author: LEE, C.J.,

text:
    Glenn WHEELER, Appellant v. Scott A. WHEELER, Appellee.
    No. 2012-CA-00209-COA.
    Court of Appeals of Mississippi.
    Oct. 22, 2013.

      Joseph N. Studdard, Columbus, William Starks II, attorneys for appellant.
    J. Dudley Williams, Aberdeen, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This appeal arises from Glenn Wheeler challenging the validity of Festus Wheeler’s will and two deeds to property. The will and the deeds awarded the estate and the property to Glenn’s brother Scott. The chancellor found that although Festus and Scott had a confidential relationship, there was no undue influence.

FACTS

¶ 2. Festus Wheeler died testate on December 12, 2008. At the time of his death, Festus had three living sons, Glenn, Scott, and Michael, who was institutionalized. Scott, who was unemployed at the time of trial and had been unemployed for most of his adult life, lived with Festus at the family home on Military Road in Columbus, Mississippi. Scott testified that Fes-tus had a stroke in 2005, and his health had been deteriorating since that time. Because of Festus’s declining health, Scott drove Festus anywhere he needed to go. Festus broke his leg in 2007 and became bedridden until his death in 2008. Scott testified that he prepared Festus’s meals for him, fed him, administered his medication, as well as performed the household chores.

¶ 3. In 2004, Festus signed his first will. In this will, Michael was to receive $500, and Scott was to receive Festus’s truck and the home on Military Road. All other property and the residual of the estate was to be divided equally between Glenn and Scott.

¶ 4. In the summer of 2005, Glenn moved into the home on Military Road with Festus and Scott. Glenn was also unemployed but helped Scott take care of Festus. Both sons lived off Festus’s income from Social Security and VA disability and checks from an oil lease, a hunting lease, and a government program. Prior to June 2008, Festus, Scott, and Glenn were all signatories on Festus’s accounts. Both Glenn and Scott testified that Festus was aware of their spending habits.

¶ 5. According to Scott, Glenn took $10,000 from one of Festus’s accounts to start a gunsmithing business. While Glenn stated that the business was for both him and Scott, Scott testified that he was not interested in going into business with Glenn. Around this time, Scott began transferring funds out of the accounts to which Glenn had access. Scott testified that Festus had given him permission to transfer the funds so that Glenn would not have access to them.

¶ 6. On June 8, 2008, Festus met with Scott and Glenn to discuss the proceeds from the hunting lease. Scott testified that Festus confronted Glenn regarding the whereabouts of the proceeds. Glenn testified that he could not recall what happened to them. Scott testified that Festus demanded Glenn repay the funds, and when Glenn refused to give the money back, Festus told him to leave the house that night. Glenn testified that Scott, not Festus, told him to leave. However, Scott and Glenn both agree that Festus informed Glenn that he would be changing his will.

If 7. On June 12, 2008, Festus suffered a heart attack and was hospitalized. Four days later while in the hospital, Festus executed a second will. This will left his entire estate to Scott. On October 6, 2008, Festus executed two deeds which transferred the home on Military Road and all other real property located in Lowndes County, Mississippi, and Lamar County, Alabama, to Scott.

PROCEDURAL HISTORY

¶ 8. On October 15, 2009, Glenn brought suit against Scott based on undue influence and sought to set aside Festus’s will and the property deeds Festus had made to Scott. After a trial was held in Lowndes County Chancery Court, the chancellor found that a confidential relationship existed between Festus and Scott. However, Scott was able to rebut by clear and convincing evidence the presumption of undue influence regarding both the will and the deeds. The chancellor upheld the validity of the will and the two deeds. The chancellor also found, “As to the various bank accounts and [cjertificates of [d]eposit, the requisite proof was not presented with regard[ ] to undue influence so as to alter the ownership of the accounts as they existed at [Festus’s] death.”

¶ 9. Glenn now appeals arguing that the trial court erred in determining the will and deeds were not the product of undue influence.

STANDARD OF REVIEW

¶ 10. “On review, a chancellor’s findings of fact will not be disturbed unless those findings are manifestly wrong, clearly erroneous, or based upon an erroneous legal standard.” In re Last Will & Testament of Carter, 948 So.2d 455, 457 (¶8) (Miss.Ct.App.2007). However, issues of law are reviewed de novo. Thornton v. Holloway, 49 So.3d 125, 128 (¶ 9) (Miss.Ct.App.2010).

¶ 11. “If the [Chancellor’s findings are supported by substantial! ] credible evidence in the record, this Court will not reverse.” Wright v. Roberts, 797 So.2d 992, 997 (¶ 14) (Miss.2001).

DISCUSSION

¶ 12. Mississippi law is well settled regarding fiduciary or confidential relationships and undue influence. Id. at 998 (¶ 16). This law has been applied to both testamentary and inter vivos gifts. Id. When asserting the issue of undue influence, the plaintiff must “demonstrate, by clear and convincing evidence, the existence of a confidential relationship between a grantor and a defendant grantee[.]” Howell v. May, 983 So.2d 313, 318 (¶ 14) (Miss.Ct.App.2007). Once the confidential relationship has been established by clear and convincing evidence, “the burden of proof shifts to the benefieiary/grant-ee to show by clear and convincing evidence that the gift was not the product of undue influence.” Wright, 797 So.2d at 998 (¶ 16).

¶ 13. To determine if a confidential relationship exists, the chancellor must determine:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has [his] medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

Id. at (¶ 18)’ (quoting In re Estate of Dabney, 740 So.2d 915, 919 (¶ 12) (Miss.1999)). The chancellor relied on Wright and found that Festus and Scott had a confidential relationship. The chancellor went so far as to find that “Glenn established by clear and convincing evidence that all seven factors used to determine a confidential relationship were met.”

¶ 14. The record is clear that Scott took care of Festus, maintained a close relationship with him, provided transportation and medical care for him, and maintained joint accounts with him. Also, there was sufficient evidence presented that Festus was physically weak, was of advanced age and poor health, and had given Scott rights through a power of attorney. Therefore, we agree with the chancellor that a confidential relationship between Scott and Festus existed.

¶ 15. Since Glenn met his burden by clear and convincing evidence, the burden shifted to Scott to prove by clear and convincing evidence that (1) Scott acted in good faith; (2) Festus had “full knowledge and deliberation of his actions and their consequences”; and (3) Festus acted on the “[a]dvice of (a) [a] competent person, (b) disconnected from [Scott] and (c) devoted wholly to [Festus’s] interests.” Murray v. Laird, 446 So.2d 575, 578 (Miss.1984) (citations omitted).

I. GOOD FAITH

¶ 16. The factors to determine if Scott acted in good faith include:

(a) ... the identity of the initiating party in seeking preparation of the instrument, (b) the place of the execution of the instrument and in whose presence [the execution took place], (c) what consideration and fee were paid, if any, and (d) by whom [they were] paid, and (e) the secrecy or openness [surrounding] the execution of an instrument.

Hill v. Harper, 18 So.3d 310, 317 (¶ 20) (Miss.Ct.App.2009) (quoting Wright, 797 So.2d at 1000 (¶ 24)). The chancellor found that Scott acted in good faith. From a reading of the record, we agree. While there was proof elicited that Scott contacted attorney Dudley Carter, now deceased, to draft Festus’s new will, Festus spoke via telephone to Carter about the terms and conditions he wanted in the will. The will was executed while Festus was in the hospital, and Scott was not present when the will was executed. Although Carter was paid for the drafting and administering of the will, it is unclear if Festus wrote the check himself or if Scott wrote the check for him. One thing that is clear from the testimony given was that Festus intended to change the will. Both Scott and Glenn testified to that fact.

¶ 17. Turning to the deeds, evidence was presented that Scott acted in good faith with those as well. Titus Bowen, a longtime friend of Festus, testified that Festus told him that he knew Glenn would try to challenge the will and that was why he deeded the property to Scott. Bowen testified that although Festus’s health was fading, his mind was not. The deeds were executed at the home on Military Road by Carter’s paralegal, Terri Pittman. Pittman testified that Festus read the deeds, that he indicated that deeding the property to Scott was his intention, and that he understood what he was doing. Additionally, she testified that Festus paid for the preparation of the deeds.

II. FULL KNOWLEDGE AND DELIBERATION

¶ 18. To determine if Festus had full knowledge and deliberation of his actions and their consequences, these factors must be considered:

(a) the grantor’s awareness of his total assets and their general value, (b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect that prior will or natural distribution, (c) whether non-relative beneficiaries would be excluded or included[, and] (d) [the grantor’s] knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent ... the grantor/testator [is] on him and how susceptible to his influence.

Id. at 319 (¶ 26) (quoting Wright, 797 So.2d at 1001 (¶ 31)).

¶ 19. The chancellor noted that the only proof Scott offered regarding Festus’s full knowledge and deliberation of his actions and the consequences of those actions was testimony by Pittman and Bowen. Pittman testified that after Carter discussed the will with Festus, she prepared the will according to Carter’s instructions. Although Pittman could not recall who was present when the will was executed other than herself, Carter, and Festus, she did state that Carter normally had the testator execute the will only in the presence of Carter and herself. While Pittman could not recall the particular questions Carter asked Festus, she did state that Festus answered all the questions asked of him.

¶ 20. As for the deeds, as stated above, Pittman and Bowen both testified that Festus intended to deed the land to Scott. Additionally, Bowen stated that Festus did not want Glenn to have the property because he wanted it to remain in the family and he feared that Glenn would sell the property.

