chambers County, but spending more than $50,000 per year in Chambers County on materials necessary to bridge construction is sufficient to constitute ‘doing business’ in Chambers County.”

Id. at 82.

West Fraser argues that the purchases it made in Chambers County constituted “such a small portion of its activity as to clearly be nonessential to its principal corporate function.” However, Scott Bridge does not include any facts from which we can conclude that our supreme court determined that Scott Bridge did business in Chambers County based on a certain threshold, such as percentage of total business costs, number of purchases, or the like. In this case, between September 1, 2009, and September 1, 2012, West Fraser purchased approximately 16% of its timber from Chambers County. We cannot say that the purchase of timber is not a business function for which an “integrated forest-products company” like West Fraser was created. Moreover, given the holding in Scott Bridge, we cannot say that the purchase of more than $300,000 in parts and supplies from businesses in Chambers County during the same three-year period does not constitute “doing business” in Chambers County.

West Fraser invites this court to overrule Scott Bridge. Although it makes compelling arguments as to why that decision should be overruled, “this court is bound by the decisions of our supreme court. Ala.Code 1975, § 12-3-16. We are not at liberty to overrule or modify those decisions. Thompson v. Wasdin, 655 So.2d 1058 (Ala.Civ.App.1995).” TenEyck v. TenEyck, 885 So.2d 146, 158 (Ala.Civ.App.2003). Accordingly, in applying Scott Bridge to the facts in this case, we must conclude that West Fraser was doing business in Chambers County and that venue in Chambers County is proper pursuant to § 6-3-7(a)(3). Thus, venue is proper both in Chambers County and in Lee County, where the alleged wrongful acts occurred.

However, West Fraser asserts that, even if venue is proper in Chambers County, the retaliatory-discharge action must be transferred to the Lee Circuit Court pursuant to the forum non conveniens statute, § 6-3-21.1(a), Ala.Code 1975. The forum non conveniens statute provides:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

This court has recently discussed the application of § 6 — 3—21.1(a), writing:

“Under the forum non conveniens statute, a trial court must transfer an action when a party seeking the transfer proves either (1) that the convenience of the parties or witnesses would be significantly aided by transfer, see Ex parte Nichols, 757 So.2d 374, 378 (Ala.1999) (‘[T]he burden is on the party moving for the transfer to prove that the transferee forum is significantly more convenient than the plaintiffs chosen forum.’), or (2) that the ‘interests of justice’ necessitate a transfer. Ex parte National Sec. Ins. Co., 727 So.2d 788, 790 (Ala.1998) (‘[T]he “interest of justice” [prong] require[s] the transfer of [an] action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’).”

Ex parte Veolia Envtl. SVC, 122 So.3d 839, 842 (Ala.Civ.App.2013).

“The ‘interest of justice’ prong of § 6-3-21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, ‘in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that ‘litigation should be handled in the forum where the injury occurred.’ Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007). The petitioners in this case are thus required to demonstrate ‘“that having the case heard in [Lee] County would more serve the interest of justice” ’ than having the case heard in [Chambers] County. Ex parte First Tennessee Bank, 994 So.2d at 909 (quoting Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006)).”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008).

In Indiana Mills, our supreme court granted the defendants’ mandamus petition and ordered the trial court to transfer the case from Macon County to Lee County based on the “interest of justice” prong of § 6-3-21.1. In doing so, the court cited evidence indicating that the accident giving rise to the action occurred in Lee County, that the law-enforcement and emergency personnel who had responded to the accident were based out of Lee County, that the chief deputy coroner who had investigated the decedent’s death did his work in Lee County, and that the records and documents of the fire department that had responded to the accident were located in Lee County. Our supreme court noted that the only matters connecting the case to Macon County were the facts that one of the individual defendants resided in Macon County and that the employer of the person killed in the accident conducted business in Macon County. Our supreme court held that the nexus between Lee County and the case was strong, that the nexus between Macon County and the case was weak, and that the trial court had abused its discretion in refusing to transfer the case to Lee County. Indiana Mills, 10 So.3d at 542.

Similarly, in Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 750 (Ala.2010), our supreme court granted a petition for a writ of mandamus and directed the Montgomery Circuit Court to transfer that case from Montgomery County to El-more County, pursuant to the doctrine of forum non conveniens. After comparing the strong connection between the civil action and Elmore County, where the events giving rise to the case occurred, and the weak connection between the action and Montgomery County, where the action had been filed, our supreme court stated:

“This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there. We thus conclude that the trial court exceeded its discretion in denying the petitioners’ motion for a change of venue.”

Id. at 750-51.

In this case, there is a strong connection between Hunt’s retaliatory-discharge action and Lee County. As discussed, all the conduct made the basis of the action occurred in Lee County, and Hunt’s “injury” in this case occurred in Lee County. His underlying physical injury — the subject of his workers’ compensation action — occurred at West Fraser’s facility in Lee County. Hunt was treated for that injury in Lee County. The workers’ compensation case, which is related to this case, is being heard in the Lee Circuit Court.

On the other hand, the connection between the retaliatory-discharge action and Chambers County is virtually nonexistent. Hunt lives in Chambers County. The business that West Fraser conducted in Chambers County and that serves as the basis for venue in that county has no material connection with this case. There are no relevant facts in this case involving Chambers County. To echo our supreme court in Autauga Heating & Cooling, we see no need to burden Chambers County with an action that arose in Lee County simply because Hunt lives there and because West Fraser conducted business unrelated to this case there. Accordingly, we conclude that the trial court abused its discretion in denying West Fraser’s motion for a change of venue. The Chambers Circuit Court is hereby directed to transfer this action to the Lee Circuit Court.

PETITION GRANTED; WRIT ISSUED.

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

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

      . This statute does not apply in proceedings seeking modification of child custody, visitation rights, or child support. See § 6-3-21.1(a) and § 30-3-5, Ala.Code 1975.


author: THOMAS, Judge.

text:
    Threasa BANKS and Vivian Wiggs v. ESTATE OF Viva WOODALL.
    2120190.
    Court of Civil Appeals of Alabama.
    May 10, 2013.
    William D. Davis III, Birmingham, for appellants.
    Jeffrey McLaughlin and Lea Mosley Hicks of McLaughlin & Edmondson, LLC, Guntersville, for appellee.
   THOMAS, Judge.

Viva Woodall died on July 2, 2008. In August 2008, her son, Bobby Woodall, who was named in her will as the executor of her estate (“the executor”), filed a petition in the DeKalb Probate Court (“the probate court”), seeking to probate her will. Viva’s daughters, Threasa Banks and Vivian Wiggs (“the daughters”), were named as beneficiaries in the will. In December 2010, the executor filed a petition seeking approval of the final settlement of the estate. The probate court set a hearing on the petition for January 11, 2011. For a reason not apparent from the record, the probate court, on December 20, 2010, reset the hearing for January 20, 2011. The daughters did not appear to contest the final settlement, and the probate court entered a judgment confirming the final settlement on January 20, 2011.

