author: FAIR, J.,

text:
    Perry L. COLLINS, Appellant v. Iretha F. COLLINS, Appellee.
    No. 2010-CA-01909-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2012.
    Rehearing Denied Dec. 11, 2012.

      Arnold Datron Lee, attorney for appellant.
    Philip Mansour Jr., Greenville, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Iretha and Perry Collins agreed to an irreconcilable differences (ID) divorce and custody and visitation arrangements for their teenaged daughter. They submitted four issues to the chancellor: (1) division of marital assets and debts, (2) alimony, (3) child support, and (4) attorneys fees.

¶ 2. Perry and Iretha presented twenty-eight documents and both testified. From a judgment on the submitted issues entered on October 18, 2010, Perry now appeals. Finding error, but error that is harmless, we affirm the chancellor’s judgment.

FACTS

¶ 3. Perry is fifty-two years old and Ire-tha is forty-three. They married in June 1991 in Washington County. Each had been married previously. Iretha brought a son, now an adult, into the marriage. Perry brought a house he built on Abide Cove in 1988 and another home in Lake Providence, Louisiana. Their only child, Jermylia, was born on April 14,1993.

¶4. In 2005 they separated, filed for divorce, and then reconciled. They separated again, this time permanently, in March 2006, having established three businesses during the fifteen years they spent together: (1) Collins Realty, which manages eight rentals; (2) Collins Heating and Air, Inc., which Perry runs; and (3) Collins Enterprise, which is operated by Ire-tha and runs Abundance of Life child care centers. The proceeds from their first marital home were rolled into the present marital home, and the proceeds of the Louisiana house, about $30,000, went into a joint account and was spent during the marriage. For extra income they “flipped houses — bought homes, fixed them, and sold them for profit” in addition to their salaried employment, rental real estate, and the two service businesses. Iretha performed most of the child care and home-making duties. In addition to their daughter and her son, Perry’s niece lived in their home for about four years.

¶ 5. Iretha has a business degree from Delta State University. Perry has a high school diploma and an associate’s degree in heating and air conditioning.

¶ 6. Before their marriage, Iretha was an assistant teacher in the Greenville school system and held a part-time job in the mall. In 1992, she began a three-year stint as secretary to the city clerk, followed by a year as a homemaker. Then, in 1997 she opened a daycare center and operated it from a house she and Perry bought together. In 2009, after they separated, she opened a second daycare center.

¶7. Perry worked for Tennessee Gas Pipeline for nineteen years. He was laid off in 1995. In 1998, he opened Collins Heating and Air Conditioning. Since 1999 he and Iretha have been the daily managers of their two businesses, sharing in real estate ventures and assisting in the business of the other when needed. Because of her education and experience, Iretha handled the paperwork for both businesses.

¶ 8. The home Perry built prior to their marriage was sold, and the proceeds were used as a down payment on the $350,000 purchase price of a new home.

¶ 9. After the couple separated in 2006, Perry remained in the marital home, and Iretha and Jermylia moved into an apartment.

¶ 10. Iretha filed for divorce, and four years of litigation ensued. Perry changed attorneys four times. Discovery commenced and recommenced. Settlement discussions took place. One settlement discussion resulted in an oral agreement regarding valuation of the two business properties. Perry later withdrew his agreement.

¶ 11. Ultimately, a trial took place, and a final judgment followed on October 18, 2010. Perry now appeals claiming:

1. The chancellor erred in her calculation of Perry’s income to determine child support.
2. The chancellor erred in the manner in which she distributed marital assets.

STANDARD OF REVIEW

¶ 12. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor’s factual findings, on the other hand, will not be disturbed unless she was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor’s findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings, we generally proceed on the assumption that she resolved all such fact issues in favor of the appellee. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990)).

DISCUSSION

1. Chancery Court Judgment

¶ 13. The chancellor’s opinion consists of eighteen pages of thorough, detailed findings of fact and conclusions of law. With some elaboration, the above facts were set out. The opinion recited agreed and stipulated provisions for divorce on ID grounds; custody of Jermylia to Iretha; visitation by Perry (noting that for the prior three years Perry had not visited with her); and shared and equal responsibility for Jermylia’s health insurance and medical care. The chancellor found these provisions were “fair and reasonable and in the best interest of the minor child.”

¶ 14. The chancellor, citing Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), determined that all property owned by the parties was marital because it was “acquired, accumulated, or used for the benefit of the entire family during the marriage.” She further found that “the contributions and efforts of the spouses are considered to be of equal value.” Both determinations complied with requirements established in Hemsley.

¶ 15. The chancellor then turned to the nature and valuation of marital property, again referring to Hemsley and specifying the major items: (1) the marital tangible personalty having a value of $54,519.93; (2) the marital realty valued at $463,363; and (3) the marital intangible personalty valued at $24,518.92.

¶ 16. The court recited that during the four years of their separation, the parties had “satisfactorily divided their personal property.” The chancellor set out in the judgment the items in each party’s possession and valuations thereof. The chancellor noted that two horses, worth $250 each, as well as ten goats, ten sheep, and two donkeys (all unvalued) were acquired by Perry after the separation.

¶ 17. After setting out the marital property, the chancellor discussed and made specific findings under each of the eight factors required to be considered in determining the equitable division of marital property. See Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Thereafter, she adopted the “satisfactory division” presented by the parties themselves, allocating property worth $19,019.93 to Iretha and property worth $36,000 to Perry. The judgment included verbiage referring to the parties’ 2006 van as “in Iretha’s hands,” rather than Perry’s, which we attribute to a harmless scrivener’s error.

1118. Iretha was then awarded the daycare property worth $75,000 and duplexes worth $114,900 for a total of $189,900. Perry received the marital home and the heating and air conditioning property worth respectively $198,463 and $75,000, for a total of $273,463.

¶ 19. The chancellor found equal contribution toward acquisition of the marital property and a resulting right to an approximately equal division of that property. To equal their shares in the real estate, a lump sum payment of $41,781.50 was awarded from Perry to Iretha. Finding the two business properties to have equal value, the chancellor adjudicated:

[T]he wife is entitled to $99,231.50, which is one-half of the equity in the marital home, and the husband is entitled to $57,450.00, which is one-half of the equity in the duplex property. Thus, subtracting $57,450 from the $99,231.50 which is due to the wife, the husband should pay to the wife $41,781.50 as her share of the equity in the marital home and the court awards her the same.

¶20. The chancellor applied the same approach to division of the intangible personalty of the marriage. She found that Iretha owed Perry half of her $9,000 annuity (which had been disposed of by Iretha but is still subject to consideration as a marital asset under Ferguson). The chancellor also required Perry to pay Ire-tha half of his annuity worth $18,741. This resulted in Perry owing Iretha $4,870.

¶ 21. In the same manner, the life insurance cash value and the checking account balance were equally divided.

¶ 22. After detailing the reasoning behind her classification and disposition of each asset, the chancellor set out a tabular summary of her holdings. It reflects ultimate net marital property of $213,110.89 for Iretha and $223,127.96 for Perry.

¶ 23. Turning to alimony, the chancellor found that no deficit had been established after the equitable division of the marital property and that the parties were able to support themselves. She found that an award of alimony was not justified.

¶ 24. Child support was then addressed. The chancellor observed that Perry “pays himself about $1,059.52” every two weeks and Iretha “pays herself approximately $18,900.00 per year.” The chancellor recognized that both received passive and business income in addition to their paychecks. The trial court found it difficult to establish Perry’s income, since he testified that his Uniform Chancery Court Rule 8.05 form was incorrect. Although Perry testified to a $30,000 annual income, bank records showed gross deposits into his business account of $188,919.51 in 2009, and further testimony showed rental income of $35,719.51. Perry introduced no evidence of expenses for either business, though he disputed the figures submitted by Iretha. While Iretha introduced tax returns reflecting her income and that of her business, as required by Rule 8.05, Perry produced none. The chancellor found his testimony of $300,000 per year in annual expenses “simply not credible.” She determined Perry’s annual net income to be half of the air conditioning deposits, $94,459.75, and $15,756.72 in net rents, for a total of $110,216.47.

¶ 25. The statutory guideline of 14% of adjusted gross income for one child was applied, establishing $1,285.84 per month as child support. See Miss.Code Ann. § 43-19-101 (Rev,2009). After discussion of the statutory factors allowing for deviation from statutory guidelines, the trial court set child support at $1,300 per month. See Miss.Code Ann. § 43-19-103 (Rev.2009). Facts noted in the opinion as favoring the award were: (1) Jermylia is seventeen and preparing to go to college; (2) she has attended a private school since the fourth grade; (3) she has lived an affluent lifestyle in a $350,000 house since she was six and now lives in an apartment; (4) her father has not visited with her nor contributed to her educational expenses since she was fourteen; and (5) Perry’s personal assets are substantially greater than Iretha’s. Perry was also ordered to pay half of Jermylia’s necessary and reasonable college expenses.

¶ 26. Finding both parties able to pay their own fees and noting that no evidence regarding fees was submitted in accord with McKee v. McKee, 418 So.2d 764 (Miss.1982), attorneys’ fees and expenses were denied to both parties.

2. Calculation of Perry’s Income

¶ 27. Perry argues that the chancellor’s calculation of his adjusted gross income “is deeply flawed and manifestly wrong.”

a. Air Conditioning Business Income

¶ 28. Perry admits testifying that his Rule 8.05 financial statement was “incorrect” but argues he was referring to some of his expenses, not his income. He testified consistently to receiving $30,000 in annual gross income from his air conditioning business. The bank statements used by the chancellor to calculate Perry’s income show checks payable to Perry directly from the business in the total annual amount of $20,939.35 (net after state and federal taxes). Perry argues that he should, therefore, pay $244.29 monthly toward his daughter’s support. He chides the chancellor for simply dividing the gross business deposits in half and attributing half to expenses and the other half to income, stating the court “simply guessed” at expenses. He asserts the court should have considered all the checks out of the account as expenses, which would have reflected a net business income of $4,010 “a giant step from $94,459.75.” But we must note that after four years, four attorneys, and numerous discovery filings, Perry came to trial with an admittedly incorrect Rule 8.05 disclosure form and none of the documents required to accompany it. Not only did he fail to attach any current income tax returns to his Rule 8.05 form, Perry admitted he had not filed returns for at least two years immediately preceding trial. We find the determination of income by the chancellor is supported by adequate evidence of record and was within the discretionary power of the chancellor.

b. Rental Income

¶ 29. Perry notes that Iretha was awarded the rental property from the marriage, and he asserts that rental income should not have been used to set child support. Both he and Iretha testified to a gross rental income of approximately $36,000. Iretha reported her annual net income from the units as $15,756.72. Perry disputes this amount but provided no documentation to support his claim.