III. INDEPENDENT CONSENT

¶ 21. One way for Scott to show that Festus exhibited independent consent and action was to provide “[ajdvice of (a) [a] competent person, (b) disconnected from [Scott] and (c) devoted wholly to [Festus’s] interests.” Murray, 446 So.2d at 578. The chancellor found that Festus received independent advice from Carter both when he executed his second will and when he deeded the property. This Court agrees.

¶ 22. The chancellor did not abuse her discretion in finding that Glenn proved by clear and convincing evidence that a confidential relationship existed between Fes-tus and Scott. Additionally, she did not err in finding that when the burden shifted to Scott, he proved by clear and convincing evidence that he acted in good faith, Fes-tus had full knowledge and deliberation of his actions, and Festus received independent advice. Therefore, we affirm.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. ROBERTS, J, CONCURS IN PART AND IN THE RESULT.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Margaret MOELLER, Appellant v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES and Mississippi State Agencies Workers’ Compensation Trust Fund, Appellees.
    No. 2012-WC-00978-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.

      Jonathan B. Fairbank, attorney for appellant.
    Diane Pradat Pumphrey, Jackson, attorney for appellees.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Margaret Moeller appeals the decision of the Mississippi Workers’ Compensation Commission that determined her mental-health issues were not aggravated by an on-the-job shoulder injury she sustained. In this appeal, she argues that the Commission did not properly assess the weight of the substantial evidence when it deferred to the opinion of an independent medical examiner over Moeller’s treating physician. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Moeller was employed by the Mississippi Department of Human Services (MDHS). On December 22, 1999, Moeller suffered an on-the-job injury when she hurt her shoulder lifting a box.

¶ 3. Moeller filed a petition to controvert with the Commission. The petition alleged that the shoulder injury, along with other work-connected factors, resulted in mental and psychological injury to Moeller. MDHS and its insurance carrier, the Mississippi Workers’ Compensation Trust Fund (MWCTF), filed a response that admitted Moeller’s injury to her shoulder.

¶ 4. Moeller subsequently sought treatment for anxiety and depression with various providers. First, Moeller began to see Dr. Ben Root, a psychiatrist, in 2000. Dr. Root diagnosed Moeller with a single episode of major depression, which included complaints of trouble with insomnia, difficulty concentrating, and a depressed mood. Dr. Root testified that Moeller mentioned other problems as well, which included family issues, being held at gunpoint by a supervisor in 1999, and pending litigation.

¶ 5. Next, Moeller saw Dr. Angela Koestler, a psychologist, on May 16, 2001. Dr. Koestler treated Moeller from May 2001 to December 2003, and diagnosed her with having an adjustment disorder with anxiety and depressed mood. Dr. Koestler’s records, like Dr. Root’s, noted that Moeller related her mental injuries and physical complaints to stressors related to pain, family issues, being held at gunpoint by a supervisor in 1999, and litigation. Dr. Koestler opined that Moeller had a tendency to be dependent and overly reliant on medical personnel, but that she had no major personality disturbances. Dr. Koestler discharged Moeller from her care after she resumed treatment with Dr. Root.

¶ 6. MDHS and MWCTF first referred Moeller to Dr. Edward Manning for a psychiatric evaluation on March- 9, 2005, pursuant to Mississippi Code' Annotated section (1) (Supp.2012). According to Dr. Manning’s report, Moeller stated that she had been in an automobile accident and suffered a head injury. She also told Dr. Manning that she had been advised not to disclose the information about her physical and mental history. Dr. Manning determined that, because of Moeller’s refusal to cooperate, the interview had been compromised, as he might have trouble accepting the veracity of her statements.

¶ 7. After review of the report from Dr. Manning, MDHS and MWCTF filed a motion to have Moeller undergo a psychiatric evaluation by a medical examiner of their choice. Subsequently, the administrative judge (AJ) ordered Moeller to submit to an examination by Dr. Thomas Boll, a board certified psychologist and neuropsychologist. Dr. Boll issued a report that indicated that Moeller had no work restrictions, that she had no neuropsychological deficits, and that it was not possible to attribute her psychiatric difficulties to her 1999 shoulder injury. Dr. Boll did, however, note that because he could not determine the validity of Moeller’s allegations, he assigned the diagnosis of depressive disorder and a need for ongoing psychiatric intervention.

¶ 8. As a result of Dr. Boll’s report, MDHS and MWCTF filed a motion to suspend Moeller’s benefits. The, motion alleged that Moeller was not disabled, was at maximum medical improvement, and had no work restrictions. The AJ denied their motion. Moeller applied for a lump-sum payment of her indemnity benefits, which was granted.

¶ 9. Dr. Root testified that he had been treating Moeller almost continuously since 2002, and his notes were basically the same at every appointment. He testified that he did not think Moeller “had plateaued out yet,” or was at maximum medical improvement. Dr. Root also testified that his treatment of Moeller included a regimen of medications, including Sonata for insomnia, Tranxene for anxiety, and Topamax as a mood stabilizer, which were prescribed monthly.

¶ 10. The AJ ordered the parties to agree on a physician for an independent psychiatric evaluation of Moeller. MDHS and MWCTF identified Dr. Gregory Gordon, at University of Mississippi Medical Center, who is board certified in psychiatry and internal medicine, as a potential physician to perform the examination on Moeller. Moeller failed to respond to this request. The AJ subsequently ordered Moeller to submit to an evaluation by Dr. Gordon to resolve whether Moeller’s work-connected injuries to her hand and shoulder significantly aggravated, accelerated, or contributed to her current mental impairment. Dr. Gordon was also asked to give an opinion on whether Moeller was at maximum medical improvement; and whether she needed continuing medical treatment, including psychotherapy and medication.

¶ 11. Dr. Gordon reviewed Moeller’s medical records and met with Moeller for an eighty-minute session for Moeller’s examination. Dr. Moeller opined in his report that Moeller was not suffering from major depression, and that there was no connection between her work-related injuries and the treatment she was receiving for her mental state. Dr. Gordon further testified that Moeller had no need for continuing psychiatric care. Dr. Gordon was of the opinion that the medications prescribed by Dr. Root, which included Topamax, Tranxene, and Sonata, were not intended for treatment of depressive disorder.

¶ 12. Based on the evidence presented, the AJ issued an order that found Moel-ler’s work-related shoulder injury at MDHS did not significantly aggravate, accelerate, or contribute to her current mental state or need for medication as prescribed by Dr. Root. The AJ noted in the order that neither Dr. Root’s records nor his deposition testimony constituted competent, credible evidence that Moeller’s work injury significantly contributed to her current mental state or need for mental-health treatment. The AJ relied on the report of Dr. Gordon in making this ruling, and stated that Dr. Gordon’s opinion was corroborated by the evaluations of Dr. Boll and Dr. Koestler.

¶ 13. Moeller subsequently filed her motion for reconsideration, which was denied by the AJ. Finally, she filed her petition for full commission review. The full Commission affirmed the order that denied her motion for reconsideration. Aggrieved, Moeller timely filed her notice of appeal.

STANDARD OF REVIEW

¶ 14. This Court employs a substantial-evidence standard of review to resolve a workers’ compensation case; however, the standard of review is de novo when the issue is one of law and not of fact. Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 79 (¶ 6) (Miss.Ct.App.2011) (citation omitted). “Absent an error of law, we must affirm the Commission’s decision if there is substantial evidence to support the Commission’s decision.” Id. (citing Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506 (¶ 8) (Miss.Ct.App.1998)). “In a workers’ compensation case, the Commission is the trier and finder of facts.” Id. (citing Radford v. CCA-Delta Corr. Facility, 5 So.3d 1158, 1163 (¶ 20) (Miss.Ct.App.2009)). If the Commission’s order is supported by substantial evidence, this Court is bound by the Commission’s determination even if the evidence would convince us otherwise if we were the fact-finder. Id. (citation omitted). “On the other hand, reversal is proper where the Commission has misapprehended the controlling legal principles, as the standard of review in that event is de novo.” Id. (citation omitted).

ANALYSIS

¶ 15. Moeller argues that the Commission erred by upholding the AJ’s order that found Moeller’s work-related shoulder injury at MDHS did not significantly aggravate, accelerate, or contribute to her current mental state or need for medication as prescribed by Dr. Root. Specifically, Moeller argues that the Commission erroneously disregarded the testimony of Dr. Root, who had treated Moeller continuously since 2002, and relied on the opinion of Dr. Gordon, who had only seen Moeller on one occasion, in making its decision.

¶ 16. The Commission has a duty, as the finder of fact in a workers’ compensation case, to evaluate and determine the weight of the evidence. Daniels v. Peco Foods of Miss., Inc., 980 So.2d 360, 365 (¶ 16) (Miss.Ct.App.2008) (citation omitted). Because the Commission is the fact-finder and also the judge of witness credibility, appellate courts cannot reweigh the evidence and are thus highly deferential to the Commission’s decisions. Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1251 (¶ 23) (Miss.2010).

¶ 17. Further, Mississippi law provides that the Commission is permitted to rely on the opinion of an independent medical examiner, even if that doctor has only examined the claimant once, and “is not required to defer to the opinion and report of the claimant’s treating physician.” Wooten v. Franklin Corp., 9 So.3d 1182, 1185 (¶ 13) (Miss.Ct.App.2009); see also Manning v. Sunbeam-Oster Household Prods., 979 So.2d 736, 741 (¶ 18) (Miss.Ct. App.2008); Richardson v. Johnson Elec. Auto. Inc., 962 So.2d 146, 152 (¶ 16) (Miss.Ct.App.2007). Most importantly, this Court has held that to find that the Commission is required to always comply with a treating physician’s opinion would be contrary to Mississippi workers’ compensation law. Richardson, 962 So.2d at 152 (¶ 15) (citation omitted). “While a treating physician’s opinion is without question of great import,” the Commission is not “required to give it any greater weight than other physicians’ opinions.” Id. at (¶ 16).

