author: IRVING, P.J.,

text:
    David Garland ATWOOD II a/k/a David Atwood a/k/a David Garland Atwood, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00902-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    David Garland Atwood II, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. The Rankin County Sheriffs Department arrested David Garland Atwood II on August 19, 2011, for using a computer to knowingly entice a minor to engage in sexually explicit conduct in violation of Mississippi Code Annotated section 97-5-33(6) (Supp.2012). On August 30, 2011, Atwood made an initial appearance in the County Court of Rankin County. The county court set Atwood’s bail at ten thousand dollars, which he posted on October 31, 2011. Rankin County officials released Atwood into the custody of Covington County, where, at the time of release, Atwood had pending charges.

¶ 2. On April 2, 2012, Atwood filed a petition for a writ of habeas corpus in the Rankin County Circuit Court, which dismissed the petition. Feeling aggrieved, Atwood appeals and argues (1) that the circuit court erroneously dismissed his petition for habeas corpus relief; (2) that section 97-5-33(6) cannot be used to prosecute an individual who had consensual phone communications and other contact with a minor who is over the age of sixteen; (3) that section 97-5-33(6) is unconstitutionally vague and overly broad as applied to him; and (4) that section 97-5-33(6) requires proof of mens rea, thus allowing him to assert a “mistake of age” defense. Finding that the circuit court did not err in dismissing Atwood’s petition for habeas corpus, we affirm. We decline to address his additional issues,

FACTS

¶ 3. On August 19, 2011, the Rankin County Sheriffs Department arrested Atwood and alleged that he had engaged in the enticement of a minor in violation of section 97-5-33(6). According to Atwood, these charges resulted from text messages and other phone communications between himself and a sixteen-year-old male.

¶ 4. After his initial appearance in court, Atwood posted bail and was released into the custody of the Covington County Sheriffs Department. Ultimately, Covington County dropped the charges against Atwood. As a result of his arrest in Rankin County, federal law enforcement officials arrested Atwood for a violation of his federal probation terms. While awaiting a federal probation revocation hearing, Atwood petitioned the Rankin County Circuit Court for habeas corpus relief. In his petition, Atwood alleged that his arrest in Rankin County led to the possibility of his federal probation being revoked and, as such, he “is suffering both ‘confines of his liberty and a deprivation of his right not even to be prosecuted’ for the offense.” The circuit court dismissed Atwood’s petition after finding that he was not illegally confined or detained in Rankin County and that it lacked jurisdiction to entertain his motion.

¶ 5. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Atwood contends that the circuit court erred in dismissing his petition for a writ of habeas corpus. Specifically, he asserts that an individual who has been released on bail is sufficiently “in custody to challenge his arrest and detention through habeas corpus proceedings. However, the Mississippi Supreme Court has long held otherwise.

¶ 7. Mississippi Code Annotated section 11-43-1 (Rev.2012) provides:

The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in the cases expressly excepted.

In Ex parte Walker, 53 Miss. 366, 367 (1876), one of the earliest cases on this point, our supreme court stated that “[pjersons discharged on bail will not be considered as restrained of their liberty so as to be entitled to a writ of habeas corpus.” (Citations omitted). The court expressly reaffirmed its ruling in Walker in James v. Waldrop, 156 Miss. 322, 326, 126 So. 15, 16 (1930), and again in Keller v. Romero, 303 So.2d 481, 483 (Miss.1974). In Keller, the court also stated that the writ of habeas corpus could not be used “to prevent a trial on an indictment in this state[.]” Keller, 303 So.2d at 482.

¶ 8. Atwood’s case falls squarely under the precedent established by our supreme court. Rankin County officials released Atwood on bail soon after they arrested him. According to established case law, an individual who has been released on bail is not entitled to a writ of habeas corpus. As such, the circuit court did not err in dismissing Atwood’s petition. This issue is without merit.

¶ 9. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Lori Rene STASNY, Appellant v. John Michael WAGES, Appellee.
    No. 2012-CA-00567-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.