On March 24, 2011, counsel for the daughters went to the probate court and, for the first time, learned that the matter had been reset for January 20, 2011, and that a judgment had been entered that same date. The daughters, on April 15, 2011, filed what they styled as a motion to alter, amend, or vacate the judgment, pursuant to Rule 59, Ala. R. Civ. P., alleging that they had not received notice that the hearing had been reset to January 20, 2011, or that a judgment had been entered and, essentially, alleging that they had been denied due process. In their motion, the daughters averred that they knew of the January 11, 2011, setting, that the courthouse had been closed on that date because of snow, and that their counsel had checked with the probate court and was told that the hearing would be rescheduled and that they would be notified. The motion further averred that, after not receiving any notice that the January 11, 2011, hearing had been reset, counsel for the daughters had traveled to the court clerk’s office on March 24, 2011, and then had learned that the hearing had been rescheduled for January 20 and that a judgment had been entered. The probate court did not rule on the daughters’ motion, and, after a period of 132 days had elapsed, the daughters filed a notice of appeal of the judgment confirming the final settlement to the circuit court on August 25, 2011.

The executor filed a motion to dismiss the daughters’ appeal on September 17, 2012. In his motion, the executor alleged that the appeal had been untimely filed because the daughters’ postjudgment motion had been filed more than 30 days after entry of the January 20, 2011, judgment and had therefore not tolled the time for the daughters to file an appeal from the judgment. After hearing oral argument on the motion, the circuit court granted the motion to dismiss. The daughters appealed the circuit court’s order dismissing their appeal to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). We affirm.

The executor’s motion to dismiss was a motion filed pursuant to Rule 12(b)(1), Ala. R. Civ. P., seeking a dismissal of the daughters’ appeal from the probate court’s judgment on the ground that the appeal had been untimely filed and that the circuit court therefore lacked subject-matter jurisdiction over the appeal. See Clanton v. DeAngelo, 984 So.2d 451, 453 (Ala.Civ.App.2007) (explaining that a circuit court serving as an appellate court lacks jurisdiction over the subject matter when a party’s notice of appeal is untimely filed); Singleton v. Graham, 716 So.2d 224, 225-26 (Ala.Civ.App.1998) (same); Davis v. Townson, 437 So.2d 1305, 1305-06 (Ala.Civ.App.1983) (same). The question whether the circuit court had acquired subject-matter jurisdiction over the daughters’ appeal is an issue of law; thus, we review de novo the dismissal of the appeal by the circuit court. Ex parte Terry, 957 So.2d 455 (Ala.2006) (stating that a claim that a court lacks subject-matter jurisdiction presents a question of law, which an appellate court reviews de novo).

As contended by the executor, the daughters’ April 15, 2011, motion was filed too late to qualify as a Rule 59 motion. See Rule 59(e) (providing that motions seeking to alter, amend, or vacate a judgment must be filed within 30 days of the entry of the judgment). Furthermore, the daughters’ motion was untimely under Ala. Code 1975, § 12-13-ll(a), which provides that, “[o]n motion filed within 30 days from entry of judgment [by a probate court], a new trial may be granted” for specified grounds. Insofar as the daughters’ motion was intended to be a Rule 59 motion, its untimely filing did not serve to toll the time for an appeal. See Burton v. Burton, 710 So.2d 1257, 1258 (Ala.Civ.App.1997); see also Rule 4(a)(3), Ala. R.App. P. (providing, among other things, that the filing of a postjudgment motion pursuant to Rule 59 “shall suspend the running of the time for filing a notice of appeal”). Pursuant to Ala.Code 1975, § 12-22-21(5), a notice of appeal from a judgment confirming a final settlement must be filed within 42 days of the date of the judgment. See also Rule 4(a), Ala. R.App. P. (requiring that an appeal, in most circumstances, be filed within 42 days of the entry of the judgment). In order to be timely, the daughters’ notice of appeal from the January 20, 2011, judgment had to be filed by March 3, 2011. The August 25, 2011, appeal was filed 217 days after the entry of the January 20, 2011, judgment. Thus, as the circuit court correctly concluded, the daughters’ notice of appeal was untimely filed.

The daughters contend on appeal that their motion, which asserted that they had been denied notice of the January 20, 2011, hearing on the final-settlement petition, could also be construed as a Rule 60(b), Ala. R. Civ. P., motion. Although in their brief on appeal the daughters rely on Rule 60(b)(1) and (2), our review of the allegations in their motion support the conclusion that the motion could be construed as a Rule 60(b)(4) motion seeking to declare the January 20, 2011, judgment void because the probate court acted in a manner inconsistent with due process. See Lett v. Weaver, 79 So.3d 625, 627-28 (Ala.Civ.App.2010) (construing an argument in a Rule 60(b) motion filed by the contestants in a will contest that “they did not receive proper notice of the [final-settlement] hearing [was], in essence, an argument that the probate court’s judgment [was] void for lack of due process”); see also Cassioppi v. Damico, 536 So.2d 938, 940 (Ala.1988) (quoting Smith v. Clark, 468 So.2d 138, 141 (Ala.1985)) (construing an argument about a lack of notice as a due-process argument and stating that “ ‘[a] judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process’ ”). A Rule 60(b)(4) motion, unlike a post-judgment motion filed pursuant to Rule 59, is not required to be filed within 30 days of the entry of the judgment to which it is directed and may be brought at any time; thus, the timing of the daughters’ motion is of no consequence if it is construed as a Rule 60(b)(4) motion. Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala.2003) (determining that a Rule 60(b)(4) motion was not subject to the reasonable-time requirement of Rule 60(b) and could be brought at any time); see also Hooie v. Barksdale, 93 So.3d 942, 944 (Ala.Civ.App.2012) (“A motion brought under Rule 60(b)(4) is not subject to the reasonable-time requirement of Rule 60(b) and may be brought at any time.”).

However, construing the daughters’ motion as a Rule 60(b)(4) motion does not prevent the appeal to the circuit court from being untimely. A Rule 60(b) motion, unlike a Rule 59 motion, is not subject to being denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Conway v. Housing Auth. of Birmingham Dist., 676 So.2d 344, 345 (Ala.Civ.App.1996). Thus, because the- probate court never acted on the daughters’ motion, insofar as it seeks relief under Rule 60(b)(4), that motion remains pending in the probate court and could not currently be the basis for an appeal to the circuit court. Conway, 676 So.2d at 345.