¶ 18. Here, we find that the Commission correctly evaluated the weight of the evidence when it upheld the AJ’s decision to reject the testimony of Moeller’s primary treating physician and credited the testimony of the independent medical examiner. The AJ noted that although Dr. Root had seen Moeller for more than 280 psychotherapy sessions and had spoken to her more than 100 times on the phone, his clinic notes did not illustrate the treatment that he provided or the efficacy of his treatment. Dr. Root’s records did, however, indicate repeatedly that Moeller was not suicidal and that she had done psychotherapy and had little change in her medications. The AJ’s order also noted that even though Moeller had returned to work and remained employed, Dr. Root did not find that she had reached maximum medical improvement. Further, the AJ noted that Dr. Root erroneously identified Moeller’s work injury as being held at gunpoint by a supervisor. The AJ correctly decided that the injury that was the basis for Moeller’s claim was the injury to her right shoulder and not being held at gunpoint by a supervisor, which was never reported or proven.

¶ 19. The evaluation of Dr. Gordon, the independent medical examiner, contradicts Dr. Root’s medical opinion and is substantiated by other medical evidence. Dr. Gordon evaluated Moeller and concluded that she did not have major depression or any other psychiatric condition, that her work-connected hand and shoulder injuries did not contribute in any way to her current mental state, and that she did not need ongoing treatment for her mental state. Dr. Gordon placed Moeller at maximum medical improvement as of late 2006 or early 2007. Further, as the AJ’s order explained, Dr. Gordon’s opinions were supported by the examinations of Dr. Koestler and Dr. Boll. Dr. Koestler noted that Moeller related numerous physical complaints and problems to various other personal issues occurring in her life. Dr. Koestler concluded that Moeller had a tendency to be dependent and overly reliant on medical personnel but otherwise had no major personality disturbances. Dr. Boll examined Moeller and concluded that she did not have a neurological impairment or a neurocognitive deficit. He also concluded that psychiatric problems could in no way be attributed to the injury to Moel-ler’s shoulder.

¶ 20. Based on a review of the record, we find that the Commission’s decision was based on substantial evidence. Therefore, we affirm the Commission’s decision.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: IRVING, P. J.,

text:
    Jose Ortando ANDINO a/k/a Jose Ortando Adino a/k/a Jose O. Andino a/k/a Jose Andino a/k/a Jose Adino, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00917-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.

      B. Brennan Horan, Grenada, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P. J.,

for the Court:

¶ 1. On April 19, 2012, a Tunica County jury found Jose Ortando Andino guilty of felony driving under the influence (DUI) causing death. The circuit court sentenced Andino to twenty years in the custody of the Mississippi Department of Corrections. Andino filed a motion for a judgment notwithstanding the verdict (JNOV) and a motion for a new trial, both of which the court denied. Feeling aggrieved, Andino appeals and argues that the circuit court erred in failing to grant his motion for a JNOV and his motion for a new trial.

¶2. Finding that the circuit court did not err in its judgment, we affirm.

FACTS

¶3. On January 15, 2011, Andino was traveling south on Fitzgeralds Boulevard in Tunica County, Mississippi, leaving Fitzgeralds Casino. Katherine Root, her husband, and her mother, Patricia Roper, were leaving Hollywood Casino and were traveling north on Fitzgeralds Boulevard headed towards Fitzgeralds Casino. As Root drove through an intersection at which she had the green light, Andino’s vehicle struck her vehicle. Root stated that she knew Andino’s vehicle was not traveling in the same direction as she was traveling because she had observed only one other car traveling north on Fitzger-alds Boulevard. Root also testified that Andino made a left turn into her “at the light that [she] was already going through.” Roper was killed as a result of the'accident.

¶4. Phillip Odom testified that he was stationary at the red light at the same intersection before the accident occurred. He had passed through the intersection once the light turned green and, shortly thereafter, he heard the collision. He stated that he had been about 150 feet in front of Root on Fitzgeralds Boulevard. When he looked behind him, he saw that Root’s car had been hit by another car. He did not see the actual accident take place. Odom testified that the light was green when he went through the intersection and that the light was green when Root went through the intersection, as she had proceeded behind him.

¶ 5. Lieutenant Barry Collins, with the Tunica County Sheriffs Department, testified that he got the call about the accident at 11:46 a.m. When he arrived at the scene of the accident, he asked Andino several times for his driver’s license and proof of insurance, but Andino would not respond. Finally, Andino replied that he did not speak English and that he needed to go to the hospital. Lieutenant Collins stated that he was about two feet away from Andino and could smell a “very high concentration” of alcohol on Andino’s breath. He observed that Andino had glassy eyes and slurred speech, and Lieutenant Collins communicated his observations to Captain Monlito Felix and Commander Leron Weeks. Commander Weeks called DUI Officer Lieutenant Lee Clayton, who located a judge to sign a subpoena so that they could draw Andino’s blood and test it for alcohol. Both Commander Weeks and Lieutenant Clayton traveled to the hospital in Memphis, Tennessee, where Andino was transported after the accident. Commander Weeks testified that they arrived at the hospital around 3:00 p.m. and waited for the nurse to draw Andino’s blood. Andi-no’s blood-alcohol content registered at .14 percent.

¶ 6. Dean Medford, lead surveillance agent in the surveillance department at Fitzgeralds Casino, testified about the casino surveillance videos that were shown during trial. The videos showed that An-dino arrived at the casino around 4:50 a.m., went to the bar at 5 a.m., and consumed six beers in a two-hour period. The last footage of Andino showed him at the same bar at 7:24 a.m. There was no footage of Andino between 7:25 a.m. and 11:35 a.m. The footage shows Andino leaving the casino parking lot at 11:35 a.m,

¶ 7. Additional facts, as necessary, will be related during the analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Sufficiency of the Evidence

¶ 8. Andino argues that the evidence was insufficient to prove that he was intoxicated at the time of the accident or that he negligently caused Roper’s death. The Mississippi Supreme Court has established that

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a] judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation and internal quotation marks omitted). When there is a challenge to the sufficiency of the evidence, appellate courts view the evidence in the light most favorable to the prosecution. Id. The elements of DUI homicide are: “1) operating a vehicle while under the influence of an intoxicating liquor, or operating á vehicle with [eight one-hundredths percent (.08%) ] or more by weight volume of alcohol in the person’s blood; and 2) causing the death of another in a negligent manner.” Wilkerson v. State, 731 So.2d 1173, 1179 (¶ 22) (Miss.1999) (citing Hedrick v. State, 637 So.2d 834, 837 (Miss.1994)); see also Miss.Code Ann. § 63-11-30(1), (5) (Rev.2013).

¶ 9. Emily Harper, a forensic toxicologist employed with the Mississippi Crime Lab in Jackson, Mississippi, testified that she performed the toxicology examination of Andino’s blood. She stated that Andi-no’s blood contained .14 percent concentration of alcohol at the time that his blood was drawn at the hospital. Harper detailed the safeguards taken by the Mississippi Crime Lab to prevent contamination of blood samples. She then explained that a person’s weight may affect the concentration of alcohol in his system, but that it does not affect the “elimination” of the alcohol from his system over a period of time.

¶ 10. Andino argues that Professor A.K. Rosenhan’s testimony rendered the evidence of Andino’s intoxication insufficient. Testifying as an expert in blood-alcohol-content analysis, Rosenhan stated that Andino’s gender and weight made it unlikely that Andino was under the influence of alcohol at the time of the accident based on the equations and formulas that he used. However, Lieutenant Collins’s testimony and Andino’s blood test are evidence that Andino was intoxicated at the scene of the accident. There is also video evidence that Andino consumed six beers, and Andino admitted that he had two beers prior to arriving at the casino. The evidence presented by the State was sufficient for a jury to find all of the elements of the charged offense, despite Rosenhan’s testimony to the contrary, as the jury is always the final arbiter of disputed evidence. Andino’s contention that there is insufficient evidence that he was intoxicated at the time of the accident fails.

¶ 11. Andino further argues that because the State did not have an expert to reconstruct the accident, there was no conclusive evidence regarding his negligence. However, Andino cites no authority to support his assertion that the State was required to present an accident-reconstruction expert to prove his negligence. Therefore, he is procedurally barred from making this argument. Rubenstein v. State, 941 So.2d 735, 780 (¶ 196) (Miss.2006). Procedural bar notwithstanding, An-dino’s argument is without merit. Both Root and Odom testified that Root had the “right-of-way” at the intersection because the light was green as Root approached the intersection as well as when she crossed through the intersection. Root testified that Andino came out of nowhere and turned into her. Therefore, there is sufficient evidence that Andino was negligent in causing Roper’s death.

¶ 12. Next, Andino argues that the State failed to meet the requirements of Mississippi Code Annotated section 63-11-8 (Rev.2013), which mandates that “[t]he operator of any motor vehicle involved in an accident that results in a death shall be tested for the purpose of determining alcohol content or drug content .... within two hours after such accident, if possible.” (Emphasis added). More specifically, Andino contends that because his blood test was not timely and because Root was not tested, law enforcement violated the statute. In Testan v. State, 44 So.3d 977, 987 (¶ 21) (Miss.Ct.App.2008), we pointed out that the Legislature’s inclusion of the “if possible” language did not deem the two-hour time frame “necessary to ensure the integrity of the test results.” When there is no evidence that the police “deliberately delayed the test” or that the defendant was “prejudiced by the delay,” we presume that the officers complied with the statute. Id. Here, there is no evidence that the officers deliberately delayed the test, as they had acted immediately in obtaining a subpoena and traveling to Memphis to get the blood sample from Andino. There is also no evidence that Andino was prejudiced by this delay.