      David Alan Pumford, Hattiesburg, attorney for appellant.
    Brad Rodrick Thompson, Laurel, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. When reviewing a chancellor’s decision to terminate a parent’s financial obligations to his or her child, we do not ask if the decision is the same one we would have made. Rather, we are instructed to give the chancellor deference and ask whether the decision was one the chancellor could have made. Here, Lori Rene Stasny sought, through a petition for modification and citation for contempt, to have her ex-husband, John Michael Wages, pay child support and college expenses for their eighteen-year-old daughter. But based on the evidence at the hearing, the chancellor determined the daughter’s actions — which included joining Stasny’s efforts to have her father’s parental rights terminated and refusing to see her father for two years — warranted forfeiture of her father’s financial obligations towards her. Because there is substantial evidence supporting the chancellor’s decision, we must affirm.

Background

¶ 2. Stasny and Wages divorced in 2004. During their marriage, they had two children, Tyler and Sarah. They agreed to joint custody and equally sharing their children’s expenses. So in their settlement agreement, incorporated into their divorce judgment, they agreed that: neither would pay the other child support; they would halve the expenses for their children’s vehicles; and they would both contribute to college trust funds.

¶ 3. In 2008, Stasny and Wages both asked the chancery court to cite the other for contempt. At the hearing, the chancellor approved their proposal to modify the settlement agreement. Stasny would have custody of Sarah and be responsible for all her expenses. Wages would have custody of Tyler and be responsible for all his expenses. They would still equally split the vehicle expenses. But they agreed to modify the amount they would contribute to the college trust funds.

¶ 4. A year later, Stasny returned to the chancery court — this time petitioning to have Wages’s parental rights terminated. Both Tyler and Sarah joined the petition. A guardian ad litem (GAL) was appointed. According to the GAL, the then sixteen-year-old Sarah clearly articulated her desire to have her relationship with Wages terminated and be adopted by her stepfather. However, there did not appear to be any statutory grounds for termination. Stasny agreed to release Wages from his financial obligations towards his children if he voluntarily relinquished his parental rights. But Wages refused. And the matter sat unresolved on the chancery court’s docket.

¶ 5. The next year, in 2010, Stasny again petitioned to cite Wages for contempt. She also sought modification of the settlement agreement, asking she be awarded child support. By the time the matter came up for hearing in 2011, Tyler had reached the age of emancipation. So the only issue addressed at the hearing was Wages’s financial obligations towards then eighteen-year-old Sarah.

¶ 6. At this hearing, the chancellor heard not only about both Stasny’s and Wages’s noncompliance with the 2008 modified agreement but also the unresolved petition to terminate Wages’s parental rights. Sarah was called to testify. She discussed joining her mother’s petition to terminate Wages’s parental rights. She also testified she had not seen her father in two years, even though there was scheduled visitation every other weekend. When asked if she was willing to visit her father, she testified that school and “other priorities” took precedence over her relationship with her father. She also admitted not visiting with her father or speaking to him when he attended her high-school graduation.

¶ 7. Based on evidence from the hearing, the chancellor determined Wages should neither be held in contempt nor have to pay Stasny child support. Instead, the chancellor concluded, Sarah’s actions towards her father were “clear and extreme” enough to warrant forfeiture of all her father’s financial obligations towards her. See Roberts v. Brown, 805 So.2d 649, 653 (¶¶ 17-19) (Miss.Ct.App.2002) (citing Caldwell v. Caldwell, 579 So.2d 543, 548 (Miss.1991)).

¶ 8. The chancellor reserved entering a final judgment, giving Stasny an opportunity to submit a brief on the issue of termination of Wages’s financial obligations. During this time, Wages filed a motion to amend the pleadings to conform with the evidence at trial that, based on Sarah’s actions, his financial obligations should be terminated. The chancellor granted this motion to amend and entered a final judgment that terminated Wages’s “obligation to pay any and all expenses for his minor child, Sarah Wages, including but not limited to the following: child support, medical expenses, extra-curricular activities, vehicles[,] and funding of a college trust.”