¶ 30. Perry argues the chancellor erred when she calculated his monthly income as the total net income he receives from his air conditioning business and the rental units, or $9,184.70 per month. The chancellor had applied the statutory percentage of 14% to that figure in establishing $1,285.85 per month in child support. Perry submits that since the trial court awarded the rental units to Iretha, she will be receiving $15,756.72 annually, and it should not have been considered his income in setting child support going forward. We agree, though as discussed below, the error was harmless. Removing rental income from Perry’s income calculation would reduce his statutory support by $183.83 to $1102.02 per month.

c. Establishment of Final Support Amount

¶ 31. The chancellor applied statutory guidelines to all of Perry’s income and also rounded the result up to $1,300 per month. The 14% guideline is mandatory for income up to $50,000. If the guideline percentage is applied to income over $50,000, as in this case, the chancellor is required by Mississippi Code Annotated § 43-19-101(4) to make written findings regarding the reasonableness of the percentage’s application to income over the threshold, which the chancellor did. See Miss.Code Ann. § 43-19-103 (Rev.2009). The chancellor increased the monthly amount to $1,300 based on criteria set out in section 43-19-103. Though the chancellor erred in including rentals in Perry’s income, the error is harmless. The chancellor had found that a deviation of $14.14 per month was warranted. An similar deviation of $198.98 to reach the awarded $1300 is, likewise, allowed by the evidence and in accord with controlling statutes and case law.

3. Property Division

f 32. Perry’s chief complaint over the division of marital property is the chancellor’s valuation of the two business properties: the building used by Perry for his air conditioning business, and the building used by Iretha for child care. At the beginning of the trial, counsel for Ire-tha announced that there were no appraisals of the two business buildings because the parties had decided to treat them as equal in value, attributing a $75,000 value to each. That agreement was never reduced to writing and has been disavowed by Perry. He testified under cross-examination that the value of his business property was $35,000.

¶ 33. Iretha listed both properties on her Rule 8.05 disclosure, attributing a $75,000 value to each. Perry’s Exhibit 10 reflects the tax assessor’s valuation of the child-care facility to be $51,120, and Perry’s Exhibit 17 shows the air-conditioning realty is worth $37,790. These were the only independent valuations submitted by either party. The difference between them is $13,330, which could be divided in the same manner the chancellor divided all other similar assets with uneven valuations. Iretha’s ultimate distribution would still be slightly smaller in valuation than Perry’s.

Rule 8.05 Disclosure Forms

¶ 34. This case highlights the role of the income and asset disclosures required by Rule 8.05 of the Uniform Chancery Court Rules. Rule 8.05 mandates prescribed forms for such disclosure and also requires:

(B) Copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed.
(C) A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable.

¶ 35. Compliance with the rule is mandatory, for obvious reasons. If both parties put down identical values for marital property and properly disclose their income and expenses, supported by the required federal and state tax returns and earnings history, a court can adjudicate property and money issues expeditiously and in accord with the law. Noting the importance of Rule 8.05 disclosures, in Trim v. Trim, 33 So.3d 471 (Miss.2010), the supreme court has ruled that filing a substantially false Rule 8.05 financial disclosure statement constitutes fraud on the court.

¶ 36. Though there may be contrary misinterpretation of some decisions, which properly apply only when conflicts between forms conflict, Rule 8.05 disclosures should not be evidence of last resort. Rather, they should be the gold standard, requiring other evidence only when there are legitimate disputes as to valuation.

CONCLUSION

¶ 37. In dealing with the marital property in this case, the chancellor was not guilty of an abuse of discretion. She recited controlling precedent and followed it in her opinion. She properly relied on Rule 8.05 disclosure forms and other documentary evidence. She heard the witnesses and evaluated their credibility. She made factual findings that were supported by evidence of record and which were set out in her written opinion. “Reversal is not warranted because the overall division was fair.” Kimbrough v. Kimbrough, 76 So.3d 715, 721 (¶ 29) (Miss.Ct.App.2011).

¶ 38. THE JUDGMENT OF THE WASHINGTON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . "Chancellors may rely on these statements to value property when the parties fail to offer any other evidence as to value.” Kimbrough v. Kimbrough, 76 So.3d 715, 721 (1128) (Miss.App.2011) (quoting Studdard v. Studdard, 894 So.2d 615, 618-19 (Miss.Ct.App.2004)). "To the extent that further evidence would have aided the chancellor in [his] decision, the fault lies with the parties and not the chancellor.” Messer v. Messer, 850 So.2d 161, 170 (¶ 43) (Miss.Ct.App.2003).


source: Caselaw Access Project

license: Public Domain

text:
    Fredrick FORD, Appellant v. MAGNOLIA FRANCHISE HOLDINGS, LLC and Maryland Casualty Company, Appellees.
    No. 2012-WC-00096-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.

      C. Kent Haney, Drew, attorney for appellant.
    William Bienville Skipper, attorney for appellees.
    Before GRIFFIS, P.J., BARNES, FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Fredrick Ford appeals the decision of the Mississippi Workers’ Compensation Commission that, though he suffered a permanent disability, he still had the capacity to earn minimum wage. Ford also asks this Court for a declaration that the Commission retains jurisdiction to address a pending motion while the case is on appeal. We affirm the decision of the Commission and decline to act on the pending motion.

FACTS

¶ 2. Ford, who had a history of back problems, was injured in July 2007 while moving washing machines on the job at Aaron’s Furniture Rental in Clarksdale. He began a course of treatment with his family physician, Dr. Warrington, on the day of his injury, thereafter seeing Dr. Willis, an emergency room internist; Dr. Barr, an orthopedic surgeon; and Dr. San-difer, a general surgeon. Ultimately, Dr. Thomas Windham, a neurosurgeon, began treating Ford in September 2007. Dr. Windham diagnosed Ford with an acute lumbar disc rupture. Released by Dr. Windham for light work at the time of his initial examination, Ford returned to Aaron’s and was told it had no work for him. Ford continued to complain of pain, so on March 28, 2008, Dr. Windham performed a lumbar laminectomy and removal of a herniated disc.

¶ 3. Ford’s pain continued after the surgery, and he was referred by Dr. Wind-ham to MidSouth Pain Treatment on December 3, 2008, where he began a course of treatment by Dr. Steven Richey. Dr. Richey agreed with the results of a functional capacity exam (FCE) conducted by Ford’s physical therapists: Ford was “able to work at the light physical demand level,” but he was not to lift more than 20 pounds and should refrain from lifting from the floor or above his chest. Ford could “walk and stand only on an occasional basis.” Dr. Windham, however, never changed his opinion that Ford could work without restrictions.

¶ 4. The Administrative Judge (AJ) held a hearing on January 14, 2010, where Ford testified. The AJ also received medical records from Ford’s' various attending physicians. A decision was rendered on June 20, 2011, that Ford had suffered permanent partial disability but still retained earning capacity at minimum wage level. The judge calculated a difference of $95.72 per week from Ford’s average weekly wage prior to the injury and minimum wage, ordering payment of that sum for 450 weeks as permanent partial disability benefits. The AJ’s decision was adopted by the Commission on December 15, 2011.

¶ 5. On January 13, 2012, Ford filed a motion to compel medical treatment and reinstate temporary total disability benefits, contending that the employer/carrier had refused to pay for a crucial pain management procedure and that, untreated, Ford was now totally disabled. On January 20, 2012, Ford filed this appeal from the Commission’s order granting permanent-partial disability payments.

DISCUSSION

1. Finding of Permanent Partial Disability

¶ 6. In his first issue, Ford contends that the Commission erroneously failed to give him the benefit of the rule announced in Jordan v. Hercules, 600 So.2d 179, 183 (Miss.1992), that:

When the claimant, having reached maximum medical recovery, reports back to his employer for work, and the employer refuses to reinstate or rehire him, then it is prima facie that the claimant- has met his burden of showing total disability. The burden then shifts to the employer to prove a partial disability or that the employee has suffered ho loss of wage earning capacity.

According to Ford-, after refusing him reemployment Magnolia bore the burden to show that he was not totally disabled, and its failure to introduce any evidence precludes a finding of anything less than total disability.

¶ 7. This argument is without merit. We agree that Ford established a prima facie case of total disability. However, the Commission, as the finder of fact, was entitled to rely on all of the evidence in the record, not just the evidence introduced by one side. “[T]he Commission is the ultimate finder of fact and has the discretion to weigh all the evidence presented.” F & F Constr. v. Holloway, 981 So.2d 329, 332 (¶ 14) (Miss.Ct.App.2008) (emphasis added, citation omitted). As is the case with any trier of fact, the Commission not only judges credibility and weighs evidence, it is also entrusted to interpret evidence that is “capable of more than one reasonable interpretation.” See Trim v. Trim, 33 So.3d 471, 479 (¶ 20) (Miss.2010).

¶ 8. Thus the real question presented by this appeal is whether, recognizing that Ford made a prima facie case of total disability, there is sufficient' evidence in the record to rebut that presumption. See Moore's Feed Store, Inc. v. Hurd, 100 So.3d 1011, 1017 (¶ 20) (Miss.Ct.App.2012). Our review is very deferential: “We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citation omitted).

¶ 9. The evidence before the Commission showed that at the time of its decision, Ford was in his early forties. He had completed high school and attended community college for a year and a half, majoring in criminal justice. The majority of his working career, however, consisted of jobs requiring some manual labor. Ford had previously been employed as a route man for a soft drink company and driven a dump truck for the City of Clarksdale.