¶ 13. Our supreme court has clearly established that the blood test required by section 63-11-8 must be done only where there is probable cause, a warrant, consent, or when it is incident to a lawful arrest. See McDuff v. State, 763 So.2d 850, 856 (¶ 19) (Miss.2000). Based on Lieutenant Collins’s testimony, there was probable cause to test Andino’s blood. There was, however, no evidence to support a finding of probable cause that Root was operating her vehicle under the influence of alcohol at the time of the accident. This issue is without merit.

II. New Trial

¶ 14. Andino argues that the circuit court erred in not granting his motion for a new trial. A motion for a new trial challenges the weight of the evidence. Sims v. State, 80 So.3d 866, 868 (¶ 13) (Miss.Ct.App.2012). A new trial is proper only when the verdict is against the overwhelming weight of the evidence and allowing the verdict to stand would “sanction an unconscionable injustice.” Baker v. State, 802 So.2d 77, 81 (¶ 14) (Miss.2001).

¶ 15. As support for this challenge, An-dino advances the same argument that he uses to support his attack on the sufficiency of the evidence. Based on the evidence discussed above, we cannot find that Andi-no’s guilty verdict was against the overwhelming weight of the evidence or that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit, and the circuit court’s judgment is affirmed.

¶ 16. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE CAUSING DEATH AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ„ CONCUR.

      . In his brief, Andino states that he indicated in his interview with the Tunica County Sheriff's Department that he had a couple of beers between his leaving work around 1 a.m. and arriving at Fitzgeralds Casino at 4:50 a.m. However, this interview is not in the record.


author: MAIN, Justice.

text:
    Ex parte BROOKS INSURANCE AGENCY et al. (In re Guster Law Firm, LLC, and Guster Properties, LLP v. Brooks Insurance Agency et al.).
    1120165.
    Supreme Court of Alabama.
    April 26, 2013.

      Kori L. Clement of Hare, Clement & Duck, P.C., Birmingham, for petitioners.
    Steve W. Couch and Mallory L. Schneider of Hollis, Wright & Couch, PC, Birmingham, for respondent.
   MAIN, Justice.

Brooks Insurance Agency (“the agency”); Sidney Brooks, its agent; and Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company (collectively “Nationwide”) petition this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order denying their motion to dismiss, pursuant to § 6-5-440, Ala.Code 1975 (“the abatement statute”), and Rule 13(a), Ala. R. Civ. P. (“the compulsory-counterclaim rule”), the action filed by Guster Law Firm, LLC, and Guster Properties, LLP (collectively “Guster”), against them. We grant the petition in part, deny it in part, and issue the writ.

I. Factual Background and Procedural History

Guster made a claim for a fire loss under commercial property policies issued to it by Nationwide. In April 2011, Nationwide filed a declaratory-judgment action in the United States District Court for the Northern District of Alabama (“the federal court”), requesting that the federal court determine the rights and obligations under the insurance policies it had issued to Gus-ter. Guster answered and asserted compulsory counterclaims against Nationwide, including bad-faith failure to pay an insurance claim and breach of contract, among others. On November 10, 2011, Guster deposed Brooks in the federal-court action. The agency and Brooks were never joined as parties to the federal-court action.

On June 11, 2012, Guster filed a lawsuit in the Jefferson Circuit Court (“the state court”), alleging against the agency, Brooks, and Nationwide negligent/wanton failure to provide insurance coverage; misrepresentation; suppression and concealment; and negligent/wanton failure to train. The agency, Brooks, and Nationwide moved to dismiss the state-court action on the ground that the action violated the abatement statute, which prohibits a party from prosecuting two actions simultaneously in different courts if the claims alleged in each action arose from the same underlying operative facts, and the compulsory-counterclaim rule, which requires a party to file as a counterclaim in an opposing party’s action any factually related claim against the opposing party that arises out of the transaction or occurrence that is the subject matter of the opposing party’s action. The trial court summarily denied the motion to dismiss on October 1, 2012. The agency, Brooks, and Nationwide then petitioned this Court for mandamus relief.

II. Standard of Review

This Court has considered petitions for a writ of mandamus to review orders denying motions to dismiss based on the abatement statute, see Ex parte J.E. Estes Wood Co., 42 So.3d 104 (Ala.2010), and the compulsory-counterclaim rule, see Little Narrows, LLC v. Scott, 1 So.3d 973 (Ala.2008). “ ‘[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or [that the trial court exceeded its] discretion.’ Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001)." Ex parte Compass Bank, 77 So.3d 578, 581 (Ala.2011). “ ‘When the facts underlying a motion filed pursuant to § 6-5-440 are undisputed, as is the case here, our review of the application of the law to the facts is de novo. Greene v. Town of Cedar Bluff, 965 So.2d 773, 779 (Ala.2007).’ Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 969 (Ala.2007).” Clark v. Wells Fargo Bank, N.A., 24 So.3d 424, 426 (Ala.2009). “1 “The burden of establishing a clear legal right to the relief sought rests with the petitioner.’” Ex parte Dangerfield, 49 So.3d 675, 680 (Ala.2010) (quoting Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala.2007)).” Ex parte McNeese Title, LLC, 82 So.3d 670, 673 (Ala.2011).

III. Analysis

The agency, Brooks, and Nationwide argue that the state court erred when it denied their motion to dismiss based on the abatement statute and the compulsory-counterclaim rule, because, they argue, the claims filed in the state court involve the same cause and the same opposing parties as the claims filed in the federal court and because, they argue, Guster’s claims in the state court are compulsory counterclaims in the action in the federal court.

The abatement statute provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

§ 6-5-440, Ala. Code 1975. This Court has explained:

“[Section 6-5-440], by its plain language, forbids a party from prosecuting two actions for the ‘same cause’ and against the ‘same party.’ This Court has previously held that an action pending in a federal court falls within the coverage of this Code section:
“ ‘ “The phrase ‘courts of this state,’ as used in § 6-5-440, includes all federal courts located in Alabama. This Court has consistently refused to allow a person to prosecute an action in a state court while another action on the same cause and against the same parties is pending in a federal court in this State.” ’ ”

Ex parte Norfolk Southern Ry., 992 So.2d 1286, 1289 (Ala.2008) (quoting Ex parte University of South Alabama Found., 788 So.2d 161, 164 (Ala.2000), quoting in turn Weaver v. Hood, 577 So.2d 440, 442 (Ala.1991)). The application of the abatement statute “is guided by ‘whether a judgment in one suit would be res judicata of the other.’ ” Chiepalich v. Coale, 36 So.3d 1, 3 (Ala.2009) (quoting Sessions v. Jack Cole Co., 276 Ala. 10, 12, 158 So.2d 652, 654-55 (1963)). “Where there is no question as to the jurisdiction of the court or as to the identity of the parties, the test for deter-raining [the applicability of the doctrine of res judicata] is whether the issues in the two suits are the same and whether the same evidence would support a recovery in both suits.” Sessions v. Jack Cole Co., 276 Ala. at 13, 158 So.2d at 655; see also Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 637 (Ala.1998) (holding that for res judicata purposes the cause of action is the same when “substantially the same evidence would support a recovery in both actions”). “A question presented to determine whether a party has run afoul of [the abatement statute] is whether the claim presented in the second action is a compulsory counterclaim in the first action.” Ex parte J.C. Duke & Assocs., Inc., 4 So.3d 1092, 1094 (Ala.2008).

In Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999), this Court applied the abatement statute in a case where the issue involved was whether the claim asserted in the later filed action was a compulsory counterclaim in the first-filed action:

“[T]he obligation imposed on a defendant under Rule 13(a), Ala. R. Civ. P., to assert compulsory counterclaims, when read in conjunction with § 6-5^440, Ala. Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a ‘plaintiff in that action (for purposes of § 6-5-440) as of the time of its commencement. See, e.g., Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala.1995); Penick v. Cado Systems of Cent. Alabama, Inc., 628 So.2d 598 (Ala.1993); Ex parte Canal Ins. Co., 534 So.2d 582 (Ala.1988). Thus, the defendant subject to the counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause. We affirm the general rule expressed in these cases; to do otherwise would invite waste of scarce judicial resources and promote piecemeal litigation.”

The compulsory-counterclaim rule provides:

“A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”

Rule 13(a), Ala. R. Civ. P. (emphasis added). This Court has held that the compulsory-counterclaim rule, when read in conjunction with the abatement statute, makes the defendant with a compulsory counterclaim in the first-filed action a plaintiff in that action for purposes of the abatement statute. See Ex parte Breman Lake View Resort, L.P., 729 So.2d at 851. “Thus, the defendant subject to the [compulsory-]counterclaim rule who commences another action has violated the prohibition in [the abatement statute] against maintaining two actions for the same cause.” Id.

Although the causes of action in the federal court and the state court arose out of the same transaction or occurrence and are thus -related, Guster’s claims against the agency and-Brooks were not compulsory counterclaims in the. federal declaratory-judgment action because the agency and Brooks were not “opposing parties]” in the federal action. Little Narrows, LLC v. Scott, 1 So.3d at 978-79. In Little Narrows, this Court directly addressed the scope of the term “opposing party” as used in the compulsory-counterclaim rule. We limited the definition to those parties formally named as parties in the action. Id. at 977-79. It is undisputed that the agency and Brooks were not “parties” in the action in the federal court. Because the agency and Brooks were not parties in the federal-court action, any factually related claims Guster might have against them are not compulsory counterclaims that must be asserted in that action. Accordingly, Gus-ter was free to assert its claims against the agency and Brooks in a separate action in any appropriate venue, as it did in the state court, without violating the abatement statute. The agency and Brooks have not shown that they have a clear legal right to the dismissal of the state-court action as to them, and the state court did not err in denying the motion to dismiss as to them.