The circuit court properly determined that the daughters’ appeal was untimely filed. Accordingly, we affirm the judgment of the circuit court.

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

AFFIRMED.

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

      . We note that, had the daughters acted swiftly, they could have filed a motion seeking to extend the time for an appeal under Rule 77(d), Ala. R. Civ. P. See Patterson v. Patterson, 765 So.2d 8, 10 (Ala.Civ.App.1999) (indicating that Rule 77(d), which permits a party to seek an extension of up to 30 days to file a notice of appeal “upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment or order,” applies in the probate court).

      . The daughters apparently relied on Rule 59.1, Ala. R. Civ. P., and presumed that their motion had been denied by operation of law on July 14. They filed their notice of appeal 42 days later.

      . We note that "Rules 59, 59.1, and 60 of the Alabama Rules of Civil Procedure apply in probate court proceedings pursuant to § 12-13-12, Ala.Code 1975.” McGallagher v. Estate of DeGeer, 934 So.2d 391, 399 n. 2 (Ala.Civ.App.2005).

      . We note that in Lett, 79 So.3d at 627, this court determined that, although the contestants in a will contest had filed an untimely postjudgment motion and therefore did not timely appeal the probate court’s final-settlement judgment, the fact that their motion was also a Rule 60(b)(4) motion provided a basis for the appeal to the circuit court because the denial of a Rule 60(b) motion is a separately appealable judgment. The pivotal difference between this case and Lett is the fact that the probate court in Lett clenied the contestants’ motion, while the probate court in the present case did not take any action on the daughters' motion.


author: PITTMAN, Judge.

text:
    Beatrice Rose O’HARE v. Scott O’HARE.
    2110968.
    Court of Civil Appeals of Alabama.
    May 10, 2013.

      Tiffin M. Taylor, Huntsville, for appellant.
    Donald W. Lambert, Huntsville, for ap-pellee.
   PITTMAN, Judge.

Beatrice Rose O’Hare (“the mother”) appeals from a default judgment of the Madison Circuit Court (“the trial court”) granting Scott O’Hare (“the father”) a modification of the parties’ divorce judgment, which had been entered in Colorado, to the extent the default judgment awarded the father legal and physical custody of the parties’ minor child (“the child”). We dismiss the mother’s appeal for lack of jurisdiction.

On July 14, 2011, the father filed in the trial court a request for registration of a foreign child-custody order; attached to that request was a certified copy of a divorce judgment that had been entered by the El Paso District Court in Colorado, a separation agreement that had been entered into by the parties that was attached as an exhibit to the divorce judgment, and a support order that reiterated the child-support awards established in the separation agreement. Also on July 14, 2011, the father filed a petition for modification of custody and child support, alleging, among other things, that the mother had sent the child to live with the father, that the mother could not provide a stable home for the child, that the mother had been arrested for assault and was in danger of serving a sentence of incarceration for that incident, and that the child had routinely been left at home alone when he was in the mother’s custody. Attached to the father’s modification petition was another copy of the El Paso District Court’s divorce judgment and other orders.

On September 29, 2011, the father filed a motion for service by publication; the father’s motion for service by publication was granted, and the notice was published in a newspaper of general circulation in El Paso County, Colorado. Following service by publication on the mother, the father filed an application for a default judgment, supported by his affidavit. On January 6, 2012, the trial court entered a default judgment in favor of the father, granting the father’s request to register the Colorado court’s judgment, awarding the father sole legal and physical custody of the child, terminating the father’s obligation to pay child support to the mother, ordering the mother to pay child support to the father, ordering the mother to pay the father a retroactive child-support arrearage that had accrued since the filing of the father’s petition, and awarding the father attorney fees and costs.

On January 26, 2012, the mother filed a motion to set aside the default judgment and a motion to dismiss. The mother argued that the father’s affidavit in support of his motion for service by publication was insufficient and that the trial court lacked personal jurisdiction over her and, thus, that the action should be dismissed. After a hearing, the trial court denied the mother’s motions on March 23, 2012. The mother filed a postjudgment motion on April 20, 2012; the trial court purported to deny that motion on May 24, 2012. The mother filed her notice of appeal to this court on July 5, 2012.

Upon request by this court, the mother and the father filed “letter briefs” regarding the timeliness of the mother’s appeal. This court allowed the appeal to proceed as an appeal from the denial of a Rule 60(b), Ala. R. Civ. P., motion. In R.P.M. v. P.D.A., 112 So.3d 49, 50 (Ala.Civ.App.2012), this court stated, in pertinent part:

“Although the appeal was allowed to proceed, such permission ‘does not preclude reconsideration of the fundamental question of appellate jurisdiction after an appellate court has had an opportunity to review the record.’ Smith v. Smith, 919 So.2d 315, 316 n. 1 (Ala.Civ.App.2005); see also Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (noting this court’s policy of taking notice of jurisdictional matters at any time, even ex mero motu).”

“The timely fifing of a notice of appeal is a jurisdictional act.” R.J.G. v. S.S.W., 42 So.3d 747, 751 (Ala.Civ.App.2009). On January 26, 2012, the mother filed a motion to set aside the default judgment; we construe that motion as a motion filed pursuant to Rule 55(c), Ala. R. Civ. P., which allows a party to file a motion to set aside a default judgment within 30 days after the entry of the judgment. Following the denial of that motion, the mother filed a motion styled as a Rule 59(e), Ala. R. Civ. P., motion. Because this court determined, based on the letter briefs submitted by the parties, that that motion was properly considered a Rule 60(b) motion, however, we consider it as such on appeal.