¶ 9. Stasny timely appealed.

Discussion

I. Termination of Support

¶ 10. Stasny first argues the chancellor abused his discretion by finding Sarah’s actions were “clear and extreme” enough to warrant forfeiture. Our review of the chancellor’s decision to terminate Wages’s support obligations is deferential. If a chancellor’s findings are supported by substantial evidence, we must affirm, unless the chancellor was manifestly wrong or clearly erroneous, or applied the wrong legal standard. Blakely v. Blakely, 88 So.3d 798, 801 (¶ 3) (Miss.Ct.App.2012) (citations omitted).

¶ 11. We do agree that the chancellor supported his finding of “clear and extreme” behavior with substantial evidence. But we also point out that because Sarah was college-aged, a lesser finding that Sarah’s behavior and the deteriorated relationship with her father relieved Wages of his duty to support her through college would have been sufficient. See Caldwell, 579 So.2d at 548 (holding “clear and extreme” standard applies to minor children younger than college-aged); Hambrick v. Prestwood, 382 So.2d 474, 477 (Miss.1980) (addressing when duty to support college-aged child may be terminated).

A. General Standard for Termination of Parental Support

¶ 12. The chancellor applied the standard from Caldwell — that “in order to for a child to reject the parent-child relationship to the point where child support is forfeited, the child’s actions ... have to be both ‘clear and extreme.’ ” Dykes v. McMurry, 938 So.2d 330, 333 (¶ 8) (Miss.Ct.App.2006) (quoting Caldwell, 579 So.2d at 548). And the chancellor specifically discussed the facts from Roberts, 805 So.2d at 652-54 (¶¶ 13-20), a decision from this court where we found a child’s actions “clear and extreme” enough to forfeit parental support. Drawing from these decisions, the chancellor found Sarah’s actions in joining in her mother’s efforts to have her father’s parental rights terminated and refusing to visit her father, whom she admitted she had not seen in two years, were “clear and extreme” enough to forfeit Wages’s parental support.

13. While Stasny notes that Sarah had contacted her father by email and had told the chancellor she was willing to attempt to repair their relationship if her father would “meet her half way,” it is not our role as a reviewing court to reweigh the testimony. Because there is substantial evidence supporting the chancellor’s decision, we cannot say the chancellor’s findings regarding Sarah’s actions were manifestly wrong or clearly erroneous.

B. Standard for Termination of Support of College-Aged Child

¶ 14. Further, because Sarah was college-aged, the chancellor did not have to deem her actions “clear and extreme” to find Wages had no further financial obligations. Instead, the more applicable standard is found in Hambrick. See Blakely, 88 So.3d at 802-03 (¶¶ 8-12) (holding Hambrick, 382 So.2d at 477, not Caldwell, 579 So.2d at 548, controlled issue of support forfeiture by college-aged child). Under Hambrick, a parent’s duty to support a child in college “is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him.” Hambrick, 382 So.2d at 477. In Hambrick, because the daughter showed no affection or appreciation towards her father and refused to visit him, the supreme court held that the father was under no obligation to support her through college. Id. Similarly, this court has held that a college-aged daughter who refused to visit her mother and spoke disparagingly toward her forfeited her right to support and college expenses. Blakely, 88 So.3d at 802-03 (¶¶ 8-12).

¶ 15. For the same reasons the chancellor found Sarah’s actions were “clear and extreme,” the chancellor could have terminated the parental support obligation under the lesser standard in Hambrick. Thus, we find no abuse of discretion in the chancellor’s finding that Sarah’s behavior warranted forfeiture of Wages’s financial support.