¶ 10. Dr. Windham, the neurosurgeon who performed Ford’s back surgery, cleared him to return to work without limitations, albeit with a whole-body disability rating of ten percent. Ford’s continuing complaints of pain and numbness in his left leg and lower back led to a referral to Mid-South Pain Management, where attending physicians concurred with the restrictions on lifting and standing outlined by the FCE detailed above. In his testimony, Ford described pain that caused difficulty with driving and ordinary day-to-day activities.

¶ 11. Ford also testified that he had been seeking employment, but most potential employers had indicated they did not have positions available or work he could do. Ford admitted he had completed only three job applications since being cleared to return to work in January 2008, and one of those businesses did not have a record of his application. Ultimately, Ford never returned to work after his injury.

¶ 12. The Commission, as the finder of fact, was entitled to credit Dr. Windham’s opinion over the FCE results and the opinion of Dr. Richey, the pain specialist. Moreover, Ford’s education suggests he is capable of doing work other than manual labor, and his job search could have been seen by the Commission as rather perfunctory. Viewing the record as a whole, we find that substantial evidence supports the Commission’s finding of partial disability. Our deferential standard of review requires this Court to affirm the Commission’s judgment.

2. Ford’s Post-Trial Motion

¶ 13. In his remaining two issues, Ford asks this Court for a ruling that the Commission should enter an order on a post-trial motion he filed prior to taking this appeal. The motion, styled “Motion to Compel Medical Treatment and Reinstate Total Disability Payments,” appears to contain severable elements of a motion to compel and a motion to review the Commission’s award under Mississippi Code Annotated section 71-3-53 (Rev.2011).

¶ 14. The question of the motion’s disposition is not properly before this Court, as the Commission took no action on the motion in the record-probably because it was filed only about ten days before the appeal was taken. It is an appellant’s duty to secure a ruling on a motion before the failure to grant it can be contested on appeal. See Barnett v. Barnett, 908 So.2d 833, 846 (¶ 33) (Miss.Ct.App.2005). Ford asserts in his brief that the Commission, to this day, has refused to entertain the motion because of the pending appeal. Even if that were true (and it is a fact we cannot know because it is outside of the record), this appeal is still not the proper venue to compel a decision on a pending motion. No relief can be granted on these issues.

¶ 15. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. MAXWELL, J., NOT PARTICIPATING.

      . The store was owned and operated by Magnolia Franchise Holdings LLC. Maryland Casualty Company is its insurer.

      . The appeal was dated January 11, 2012, the same date as the motion to compel. A panel of the Mississippi Supreme Court denied Magnolia’s motion to dismiss the appeal as untimely.

      . The AJ found Ford’s testimony that he did apply there credible, however.


author: WOODALL, Justice.

text:
    James Stanley WILBANKS v. UNITED REFRACTORIES, INC.
    1111164.
    Supreme Court of Alabama.
    Nov. 16, 2012.

      Ralph Bohanan, Jr., of Bohanan & Associates, P.C., Birmingham, for appellant.
    Bradley J. Smith and Cynthia N. Williams of Clark, Hair & Smith, PC, Birmingham, for appellee.
   WOODALL, Justice.

James Stanley Wilbanks appeals from a summary judgment for United Refractories, Inc. (“United”), a company supplying equipment used in the repair of coke-oven batteries, in Wilbanks’s action against United seeking damages for personal injuries he sustained from an explosion involving a ceramic welding machine (“the welder”) supplied to Wilbanks’s employer by United. We affirm.

I. Factual and Procedural Background

The relevant evidence viewed, as it must be, in a light most favorable to Wilbanks, shows the following. Wilbanks was injured on February 8, 2008, while working as an employee of Drummond Company, Inc. (“Drummond”), at Drummond’s coke plant in Tarrant. The welder he was working with when he was injured was manufactured and owned by Coal Products Limited (“CPL”). Drummond had possession of the welder by means of a license between CPL and United, through which United supplies such welders to Drum-mond and similar companies. Under the license, United agreed, among other things, to “maintain the [welders] in good working order.”

At the time of the accident made the basis of this action, a coworker of Wil-banks’s was using the welder to repair a coke oven. The welder incorporates a stainless-steel lance approximately 11 feet long. At one end of the lance is a nozzle, which the operator brings into close contact with the surface to be repaired. The other end of the lance is attached to a “mixing chamber,” which mixes and introduces into the lance (1) oxygen and (2) “ceramic powder” pushed by compressed air. Oxygen is fed into the mixing chamber through an oxygen valve (“the valve”), which is attached to a hose, which, in turn, is attached to a large oxygen tank. The powder is introduced into the mixing chamber by compressed air through a powder hose, which is attached at its other end to a machine that serves as the powder-supply source. Ignition occurs at the repair point when the mixture of powder and oxygen exit the nozzle.

On the day of the accident, Wilbanks was a member of a three-person welding team engaged in the process of repairing a coke oven. One of the team members, who was standing on a scaffold as he held the lance, handed the lance to Wilbanks, who was at ground level, with the remark that there was insufficient powder coming through the lance. As he had been trained to do, Wilbanks then undertook to examine the lance and attached paraphernalia to determine the source of the apparent blockage.

Having first observed that the valve was turned in the “off’ position, Wilbanks cooled down the lance by spraying it with water. He then removed the lance from the mixing chamber and examined the lance and determined that it was clear of obstruction. However, as he attempted to remove the powder hose from the mixing chamber, an explosion occurred, causing the loss of his left hand and burns to other portions of his body.

On February 5, 2010, Wilbanks sued United. The complaint alleged that Wil-banks was injured as the result of the “failure]” of “the subject equipment” and that United had “negligently and/or wantonly fail[ed] to properly inspect and maintain the subject equipment and its component parts.” United moved for a summary judgment, contending, among other things, that there was no genuine issue as to causation and that Wilbanks had failed to create such an issue by presenting substantial evidence of any causal relationship between his injuries and the alleged negligence or wantonness of United. The trial court granted the motion, citing the absence of evidence of causation, and Wil-banks appealed. The dispositive issue on appeal is whether Wilbanks presented evidence of causation sufficient to withstand United’s summary-judgment motion.

II. Discussion

“‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Perry v. City of Birmingham, 906 So.2d 174, 175 (Ala. 2005) (quoting Ala. R. Civ. P. 56(c)(3), and citing Dobbs v. Slielby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999)). ‘The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party.... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court.’ Perry, 906 So.2d at 175.”

Clay Kilgore Constr., Inc. v. Buchalter/Grant, L.L.C., 949 So.2d 893, 896 (Ala.2006).

“The question of proximate causation is ordinarily one for the jury, if reasonable inferences from the evidence support the plaintiffs theory.” Gamer v. Covington Cnty., 624 So.2d 1346, 1349 (Ala.1993). However, the question “may be decided by a summary judgment if ‘ “there is a total lack of evidence from which the fact-finder may reasonably infer a direct causal relation between the culpable conduct and the resulting injury.” ’ ” Gooden v. City of Talladega, 966 So.2d 232, 240 (Ala.2007) (quoting Green v. Alabama Power Co., 597 So.2d 1325, 1328 (Ala.1992), quoting in turn Davison v. Mobile Infirmary, 456 So.2d 14, 24 (Ala.1984)).

“ ‘When the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue.’ ” Pittman v. United Toll Sys., LLC, 882 So.2d 842, 844 (Ala.2003) (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)). “ ‘ “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.” ’ ” Long v. Wade, 980 So.2d 378, 383 (Ala.2007) (quoting Kmart Corp. v. Bassett, 769 So.2d 282, 284 (Ala.2000), quoting in turn West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). However, “ ‘ “[ejvidence supporting nothing more than speculation, conjecture, or a guess does not rise to the level of substantial evidence.” ’ ” State Farm Fire & Cas. Co. v. Shady Grove Baptist Church, 838 So.2d 1039, 1041 (Ala.2002) (quoting McGinnis v. Jim Walter Homes, Inc., 800 So.2d 140, 145 (Ala.2001), quoting in turn Brushwitz v. Ezell, 757 So.2d 423, 432 (Ala.2000)).

Wilbanks’s theory of the cause of the accident centers on the valve. He posits that the explosion occurred as a result of an oxygen leak at the valve, which allowed oxygen to seep into the mixing chamber as he was attempting to remove the powder hose from the chamber. More specifically, he proposes that static electricity combined with leaking oxygen to create the explosion. According to Wilbanks’s theory, the valve was leaking, either (1) because the valve had become excessively worn through use, or (2) because some “debris” had entered the valve through the oxygen supply, preventing complete closure of the valve. Although he attributes both of these conditions to United’s alleged “failure to properly inspect and maintain” the valve, Wilbanks testified by deposition that he “couldn’t even begin to speculate what caused [the accident].”

In that connection, Wilbanks presented deposition testimony from one of United’s representatives, who opined that, under the license pursuant to which United supplied the welder to Drummond, United had a duty to examine the welder and its component parts at Drummond’s coke plant, at a minimum, at less than annual intervals and perhaps even quarterly under certain conditions. Wilbanks also produced some evidence indicating that United had never visited the coke plant to examine the welder.

However, Wilbanks testified that the valve was routinely changed and replaced with a new oxygen valve by Drummond personnel and could have been replaced as often as weekly. Moreover, the replacements occurred, he testified, not because of malfunctions, such as those that allegedly caused this accident, but because of loose or missing handles. There was no evidence as to how long the subject valve had been in place at the time of the accident. Also, there was no evidence as to how long a valve would typically last before becoming excessively worn as alleged or before becoming clogged with debris. Thus, there was no evidence indicating that an inspection of the valve by United within the three months preceding the accident would have prevented the explosion. The evidence presented by Wilbanks raised, therefore, “nothing more than speculation, conjecture, or a guess” and fell short of “the level of substantial evidence” needed to overcome a properly supported summary-judgment motion. State Farm Fire & Cas. Co., 838 So.2d at 1041.

III. Conclusion

In summary, because Wilbanks failed to produce evidence of any causal relationship between his injuries and any alleged acts or omissions of United, United’s summary-judgment motion was due to be granted. The judgment entered for United is, therefore, affirmed.

AFFIRMED.