We now turn to the motion to dismiss as to Nationwide. The standard for deciding whether two actions may proceed in different courts is similar to the standard applied for determining the applicability of the doctrine of res judicata; that is, whether the issues in the two actions are the same and whether the same evidence would support a recovery in both actions. See Sessions v. Jack Cole Co., supra. The complaint filed in the federal court arises from insurance policies issued to Guster by Nationwide, the investigation by Nationwide into Guster’s fire-loss claim made under those policies, and Nationwide’s refusal to pay the fire-loss claim without a declaration of the rights of the parties under the issued polices, all actions and inactions of Nationwide that occurred after Nationwide had issued certain policies of insurance to Guster. The complaint filed in the state court asserted several theories of recovery, all of which arise from events that happened before or around the same time that the insurance policies were issued to Guster. Nevertheless, whether the claims asserted by Nationwide in the federal court or the claims asserted by Guster in the state court complain of actions before or after Nationwide issued the insurance policies, all the claims in both the federal court and the state court arise from the same facts and circumstances — Nationwide’s issuance of the insurance policies to Guster and its handling of Guster’s fire-loss claim. Accordingly, the abatement statute mandates that the claims against Nationwide in Guster’s complaint filed in the state court be dismissed. Nationwide has shown that it has a clear legal right to an order dismissing the state-court action against it and that the state court erred in denying the motion to dismiss as to it.

IV. Conclusion

Based on the foregoing, we conclude that the agency and Brooks have not shown a clear legal right to the dismissal of Guster’s claims against them in the state-court action. However, Nationwide has shown a clear legal right to the dismissal of Guster’s claims against it in the state-court action, and we conclude that the trial court erred in denying the motion to dismiss as to Nationwide. Accordingly, we grant the petition in part, deny it in part, and direct the Jefferson Circuit Court (1) to vacate its order insofar as it denies the motion to dismiss as to Nationwide, and (2) to enter an order dismissing Guster’s claims against Nationwide without prejudice, pursuant to the abatement statute and the compulsory-counterclaim rule.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, SHAW, WISE, and BRYAN, JJ., concur.


author: PITTMAN, Judge.

text:
    Bonnie CURRY v. RUSSELL COUNTY BOARD OF EDUCATION et al.
    2110917.
    Court of Civil Appeals of Alabama.
    April 19, 2013.

      W. Don Eddins, Auburn, for appellant.
    Sydney S. Smith of Smith & Smith, P.C., Phenix City, for appellee.
   PITTMAN, Judge.

Bonnie Curry appeals from an adverse judgment entered by the Russell Circuit Court (“the trial court”) following a hearing held by the trial court pursuant to the Teacher Accountability Act, § 16-24B-1 et seq., Ala.Code 1975. We affirm.

In 2009, the Russell County Board of Education (“the board”) and Curry executed a written contract memorializing their agreement that the board would employ Curry as a contract principal for a three-year period expiring on June 30, 2012. Section 16-24B-3(f)(2) provides that, unless the chief executive officer of the employing board recommends cancellation or nonrenewal of a contract principal’s contract and that recommendation is accepted by a majority of the employing board, the employing board shall enter into a new contract with the contract principal for a period of at least three years. However, § 16-24B-3(c), Ala.Code 1975, provides that the nonrenewal of a contract principal’s contract may be effected by the chief executive officer’s making a written recommendation to the employing board that the contract not be renewed and a majority of the employing board’s voting in favor of that recommendation at least 90 days before the end of the contract. Section 16-24B-3(c) further provides that “[t]he decision of the chief executive officer and the employing board [not to renew.the contract principal’s contract] may be based on any reason except personal or political reasons.” (Emphasis added.)

In March 2012, the board’s superintendent (“the superintendent”) recommended nonrenewal of Curry’s contract due to “Lack of Leadership” and “Declining Test Scores,” and, more than 90 days before the end of Curry’s contract, a majority of the board voted in favor of that recommendation. Section 16-24B-3(e)(2)a., Ala.Code 1975, provides that, after a majority of an employing school board has voted in favor of a chief executive officer’s recommendation that a contract principal’s contract not be renewed pursuant to § 16-24B-3(c), the contract principal

“may request a nonjury, expedited evi-dentiary hearing to demonstrate that the chief executive officer’s or supervisor’s recommendation to nonrenew the contract was impermissibly based upon a personal or political reason, or the recommendation was approved based upon personal or political reasons of the chief executive officer, supervisor, or the employing board, which shall be the sole issues at any such hearing. The contract principal shall bear the burden of proof by a preponderance of the evidence. The hearing shall be before the circuit court in the judicial circuit of the county in which the employing board sits....”

(Emphasis added.)

Curry requested a hearing before the trial court in accordance with § 16-24B-3(e)(2)a., and the trial court held such a hearing. Following that hearing, the trial court entered a judgment finding that Curry had failed to prove by a preponderance of the evidence that the nonrenewal of her contract had been based upon an impermissible personal or political reason.

Sections 16-24B-3(g) and 16-24B-5(a), Ala.Code 1975, provide for an appeal to this court from a circuit court’s judgment following a hearing held in accordance with § 16-24B-3(e)(2)a. Section 16-24B-3(g) provides that “[t]he decision of the circuit court ... shall be final and exclusively appealable to the Alabama Court of Civil Appeals, as a nonevidentiary appeal in which review, is limited to the record from the expedited evidentiary hearing as provided for in this chapter.” In pertinent part, § 16-24B-5(a) provides that “[a]ll appeals of a final decision from the expedited evidentiary hearing shall lie with the Alabama Court of Civil Appeals” and that such an appeal “shall be perfected by filing a written notice of appeal with the clerk of the Court of Civil Appeals within 14 days after the receipt of the final written decision of the circuit judge.”

Curry perfected an appeal to this court in accordance with §§ 16-24B-3(g) and 16-24B-5(a). Section 16-24B-5(b), Ala. Code 1975, provides that “[t]he decision of the circuit judge [regarding whether a contract principal has proved by a preponderance of the.evidence that the nonrenewal of his or her contract was based upon an impermissible personal or political reason] ... shall be affirmed on appeal unless the Court of Civil Appeals finds the decision to be against the great weight of the evidence.”

Curry first argues that the trial court committed reversible error by refusing to admit testimony regarding whether Curry’s evaluations had been performed in the manner prescribed by the State Board of Education. During the expedited eviden-tiary hearing, the following colloquy occurred:

“[The board’s counsel]: Your Honor, I would object to this line of questioning regarding evaluations. That is not an issue in this case. The issue, the sole issue under the statute is whether or not his recommendation was based on personal or political reasons.
“[Curry’s counsel]: Judge, the statute — I would agree with her that the [first] issue today is 'personal or political reasons. But the statute also says that if the evaluation is not done properly, then the principal’s contract is automatically extended for a year. Now, I suppose we could come back, in a different theory and hear that matter, but, I mean, the rule said, I think, that everything could be considered here today.
“[The board’s counsel]: And I would object to that. There’s no provision in this expedited hearing procedure for the consideration of whether or not an evaluation was done or whether or not an evaluation was done properly.
“[Curry’s counsel]: Judge, Section—
“[The board’s counsel]: And that’s in Section (e), excuse me, 16-24B-3(e)(2)a. is the governing procedure that we’re under today.
“[Curry’s counsel]: And in the same section of law, 16-24B-8(m) states that if the contract principal is not evaluated as required by this section, his or her contract shall be extended for one additional contract year for each contract year not evaluated up to three years.
“[The board’s counsel]: That’s not under (e), which (e) is the subsection that deals with expedited hearings. You’re quoting (m), which is a separate paragraph dealing with the issue of evaluations.
“[Curry’s counsel]: It’s under the Teacher Accountability Act. I would agree that personal and political is part of it, but this is under the very same law.
“[The board’s counsel]: The statute under (e)(1), excuse me, (e)(2)a. does not provide for the hearing on the issue of evaluations. It states that the sole issue at the hearing will be whether or not there were personal or political reasons. That’s the sole issue. It does not state that it includes any evaluations.
“THE COURT: I’m going to sustain the objection at this point.”

(Emphasis added.)