II. Issues Before Chancellor

¶ 16. Stasny next argues the chancellor erroneously granted Wages relief he did not request in his response to her petition. But procedurally, the fact that Wages did not specifically raise the issue of termination of his support obligation in his response is immaterial. See Evans v. Evans, 994 So.2d 765, 772 (¶ 23) (Miss.2008) (holding chancellor’s order that directed the parents be responsible for a child’s financial obligation “without either party raising the issue in their respective pleadings is not a procedural concern”). By petitioning to cite Wages for contempt and to modify the settlement agreement to include child support, Stasny submitted the issue of Wages’s financial support of Sarah to the chancellor — and this submission “include[d] all matters touching on that subject.” Brennan v. Brennan, 638 So.2d 1320, 1325 (Miss.1994). Further, at the conclusion of the hearing, both Stasny and Wages moved for the pleadings to be amended to conform to the evidence presented at the hearing, which included evidence that Sarah’s actions amounted to forfeiture of her father’s financial support. So the issue of terminating support was properly before the chancellor.

¶ 17. Stasny also asserts the chancellor lacked authority to terminate Wages’s financial obligations towards Sarah because those obligations — in particular, the obligation to contribute to Sarah’s college trust fund — were based on a contract between Stasny and Wages. While Mississippi law does favor honoring the contractual agreements entered as part of divorce settlements and takes a “dim view” of attempts to modify them, Weathersby v. Weathersby, 693 So.2d 1348, 1351 (Miss.1997), these agreements are “quasi-contracts.” Varner v. Varner, 666 So.2d 493, 496 (Miss.1995) (citing Grier v. Grier, 616 So.2d 337, 340 (Miss.1993)). In contrast to a contract, “the chancellor always has the discretion to modify the [divorce] decree’s terms, and all such decrees are subject to the court’s approval.” Arrington v. Arrington, 80 So.3d 160, 164 (¶ 14) (Miss.Ct.App.2012) (citing Varner, 666 So.2d at 496-97).

¶ 18. Stasny, at least implicitly, recognized the quasi-contractual nature of the settlement agreement. Stasny and Wages had already sought the chancellor’s approval to modify the settlement agreement once in 2008. And in her 2010 petition, it was Stasny who asked the court to modify the settlement agreement. Though Stasny had argued a material change in circumstances warranted modifying the agreement to increase Wages’s child support, the chancellor instead found a material change in circumstances — namely, the attempt to terminate Wages’s parental rights — warranted a termination of support. See Varner, 666 So.2d at 497 (holding that, in order to modify an agreement incorporated into a divorce decree, there must be a material change in circumstances).

¶ 19. In Markofski v. Holzhauer, 799 So.2d 162, 166-67 (¶¶ 21-24) (Miss.Ct.App.2001), an ex-wife asked the court to enforce a voluntary agreement by her ex-husband to pay for his stepchild’s college expenses, an agreement that was part of their divorce settlement. The chancellor found the stepfather had no financial obligation to pay, in part because of the stepdaughter’s behavior towards her father. Id. at 167 (¶ 24). The chancellor “found that under the present circumstances, it would be unreasonable to require a man to pay for the college education of a former stepchild who accused him of molesting her, charges of which he was eventually acquitted.” Id. And relying on Hambrick, this court found no abuse of discretion. Markofski, 799 So.2d at 167 (¶¶ 24-25) (citing Hambrick, 382 So.2d at 477). While the facts here are not as egregious as the accusation in Markofski, the chancellor found that under the circumstances in this case — Sarah’s participation in the proceedings to terminate her father’s parental rights, coupled with her refusal to visit him — it would be unreasonable to enforce the provision in the divorce decree that her father pay into her college trust account.