MALONE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.


author: PITTMAN, Judge.

text:
    SELECT SPECIALTY HOSPITALS, INC., d/b/a Select Specialty. LTCH-Birmingham v. ALABAMA STATE HEALTH PLANNING AND DEVELOPMENT AGENCY and Noland Health Services, Inc.
    2110152.
    Court of Civil Appeals of Alabama.
    Sept. 21, 2012.
    As Modified on Denial of Rehearing Nov. 30, 2012.

      David M. Hunt and Joseph W. Carlisle of Gilpin Givham, P.C., Birmingham, for appellant.
    Mark D. Wilkerson and Dana H. Bill-ingsley of Wilkerson & Bryan, P.C., Montgomery, for appellee Alabama State Health Planning and Development Agency.
    Roy J. Crawford and Brian G. Wilson of Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, Birmingham, for appellee Noland Health Services, Inc.
   PITTMAN, Judge.

Select Specialty Hospitals, Inc., doing business as Select Specialty LTCH-Bir-mingham (“Select”), appeals from a judgment of the Montgomery Circuit Court affirming a decision of the State Health Planning and Development Agency (“SHPDA”) to issue a modification of a certificate of need (“CON”) to Noland Health Services, Inc. (“Noland”). We reverse the circuit court’s judgment and remand the cause with instructions.

Factual and Procedural Background

In 2002, SHPDA issued a CON authorizing Noland to convert 55 acute-care hospital beds in Lloyd Noland Hospital to long-term acute-care hospital (“LTACH”) beds, with the converted beds to become a “hospital-within-a-hospital” located on the premises of Lloyd Noland Hospital in Jefferson County. In 2009, Noland (which, as explained herein, had not yet undertaken the LTACH-bed conversion authorized by the CON) sought a modification of the CON to locate the converted LTACH beds at a hospital in Shelby County. Select intervened in the proceeding, opposed the proposed modification, and requested a fair hearing. The fair-hearing officer recommended that SHPDA grant Noland’s request for a modification of the CON. SHPDA issued the modification, and Select sought judicial review in the circuit court. The circuit court upheld SHPDA’s decision, after which Select filed a timely appeal in this court.

The circuit court’s judgment recited the facts and protracted procedural history of this case as follows:

“Noland was incorporated in 1951 for the charitable purpose of maintaining and operating a hospital or hospitals, nursing homes, medical clinics and other facilities in connection with furnishing medical services. For the next 45 years, Noland owned and operated Lloyd No-land Hospital, a 319-bed acute care hospital located in Fairfield, Alabama.
“In ... 1995, Noland filed a CON application with SHPDA requesting the reclassification of 100 acute care hospital beds located at Lloyd Noland Hospital [in Jefferson County] to 100 LTACH beds.... SHPDA’s CON Review Board denied Noland’s application on the basis that the then applicable State Health Plan did not provide for long term acute care hospital services in Alabama.
“As a denied applicant, Noland requested a fair hearing and the fair hearing officer ruled that the CON Review Board acted in an arbitrary and capricious manner in denying Noland’s application, reversed the decision of the CON Review Board, and remanded the matter to the Board for further proceedings consistent with his order.
“On July 15,1995, while the initial fair hearing was pending, Noland entered into a Stock Purchase Agreement (‘the SPA’) with Tenet Healthsystem Medical, Inc., a subsidiary of Tenet Healthcare Corporation (collectively, ‘Tenet’) pursuant to which Noland agreed to sell Lloyd Noland Hospital to Tenet....
“On September 10, 1996, the CON Review Board once again denied No-land’s CON application; therefore, No-land and Tenet amended Article XV of the SPA to add a new Section 15.4 which ... granted Noland the right to repurchase the beds for $1.00 once Noland received the authority to operate them as LTACH beds and required that Tenet ‘cooperate with [Noland] in having the “Option Beds” relicensed, recertified, or relocated for long term acute care purposes at the Hospital or at other sites.’
“After its sale of Lloyd Noland Hospital to Tenet, Noland appealed the denial of its CON application to the Circuit Court of Jefferson County, Alabama. While that appeal was pending, the 1996-99 State Health Plan included provisions addressing LTACHs. Thereafter, Noland and SHPDA reached a settlement whereby Noland agreed to dismiss its appeal in exchange for the right to reapply for CONs to reclassify 100 of the Section 15.4 ‘Option Beds’ as LTACH beds under the provisions of the newly revised State Health Plan.
“Pursuant to the settlement, on September 15, 1998, Noland filed a CON application with SHPDA requesting the reclassification of 55 acute care beds located at Lloyd Noland Hospital (subsequently renamed ‘HealthSouth Metro West’) to LTACH beds for the establishment of a 55-bed LTACH facility on the campus of Lloyd Noland Hospital (‘the Noland Project’). Birmingham Baptist Medical Center-Montclair (‘Baptist-Montclair’) intervened in, and requested a contested case hearing with respect to, the Noland Project.
“On December 7, 1998, Select filed a CON application with SHPDA requesting the reclassification of 88 long term care beds located at and owned by Baptist-Montclair as LTACH beds for the establishment of a 38-bed LTACH on the campus of Baptist-Montclair (‘the Select Project’). Noland intervened in, and requested a contested case hearing with respect to, the Select Project ....
“While the Noland Project and the Select Project were pending, Tenet and the City of Fairfield Healthcare Authority (‘FHA’) entered into an Asset Sale Agreement dated October 21, 1999 (‘the ASA’), pursuant to which Tenet agreed to sell Lloyd Noland Hospital to FHA. Pursuant to the ASA, FHA agreed to assume Tenet’s obligations to Noland contained in Section 15.4 of the SPA regarding the ... ‘Option Beds.’ Tenet and FHA closed the sale and purchase of Lloyd Noland Hospital on November 15, 1999, [and] FHA arranged for HealthSouth Corporation (‘Health-South’) to underwrite the purchase price of the Hospital, to manage the Hospital, and to provide the Hospital a line of credit to fund its cash needs.
“Thereafter, the parties to the Noland Project and the Select Project contested cases reached a settlement pursuant to which they agreed, among other things, to recommend to the administrative law judge that both the Noland Project and the Select Project be approved. Counsel for Noland and Select further stipulated that both the Noland Project and the Select Project were consistent with the 1996-1999 State Health Plan and satisfied all statutory and regulatory requirements for the issuance of the requested CONs. Noland and Select then filed a joint motion with the administrative law judge for an order recommending approval of the two projects, and on January 21, 2000, the administrative law judge issued a recommended order for contested case hearing recommending approval of the two projects....
“On February 11, 2000, FHA filed suit against SHPDA, SHPDA’s Executive Director, and Noland in the Circuit Court of Montgomery County, Alabama (the ‘FHA litigation’), seeking to enjoin SHPDA from issuing a CON for the Noland Project. Despite the fact that FHA had expressly assumed Tenet’s duty of cooperation contained in Section 15.4 of the SPA, FHA sought a declaration that Noland had no right to apply for the Noland CON because it did not own the beds to be reclassified, that Noland’s CON application was unauthorized and invalid, that Noland had no ownership in the beds, that Noland’s option to purchase the beds was null and void, and that SHPDA had no authority to consider Noland’s CON application ....
“Notwithstanding Select’s identical factual circumstances, on March 3, 2000, SHPDA issue a CON for the Select Project.
“On October 18, 2000, [Montgomery Circuit Judge Charles Price] entered a summary judgment in [favor of FHA in] the FHA litigation.... Noland appealed the judgment to the Alabama Supreme Court.
“On February 16, 2001, Noland filed suit against Tenet in the United States District Court for the Northern District of Alabama (the ‘Noland/Tenet litigation’), seeking damages from Tenet resulting from FHA’s interference with Noland’s CON application and the breach of the contract obligations of Tenet which were assumed by FHA. Tenet filed a third-party complaint against FHA and HealthSouth, alleging that any interference by FHA and HealthSouth with the Noland Project was covered by indemnity obligations running to Tenet from FHA and Health-South, and seeking reimbursement of any damages incurred by Tenet as a result of the Noland/Tenet litigation.
“In defense of Noland’s claims, Tenet and HealthSouth asserted the same contentions made by FHA in the FHA litigation, i.e., that Noland did not have the right to apply for a CON because [it] did not own the beds.... [T]he same challenges to the validity of the Noland CON that were at issue in the FHA litigation were at issue in the No-land/Tenet litigation.
“On February 22, 2002, the Alabama Supreme Court ruled in favor of Noland in the FHA litigation, finding that
“ ‘[b]ecause [FHA] assumed the obligations of Amendment Two of the SPA, [FHA] was contractually bound to, among other things, “cooperate with [Noland] in having the Option Beds relicensed, recertified, or relocated for long term acute care purposes at the Hospital or other sites,” so that [Noland] could, following the issuance of the CONs, purchase ... [the] beds from [FHA]. [FHA] breached its obligations to cooperate as a matter of law, by commencing this action, and by attempting to intervene in the contested case to oppose [Noland’s] CON applications .... ’
“Lloyd Noland Foundation, Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 266 (Ala.2002). Thus, the Alabama Supreme Court cleared the way for SHPDA to issue the Noland CON and for FHA to transfer ownership of the 55 reclassified LTACH beds to Noland.
“On June 28, 2002, SHPDA issued Noland CON 2004-LTACH authorizing the Noland Project.... [When FHA refused to transfer ownership of the beds to Noland, Montgomery Circuit Judge Charles Price] ordered FHA ‘to sell and transfer title to the 55 beds covered by CON 2004 to Noland forthwith.’
“On September 19, 2002, FHA transferred ownership of the 55 reclassified LTACH beds to Noland pursuant to a bill of sale containing invalid and unenforceable reversionary language that violated FHA’s assumed obligation of cooperation under § 15.4 of the SPA, as expressly interpreted by the Alabama Supreme Court and Montgomery Circuit Judge Price. The undisputed testimony provided at the fair hearing established that Noland continues to own the 55 LTACH beds.
“On October 15, 2003, FHA transferred HealthSouth Metro West (fik/a Lloyd Noland Hospital) and all related assets to HealthSouth in satisfaction of the debt owed by FHA to HealthSouth pursuant to the various agreements entered into in connection with FHA’s purchase of the hospital from Tenet.
“In July 2004, HealthSouth announced that it was closing Metro West in September 2004. Thereafter, on August 27, 2004, Noland filed suit against Health-South in the Circuit Court of Jefferson County, Alabama (the ‘Noland/Health-South litigation’). Though Noland’s complaint sought damages from Health-South, its primary thrust was to establish that (i) FHA was the alter ego or mere instrumentality of HealthSouth, (ii) all the obligations to Noland assumed by FHA when it bought Lloyd Noland Hospital from Tenet were binding on HealthSouth, and (iii) the Alabama Supreme Court’s decision in the FHA litigation was binding and enforceable against HealthSouth.
“On or about September 1, 2004, HealthSouth closed HealthSouth Metro West as an acute care hospital.
“On March 30, 2005, Noland provided SHPDA a status report on the Noland Project in which it reported that the Noland CON was still involved in litigation, and SHPDA advised Noland, by letter dated April 18, 2005, that, ‘[i]nas-much as this project is in litigation, we will wait to hear from the Court before taking any further action.’ Noland provided SHPDA further updates regarding the litigation on August 1, 2006 and June 6, 2007.
“The Noland/Tenet litigation was finally tried to a jury in federal court in December 2008, resulting in a jury verdict in favor of Noland against Tenet and HealthSouth. While various post-trial motions were pending, the matter was finally resolved and an agreed order of dismissal was entered on May 21, 2009. By order dated May 29, 2009, the Noland/HealthSouth litigation also was resolved and all claims and causes of action were dismissed with prejudice.
“On November 2, 2009, Noland filed its request with SHPDA for the project modification, which was placed on the agenda for the November 18, 2009, meeting of the CON Review Board. On November 17, 2009, Select filed with SHPDA its notice of intervention and opposition with respect to the project modification.
“The project modification came before the CON Review Board at its November 18, 2009, meeting. After reviewing the documents of record and considering the presentations and arguments of Noland and its counsel, Shelby Baptist, and Select’s counsel, the CON Review Board unanimously approved the project modification. The undisputed testimony of the President of Shelby Baptist before the CON Review Board was that there was an unmet need for LTACH services in Shelby County. On December 3, 2009, the CON Review Board issued its ruling approving the project modification, and SHPDA issue[d] Noland CON 2004-LTACH-Ext-Mod #1, Mod #2.
“On December 17, 2009, Select filed with SHPDA its request for [a] fair hearing with respect to the CON Review Board’s approval of the project modification. SHPDA appointed the Honorable P. Michael Cole as the fair hearing officer (‘FHO Cole’). Following the fair hearing, FHO Cole entered an order approving the project modification, which approval became the final order of SHPDA pursuant to Ala.Code 1975, § 22-21-275(14) and Ala. Admin. Code Rule 410-1-8-.25.
“Although Select had previously filed a protective appeal from the December 3, 2009, final order of the CON Review Board approving the project modification (CV-10-900124), Select filed with SHPDA a second notice of appeal appealing FHO Cole’s approval of the project modification and filed with this court a second petition for judicial review (CV-10-900802) with its protective petition for judicial review (CV-10-900124) pursuant to Rule 42(a) of the Alabama Rules of Civil Procedure.