The mother argues in her letter brief that her second postjudgment motion would have been more properly styled a Rule 60(b)(4), Ala. R. Civ. P., motion because, she says, she contended in the motion that the trial court’s order was void for lack of jurisdiction. The mother’s Rule 60(b) motion, however, sought the same relief as that requested in the original Rule 55(c) motion, in which the mother also argued a lack of personal jurisdiction. “Generally, this court reviews the denial of a Rule 55(e)[, Ala. R. Civ. P.,] motion to determine whether the trial court abused its discretion in denying the motion.” Austin v. Austin, [Ms. 2120102, March 8, 2013] — So.3d -, - (Ala.Civ.App.2013). “[T]he Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge’s ruling on his own post-judgment motion.” Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985). See also N.F.N. v. J.M.M.J., 999 So.2d 521, 523 (Ala.Civ.App.2008). Because the same relief was requested by the mother in her Rule 55(c) motion and in her Rule 60(b) motion, the latter motion constitutes an attempt to use a Rule 60(b) motion as a substitute for an appeal, which this court will not allow. Ex parte Haynes, 58 So.3d 761, 765 (Ala.2010) (“Because there existed nothing in the motion to distinguish the Rule 55(c) [, Ala. R. Civ. P.,] motion from the purported Rule 60(b)[, Ala. R. Civ. P.,] motion, any Rule 60(b) aspect to the motion would simply constitute a motion to ‘reconsider’ the Rule 55(c) motion.”). Because the trial court was -without jurisdiction to reconsider its ruling on the mother’s postjudgment motion filed pursuant to Rule 55(c), see Williams v. Williams, 70 So.3d 332, 334 (Ala.Civ.App.2009), the mother’s second postjudgment motion is a nullity and the trial court’s purported denial of that motion is void. N.F.N. v. J.M.M.J., 999 So.2d at 523. Because the mother’s notice of appeal was filed more than 42 days after the trial court’s denial of her Rule 55(c) postjudgment motion, see Rule 4, Ala. R.App. P. (requiring the notice of appeal to be filed within 42 days of the date of the entry of the judgment or order appealed from), that notice of appeal was untimely and did not invoke this court’s jurisdiction. Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007). We, therefore, dismiss the mother’s appeal. Id.

APPEAL DISMISSED.

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


author: PITTMAN, Judge. THOMAS, Judge, THOMPSON, Presiding Judge,

text:
    OFFICE MAX, INC. v. ACADEMY, LTD. Office Max, Inc. v. Sandra Richey.
    2110861 and 2110862.
    Court of Civil Appeals of Alabama.
    May 17, 2013.

      Matthew C. Williams and Rob A. Horn-buckle of Estes, Sanders & Williams, Birmingham, for appellant.
    Charles H. Clark, Jr., and Margaret H. Jones of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee Academy, Ltd.
    Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellee Sandra Richey.
   PITTMAN, Judge.

This is the second set of appeals to reach this court involving the liability of Office Max, Inc., with respect to two injuries claimed to have been suffered by Sandra Richey (“the employee”) in the line and scope of her employment with Office Max and as to which the employee has sought benefits under the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. (“the Act”). We summarized much of the pertinent procedural history in our opinion in the first appeals taken by Office Max, Office Max, Inc. v. Academy, Ltd., 93 So.3d 955 (Ala.Civ.App.2012):

“The employee filed a civil action in July 2007, alleging that she had suffered injuries to her knees and to her shoulders in 2002 and in 2005, respectively, while in the line and scope of her employment with Office Max; she sought an award under the Act of ‘all compensation, disability, vocational, medical, rehabilitation and other benefits’ to which she was entitled to receive from Office Max. On three occasions, in June 2008, March 2010, and July 2010, the employee requested the issuance of orders directing Office Max to provide her with medical care from the treating physician authorized by Office Max, Dr. William Hartzog; the trial court granted those requests over the objections of Office Max. In arguments presented to the trial court at a hearing on the employee’s second request, during which hearing the trial court received testimony from the employee and admitted various medical documents into evidence, Office Max indicated that the employee had left her employment with Office Max and had taken a job with Academy, Ltd. (‘Academy’); Office Max contended that that subsequent employment had caused or contributed to the employee’s knee and shoulder conditions such that, under the ‘last-injurious-exposure’ rule, see generally United States Fid. & Guar. Co. v. Stepp, 642 So.2d 712, 715 (Ala.Civ.App.1994), Academy should be deemed responsible for providing benefits to the employee under the Act. In response, counsel for the employee argued, and the trial court ultimately agreed, that Academy could properly be joined by Office Max as a third-party defendant.
“Office Max then filed a motion, which was granted, to implead Academy as a party, and it asserted a third-party claim against Academy in which it alleged that the employee had suffered a ‘re-injury’ or an aggravation of a previous shoulder injury and that Academy, rather than Office Max, should be held liable under the Act as to benefits owed to the employee with respect to the injuries she had alleged in her complaint. Academy moved for a summary judgment in its favor on Office Max’s third-party claim, contending that any injuries the employee might have sustained in the line and scope of her employment with Academy were merely recurrences of injuries originally sustained in the line and scope of the employee’s work for Office Max. Office Max filed a response in opposition to Academy’s summary-judgment motion, contending that a genuine issue of material fact existed as to whether the employee had suffered further damage while employed by Academy. The employee, for her part, filed a fourth motion seeking to compel medical treatment, averring that she had been diagnosed with a lesion in her left knee and that Office Max should be directed to authorize surgery to correct that condition. In separate orders entered on February 28, 2011, the trial court granted both Academy’s summary-judgment motion and the employee’s fourth motion to compel. Office Max filed separate notices of appeal as to those orders, and those appeals were consolidated by this court ex mero motu.”

93 So.3d at 956-57. Noting that “a trial court must make an express determination” indicating “that there is no just reason for delay and must make an express direction that a final judgment be entered in order for a ruling that ‘adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties’ to be a final, appealable judgment,” 93 So.3d at 957, we dismissed the previous appeals as having been taken from a nonfinal judgment, after which the trial court directed the entry of a final judgment as to its previous orders pursuant to Rule 54(b), Ala. R. Civ. P. Because that direction of entry of a final judgment eliminates the jurisdictional bar, previously noted by this court, to appellate review of the merits of the orders of which Office Max has complained, we now turn to the substantive questions presented.

Did the trial court properly enter a summary judgment in favor of Academy, Ltd.? Consideration of that issue necessarily implicates the question whether substantial evidence exists to support Office Max’s position that Academy, not Office Max, should be deemed liable, in whole or in part, for the health conditions of which the employee has complained. We note the following summary of the applicable standard of review:

“Appellate review of a summary judgment is de novo. 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. 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 [it] is entitled to a judgment as a matter of law.’ If the movant meets this burden, ‘the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by “substantial evidence.” ’ ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

Kohler Co. v. Miller, 921 So.2d 436, 444 (Ala.Civ.App.2005) (citations omitted). In this case, the substantive question as to which Academy has sought to demonstrate the absence of any genuine factual issue is the date of the employee’s last injurious exposure, the legal significance of which we summarized in United States Fidelity & Guaranty Co. v. Stepp:

“Under the ‘last injurious exposure’ rule, ‘liability falls upon the carrier covering [the] risk at the time of the most recent injury bearing a causal relation to the disability.’ The trial court must determine whether the second injury is ‘a new injury, an aggravation of a prior injury, or a recurrence of an old injury; this determination resolves the issue of which insurer is liable.’
“A court finds a recurrence when ‘the second [injury] does not contribute even slightly to the causation of the [disability].’ ‘[T]his group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work ■with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.’ A court finds an ‘aggravation of an injury1 when the ‘second [injury] contributed independently to the final disability.’ If the second injury is characterized as a recurrence of the first injury, then the first insurer is responsible for the medical bills; however, if the injury is considered an aggravation of the first injury, then it is considered a new injury and the employer at the time of the aggravating injury is liable for the medical bills and disability payments.”