¶ 20. Because there is evidence supporting the chancellor’s decision to terminate Wages’s financial obligations, we find no abuse of discretion and affirm.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. IRVING, P.J., CARLTON AND JAMES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Because we affirm the chancellor's decision that Wages in under no obligation to pay child support or other expenses, we need not address Stasny’s final argument — that the chancellor erred by not requiring Wages produce to her his Rule 8.05 disclosure form, which he had presented to the chancellor in camera. See UCCR 8.05.


author: WOODALL, Justice. WOODALL, Justice. PARKER, Justice WISE, Justice

text:
    Ex parte Robert BENTLEY, as Governor of the State of Alabama, et al. (In re Hugh McInnish v. Governor Robert Bentley et al.). Robert Bentley, as Governor of the State of Alabama, and Young Boozer III, as State Treasurer v. Hugh McInnish. Marquita Davis, as State Finance Director, and Tom White, as State Comptroller v. Hugh McInnish. Joint Fiscal Committee v. Hugh McInnish.
    1110321, 1110325, 1110330, and 1110506.
    Supreme Court of Alabama.
    Aug. 24, 2012.
    Special Writings issued on Overruling of Rehearing Applications Dec. 7, 2012.

      Luther Strange, atty. gen., and James W. Davis, Joshua K. Payne, and J. Matt Bledsoe, asst, attys. gen., for petitioners/appellants Governor Robert Bentley, Young Boozer III, as State Treasurer, and the Joint Fiscal Committee.
    Richard H. Cater and Mose W. Stuart IV, Alabama Department of Finance, Legal Division, for appellants Marquita Davis, as State Finance Director, and Tom White, as State Comptroller.
    Mark G. Montiel, Sr., Montgomery, for respondent/appellee Hugh Mclnnish.
   WOODALL, Justice.

These proceedings (one petition for the writ of mandamus and three appeals) were brought in this Court to challenge a judgment of the Montgomery Circuit Court awarding Hugh Mclnnish $196,625 in attorney fees and costs in his action against (1) the Governor of the State of Alabama, (2) the State finance director, (8) the State comptroller, and (4) the State treasurer, all in their official capacities (referred to collectively as “the State officials”), in which the Joint Fiscal Committee of the Alabama Legislature (“the committee”) intervened. As to cases no. 1110325, no. 1110330, and no. 1110506, we reverse; as to case no. 1110321, we dismiss the petition as moot.

This case has previously been before this Court. See McInnish v. Riley, 925 So.2d 174 (Ala.2005). McInnish involved a challenge to the constitutionality of the community-services grant-making process set forth in Ala.Code 1975, § 29-2-123. There, we held that “ § 29-2-123, which authorizes a permanent joint legislative committee to award community-services grants, [as well as that portion of the annual education-appropriations act] by which those grants are funded,” violated the separation-of-powers provisions of the Alabama Constitution of 1901, 925 So.2d at 188, and we reversed the trial court’s judgment and remanded the case.

Subsequently, Mclnnish filed a series of motions in the trial court, seeking “an award of attorney fees, reasonable expenses, and costs against the [State officials].” He also sought an order declaring that he was “a prevailing party, that this litigation provided a common benefit to all taxpayers of the state of Alabama, and that the amount that was prohibited from being disbursed illegally was in an amount of approximately $13.4 million.” (Emphasis added.) The State officials opposed McInnish’s motions, arguing that “[t]he clear holding in Ex parte Town of Lowndesboro [, 950 So.2d 1203 (Ala.2006),] is that § 14 of the Alabama Constitution prohibits the awarding of attorney fees and expenses in any state court action against the State of Alabama or against state officials in their official capacities.” (Emphasis added.) On December 8, 2011, the trial court entei-ed a judgment awarding “counsel for Plaintiff Mclnnish a judgment for attorney’s fees and costs in the amount of $196,625.00 to be paid by the [State officials].”

These appellate proceedings followed the entry of that judgment. Each one presents the single legal question — as Mclnnish prefers to state it: “[W]hether an award of attorney fees is proper when a plaintiff has prevailed on a claim against state officials [in their official capacities] for a violation of the state constitution that results in preservation of significant funds in the state treasury.” Mclnnish’s brief, at 4.