Section 16-24B-3(i)(l), Ala.Code 1975, provides that “[t]he chief executive officer, or his or her designee, shall at least annually evaluate the performance of each contract principal” and that “[t]he evaluation shall be performed in a manner prescribed by the State Board of Education.” Section 16-24B-3(m), Ala.Code 1975, provides that “[i]f a contract principal is not evaluated as required by this section, his or her contract shall be extended one additional contract year for each contract year not evaluated up to three years.” However, § 16-24B-8(e)(2)a. clearly and unambiguously provides that, when there is a nonrenewal of a contract principal’s contract pursuant to § 16-24B-3(c) and he or she requests a hearing in the appropriate circuit court pursuant to § 16-24B-3(e)(2)a., the only issues before the circuit court in that hearing are whether “the chief executive officer’s or supervisor’s recommendation to nonrenew the contract was impermissibly based upon a personal or political reason, or the recommendation was approved based upon personal or political reasons of the chief executive officer, supervisor, or the employing board.” Curry did not argue to the trial court that the evidence she sought to introduce regarding the manner in which her evaluations were performed was admissible because it would tend to prove that the nonrenewal of her contract was based upon an impermissible personal or political reason. Rather, she argued to the trial court that that evidence was admissible because it would tend to prove her independent claim that, regardless of whether the nonrenewal of her contract was based upon an impermissible personal or political reason, she was entitled to an automatic extension of her contract pursuant to § 16-24B-3(m) based upon the superintendent’s alleged failure to perform her evaluations in the manner prescribed by the State Board of Education. Therefore, because we can consider only arguments that were presented to the trial court, see Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (holding that an appellate court cannot consider arguments raised for the first time on appeal and that an appellate court’s review is restricted to the evidence and arguments considered by the trial court), in this appeal we cannot consider an argument that evidence regarding the manner in which Curry’s evaluations were performed was admissible on the ground that it would tend to prove that the nonrenewal of her contract was based upon an impermissible personal or political reason. Rather, we can consider only the argument that such evidence was admissible even though it was offered for the sole purpose of proving Curry’s independent claim that, regardless of whether the non-renewal of her contract was based upon an impermissible personal or political reason, she was entitled to an automatic extension of her contract pursuant to § 16-24B-3(m) based upon the superintendent’s alleged failure to perform her evaluations in the manner prescribed by the State Board of Education.

“Tn interpreting the provisions of an Act ..., a court is required to ascertain the intent of the legislature as expressed and to effectuate that intent. Lewis v. Hitt, 370 So.2d 1369 (Ala.1979). The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Ex parte Holladay, 466 So.2d 956 (Ala.1985). Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. Coastal States Gas Transmission Co. v. Alabama Public Service Commission, 524 So.2d 357 (Ala.1988); Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of Hartselle, 460 So.2d 1219 (Ala.1984). If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Dumas Brothers Manufacturing Co. v. Southern Guaranty Insurance Co., 431 So.2d 534 (Ala.1983); Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Authority, Inc., 376 So.2d 705 (Ala.1979).’
“Tuscaloosa Cnty. Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa Cnty., 589 So.2d 687, 689 (Ala.1991). ‘[A] court may explain the language [in a statute], but it may not detract from or add to the statute.’ Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 607 (Ala.2002). ‘Furthermore, [the appellate courts are] not at liberty to rewrite statutes....’ Ex parte Carlton, 867 So.2d 332, 338 (Ala.2003).”

Walker v. Montgomery Cnty. Bd. of Educ., 85 So.3d 1008, 1011-12 (Ala.Civ.App.2011).

As noted above, § 16-24B-3(e)(2)a. clearly and unambiguously provides that the only issues before the trial court in a hearing requested pursuant to that Code section are whether “the chief executive officer’s or supervisor’s recommendation to nonrenew the contract was impermissibly based upon a personal or political reason, or the recommendation was approved based upon personal or political reasons of the chief executive officer, supervisor, or the employing board.” Therefore, we conclude that the trial court did not err in refusing to admit evidence regarding the manner in which Curry’s evaluations were performed because it was offered for the sole purpose of proving a claim that was not before the trial court. See § 16-24B-3(e)(2)a.

Curry next argues that the trial court’s judgment is against the great weight of the evidence.

“ ‘Because the trial court heard ore tenus evidence during the [hearing], the ore tenus standard of review applies. Our ore tenus standard of review is well settled. “ ‘When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.’ ” Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).
“ ‘ “ ‘The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to ‘disputed issues of fact,’ whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘ “ ‘[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’
‘Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, “that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.” Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).’
“Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala.2010).”

Fort Morgan Civic Ass’n v. City of Gulf Shores, 100 So.3d 1042, 1045-46 (Ala.2012) (emphasis added). Moreover, when a trial court receives conflicting evidence in an ore tenus hearing, “we must view ““the evidence in a light most favorable to the prevailing parties].’ ” ’ ” McClellan v. McClellan, 959 So.2d 658, 661 (Ala.Civ.App.2006) (quoting Diggs v. Diggs, 910 So.2d 1274, 1275 (Ala.Civ.App.2005), quoting in turn Architectura, Inc. v. Miller, 769 So.2d 330, 332 (Ala.Civ.App.2000), quoting in turn Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993)).

In stating that, under the ore tenus standard of review, an appellate court will not disturb a trial court’s determination regarding an issue of fact, “ ‘ “ ‘unless it is clearly erroneous and against the great weight of the evidence, but will affirm if, under any reasonable aspect, it is supported by credible evidence,’ ” ’ ” Fort Morgan Civic Ass’n, 100 So.3d at 1045 (quoting Kennedy v. Boles Invs., Inc., 53 So.3d 60, 68 (Ala.2010), quoting in turn Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000), quoting in turn Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)), the supreme court has indicated that a trial court’s determination regarding a disputed issue of fact is not against the great weight of the evidence “ ‘ “ ‘if, under any reasonable aspect, it is supported by credible evidence.’ ” ’ ” Id. Accordingly, if credible evidence supports the factual determinations upon which the trial court based its judgment, we cannot hold that the judgment of the trial court is against the great weight of the evidence. Id.

Curry, who is African-American, argues that the judgment of the trial court is against the great weight of the evidence because, she says, the great weight of the evidence indicated that the nonrenewal of her contract was based upon the impermissible personal reason of racism. However, the trial court had before it conflicting testimony regarding whether the nonre-newal of her contract was based upon racism.

“ ‘ “ ‘Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court....’” Ex parte Roberts, 796 So.2d 349, 351 (Ala.2001) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). “When the evidence in a ease is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact.” Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala.Civ.App.1985). “[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.” Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (citations omitted).’ ”

Friedman v. Friedman, 971 So.2d 23, 28 (Ala.2007) (quoting Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004)).

The superintendent, who is Caucasian, testified that he was the person who had recommended the nonrenewal of Curry’s contract, that he had thought about the decision for several months before he decided to recommend the nonrenewal of her contract, and that lack of leadership and declining test scores were his reasons for recommending the nonrenewal of her contract. He further testified that the fact that Curry is African-American played no part in his decision to recommend the nonrenewal of Curry’s contract. The superintendent testified that, in evaluating Curry’s leadership as a principal, he considered her failure to make herself readily available to communicate with the parents of students, her lack of problem solving, her failure to analyze test scores in order to determine the areas in which instruction was needed, and her failure to make use of technology that was available to enhance the learning experience of the students at her school. The superintendent also testified that, although Curry’s school had never failed to meet the test-score standards for the “Adequate Yearly Progress” mandated by the No Child Left Behind Act of 2001, 20 U.S.C. § 6301 et seq., a longitudinal study of those scores had shown a decline in the scores every school year since the 2007-2008 school year.

The board’s curriculum-instruction director, who is the Caucasian wife of one of the board members who voted in favor of the nonrenewal of Curry’s contract, testified that she had collected some of the data the superintendent had used in performing his final evaluation of Curry, an evaluation that had assigned Curry a numerical score that fell within the “unsatisfactory” range. The curriculum-instruction director further testified that she is not a racist, that the fact that Curry is African-American had not affected her collection of the data used by the superintendent, and that she and her husband had not discussed the data she had collected for the final evaluation of Curry performed by the superintendent or the superintendent’s recommendation that Curry’s contract not be renewed.

The four board members who voted in favor of the nonrenewal of Curry’s contract, all of whom are Caucasian, testified that the fact that Curry is African-American played no part in their decision to vote in favor of the nonrenewal of her contract. All of them testified that they had based their decision to vote in favor of the nonre-newal of her contract on the superintendent’s recommendation. In addition, the board member who is married to the curriculum-instruction director testified that he and his wife had not discussed the data his wife had collected for the superintendent’s final evaluation of Curry or the superintendent’s recommendation that Curry’s contract not be renewed.

Curry introduced testimony tending to prove that the nonrenewal of her contract was based upon the fact that she is African-American. However, in its judgment, the trial court stated, in pertinent part:

“Upon consideration of the sworn testimony and exhibits entered into evidence, the Court makes the following finding: Plaintiff, Bonnie Curry, was hired as a contract principal with the Russell County Board of Education. Prior to the expiration of her employment with the Russell County School Board, Mike Green, Chief Executive Officer of the Russell County School System recommended to the Russell County School Board that Bonnie Curry’s employment contract with the Russell County School Board not be renewed. Two reasons were cited for the non-renewal: declining test scores and lack of leadership skills. The Russell County School Board voted at a regularly scheduled board meeting to accept Mr. Green’s recommendation, and not renew Bonnie Curry’s employment contract. The vote was four board members voting not to renew and three board members voting to reject the recommendation of the chief executive office. The four Board members voting to accept the recommendation are Caucasian. The three Board members voting to reject the recommendation are [A]fro-[A]merican. The complainant, Bonnie Curry is [A]fro-[A]merican.
“Complainant, Bonnie Curry, testified that she believed that the decision to terminate her employment was based on racial reasons, two of the School Board Members who voted against the termination of Bonnie Curry’s employment contract stated in their opinions that the decision to terminate her employment was based on racial reasons. All four Russell County School Board Members who voted to accept the recommendation not to renew Bonnie Curry’s Employment Contract testified that their decision was based solely upon the Chief Executive’s recommendation1 which cited declining test scores and lack of leadership skills.
“The Court finds that the Plaintiff, Bonnie Curry has failed to prove by a preponderance of the evidence that the denial of the extension of her employment contract was based upon personal or political reason.”

The trial court implicitly found that the evidence tending to prove that the nonre-newal of Curry’s contract was not based upon racism was credible, and we cannot substitute our judgment for that of the trial court regarding such a credibility determination. See Friedman, supra. Accordingly, because there was credible evidence supporting the trial court’s determination that the nonrenewal of Curry’s contract was not based upon racism, we cannot hold that that determination regarding a disputed issue of fact is against the great weight of the evidence. See Fort Morgan Civic Ass’n, supra.