(Some footnotes omitted.)

Standard of Review

In Colonial Management Group, L.P. v. State Health Planning and Development Agency, 853 So.2d 972, 974-75 (Ala.Civ. App.2002), this court set out the principles that apply to appellate review of an administrative agency’s action.

“This court reviews a trial court’s judgment regarding the decision of an administrative agency ‘without any presumption of its correctness, since [the trial] court was in no better position to review the [agency’s decision] than’ this court. State Health Planning & Res. Dev. Admin. v. Rivendell of Alabama, Inc., 469 So.2d 613, 614 (Ala.Civ.App.1985). Under the Alabama Administrative Procedure Act (‘AAPA’), § 41-22-1 et seq., Ala.Code 1975, which governs judicial review of agency decisions,
“ ‘[e]xcept where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“ ‘(1) In violation of constitutional or statutory provisions;
“ ‘(2) In excess of the statutory authority of the agency;
“ ‘(3) In violation of any pertinent agency rule;
“ ‘(4) Made upon unlawful procedure;
‘“(5) Affected by other error of law;
“ ‘(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“ ‘(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.’
“§ 41-22-20(k), Ala.Code 1975 (emphasis added). In reviewing the decision of a state administrative agency, ‘[t]he special competence of the agency lends great weight to its decision, and that decision must be affirmed, unless it is arbitrary and capricious or not made in compliance with applicable law.’ Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993). ‘The weight or importance assigned to any given piece of evidence presented in a CON application is left primarily to the [Certificate of Need Review Board’s] discretion, in light of the [Certificate of Need Review Board’s] recognized expertise in dealing with these specialized areas.’ State Health Planning & Dev. Agency v. Baptist Health Sys., Inc., 766 So.2d 176, 178 (Ala.Civ.App.1999). Neither this court nor the trial court may substitute its judgment for that of the administrative agency. Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993). ‘This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.’ Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App.1989). Further, ‘an agency’s interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.’ Sylacauga Health Care Ctr., Inc. v. Alabama State Health Planning Agency, 662 So.2d 265, 268 (Ala.Civ.App.1994).”

Discussion

Select contends that the circuit court erred in affirming SHPDA’s decision because, it says, Noland failed to establish that its project-modification request was consistent with the 1996-1999 State Health Plan (“SHP”) in several respects. Specifically, Select argues that Noland failed to introduce any evidence indicating (1) that there was a need, as determined by the need methodology outlined in the 1996-1999 SHP, for LTACH beds in Shelby County, (2) that it had the ability to “convert excess acute-care beds to long-term hospital beds” as required by the 1996-1999 SHP, and (3) that it had the “written patient transfer agreements” with other local hospitals required by the 1996-1999 SHP.

I. Need for LTACH Beds

The 1996-1999 SHP, which all parties agree is applicable to Noland’s project modification, established the following need methodology for long-term acute-care beds:

“The [LTACH] bed need for the area shall be no more than five (5) percent of the combined [average daily census] of all the acute-care hospitals in the county and contiguous counties.”

Former Rule 410-2-4-.02(7)(e)(2), Ala. Admin. Code (SHPDA). Select asserts that the methodology requires a computation of the average daily census (“ADC”) of all hospitals in Shelby County and the counties contiguous to Shelby County but that the CON Review Board (“the CONRB”) erroneously considered the ADC of hospitals only in Jefferson and Shelby counties, thereby, Select says, ignoring the data from counties that are contiguous to Shelby but not contiguous to Jefferson County.

In response to Select’s argument, the fair-hearing officer determined the following:

“[T]he 1996-1999 State Health Plan ... established that the ‘need [for LTACH beds] for the area should be no more than five (5) percent of the combined ADC of all acute care hospitals in the county and contiguous counties.’ Ala. Admin. Code, Rule 410-2-4-.02(7)(e)2. Thus, the ‘planning area’ applicable to the Noland Project Modification is the county in which the LTACH is to be located and its contiguous counties. The Noland CON authorized the 55-bed LTACH in Jefferson County. Accordingly, the applicable planning area is Jefferson County and its contiguous counties, which includes Shelby County.3 Thus, the modification is compliant with the 1996-1999 State Health Plan, CON Rule § 410-1-10-.03 and prior actions of the CON Review Board.
“This conclusion is consistent with the finding of the CON Review Board in its approval of the Noland Project Modification.
“ ‘Select also asserts that Noland may not use the project-modification rule to seek approval of a new location that falls outside of the health service area contained in the State Health Plan at the time of the original filing. However, for purposes of determining need for LTACHs, the 1996-1999 Alabama State Health Plan considered the need in contiguous counties, including Shelby County. The Board finds that the application, as modified, is not inconsistent with the State Health Plan in effect at the time of filing and that the change to Shelby County does not deprive the Board of the ability to approve the present request.’ (internal footnote omitted).
“In May 2008, after the enactment of the Medicare, Medicaid, and SCHIP Extension Act, 121 Stat. 2492, the Center for Medicare and Medicaid Services (‘CMS’) finalized rules regarding the establishment of new LTACHs after December 29, 2007. The practical effect of these rules is that health care providers that do not hold a CON for LTACH services issued prior to December 29, 2007, will not be allowed to establish an LTACH in the foreseeable future. The moratorium was imposed for a period of three years, but there is discussion that it may be extended.
“The CMS moratorium outlined in 42 C.F.R. § 412.23(e)(6) contains an exception for LTACHs that on or before December 29, 2007 ‘[h]ad obtained an approved certificate of need from the State, when required by State law.’ Id. at § 412.23(e)(6)(ii)(C): The Noland CON was issued by SHPDA on June 28, 2002, and thus qualifies for the exemption to the CMS moratorium. As found by the CON Review Board, ‘under current rules, Noland would thus be prevented from obtaining Medicare certification of the LTACH beds if it were required to file a new CON application instead of following the project-modification procedure.’ If the project is not allowed to proceed, the unmet LTACH needs in Jefferson County and its contiguous counties, including Shelby County, will go unmet.
“ “The 2004-2007 State Health Plan, which became effective November 22, 2004, changed the LTACH planning area from the county in which the LTACH was to be located and its contiguous counties, to eight specifically defined ‘regions.’ Both Jefferson County and Shelby County are in Region III, which also includes Bibb, Blount, Cull-man, Marion, Saint Clair, Talladega, Walker and Winston Counties. The similarity of Region III and the planning area applicable to the Noland Project under the 1996-1999 State Health Plan is striking. Six of the eight counties included in the planning area under the 1996-1999 State Health Plan (including both Jefferson and Shelby Counties) are included in Region III.”

The circuit court affirmed SHPDA’s order on this point, citing Brookwood Health Services, Inc. v. Baptist Health System, Inc., 936 So.2d 529, 537 (Ala.Civ.App.2005), and State Health Planning Agency v. Mobile Infirmary Ass’n, 608 So.2d 1372, 1375 (Ala.Civ.App.1992) (both stating that “the [SHP] guidelines are merely a set of criteria used in processing applications and [SHPDA] is entitled to exercise its discretion in following these guidelines”).