In Ex parte Town of Lowndesboro, 950 So.2d 1203 (Ala.2006), this Court, for the first time, declared unequivocally that an award of attorney fees and expenses to be paid by the State to a successful litigant under the common-benefit doctrine in a declaratory-judgment action violated Ala. Const. 1901, § 14, which states: “That the State of Alabama shall never be made a defendant in any court of law or equity.” In so doing, we noted that “[t]he appellate courts of this State have generally held that an action may be barred by § 14 if it seeks to recover damages or funds from the State treasury.” 950 So.2d at 1206 (emphasis added).

For that proposition, we cited, among other cases, (1) Lyons v. River Road Construction, Inc., 858 So.2d 257, 262 (Ala.2003), as “noting that a party could not bring an action against a State official, because ‘[s]uch an action impermissibly seeks funds from the State treasury,’ ” 950 So.2d at 1206 (emphasis added); (2) Armory Commission of Alabama v. Staudt, 388 So.2d 991, 993-94 (Ala.1980), as “stating that an action against the Armory Commission of Alabama was barred by § 14 because a judgment against it ‘would adversely affect the state treasury,’ ” 950 So.2d at 1206 (emphasis added); and (3) Moody v. University of Alabama, 405 So.2d 714, 717 (Ala.Civ.App.1981), as “noting that an action was barred because a result in the plaintiffs favor ‘could ultimately “touch” the state treasury by requiring the disbursement of state funds,’ 950 So.2d at 1206 (emphasis added). We then explained “that an award of ... attorney fees and expenses impacts the State treasury and divests it of funds in the very way forbidden by § 14.” 950 So.2d at 1211-12 (emphasis added).

The State officials and the committee argue that Lowndesboro controls this case. In response, Mclnnish takes the position that to apply the holding in Lowndesboro to this case is bad public policy. Specifically, he states:

“While it is true that a private litigant can bear the costs of the litigation himself, the logical result of such a rule means that only the wealthy may take up the public sword and defend the Constitution where the government itself refuses to abide by or defend the Constitution. This Court should not stand for such a result.”

McInnish’s brief, at 40.

However, public policy is primarily declared by the people and their representatives in their constitution and statutes. See Jensen v. Traders & General Ins. Co., 52 Cal.2d 786, 794, 345 P.2d 1, 5 (1959) (“The determination of public policy of states resides, first, with the people as expressed in their Constitution and, second, with the representatives of the people — the state Legislature.”). As this Court has often stated: “ ‘The wall of immunity erected by § 14 is nearly impregnable.’ ” Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872 (Ala.2004) (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002)). The State officials and the committee argue that “[ojnly the people, through the amendment process, may overturn a provision of the Constitution on policy grounds.” Reply brief, at 11. We agree. Section 14 having enshrined the public-policy considerations of the people of Alabama, this Court is bound thereby. “Public policy considerations cannot override constitutional mandates.” Camp v. Kenney, 673 So.2d 436, 438 (Ala.Civ.App.1995).

Mclnnish also attempts to distinguish Lowndesboro on the ground that the declaratory-judgment action in Lowndesboro alleged only “ ‘statutory and regulatory violations,’ ” while this case “involves a claim for violations of provisions of the Alabama Constitution.” Mclnnish’s brief, at 18. This is a distinction without a difference and is, in reality, nothing but the recasting of a policy argument. As to the payment of fees and expenses from the State treasury, it matters not a whit whether the action was based on statutory or constitutional provisions.

Along similar lines, Mclnnish asserts that Lowndesboro should not control this case, because, he asserts, his action “resulted in a judgment that benefitted the entire citizenry of the State of Alabama to the tune of over $12 million.” Mclnnish’s brief, at 19. However, the immunity afforded the State is absolute, Ex parte Mobile Cnty. Dep’t of Human Res., 815 So.2d 527, 580 (Ala.2001), such that it does not resolve itself to a balance-sheet approach. State immunity is not a rule of relativity. Simply put, § 14 bars access to the State coffers, regardless of the amounts involved. This rule was properly recognized and applied in Lowndesboro, and it is the rule of this case.

In short, we hold that § 14 bars an award of attorney fees and costs even if a plaintiff has prevailed on a claim against State officials in their official capacities for a violation of the State constitution that results in preservation of significant funds in the State treasury. The trial court lacked authority to award such attorney fees and costs. Consequently, the judgment is reversed.