Curry also argues that the judgment of the trial court was against the great weight of the evidence because, she says, the evidence indicated that the reasons cited by the superintendent for his recommending the nonrenewal of Curry’s contract were not valid. However, the evidence regarding whether those reasons were valid was in conflict, and the trial court implicitly found that the evidence indicating that those reasons were valid was credible. We cannot substitute our judgment for that of the trial court regarding such a credibility determination. See Friedman, supra. Therefore, because there was credible evidence supporting the trial court’s implicit determination that the reasons cited by the superintendent for recommending nonrenewal of Curry’s contract were valid, we cannot hold that that implicit determination regarding an issue of fact is against the great weight of the evidence. See Fort Morgan Civic Ass’n, supra.

Finally, Curry argues that we should reverse the judgment of the trial court because, she says, the evidence established that the board member who is married to the curriculum-instruction director was not impartial and fair-minded regarding the nonrenewal of Curry’s contract because of his marital relationship with the curriculum-instruction director and, therefore, that board member should have recused himself from voting regarding the nonrenewal of Curry’s contract. However, Curry has not cited any legal authority supporting the proposition that the marital relationship of that board member and the curriculum-instruction director ipso facto disqualified that board member from voting regarding the nonre-newal of Curry’s contract, and “[w]e have unequivocally stated that it is not the function of [an appellate court] to do a party’s legal research....” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994). Moreover, that board member and his wife both testified that they had not discussed either the data collected by the wife for the superintendent’s final evaluation of Curry or the superintendent’s recommendation that Curry’s contract not be renewed. The trial court implicitly found that that testimony was credible, and we cannot substitute our judgment for that of the trial court regarding such a credibility determination. See Friedman, supra. Moreover, the trial court implicitly found that that board member was fair-minded and impartial regarding the nonrenewal of Curry’s contract, and because that implicit determination regarding an issue of fact is supported by credible evidence, we cannot hold it was against the great weight of the evidence. See Fort Morgan Civic Ass’n, supra. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

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

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

      .Section 16-24B-2(2), Ala.Code 1975, provides that a contract principal "[¡Includes only those persons hired on or after July 1, 2000, and certified for the position of principal as prescribed by the State Board of Education and who are employed by an employing board as the chief administrator of a school....”

      . Section 16-24B-2(1), Ala.Code 1975, defines a chief executive officer as "[t]he chief administrative officer of the employing board, including the superintendent of any public county or city school system....”

      . Section 16-24B-2(5), Ala.Code 1975, provides that an employing board "[i]ncludes all local boards of education....”


author: THOMAS, Judge.

text:
    Ex parte S.E. (In re K.R.W. v. S.E. and M.A.W.).
    2120417.
    Court of Civil Appeals of Alabama.
    May 3, 2013.
    Kevin D. Teague, Decatur, for petitioner.
   THOMAS, Judge.

M.A.W. (“the husband”) and K.R.W. (“the wife”) were married on July 1, 2010, in Morgan County. A.M.W. (“the child”) was born on August 19, 2010. The materials submitted to this court indicate that, on August 21, 2012, the wife filed a complaint styled as a “verified complaint to establish paternity, custody, child support and visitation” in the Morgan Juvenile Court (“the juvenile court”); the wife named the husband and S.E. as defendants. In her complaint, the wife averred that S.E., and not the husband, was the biological father of the child and requested that the juvenile court “establish ] paternity of the minor child and recogniz[e] [S.E.] as the father of the said child.” S.E. filed a motion to dismiss on November 27, 2012, arguing that, among other things, because the husband was the presumed father of the child, the wife did not have standing to bring the action. S.E. attached to his motion the husband’s verified complaint for a divorce in which the husband asked to be awarded custody of the child and the wife’s answer to the divorce complaint. The juvenile court entered an order on February 13, 2013, denying S.E.’s motion to dismiss and ordering the wife, the child, and S.E. to submit to genetic testing. S.E. then filed this petition for a writ of mandamus.

“1 “A writ of mandamus is an extraordinary remedy ... that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner.” Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998). The petitioner must demonstrate:
“ ‘ “ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”
‘Ex parte Edwards, 727 So.2d at 794 (quoting Ex parte Adams, 514 So.2d 845, 850 (Ala.1987)).’
“Ex parte D.J.B., 859 So.2d 445, 448 (Ala.Civ.App.2003).”

Ex parte S.P., 72 So.3d 1250, 1251-52 (Ala.Civ.App.2011).

S.E. seeks a writ of mandamus compelling the juvenile court to dismiss the wife’s complaint because, according to him, the wife lacked standing to institute her action. Section 26-17-602, Ala.Code 1975, a part of the Alabama Uniform Parentage Act (“the AUPA”), § 26-17-101 et seq., Aa. Code 1975, provides that any interested party may bring an action to adjudicate parentage. However, § 26-17-602 is limited in application by §§ 26-17-607 and 26-17-609, Aa.Code 1975, which restrict who has standing to seek an adjudication of paternity. When there is a presumed father, the AUPA permits the presumed father to bring an action to disprove his paternity at any time. § 26-17-607(a). However, if the presumed father wishes to persist in his presumption of paternity, no one may bring an action to disprove his paternity or to establish paternity in another man. Id. (“If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.”). The Aabama Comment to § 26-17-607 specifically states that “[sjubseetion (a) follows Ex parte Presse, 554 So.2d 406 (Ala.1989)[,] and its progeny that favor maintaining the integrity of the family unit and the father-child relationship that was developed therein.”

S.E. is correct that the husband in the present case is the presumed father of the child under § 26-17-204(a)(l), Aa.Code 1975, which provides that “[a] man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage.” The husband and the wife were married before the child was born, and, although it appears that the husband has filed a complaint for a divorce, they remained married at the time the wife filed the underlying action and S.E. filed his motion to dismiss. Moreover, in the verified complaint for a divorce that he filed in the Morgan Circuit Court (“the circuit court”) on January 2, 2012, the husband requested, among other things, that the circuit court grant him custody of the two children born of the husband and the wife’s marriage, which included the child at issue in the present action.

Because the husband is the child’s presumed father under § 26-17-204(a) and persists in his presumption of paternity, pursuant to § 26-17-607(a) the wife lacks standing to institute an action seeking to disprove the husband’s paternity or to establish paternity in S.E. Accordingly, we grant S.E.’s petition for a writ of mandamus. Because the juvenile court’s order requiring the wife, the child, and S.E. to undergo genetic testing as a means of proving or disproving S.E.’s paternity was based on the wife’s action seeking to establish paternity, which was instituted without standing, we direct the juvenile court to vacate that order. See Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008) (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999) (quoting in turn Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App.1996))) (stating that a court that notices or is informed that it lacks subject-matter jurisdiction must dismiss the action and that “ ‘ “[a]ny other action taken by a court lacking subject matter jurisdiction is null and void” ’ ”).

PETITION GRANTED; WRIT ISSUED.

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

      . Apparently, at the time the husband filed his divorce complaint, the wife was pregnant. M.W. was born on February 8, 2012. The paternity of M.W. is not an issue in the present case.


author: DONALDSON, Judge.

text:
    K.E. v. MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120119.
    Court of Civil Appeals of Alabama.
    May 3, 2013.

      Stephen B. Smith, Albertville, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
    Stephen W. Williams of Long, Flanagan & McDonald, LLC, Guntersville, guardian ad litem.
   DONALDSON, Judge.

K.E. (“the father”) appeals from a judgment of the Marshall Juvenile Court finding his minor daughter, A.E. (“the child”), to be dependent, placing the child in the physical custody of relatives, and denying the father visitation rights with the child.

Facts and Procedural History

The evidence presented below reveals the following facts. The Marshall County Department of Human Resources (“DHR”) first became involved with the child after receiving a report of domestic abuse in the child’s mother’s home in June 2011 after the mother and child’s stepfather had a violent domestic altercation. At the time of that incident, the child and her siblings lived with the mother. DHR’s subsequent investigation revealed significant alcohol abuse by the mother and the stepfather. The child and her siblings were ultimately removed from the mother’s home and placed into the custody of DHR. DHR placed the child into foster care. DHR filed a dependency petition as to the child in August 2011.

The juvenile court held a hearing on the petition on September 24, 2012. The father was represented by counsel. The juvenile court appointed a guardian ad li-tem for the child. Michelle Holland, the DHR foster-care worker assigned to the case, testified that DHR had implemented a visitation plan for both the father and the mother. She stated that the father regularly visited with the child and stayed in regular contact with DHR. She also stated that the father routinely provided the child with money. She testified that she had requested that the father attend anger-management classes but that he had failed to do so. Holland testified that she believed that the relationship between the father and the child was not healthy. DHR requested that it be allowed to retain legal custody of the child and that R.E. and T.E., the child’s paternal uncle and aunt who lived in the State of Kansas, be awarded physical custody of the child.

The child, who was 13 years old at the time of the hearing, testified that, although she had a good relationship with the father and was not afraid of him in general, she believed that it would be beneficial to her future to live in Kansas with R.E. and T.E., with whom she had lived at one point previously during her childhood. She testified that the father had a bad temper and that she had witnessed him being violent toward her brother. She testified that she had witnessed her father punch walls, scream, and slam doors, which scared her and caused her to flee the house. The child testified that the father had sent her a text message indicating that he would “not be alive” if she relocated to Kansas. She testified that the father had provided her with money when she asked for it.