“Our review is limited to questions of whether the agency exceeded its statutory authority, whether its decision was supported by substantial evidence, and whether its action was arbitrary. State Health Planning Agency v. Mobile Infirmary, 533 So.2d 255 (Ala.Civ.App.1988); Alabama Board of Nursing v. Herrick, 454 So.2d 1041 (Ala.Civ.App.1984). As long as the agency action is rational and reasonably justified, it cannot be classified as arbitrary or capricious. Waters v. City & County of Montgomery Personnel Board, 507 So.2d 951 (Ala.Civ.App.1986). Furthermore, an agency’s interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation. Ferlisi v. Alabama Medicaid Agency, 481 So.2d 400 (Ala.Civ.App.1985).”

Sylacauga Health Care Ctr., Inc. v. Alabama State Health Planning Agency, 662 So.2d 265, 268 (Ala.Civ.App.1994).

We conclude that SHPDA’s interpretation of the SHP and its determination that Noland’s project modification was consistent with the SHP requirements were reasonable.

II. Ability to Convert Acute-Care Beds to LTACH Beds

Former Rule 410-2-4-.02(7)(c), Ala. Admin. Code (SHPDA), a part of the 1996-1999 SHP, provided, in pertinent part:

“(c) Alabama has an excess of 7,185 general acute-care hospital beds, some of which could be used for long-term hospital care. Therefore, a general acute-care hospital may apply for a certificate of need to convert excess acute-care beds to long-term hospital beds if the following conditions are met .... ”

Select maintains that Noland cannot comply with the SHP requirement to “convert excess general acute-care beds to [LTACH] beds” because, it says, Noland does not own any general acute-cáre hospital beds to convert. Select points out that the September 19, 2002, bill of sale from FHA to Noland conditioned the transfer of title to the beds upon Noland’s locating and operating the beds at Lloyd Noland Hospital in Jefferson County for five years, failing which condition the sale would “become null and void.” Select argues that, because Noland has not satisfied the condition, ownership of the beds-has reverted to FHA.

In Lloyd Noland Foundation, Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253 (Ala.2002) (a decision released on February 22, 2002), our supreme court stated:

“Because [FHA] assumed the obligations of Amendment Two of the SPA, [FHA] was contractually bound to, among other things, ‘cooperate with [Noland] in having the Option Beds reli-censed, recertified or relocated for long term acute care purposes at the Hospital or other sites,’ so that [Noland] could, following the issuance of the CONs, purchase [the] beds from [FHA]. [FHA] breached its obligations to cooperate as a matter of law, by commencing this action, and by attempting to intervene in the contested case to oppose [Noland’s] CON applications.... ”

837 So.2d at 266 (emphasis added). Subsequently, when FHA refused to transfer the beds to Noland, Montgomery Circuit Judge Charles Price entered an order compelling FHA to “sell and transfer title to the 55 beds covered by the CON to Noland forthwith.” The conditional-transfer and reverter provisions of the September 19, 2002, bill of sale were clearly invalid, as both the fair-hearing officer and the circuit court recognized. Moreover, neither FHA nor HealthSouth opposed No-land’s project modification based upon an assertion of ownership in the beds. Only Select, which has no interest in the beds, has asserted that Noland does not own the beds.

III. Patient Transfer Agreements

The 1996-1999 SHP provided, in former Rule 410-2-4-.02(7)(c)3. and 4., Ala. Admin. Code (SHPDA), that an applicant .for a CON to convert excess acute-care beds to LTACH beds must establish that it

“3.... has written patient transfer agreements with hospitals other than the host hospital to provide at least 75 percent of the admissions to the long-term hospital, based on the total average daily census for all participating hospitals [and that]
“4. [t]he transfer agreements are with other hospitals in the county and/or with hospitals in contiguous counties.”

In support of its 1998 CON application, Noland submitted letters of support from seven area hospitals that, Noland said, were “indicative of transfer agreements to be executed upon SHPDA’s approval of [the CON].” The seven letters were signed by representatives of Bessemer Carraway Medical Center, Blount Memorial Hospital, Brookwood Medical Center, Carraway Methodist Medical Center, Eastern Health System, St. Clair Regional Hospital, and the University of Alabama at Birmingham (“UAB”) Hospital.

During contested-case proceedings in 2010, Select first argued that the letters did not constitute “written patient transfer agreements,” within the meaning of former Rule 410-2-4-.02(7)(c)3., because they merely expressed support for Noland’s project and did not refer to any agreements to transfer patients to Noland’s proposed LTACH. Next, Select argued that, even if the letters could be deemed to be “indicative” of future transfer agreements, Noland could not rely on the same letters that it had submitted 11 years earlier to satisfy subsections 3. and 4. of former Rule 410-2-4-.02(7)(c) because, Select said, the evidence indicated that five of the seven hospitals referenced in the 1998 letters had been sold, had ceased to exist, or were operating under new management by 2009.

At the fair hearing, Select elicited evidence indicating that Bessemer Carraway Medical Center was currently being operated by UAB Medical Center West; that Blount Memorial and St. Clair Regional Hospitals were currently being operated by St. Vincent’s Health System (and, further, that St. Clair Regional Hospital was not located in a county that is contiguous to Shelby County); that Carraway Methodist Medical Center had closed; and that the letter from Eastern Health System pertained to a different CON, Noland’s 45-bed LTACH project that was to be located at Medical Center East. Thus, Select says, only two of the letters — those from Brook-wood Medical Center and UAB Hospital— “could even conceivably still be valid” in determining whether Noland had “written patient transfer agreements with hospitals other than the host hospital to provide at least 75 percent of the admissions to the long-term hospital, based on the total average daily census for all participating hospitals.”

At the fair hearing, Noland argued that, during the contested-case proceedings in 1999 when SHPDA had been considering the CON applications of both Noland and Select, Select had stipulated that, “with respect to the Noland Project, Noland has written transfer agreements with hospitals in Jefferson County or in contiguous counties other than the host hospital,” and, Noland maintained, Select was bound by that stipulation. Noland also argued that the doctrine of collateral estoppel barred relitigation of the transfer-agreement issue. We disagree, both that Select was bound by its stipulation made in 1999 and that the doctrine of collateral estoppel barred relitigation of the transfer-agreement issue in 2009.

In construing a stipulation, a reviewing court may look to “the language used in the entire agreement in light of the surrounding circumstances.” 73 Am. Jur.2d Stipulations § 6 at 536 (2012). A party may be relieved of a stipulation on the grounds “that it was entered into as a result of fraud, misrepresentation, mistake of fact, or excusable neglect, or that the facts have changed, or that there is some other special circumstance rendering it unjust to enforce the stipulation.... ” Rutili v. O’Neill (In re O’Neill), 468 B.R. 308, 337 (Bankr.N.D.Ill.2012) (emphasis added).

“It is ... generally recognized that relief may be had from a stipulation where there has been a change in conditions or unforeseen developments which would render its enforcement inequitable provided that there has been diligence in discovering the facts relative to the disputed matter, the application is timely, and the opposing party has not so changed his or her position as to be prejudiced to a greater extent than the applicant.”

73 Am.Jur.2d Stipulations § 13 at 547. We conclude (a) that the evidence indicated that circumstances affecting the hospitals whose representatives had sent letters of support to Noland in 1998 had changed by 2009, (b) that all parties were aware of those changes, and (c) that relieving Select from its 1999 stipulation would have prejudiced Noland to a lesser extent than binding Select to its 1999 stipulation prejudiced Select.

We also conclude that the doctrine of collateral estoppel does not apply to Select’s stipulation.

“ ‘In order for the doctrine of collateral estoppel to apply to an issue raised in an administrative proceeding, the following elements must be present:
“ ‘ “ ‘(1) there is identity of the parties or their privies; (2) there is identity of issues; (3) the parties had an adequate opportunity to litigate the issues in the administrative proceeding; (4) the issues to be estopped were actually litigated and determined in the administrative proceeding; and (5) the findings on the issues to be estopped were necessary to the administrative decision.’ ” ’
“Ex parte Smith, 683 So.2d 431, 433 (Ala.1996) (quoting Ex parte Shelby Med. Ctr., Inc., 564 So.2d 63, 68 (Ala.1990) (quoting Pantex Towing Corp. v. Glidewell, 763 F.2d 1241, 1245 (11th Cir.1985))).”

Hale v. Hyundai Motor Mfg. Alabama, LLC, 86 So.3d 1015, 1023 (Ala.Civ.App.2012) (quoting Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 445 (Ala.1999), overruled on other grounds by Ex parte Rogers, 68 So.3d 773 (Ala.2010)).

The second and fourth elements of collateral estoppel are missing in this case. The second element, identity of issues, does not exist because the 1999 proceeding concerned whether Noland and/or Select was entitled to a CON for the conversion of acute-care beds to LTACH beds in Jefferson County, whereas the instant proceeding concerned whether Noland, having previously been issued a CON for the conversion of acute-care beds to LTACH beds in Jefferson County, was entitled to have the CON modified to allow for the same project in Shelby County. The fourth element, that “the issue[] to be estopped [was] actually litigated and determined in the administrative proceeding,” is also missing. The first administrative proceeding was essentially resolved by a consent judgment following a settlement between Noland and Select, based on the parties’ stipulation that both the Noland project and the Select project were consistent with the 1996-1999 SHP and satisfied all statutory and regulatory requirements for the issuance of the requested CONs.

In AAA Equipment & Rental, Inc. v. Bailey, 384 So.2d 107, 112 (Ala.1980), our supreme court held that a consent judgment based on stipulations of the parties “was entitled to no collateral estoppel effect because there was an absence of actual litigation between them as adversaries on the issues....” 384 So.2d at 112. In support of its holding that the actual-litigation requirement is not met when the prior proceeding results in a consent judgment based upon stipulations, the Bailey court cited Associates Capital Services v. Loftin’s Transfer & Storage Co., 554 F.2d 188 (5th Cir.1977), a decision that the Bailey court summarized as follows:

“Associates sued in Alabama to collect a debt. The defendant contended that the suit was barred because the plaintiff, an Indiana corporation, had failed to qualify to do business in Alabama. In an earlier case involving this plaintiff, the district court had held adversely to the plaintiff on the ‘doing business’ issue, and in this proceeding the defendant contended that the plaintiff was es-topped in the later case from litigating that issue. The Court of Appeals pointed out, however, that the former case had been remanded on appeal in accord with a stipulation of the parties, and settled in the plaintiffs favor. ‘Therefore,’ the court stated, ‘the decision of the district court spawned no prece-dential effect and renders nugatory the question of collateral estoppel.’ ”

Bailey, 384 So.2d at 112 (quoting Associates Capital Servs., 554 F.2d at 189). The court distinguished Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1199 (1978), stating that Wheeler had “involved two actions, in both of which the right to income from certain trusts was in issue. In the first suit that issue was actually litigated, that is, the judgment rendered in it was not based upon default, stipulation, or consent.” 384 So.2d at 112 (emphasis added).