642 So.2d at 712, 715 (Ala.Civ.App.1994) (citations omitted).

In support of its summary-judgment motion, Academy adduced evidence tending to show that the employee had first begun working for Academy in June 2007, well after the employee had suffered injuries to her shoulders, chest, and knees in May 2002 and to her shoulders in October 2005; those submissions also showed that the employee had admitted, in response to Academy’s requests for admissions propounded to her, that she had been injured twice while acting in the line and scope of her employment with Office Max, that her symptoms had not changed during her employment with Academy, and that the 2002 and 2005 incidents (rather than any work she had performed for Academy) had caused injuries to her shoulders and knees as to which she had sought benefits under the Act from Office Max in her complaint.

In its evidentiary submissions in response to the summary-judgment motion filed by Academy, Office Max adduced the following pertinent evidence. As to the employee’s allegations of a work-related shoulder injury, Office Max demonstrated that the employee had complained in April 2006 of bilateral shoulder pain, prompting her authorized treating physician, Dr. William Hartzog, to diagnose her as having tendinitis or bursitis in both shoulders; however, Dr. Hartzog subsequently revised his diagnosis and performed surgery in January 2007 to repair a full-thickness rotator-cuff tear in the employee’s right shoulder. Dr. Hartzog referred the employee for a partial-impairment evaluation in October 2007, after she had begun working for Academy, at which time the employee was assessed as having an eight percent impairment rating as to her right shoulder and a five percent impairment rating as to her entire body.

In November 2008, over a year after having started working for Academy, the employee returned to Dr. Hartzog’s office, complaining of “increasing symptoms” in her right shoulder while working at her new job hanging clothes. Dr. Hartzog opined that he would need to rule out a re-tear of the rotator cuff, and he ordered a magnetic-resonance-imaging (“MRI”) procedure as to the affected area. Dr. Hart-zog, in a December 4, 2008, clinic note, stated that the employee’s MRI images revealed a full thickness rotator-cuff tear “basically in the area of the previous tear” and recommended another surgical-repair procedure (which took place in February 2009); after that procedure, the employee underwent a functional-capacities evaluation at which the employee was assessed as having a nine percent impairment rating as to her right shoulder and a five percent impairment rating as to her entire body.

At his deposition, Dr. Hartzog, after testifying that the employee’s job duties at Academy could “have [had] the probability of exaggerating her preexisting condition in her right shoulder,” was asked whether he had an opinion, to a reasonable degree of medical probability, whether the employee’s work for Academy and her job duties there had indeed “aggravated her preexisting right shoulder condition.” Dr. Hartzog replied in the affirmative, stating that “it would certainly be an aggravation.” Although that statement would not compel a conclusion that the employee’s work for Academy had indeed “contributed independently to the final disability” for purposes of the last-injurious-exposure rule set forth in Stepp, see Stein Mart, Inc. v. Delashaw, 64 So.3d 1101, 1105-06 (Ala.Civ.App.2010), that testimony, coupled with the incremental increase in the employee’s disability rating as to her right shoulder following her second rotator-cuff surgery in 2009, amounts to substantial evidence that, if believed by the trier of fact, would support a determination that the employee did not suffer a mere “recurrence” of her previous rotator-cuff injury while working for Academy. Accord Water Works Bd. of Birmingham v. Isom, 56 So.3d 659, 669 (Ala.Civ.App.2010) (holding that evidence of an employee’s healing after 2003 accident causing labral tear tended to support proposition that 2006 accident involving employee, “at the very least, resulted in a retearing of the previous labral tear, i.e., an aggravation of the previous tear ” (emphasis added)).

As to the employee’s claimed knee injuries, Dr. Hartzog opined in December 2006 that the employee had reached maximum medical improvement as to her knee conditions and that she had no permanent impairment thereto. Further, MRI procedures undertaken as to the employees’ knees during her employment with Office Max showed no significant abnormalities. However, in September 2010, the employee returned to Dr. Hartzog complaining of knee pain, at which time Dr. Hartzog indicated that an MRI procedure as to the employee’s left knee should be obtained. In October 2010, after the images from the MRI procedure had been obtained, Dr. Hartzog saw “evidence of a medial meniscal tear” in the employee’s left knee as to which arthroscopic surgery was indicated as the proper response. Further, the employee, when questioned at a hearing on a motion to compel medical treatment, testified that her job duties during the two years preceding April 2010 had “aggravated [her] knee condition to make it more painful.” The foregoing evidence amounts to substantial evidence that the employee had suffered “new damage to the physical structure of [her] body,” tending to show either an aggravation of a previous workplace injury to, or a new injury to, her knee during the course of her employment with Academy. Hokes Bluff Welding & Fabrication v. Cox, 33 So.3d 592, 604 (Ala.Civ.App.2008).

We emphasize that our conclusions do not foreclose Academy from demonstrating at trial that evidence more persuasive than that adduced by Office Max in response to Academy’s summary-judgment motion warrants a judgment in Academy’s favor. However, we do conclude that, notwithstanding Academy’s citation of authorities involving favorable determinations on behalf of subsequent employers under the last-injurious-exposure rule, Office Max has adequately demonstrated the existence of a genuine issue of fact regarding Academy’s potential third-party liability. We do so notwithstanding Academy’s public-policy argument to this court against reversal, one largely unsupported by legal authority, to the effect that a ruling in Office Max’s favor might have a chilling effect upon industrial hiring of workers who have a preexisting medical condition stemming from a prior workplace injury. To the contrary, we perceive potential salutary effects that might flow from a desire to better match injured workers reentering the job market to appropriate work that will not greatly and unnecessarily risk their reinjury.

Based upon the foregoing facts and authorities, we conclude that the summary judgment in favor of Academy is due to be reversed and the cause remanded for further proceedings as to Office Max’s third-party claim. Our conclusion similarly implicates the correctness of the trial court’s order compelling Office Max to provide medical treatment to the employee going forward. There is no dispute as to the compensability of the employee’s injuries in this case: as we noted in our opinion in the previous appeals, either Office Max or Academy “will ultimately be held responsible for further medical treatment” for the employee. 93 So.3d at 957 n. 2. However, given that substantial evidence in the record supports the proposition that the employee suffered aggravations of previous injuries or new injuries in the line and scope of her employment with Academy, which evidence would support a judgment ordering Academy to be solely liable for the employee’s benefits under the Act, see Health-Tex, Inc. v. Humphrey, 747 So.2d 901, 905 (Ala.Civ.App.1999), we must conclude that the trial court’s order, made final pursuant to Rule 54(b), Ala. R. Civ. P., compelling Office Max to pay medical expenses for the employee, is premature, and it, too, is reversed in order to ensure Office Max full relief from the errant summary judgment in favor of Academy.