The father testified that he had begun working in a poultry plant approximately two weeks before the hearing. He stated that he had quit his job as a long-haul truck driver in order to be closer to home to take care of the child. His testimony indicates that he earned significantly less working at the poultry plant than as a truck driver. He denied having a bad temper, and he denied ever being abusive toward the child’s brother. The father testified that the text message indicating that he would “not be alive” if the child moved to Kansas was not a threat to commit harm to himself. He testified that he had previously lost custody of the child and her brother when he was living with them in the State of Kansas. The transcript of the father’s testimony reveals that his responses to questioning were often combative and evasive, which the trial court noted in the final judgment.

The child’s guardian ad litem recommended to the court that the child be placed in the physical custody of R.E. and T.E. in Kansas. He also recommended that the child retain the discretion to determine any visitation with the mother and the father.

The juvenile court entered a judgment on September 25, 2012, finding the child to be dependent pursuant to § 12-15-102, Ala.Code 1975. The judgment contained the following findings of fact, among others:

“8. The respondent father, [K.E.], has failed to maintain a stable home which would be suitable for the care and upbringing of the subject juvenile;
“9. The respondent father, [K.E.], is unable or unwilling to provide for the financial support of the subject juvenile;
“10. The respondent father has difficulty controlling his anger and emotions, and does not possess a temperament which is suitable for providing the necessary care and supervision of the subject juvenile;
“11. The subject juvenile, [A.E.], provided testimony which, based upon this Court’s observation, was completely and entirely credible and worthy of belief;
“12. Furthermore, this Court would note that [A.E.], the subject juvenile, demonstrated remarkable maturity, poise and honesty in the face of difficult circumstances; and therefore, should be commended on her level of maturity and forthright testimony;
“13. The respondent father provided testimony which, based upon this Court’s observation, was evasive, not credible and otherwise not worthy of belief;
“14. Furthermore, the respondent father appeared to this Court to have trouble controlling his anger while on the stand, and frequently directed angry comments and a hostile attitude towards other parties and/or attorneys, which did not rise to the level of contempt, but is worthy of mention considering the Court’s finding contained within paragraph 10, above.”

Concerning custody and visitation, the court ruled as follows:

“18. That legal custody of the subject juvenile, [A.E.], is hereby vested with DHR;
“19. That physical custody of the subject juvenile, [A.E.], is hereby vested with [R.E.] and [T.E.], who reside in the State of Kansas;
“20. Under the particular circumstances of this case, the parents are awarded no visitation rights; however, [A.E.] may, at her sole discretion, choose to visit with her parents upon such terms and conditions, and at such times and places as she deems fit and proper.”

The father filed a motion to alter, amend, or vacate on October 9, 2012, which the juvenile court denied on October 18, 2012. The father filed a timely appeal to this court.

The father raises four arguments on appeal: (1) that DHR failed to make reasonable efforts toward reunification; (2) that the juvenile court allowed testimony concerning an unauthenticated document before ruling that the document was inadmissible; (3) that the juvenile court erred by awarding physical custody of the child to R.E. and T.E. without receiving evidence indicating that that relative placement was suitable; and (4) that the juvenile court erred by not awarding visitation to the father.

Standard of Review

“In Ex parte Alabama Department of Human Resources, 682 So.2d 459 (Ala.1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court’s custodial disposition of a dependent child:

“ ‘Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court’s findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991); J.S. v. D.S., 586 So.2d 944 (Ala.Civ.App.1991). This presumption is especially applicable where the evidence is conflicting. Ex parte P.G.B., 600 So.2d 259, 261 (Ala.1992). An appellate court will not reverse the trial court’s judgment based on the trial court’s findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex parte Walters, 580 So.2d 1352 (Ala.1991).’

682 So.2d at 460.”

J.J. v. J.H.W., 27 So.3d 519, 522 (Ala.Civ.App.2008).

Discussion

The father contends that the juvenile court committed reversible error by not ordering DHR to make reasonable efforts toward reuniting the child and the father. The father failed to assert that argument before the juvenile court, and it cannot be properly raised for the first time on appeal. Thus, we are precluded from addressing this issue. See E.M. v. State Dep’t of Human Res., 612 So.2d 486 (Ala.Civ.App.1992).

The father next contends that the juvenile court committed reversible error by allowing testimony concerning an unauthenticated document that was subsequently deemed inadmissible. The father argues that a document, purportedly a record from a proceeding in the District Court of Ellis County, Kansas, was not properly authenticated pursuant to Rule 44(a)(1), Ala. R. Civ. P., and, thus, that the juvenile court should not have entertained any testimony pertaining to the contents of the document. The juvenile court ultimately concluded that the document was inadmissible because it was not properly authenticated pursuant to Rule 44(a)(1). Nonetheless, the father has not demonstrated that the juvenile court considered the testimony concerning the document nor has he cited any authority to support his argument that the juvenile court erred in allowing testimony concerning the document before determining it to be inadmissible. Accordingly, we will not consider this argument. See Rule 28(a)(10), Ala. R.App. P.; Mullins v. Sellers, 80 So.3d 935, 945 (Ala.Civ.App.2011); and Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“Inapplicable general propositions are not supporting authority, and an appellate court has no duty to perform a litigant’s legal research.”).

The father next contends that the juvenile court committed reversible error by ordering the child to live with her paternal uncle and aunt in Kansas without receiving sufficient evidence concerning the suitability of that relative placement. The father has provided no citations to authority to support his argument on this matter. Thus, we decline to further consider this argument. See Rule 28(a)(10), Ala. R.App. P.; Mullins, 80 So.3d at 945; and Asam, 686 So.2d at 1224.

The father contends that the juvenile court erred by not awarding visitation between the father and the child, but, instead, granting the child the discretion to determine visitation with the father. Concerning visitation, this court has stated as follows:

“ ‘ “ ‘The determination of proper visitation ... is within the sound discretion of the trial court, and that court’s determination should not be reversed absent a showing of an abuse of discretion.’ Ex parte Bland, 796 So.2d 340 (Ala.2000). ‘[C]ases in Alabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.’ Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987) (citations omitted). ‘When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987).’ Dominick v. Dominick, 622 So.2d 402, 403 (Ala.Civ.App.1993).” ’
“L.L.M. v. S.F., 919 So.2d 307, 314 (Ala.Civ.App.2005) (quoting K.L.U. v. M.C., 809 So.2d 837, 840-41 (Ala.Civ.App.2001)).”

V.G. v. Madison Cnty. Dep’t of Human Res., 989 So.2d 550, 555-556 (Ala.Civ.App.2008).

In this case, the juvenile court’s judgment concerning visitation is ambiguous and inconsistent. The juvenile court denied the father visitation rights, yet it authorized visitation with the father at the child’s discretion. This court and our supreme court have held that permitting a child to determine if and when visitation will occur with a parent is ordinarily inappropriate and unfair to both the child and the parent. Parker v. Parker, 269 Ala. 299, 303, 112 So.2d 467, 471 (1959) (reversing a judgment placing visitation at the discretion of the child and stating that “a decision as to what is best for the child” should be made by the trial court rather than the child); Bryant v. Bryant, 739 So.2d 53, 56-57 (Ala.Civ.App.1999) (characterizing a judgment placing visitation at the discretion of the children as “manifestly unjust”); and H.H.J. v. K.T.J., 114 So.3d 36 (Ala.Civ.App.2012) (holding that to allow the child to determine the timing of visitation with the father based on the facts of the case would not be in the child’s best interest); see also Moore v. Moore, 57 Ala.App. 735, 737, 331 So.2d 742, 744 (1976) (“The responsibility for the cultivation of [the parent-child] relationship should rightfully be upon the [parents], ... not upon the child. To so place it is to probably destroy it, not protect it.”).

Although the father was not awarded custody of the child, the juvenile court did not make a finding that visitation between the father and the child would be detrimental or dangerous to the child. The record in the present case reveals that the child had a good relationship with her father, that the father had visited the child without incident during the pendency of the dependency proceedings, and that the father was not abusive to the child. As such, the record does not support a finding that the father should have no visitation, as visitation should be completely denied in “unusual and extreme cases.” Y.N. v. Jefferson Cnty. Dep’t of Human Res., 67 So.3d 76, 86 (Ala.Civ.App.2011) (Moore, J., concurring in the result). This court has recognized that a specific visitation schedule may not be appropriate in all circumstances. See, e.g. Shires v. Shires, 494 So.2d 102 (Ala.Civ.App.1986) (forcing an 18-year-old child to visit with a parent may not be in the child’s best interest). But the record does not support a finding that leaving visitation with the father solely in the discretion of the 13-year-old child in this case would be in the child’s best interests. Accordingly, we reverse that part of the juvenile court’s judgment concerning visitation with the father, and we remand this cause to the juvenile court (1) to delete that portion of the judgment that awards no visitation rights to the father and (2) to award specific visitation between the child and father that is not left to the discretion of the child. Because of the amount of time that has elapsed while this matter has been pending on appeal, the juvenile court is not prohibited from conducting a hearing, if it deems it appropriate, before entering the judgment awarding visitation to the father.

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

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

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

      . Rule 44(a)(1) provides:
      "An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within a territory subject to the administrative or judicial jurisdiction of the United States or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by a person purporting to be the officer having the legal custody of the record, or by the officer’s deputy. If the official record is kept without the state, the copy shall be accompanied by a certificate under oath of such person that such person is the legal custodian of such record and that the laws of the state require the record to be kept.”

      . The juvenile court also allowed the child to decide if she would visit with the mother, but the mother has not appealed the judgment.

      . The juvenile court is in the best position to set the specific terms and conditions of visitation, such as whether such visitation should be supervised and/or whether it should be conditioned on the father’s completing anger-management counseling.