In the present case, fair-hearing officer Michael Cole did not determine that the two letters of support signed by representatives of Brookwood Medical Center and UAB Hospital — the only hospitals whose circumstances had not changed since 1998 when the letters of support for the Noland project had been received — were sufficient, without considering the remaining five letters, to satisfy the “written-patient-transfer-agreement” requirement of former Rule 410-2-4-.02(7)(c)3., Ala. Admin. Code (SHPDA). Instead, Cole implicitly determined that all seven letters were pertinent to the issues before SHPDA in 2009 because those letters had been the subject of Select’s stipulation in 1999, and Select was bound by that stipulation. In their appellate briefs, Noland and SHPDA do not suggest any reason for upholding the circuit court’s judgment as to the transfer agreements other than Select’s stipulation on that point.

The fair-hearing officer’s order recommending that SHPDA grant Noland’s request for a modification of the CON became the final decision of SHPDA pursuant to § 22-21-275(14), Ala.Code 1975, and Rule 410-1-8-.25, Ala. Admin. Code (SHPDA). Insofar as that decision related to the transfer-agreement issue, the decision was not based upon the exercise of SHPDA’s discretion, either in assigning “weight or importance ... to any given piece of evidence” or upon SHPDA’s “recognized expertise in dealing with ... specialized areas,” State Health Planning & Dev. Agency v. Baptist Health Sys., Inc., 766 So.2d 176, 178 (Ala.Civ.App.1999). Thus, SHPDA’s decision as to the transfer-agreement issue was not entitled to deference by the circuit court, id., and the circuit court erred in affirming that decision because it was affected by an error of law. See § 41-22-10(k)(5), Ala.Code 1975.

Accordingly, we reverse the circuit court’s judgment and remand the cause with instructions to remand the matter to SHPDA for a determination as to whether the Brookwood Medical Center and UAB Hospital letters alone satisfy the requirement of former Rule 410-2-4-.02(7)(c)3., Ala. Admin. Code (SHPDA), that Noland had “written patient transfer agreements with hospitals other than the host hospital to provide at least 75 percent of the admissions to the long-term hospital, based on the total average daily census for all participating hospitals.”

REVERSED AND REMANDED WITH INSTRUCTIONS. .

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

      . " ‘Long-term acute care beds are used to serve generally elderly and chronically ill patients who experience hospital stays greater than 25 days.’ " Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 256 n. 1 (Ala.2002).

      “ 1 The Noland Project and the Select Project were not mutually exclusive for at the time their respective CON applications were filed there was a need for 155 LTACH beds based on the combined average daily census of the acute care hospitals in Jefferson County and its contiguous counties, which includes Shelby County. The Noland Project (55 LTACH beds), and the Select Project (38 LTACH beds), and a second Noland CON application (requesting 45 LTACH beds to be relocated to Medical Center East), only accounted for 138 of the 155 needed LTACH beds.

      “ 3Even after the Alabama Supreme Court ruled in favor of Noland in the FHA litigation, Tenet and HealthSouth continued to assert the invalidity of the Noland CON in defense of Noland’s claims in the Noland/Tenet litigation.”

      . Rule 410-2-4-.02 has been amended. For purposes of this opinion, we refer to Rule 410-2-4-.02 as it existed as part of the 1996-1999 SHP.

      . Fair-hearing officer Cole noted that administrative-law judge M. Dixon Torbert, the fair-hearing officer in the 1999 proceedings, had "found the Noland Project to be consistent with the 1996-1999 State Health Plan.” In his order recommending that SHPDA grant the CON modification, Cole stated that he would "not now go behind the stipulations or the agreement just because Select no longer finds them to its liking.”


text:
    Jimmie L. HOLIFIELD v. Shirley J. LAMBERT.
    2110312.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2012.

      Jeffery D. Toney, Sr., Crestview, Florida, for appellant.
    Victor R. Spencer, Birmingham, for ap-pellee.
   PITTMAN, Judge.

This appeal from a judgment of the Jefferson Circuit Court arises out of efforts on the part of Jimmie L. Holifield (“the father”) to set aside a judgment of the Jefferson Family Court entered in favor of Shirley J. Lambert (“the mother”) on her child-support-arrearage claim against the father stemming from a 1971 judgment of paternity entered by a Wisconsin court specifying the father’s support obligations as to a child born of the parties in December 1968. According to Wisconsin authorities, the father’s combined indebtedness, including interest, to the mother and the State of Wisconsin as a function of his having failed to fully comply with the support provisions of that paternity judgment had swelled to over $105,000 as of November 2007.

The matter was referred to the Jefferson County Department of Human Resources (“DHR”), which, on relation of the mother, filed a complaint in the Jefferson Family Court seeking a money judgment against the father as to that arrearage. That case was docketed in that court as case number CS-08-806. We note that actions concerning child support generally, and in particular cases filed in the Jefferson Family Court and docketed with a case number having a “CS” prefix, are governed by the Alabama Rules of Juvenile Procedure. See generally H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009), and M.C. v. 868 So.2d 465, 467 (Ala.Civ.App.2003).

Although the father filed a motion to dismiss the mother’s family-court action, that court denied his motion and entered a judgment on June 16, 2009, against the father in the amount of $105,136.99. No appeal was taken from that judgment; however, in April 2010, after the mother had filed a petition seeking to hold the father in contempt and seeking to execute on the judgment, the father filed a motion in the family court seeking to have the judgment set aside as void under Rule 60(b)(4), Ala. R. Civ. P. That motion was denied on July 29, 2010. On August 10, 2010, within 14 days after the entry of the order denying the father’s motion pursuant to Rule 60(b), the father timely appealed from that order to the Jefferson Circuit Court for de novo review. See Rules 28(B) and 28(C), Ala. R. Juv. P.

In the father’s appeal, which was assigned case number DR-10-1192, the father again sought a dismissal of the mother’s claims against him and requested that the circuit court take judicial notice of orders entered in an earlier family-court case involving the parties. The circuit court denied the father’s motions raising those issues. On November 14, 2011, the circuit court, after having held a hearing on the matter, entered a final judgment denying relief as to the father’s appeal and remanding the cause to the family court for the entry of any further necessary orders. No postjudgment motions were filed in the circuit court following the entry of the November 14, 2011, judgment.

As we noted in H.E.H. v. K.L.C., 976 So.2d 458 (Ala.Civ.App.2007), Rule 1(B), Ala. R. Juv. P., mandates that procedures in juvenile actions, such as the child-support action initiated on the relation of the mother in the family court, “ ‘shall be uniform in all courts, whether at circuit or district court level or in the circuit court by trial de novo.’ 976 So.2d at 459 (emphasis added in H.E.H.). Thus, where, as here, no postjudgment motions have been timely filed in the pertinent circuit court, an appeal to this court from a judgment of a circuit court sitting as an appellate court with respect to a judgment of a juvenile, family, or domestic-relations court exercising original jurisdiction under the Rules of Juvenile Procedure must be filed within 14 days following the entry of the circuit court’s judgment. See Rule 28(C), Ala. R. Juv. P. Numerous recent precedents of this court confirm the applicability of that principle. See H.E.H., 976 So.2d at 459; accord J.F.M. v. C.W.B., 72 So.3d 663, 665-66 (Ala.Civ.App.2011); D.T. v. State, 1 So.3d 74, 76 (Ala.Civ.App.2008); Ryans v. State ex rel. Stoudmire, 963 So.2d 95, 96-97 (Ala.Civ.App.2007); B.R. v. F.H., 962 So.2d 882, 884 (Ala.Civ.App.2007); and R.M. v. J.D.C., 925 So.2d 970, 972 (Ala.Civ.App.2005); see also W.C.R. v. D.A.L., 18 So.3d 420, 422 (Ala.Civ.App.2009) (indicating that an analogous 14-day appeal period applies when a timely postjudgment motion in the circuit court tolls the time for taking an appeal).

Notwithstanding the foregoing authorities, the father waited until December 27, 2011, before filing his notice of appeal from the circuit court’s November 14, 2011, judgment denying his appeal from the family court’s denial of relief from the underlying judgment. That date was 29 days after November 28, 2011, the final day on which the father could have timely appealed from the circuit court’s judgment. Under Rule 2(a)(1), Ala. R.App. P., “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Therefore, we dismiss the father’s appeal from the circuit court’s November 14, 2011, judgment.

APPEAL DISMISSED.

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

      . The family court’s denial of relief under Rule 60(b) was itself a final judgment that would independently support an appeal; such an appeal brings up for review only the matters pertinent to the ruling on the motion rather than the merits of the underlying judgment. See Food World v. Carey, 980 So.2d 404, 406 (Ala.Civ.App.2007), and Wilger v. Department of Pensions & Sec., 343 So.2d 529, 532 (Ala.Civ.App.1977). Further, we note that the family court did not certify the record as adequate for direct review by an appellate court pursuant to Rule 28(A), Ala. R. Juv. P.

      . DHR moved to, and was permitted to, withdraw from its representation of the mother, who thereafter maintained her claims in her individual capacity rather than as a relator.