1110321—PETITION DISMISSED AS MOOT.

1110325—REVERSED.

1110330—REVERSED.

1110506—REVERSED.

STUART, BOLIN, PARKER, MURDOCK, SHAW, and WISE, JJ., concur.

MALONE, C.J., recuses himself.

Applications for Rehearing

WOODALL, Justice.

APPLICATIONS OVERRULED. NO OPINION.

STUART, BOLIN, MURDOCK, and SHAW, JJ., concur.

PARKER and WISE, JJ., concur specially.

MALONE, C.J., recuses himself.

PARKER, Justice

(concurring specially).

In Ex parte Bentley, 116 So.3d 201 (Ala.2012), this Court reversed a judgment of the Montgomery Circuit Court awarding Hugh Mclnnish $196,625 in attorney fees and costs in his action against the governor, the finance director, the comptroller, and the treasurer of the State of Alabama, all in their official capacities. In reversing the circuit court’s judgment, this Court reaffirmed the rule previously announced in Ex parte Town of Lowndesboro, 950 So.2d 1203, 1211-12 (Ala.2006), in which we stated that “ ‘an award of ... attorney fees and expenses impacts the State treasury and divests it of funds in the very way forbidden by [Ala. Const. 1901,] § 14.’” 116 So.3d at 203 (quoting Lowndesboro, 950 So.2d at 1211-12). Mclnnish filed applications for rehearing in three of the four cases decided in Ex parte Bentley, seeking review of our decision; this Court now overrules Mclnnish’s applications for rehearing, and I concur in that decision. I write specially to note the following.

The Eleventh Amendment to the United States Constitution provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The United States Supreme Court has held that the Eleventh Amendment bars a citizen from bringing a suit in federal court against any state. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Eleventh Amendment also bars a citizen from bringing a suit against state officers in federal court if, among other reasons, “ ‘ “the judgment sought would expend itself on the public treasury. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 n. 11, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963)).

There are, however, two exceptions to the protection from suit afforded states and state officers by the Eleventh Amendment. Congress can abrogate the Eleventh Amendment without the consent of the states in certain instances, or a state may waive its immunity by consenting to suit in federal court. See Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 473-74, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). One example of congressional abrogation of the states’ Eleventh Amendment immunity is set forth in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in which the United States Supreme Court held that the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988, constituted a congressional abrogation of the states’ Eleventh Amendment immunity with respect to the payment of attorney fees in civil-rights actions.

Although Congress may in some circumstances abrogate the immunity afforded the states and state officials by the Eleventh Amendment with respect to awards of attorney fees in federal court actions, our legislature does not have similar authority to abrogate the sovereign immunity afforded this State and its officers in their official capacities by § 14 of the Alabama Constitution with respect to awards of attorney fees in state court actions. See Armory Comm’n of Alabama v. Staudt, 388 So.2d 991, 992 (Ala.1980) (“Since our Constitution unqualifiedly prohibits suits against the state, the legislature may not consent to such a suit.” (citing Dunn Constr. Co. v. Board of Adjustment, 234 Ala. 372, 175 So. 383 (1937))); Aland v. Graham, 287 Ala. 226, 231, 250 So.2d 677, 681 (1971) (“Sec. 14 ‘wholly withdraws from the Legislature, or any other state authority, the power to give consent to a suit against the state,’ Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383 [ (1937) ], and no individual has authority to waive this immunity. State Tax Commission v. Commercial Realty Co., 236 Ala. 358, 182 So. 31 [ (1938) ].”). Simply put, there is no basis in the law of this State as it currently stands on which an award of attorney fees (or any other award of monetary damages) against the State or its officers in their official capacities may be authorized, even in those cases in which the plaintiffs’ efforts result in a common benefit to the general public. But see Alabama Dep’t of Envtl. Mgmt. v. Town of Lowndesboro, 950 So.2d 1180, 1202 (Ala.Civ.App.2005) (Crawley, P.J., concurring specially) (“The compelling reason for an award of an attorney fee in this case can be addressed ... by our citizens in amending § 14.”). Accordingly, because the judgment of the Montgomery Circuit Court is due to be reversed, I concur in denying the applications for rehearing.