2110861 — REVERSED AND REMANDED.

2110862 — REVERSED AND REMANDED.

DONALDSON, J., concurs.

THOMAS, J., concurs specially.

THOMPSON, P. J., concurs in the result, with writing.

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

THOMAS, Judge,

concurring specially.

Like Presiding Judge Thompson, I have concerns regarding the ability of an injured employee to obtain medical treatment while two employers litigate the issue whether the employee’s injury is a recurrence of or an aggravation of an earlier work-related injury. Thus, I agree with Presiding Judge Thompson, insofar as he expresses in his special writing in this case the need for a rule of law to govern an employee’s access to medical treatment in such situations.

THOMPSON, Presiding Judge,

concurring in the result.

I concur in the result insofar as the main opinion reverses the summary judgment in favor of Academy, Ltd. I also concur in the result insofar as the main opinion reverses the order compelling Office Max, Inc., to provide future medical benefits to Sandra Richey (“the employee”). See, e.g., Alpine Assoc. Indus. Servs., Inc. v. Smitherman, 897 So.2d 391 (Ala.Civ.App.2004) (reversal of a partial summary judgment where genuine issues of material fact existed as to whether the employee’s back pain following his work injury represented a recurrence of his previous injury, in which case the employee’s current employer was not responsible for providing medical benefits, or instead represented either a new injury or an aggravation of an old injury, in which case the employee’s current employer was responsible for providing medical benefits). I write separately to note that the case before us highlights the problem that arises when an employee has difficulty obtaining much-needed medical treatment while two employers litigate who is responsible for the payment of medical expenses for one or more compensable injuries. There needs to be a rule of law, preferably a statutory one, that enables an employee situated like the one in this case, where the injuries are compensable and there is a question only as to which employer is liable for the benefits, to obtain necessary medical treatment as expeditiously as possible while the two employers litigate who is ultimately responsible for payment of the medical benefits. In this instance, Office Max acknowledged that its core contention under the “last-injurious-exposure rule” is that “either it or Academy will ultimately be held responsible for further medical treatment.” Office Max, Inc. v. Academy, Ltd., 93 So.3d 955, 957 n. 2 (Ala.Civ.App.2012). Using the procedures under the ombudsman program as a guide, see Ala.Code 1975, § 25-5-292, I encourage our legislature to amend the Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”), and to grant a trial court, in cases involving disputes where two or more employers are potentially liable for benefits for one or more compensa-ble injuries, the authority to order each employer to pay a proportionate share of the employee’s medical expenses pending a final determination of liability or, especially in cases involving application of the “last-injurious-exposure rule,” to order the employee’s former employer to pay the medical expenses pending a final determination of liability. Then, on a final determination of liability, a nonliable employer would be entitled to reimbursement from the liable employer. I simply do not believe, consistent with the beneficent and benevolent purposes of the Act, that an employee’s claim for, and receipt of, necessary medical treatment should be sidelined while two employers stage a lengthy fight over who is responsible for payment.

      . Section 25-5-292 provides, in part:
      "(d) If there is a dispute as to which of two or more insurance carriers is liable for compensation for one or more compensable injuries, the ombudsman may issue an interlocutory order directing each insurance carrier to pay a proportionate share of benefits due pending a final decision on liability. The proportionate share shall be determined by dividing the compensation due by the number of insurance carriers involved.
      "(e) On final determination of liability, any insurance carrier that has been determined not to be liable for the payment of benefits is entitled to reimbursement from the share paid by the insurance carrier that has been determined to be liable.”


author: WELCH, Judge.

text:
    M.L.R. v. STATE of Alabama.
    CR-11-0423.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 2012.

      Vanessa Arnold Shoots, Mobile, for appellant.
    Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   WELCH, Judge.

M.L.R. appeals from the trial court’s order requiring him to pay restitution and court costs. M.L.R. argues that the trial court erred in ordering him to pay the court costs and restitution without first holding a hearing and determining whether he and his legal guardian have the ability to pay.

On May 20, 2011, a petition for delinquency was filed against M.L.R. in the Juvenile Court of Mobile County, Alabama, charging him with burglary, § 13A-7-7, Ala.Code 1975, and attempting to elude a law-enforcement officer, § 13A-10-52, Ala.Code 1975. M.L.R. admitted to the charge of attempting to elude an officer, but he denied the burglary charge. The trial court held an adjudication hearing on August 1, 2011. The State presented testimony that M.L.R. and two other juveniles entered a vacant house that was being remodeled and vandalized it; a neighbor contacted the police, and the three juveniles fled but were apprehended. M.L.R. admitted that he had been inside the house, that he had peeled some paint off a wall, that he had used a copper pipe to beat a hole in a wall, and that he had taken copper pipe from the residence. The juvenile court determined that the burglary charge was founded and adjudicated M.L.R. delinquent.

At the conclusion of the adjudication hearing the trial court stated: “Based on what I’ve heard of the evidence and his admissions, I do find him guilty of burglary. Just how much will probably have to be determined by further hearing as to the restitution but he is guilty of burglary.” (A.H. 84.)

A disposition hearing was held on August 8, 2011. The court committed M.L.R. to the Department of Youth Services, but suspended the commitment and placed M.L.R. on probation. At the disposition hearing, defense counsel argued that M.L.R.’s guardian, his grandmother, was indigent, and that their household income was from public assistance and was barely enough to pay rent and utilities. Counsel asked the court to waive court costs. The juvenile court stated: “Right now, no, I’m not going to waive any fees. But I will look when we find out what restitution is owed and if I see he is earnestly making an attempt to pay that then we can always revisit that.” (D.H. 10-11.) Defense counsel requested a restitution hearing. The court stated that it had found that “a lot of damage was done. Part of that was done while he was in there.... I know there was a lot of copper taken that probably was not taken by these young men, at least at the time when they were caught.” (D.H. 11.) The State argued: “Judge the estimate amount was way over the deductible amount. But the deductible amount was twenty-five hundred.” (D.H. 11.) The court stated that it would need to see the estimate, and the prosecutor said: “Judge, I can email it to you.” (D.H. 12.) The court then said: “All right, and I’ll let you and email that to [defense counsel], as well, before I have any hearing on this; okay. But he will be ordered to pay his full share of restitution.” (D.H. 13.)

No restitution hearing was held.