      . We conclude that the circuit court’s judgment was final notwithstanding the verbiage regarding remandment to the family court for the possible entry of further orders because the circuit court, pursuant to the limited scope of review presented by the father’s appeal from the family court's order denying relief from the family court’s judgment, ‘‘disposed of all issues and controversies between the parties” and left “no matters ... pending” before the circuit court. Alabama State Pers. Bd. v. Miller, 66 So.3d 757, 761 (Ala.Civ.App.2010).


author: PER CURIAM.

text:
    Fernando CALOCA, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-3754, 4D11-3755.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2012.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, GROSS and LEVINE, JJ., concur.


text:
    Johnny L. SADLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5945.
    District Court of Appeal of Florida, First District.
    May 8, 2012.
    Johnny L. Sadler, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the denial of a motion to correct illegal sentence challenging his sexual predator designation. For the reasons discussed below, we reverse the denial and remand for the trial court to strike Appellant’s sexual predator designation.

On July 28, 1999, following a plea, Appellant was convicted of unlawful sexual activity with a minor and was sentenced to three years’ imprisonment in this case for crimes committed on July 20, 1998. In November of 1999, the State filed a motion to declare Appellant a sexual predator because on November 30, 1998, Appellant had been convicted of two counts of lewd and lascivious battery. Appellant alleges that his sexual predator designation is illegal because at the time he committed the instant offense, July 20, 1998, he had not yet been convicted of the lewd and lascivious batteries. Appellant’s claim is cognizable in a rule 3.800(a) motion. See Sain-telien v. State, 990 So.2d 494 (Fla.2008).

According to section 775.21(4)(c)(l), Florida Statutes (1999), a person qualifies as a sexual predator if the felony is any second-degree or greater felony violation of chapter 794 (sexual activity with a minor is a second-degree felony violation of chapter 794) and the offender has previously been convicted of, or found to have committed, or has pled nolo contendere or guilty to, any violation of section 800.04 (lewd and lascivious battery/conduct/exhibition). Section 775.21(4)(d) states:

In order to be counted as a prior felony for purposes of this subsection, the felony must have resulted in a conviction sentenced separately, or an adjudication of delinquency entered separately, prior to the current offense and sentenced or adjudicated separately from any other felony conviction that is to be counted as a prior felony.

(emphasis added). The trial court held that because Appellant had been convicted and sentenced for the lewd and lascivious offenses “prior to his sentencing for the current offense,” he qualified as a sexual predator. As conceded by the State, this was error.

In Carson v. State, 739 So.2d 653, 654 (Fla. 1st DCA 1999), this Court interpreted the habitual felony offender statute, section 775.084(5), Florida Statutes (1993), which has operative language nearly identical to Section 775.21(4)(d), to mean that “in order for a prior offense to qualify as a predicate offense, the defendant must receive a sentence for the prior offense before committing the subject offense.” (emphasis added) We conclude that the same reasoning applies in interpreting section 775.21(4)(d). In this case, Appellant was sentenced for the “prior offense” (the lewd and lascivious convictions) on November 30, 1998, after he committed the current offense on July 20, 1998. Therefore, the lewd and lascivious convictions do not qualify Appellant for a sexual predator designation.

Accordingly, we REVERSE the denial of Appellant’s motion to correct illegal sentence and REMAND for the trial court to strike Appellant’s sexual predator designation.

WOLF, RAY, and MAKAR, JJ., concur.

      . Section 775.084(5), Florida Statutes (1993), reads as follows:
      In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.


text:
    Cathy MIRANDA, Appellant, v. Alterra Clare BRIDGE, Appellee.
    No. 1D12-0268.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2012.

      Jonathan B. Israel of Harris, Guidi, Ros-ner, Dunlap & Rudolph, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that dismisses with prejudice her petition for permanent total disability benefits based on the expiration of the statute of limitations found in sections 440.19(1) and (2), Florida Statutes (2003). Because we find no merit in Claimant’s appeal, we affirm on a summary basis in accordance with Florida Rule of Appellate Procedure 9.315.

Upon this court’s receipt and screening of Claimant’s initial brief, we ordered the parties to refrain from further briefing because this case was being considered for summary affirmance under rule 9.315. See Steel Dynamics Inc.-New Millennium v. Markham, 46 So.3d 641, 643 (Fla. 1st DCA 2010) (explaining summary affir-mance is appropriate where appellant fails to raise preliminary basis for reversal). After fully analyzing both the record on appeal and Claimant’s arguments presented in her brief, we conclude that Claimant’s brief not only fails to present a preliminary basis for reversal, but is also so devoid of meritorious argument that it is necessary for Claimant and her counsel to show cause why sanctions should not be entered against them, individually or collectively, under the authority of sections 57.105(1) and (2), Florida Statutes (2012), and Florida Rule of Appellate Procedure 9.410(a).

In this appeal, Claimant does not challenge the JCC’s conclusion that her petition for permanent total disability benefits, filed in June 2011, was filed more than two years after her date of injury, and more than one year after the last provision of benefits pursuant to the notice of injury in her case. Nor does Claimant argue that her employer or its workers’ compensation carrier (collectively the E/C) is estopped from raising the statute of limitations defense. Thus, Claimant does not contest the JCC’s conclusion that the petition for permanent total disability benefits was untimely filed under sections 440.19(1) and (2).

Rather, on appeal Claimant argues, much as she did before the JCC, that because the JCC could have modified the November 2009 compensation order (which denied Claimant’s request for a change in treating physicians), there exists a material issue of fact that should have precluded the JCC from entering a summary final order on the E/C’s statute of limitations defense directed toward the June 2011 petition. This argument, when considered in the abstract and apart from any factual moorings, is not necessarily a frivolous one. But, when considered against the facts and procedural history of this case, this argument is, at best, wholly unavailing.

First, the November 2009 order, which Claimant alleges could have been modified, denied all medical benefits at issue in the subject hearing, and the order was never modified. Significantly, in her brief Claimant fails to point to an application, claim, or petition for modification that she filed so as to formally request modification of the November 2009 order under section 440.28, Florida Statutes — as would be required for her to obtain relief by way of modification. See § 440.28, Fla. Stat. (2011) (providing application for modification shall be handled “in accordance with the procedure prescribed in respect of claims in s. 440.25”); see also 440.25, Fla. Stat. (2011) (providing JCC’s duty to order mediation, hold hearing(s), and adjudicate claims, is predicated on filing of petition for benefits under section 440.192); Fla. Admin. Code R. 60Q-6.105(3) (providing that “for any claim within the jurisdiction of the OJCC but not subject to a petition for benefits,” claimant shall file pleading with clerk of OJCC setting forth such claim); Foster v. EG & G Fla., Inc., 879 So.2d 75, 76 (Fla. 1st DCA 2004) (holding “JCC has jurisdiction to rule on a petition for modification if the petition is filed” timely). Claimant also failed to refer to a claim or petition for modification at the hearing before the JCC, and the absence of such a claim was a feature of the argument made by counsel for the E/C. Thus, Claimant’s argument that the November 2009 order could have been modified is merely theoretical and has no meaningful applicability to the case before us. Similarly, Claimant’s arguments regarding when the period to file a modification would begin to run are only academic and fail to present even a colorable claim for relief — because Claimant fails to establish that such a petition or application for modification was actually made (much less in a timely fashion).

Second, assuming Claimant’s arguments made to the JCC in December 2011 (in response to the E/C’s motion for summary final order) constituted a duly filed application or petition for modification of the 2009 order, such a request would be untimely, because the November 2009 order denied and dismissed Claimant’s request for a change in physician, and awarded no benefits to Claimant. Section 440.28, provides that an application for modification is required to be filed within two years “after the date copies of an order rejecting a claim are mailed to the parties.” See § 440.28, Fla. Stat. (2003); see also Univ. of Fla. v. McLarthy, 483 So.2d 723, 726 (Fla. 1st DCA 1985) (explaining application for modification must be filed within two years after entry of order rejecting claim, or, if award is granted, within two years after last payment pursuant to order). Under section 440.28, even had a petition for modification been filed in December 2011, it would have been time-barred because it was filed more than two years after the entry of an order rejecting the claim upon which modification was sought. Accordingly, when every doubt is resolved in Claimant’s favor, she still fails to demonstrate a preliminary basis for reversal.

Third, even were we to assume that Claimant had timely filed a petition for modification of the 2009 order (a proposition offered for the sake of analysis only), Claimant’s argument that the 2009 order could be “modified” under the facts pre-sented here is misguided, ill-defined, and woefully incomplete. Claimant argues that she should have been able to present evidence that Dr. Salahi, her authorized treating doctor, was not truthful when testifying in the 2009 hearing that he would be “willing to see” Claimant in the future, because proving as much might entitle Claimant to modification regarding the JCC’s denial of a change in physicians. This argument is unavailing given that in the 2009 merit order, the JCC did not base the denial of a transfer of care solely on the finding that Dr. Salahi was willing to see Claimant (although the doctor actually set up an appointment and examined Claimant after the entry of the 2009 merit order). Rather, the denial was also founded on the finding that Claimant had already exercised her statutory right to change physicians, and that she failed to demonstrate the medical necessity of any further medical treatment. Moreover, in the November 2009 merit order the JCC found that Dr. Salahi expressed that in his opinion there was nothing more that he could offer Claimant from a medical standpoint. Thus, even if Claimant proved that Dr. Salahi did not really wish to “see” Claimant when he in fact examined her, such a fact (in addition to being somewhat difficult to grasp) would have no bearing on whether Claimant is entitled to a change in authorized provider, or whether modification of the November 2009 order is appropriate.

Based on the foregoing, we conclude that Claimant’s arguments raised in this appeal are baseless and, by all appearances, frivolous. On the court’s own motion and through a separate order, we have required Claimant and her counsel to show cause why sanctions should not be entered against them, individually or collectively, under the authority of sections 57.105(1) and (2), and Florida Rule of Appellate Procedure 9.410(a).

For the foregoing reasons, we AFFIRM the order on appeal.

BENTON, C.J., THOMAS and ROWE, JJ., concur.

       We note that the November 2009 compensation order was not made part of the record on appeal. For this reason, this court entered a separate order requiring Claimant to show cause why this court should not take judicial notice of the November 2009 order under the authority of sections 90.202 and 90.204, Florida Statutes (2012). Claimant did not respond or otherwise show cause why this court should not take judicial notice of the November 2009 order of the JCC that denied a claim for a change in authorized medical providers; accordingly, we take judicial notice of this order.