On September 30, 2011, the trial court entered a written order requiring M.L.R. to pay $2,500 in restitution to the victim jointly and severally with his two codefen-dants. (C. 40.) M.L.R. filed a motion to alter, amend, or vacate the judgments setting court costs and restitution. The motion was denied by operation of law.

I.

M.L.R. argues that the trial court erred when it ordered him and his guardian to pay court costs, because, he argues, the court failed to consider that they were indigent, and it failed to hold a hearing to determine whether they could afford to pay the court costs. M.L.R. acknowledges that the juvenile court has the authority to recover court costs from a juvenile’s parent or guardian. Rule 26, Ala. R. Juv. P., provides, in relevant part: “Court costs in juvenile cases shall be assessed and distributed as provided by law.” Section 12-15-109, Ala.Code 1975, provides, in relevant part, that “[i]f, after a hearing, the juvenile court finds that the parent or other person is financially able to pay all or part of the court costs, as provided by law, ... the juvenile court shall order them to pay the same and may prescribe the manner of payment.”

The record establishes that at the disposition hearing M.L.R. asked the court to discontinue the requirement that he wear an electronic monitoring device, and he told the court that the only income his grandmother, his guardian, received was from public assistance and that it was barely enough to pay rent and utilities. (D.H. 10.) The court placed M.L.R. under house arrest and relieved M.L.R. of the requirement that he wear an electronic monitor. M.L.R. then requested that the court waive court costs and “treat him as you would treat a child that is in the Department of Human Resource’s custody.” (D.H. 10.) M.L.R.’s counsel also stated: “If you’re wondering how [the grandmother] can afford my fee[,] I’m pro bono.” (D.H. 10.) The trial court responded:

“That’s very kind of you. He’s not going to luck out and have attorneys like you working for him in the future. That’s why he’s got to change. Right now, no, I’m not going to waive any fees. But I will look when we find out what restitution is owed and if I see he is earnestly making an attempt to pay that then we can always revisit that.”

(D.H. 10-ll.)(Emphasis added.)

After discussing the issue of restitution, the court repeated that it would assess court costs but that if M.L.R. made honest efforts to pay them, the court would take the matter into its consideration. (D.H. 13.)

M.L.R.’s counsel then argued that she had been told that the court waived payment of fees in proceedings for some children in State custody and that M.L.R. was “being funded as if he were a foster care child[,] [s]o it is the same State money.” (D.H. 13.) The juvenile court replied:

“I understand and if I see diligent payments, then I will consider that. I don’t want to have people, you know, living in poverty and making their situation worse. But at the same time, I need to make sure that I can get as much court cost and, certainly, all the restitution that is due.”

(D.H. 14.)

Thus, it is clear from the record that, at the disposition hearing, M.L.R. argued repeatedly to the juvenile court that his guardian’s only income derived from public assistance. The court acknowledged the family’s poverty, and it indicated that if M.L.R. made earnest efforts to pay the court costs, the court would reconsider the issue of the waiver of some of the court costs. The record does not reflect that the court failed to hold a hearing or to consider the matter of the guardian’s ability to pay, which it was required to do. Rather, the record reflects that, after the court heard M.L.R.’s arguments and considered the matter of the family’s poverty, the juvenile court did not grant M.L.R. all that he had requested at that time. The court repeatedly stated that it first wanted M.L.R. to demonstrate that he was going to attempt to pay the costs and that it would then reconsider the matter.

Furthermore, M.L.R. cites no authority holding that a juvenile court errs when it imposes court costs on a juvenile and a guardian whose income is derived from public assistance, and we are aware of no such authority. On the basis of the record before us, we find no error.

II.

M.L.R. also argues that the juvenile court erred when it assessed restitution against him, jointly and severally with his accomplices, in the amount of $2,500 without first holding a hearing and allowing him to be heard on the issue of restitution.

As noted in the initial portion of this opinion, the juvenile court stated at the disposition hearing that it would need to see the estimate of the cost of the damages to the victim’s house, and the prosecutor stated that she would send it to the judge by electronic mail. The court then said: “All right, and I’ll let you, and email that to [defense counsel], as well, before I have any hearing on this; okay. But he will be ordered to pay his full share of restitution.” (D.H. 13.)

Near the end of the disposition hearing the following also occurred:

“[M.L.R.’s counsel]: Okay, so we are setting a restitution hearing?
“THE COURT: Well, you can get her rendition of what’s owed before you decide you wanted — And I’m gonna say— And we all know this, generally [damage done] in the commission of a burglary is generally taxed to the people that are convicted of doing it. Now, if we’ve got a good reason or a good answer why none of the damage should be compensated by your defendant and you can convince me of that then I will certainly — Or that an excessive amount has been added to your client, then I will certainly take that into consideration and we will have a hearing. But, first, I think you would want to know what that is. But, I’m always here, and I will entertain it.”

(D.H. 14.)

The State acknowledges that “it is true that the trial court’s comments could be read, by any reasonable person, to indicate that it contemplated setting a restitution hearing....” (State’s brief, at p. 11.) The State argues, though, that a hearing was not necessary because the trial court actually considered the matter of restitution at the disposition hearing and a separate hearing was unnecessary. We disagree.

“Restitution in juvenile cases is governed by Rule 26.11(a), Ala. R.Crim. P. The amount must be based not only on the amount that compensates the victim, but also on the juvenile’s ability to reasonably meet that obligation, because the goal of restitution is primarily rehabilitation. It is an abuse of discretion for the juvenile court to fail to take into account the juvenile’s financial resources and obligations, the burden that payment will impose, the juvenile’s age, background, and all other relevant factors, as well as the rehabilitative effect of the restitution order. D.J.W. v. State, [705 So.2d 521 (Ala.Crim.App.1996)]; § 12-15-1.1, Ala.Code 1975; Rule 26.11(a), Ala. R.Crim. P.”

T.B. v. State, 819 So.2d 108, 111 (Ala.Crim.App.2001).

The record discloses, as the State has acknowledged, that a reasonable person could interpret the juvenile court’s comments to mean that it intended to hold a hearing on the amount of restitution owed by M.L.R. after the State provided to the court and to M.L.R. the amount of damages claimed by the victim. That the court intended to set the matter for a hearing was particularly likely in this case because the court itself acknowledged that “a lot of copper [was] taken that probably was not taken by these young men, at least at the time when they were caught” (D.H. 11), indicating that, at the time of the disposition hearing the amount of damage caused by M.L.R.’s actions was uncertain. We note, too, that the victim testified during the adjudication hearing that the house was vandalized a couple of weeks before the incident involving M.L.R., and someone took the air-conditioning unit, the compressor, and the copper pipes that had been attached to the air-conditioning unit. (A.H. 14.) The State has the burden of proving that a defendant’s criminal act was the proximate cause of a victim’s injury before a defendant can be held liable for damages. Ex parte Theodorou, 53 So.3d 151, 156 (Ala.2010). No documentary evidence was submitted to support the amount of damages for which M.L.R. was held responsible, and M.L.R. had no opportunity to introduce his own evidence at a restitution hearing or to contest whatever documents or other forms of estimates of damages the State might have provided to the court. As M.L.R. correctly argues, “Notice and the opportunity to be heard are the ‘hallmarks of due process.’ Anonymous v. Anonymous, 353 So.2d 515, 519 (Ala.1977).” (M.L.R.’s brief, at p. 14.) The juvenile court’s failure to hold a restitution hearing in this case resulted in reversible error.

We are mindful of a trial court’s discretion in determining the amount of restitution owed. E.g., Ex parte Stutts, 897 So.2d 431, 433 (Ala.2004), quoting Clare v. State, 456 So.2d 355, 356 (Ala.Crim.App.1983), aff'd, 456 So.2d 357 (Ala.1984). First, however, the juvenile court must follow the dictates of Rule 26.11, Ala. R.Crim. P., setting forth the criteria for determining restitution.

Therefore, we set aside the restitution order in this case and remand the case to the juvenile court for a restitution hearing for the purpose of determining, in accordance with Rule 26.11(a), a restitution award. Application of Rule 26.11(a) will require the court’s consideration of the financial resources available to M.L.R. and his guardian and of their ability to reasonably meet the obligation. The court shall thereafter enter a written order stating its findings and the underlying facts and circumstances, to facilitate this Court’s review of the restitution order. Due return of the written order and a transcript of the hearing shall be made to this Court within 56 days of the release of this opinion.

For the foregoing reasons, the judgment of the juvenile court is affirmed in part and reversed in part, and the case is remanded for further proceedings.

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

WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.

      . The transcripts of the adjudication hearing and the disposition hearing are separately paginated. References to the August 1, 2011, adjudication hearing will be designated "(A.H.),” and will include the relevant page or pages of the transcript. References to the disposition hearing held on August 8, 2011, will be designated "(D.H.),” and will include the relevant page or pages of the transcript.

       Note from the reporter of decisions: On January 31, 2013, on return to remand, the Court of Criminal Appeals dismissed the appeal as moot, without opinion.


author: JOINER, Judge.

text:
    Allen LITTLE v. STATE of Alabama.
    CR-11-0365.
    Court of Criminal Appeals of Alabama.
    Dec. 14, 2012.
    Thomas M. Goggans, Montgomery, for appellant.
    Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   JOINER, Judge.

Allen Little appeals his guilty-plea conviction for first-degree possession of marijuana, see § 13A-12-213, Ala.Code 1975. We affirm in part, reverse in part, and remand.

Little, along with 12 other individuals, was indicted as a result of federal-wiretap evidence obtained pursuant to a federal investigation of a group of individuals responsible for distributing large amounts of cocaine and marijuana in Montgomery County. Little, along with his codefen-dants, moved the trial court to suppress the wiretap evidence. In his motion, Little argued, in relevant part, as follows:

“Little is entitled to suppression of that evidence because Alabama law does not permit such [federal-wiretap evidence]; because the constitutional and federal statutory requirements to obtain authorization to intercept electronic and wire communications include a showing that such interceptions are ‘necessary’ and that normal investigative procedures have failed, will fail, or are too dangerous were not met in this ease[;] and because the government agents who managed to procure authorizations from a federal court reviewing their applications for interception of communications failed to provide that court with a ‘full and complete’ statement of the investigative steps already undertaken. These deficiencies, independently and combined, require suppression of the intercepted communications.”

(C. 27-36.) Following a hearing, the trial court denied Little’s motion to suppress. (C. 243.) Pursuant to a plea agreement, Little pleaded guilty to the offense charged in the indictment — first-degree possession of marijuana. In accordance with his plea agreement, Little was sentenced to 20 years’ imprisonment — which was suspended — and 5 years’ probation. (R. 70.) Little reserved for appellate review the denial of his motion to suppress. (R. 71.)

On appeal, Little continues to argue that “evidence obtained from a federal wiretap is not admissible in an Alabama state court” and that “if evidence from a wiretap is ever admissible in an Alabama state court, it is not in this case because a wiretap was not shown to be necessary.” (Little’s brief, pp. 3 and 7.) While Little’s appeal was pending, however, this Court addressed and rejected nearly identical arguments raised by one of Little’s codefen-dants. See Cabble v. State, 114 So.3d 855 (Ala.Crim.App.2012). In Cabbie, this Court held that wiretap evidence is admissible in Aabama and, also, that the affidavits and orders with respect to the wiretaps — the same affidavits, orders, and wiretap evidence in question in this case— were sufficient. Cabble, 114 So.3d at 855. Accordingly, Little’s arguments are without merit, and his conviction is due to be affirmed.

Athough neither party addresses it, however, Little’s sentence is illegal. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003) (“Matters concerning unauthorized sentences are jurisdictional; therefore, we may take notice of an illegal sentence at any time.” (Quotations and citations omitted.)). Little was sentenced in accordance with his plea agreement to 20 years’ imprisonment, which was suspended in its entirety. (R. 70.) The trial court, however, was without jurisdiction to impose such a sentence. See § 15-22-50, Ala.Code 1975 (“The court shall have no power to suspend the execution of sentence imposed upon any person who has been found guilty and whose punishment is fixed at death or imprisonment in the penitentiary for more than 15 years.” (Emphasis added.)). Accordingly, this matter is remanded to the trial court for resentencing. The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days after the release of this opinion.

For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part and the case remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS

WINDOM, P.J., and WELCH, KELLUM, and BURKE, JJ., concur.

      . Although it is not reflected on the sentencing order, Little was sentenced as an habitual felony offender with three prior felony convictions. (C. 253; R. 69.)

      . We recognize that a defendant who is not sentenced in accordance with his plea agreement may be entitled to withdraw his guilty plea. Andrews v. State, 12 So.3d 728 (Ala.Crim.App.2009). Such a motion may be made pursuant to Rule 14, Ala. R.Crim. P., or may be raised for the first time in a timely filed petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. See generally Cantu v. State, 660 So.2d 1026, 1029 (Ala.1994) ("We hold that even though a defendant could file a motion under the provisions of Rule 14 to withdraw a plea of guilty and could appeal a trial court’s ruling on that motion, the defendant would not be precluded from raising, in a timely filed post-conviction proceeding, the question of the voluntariness of the guilty plea.").

       Note from the reporter of decisions: On May 24, 2013, on return to remand, the Court of Criminal Appeals affirmed, without opinion.