WISE, Justice

(concurring specially).

I write specially to acknowledge the inherent inequity that results from the application of § 14 of the Alabama Constitution, which bars an award of attorney fees and expenses in a case where an individual has successfully pursued a claim that benefits the common good. I fear that, if individuals are not allowed to recover attorney fees and expenses in these types of cases, attorneys will be hesitant or even unwilling to represent an individual in such a case. If individuals are required to bear the burden of attorney fees and expenses in such cases, with no type of an award of such fees and expenses following a successful outcome, who will want to expend the time, effort, and money required to pursue these cases? However, because § 14 of the Alabama Constitution clearly bars an award of attorney fees and expenses in actions against the State of Alabama or against State officials in their official capacities, I have no choice but to concur in the decision to overrule the applications for rehearing.

      . For purposes of these proceedings, we will assume that Mclnnish’s action actually resulted in the "preservation of significant funds in the state treasury.”


author: PER CURIAM. STUART, Justice

text:
    J. Gregory CARWIE, conservator for and on behalf of Emil HARRIS v. Peter KNUDSEN A/S.
    1100697.
    Supreme Court of Alabama.
    Aug. 24, 2012.
    Rehearing Denied Jan. 11, 2013.
    David A. Hilleren of Hilleren & Hilleren, L.L.P., Evergreen, Louisiana; and John L. Moore IV, Mobile, for appellant.
    John P. Kavanagh, Jr., and Edward G. Bowron of Burr & Forman LLP, Mobile, for appellee.
    Douglas Brown of Brady Radcliff & Brown LLP, Mobile; and Scott A. Soule and Adelaida J. Ferchmin of Chaffe McCall LLP, New Orleans, Louisiana, amicus curiae American Longshore Mutual Association, Ltd., in support of the appellant.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.

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

STUART and PARKER, JJ., dissent.

WISE, J., recuses herself.

STUART, Justice

(dissenting).

J. Gregory Carwie, conservator for Emil Harris, sued Peter Knudsen A/S (“Knudsen”) in the Mobile Circuit Court, seeking damages for injuries Harris suffered in a fall while performing repairs on the M/V Vinland Saga, a Knudsen-owned cargo ship, while it was in drydock at a shipyard in Mobile, Harrison Brothers Drydock & Repair Yard, Inc. The majority affirms the judgment in favor of Knudsen; however, for the reasons that follow I respectfully dissent.

The United States District Court for the Southern District of Alabama provided the following general background for this case in In re Peter Knudsen A/S, 710 F.Supp.2d 1252, 1256 (S.D.Ala.2010):

“At all times relevant hereto, Knudsen, a Danish corporation, owned the M/V Vinland SAGA, which is a Danish general cargo vessel. This vessel has two working cargo holds, Number One Hold forward and Number Two Hold aft, which were separated into two decks, a lower hold and a ‘tween deck.’ In order to enter Number One Hold from the weather deck/main deck, access must be made through an opening on the main/weather deck. In order to travel from the main/weather deck to the bottom of the cargo hold, a person would need to descend an access ladder via a small opening or hatch cover on the main deck. The ladder from the main deck stopped at the ‘tween deck’ which consisted of a ledge or ‘catwalk’ running around the perimeter of the hold. The ‘tween deck’ was approximately seven feet from the bottom (tank top) of the hold and about four feet wide. The ‘tween deck’ was comprised of metal plates which could be opened to allow full use of the cargo hold, i.e. from the bottom of the cargo hold (sometimes referred to as the ‘tank top’) all the way to the main hatch covers on the weather/main deck. If the ‘tween deck’s’ floor plates were removed, the ledge or catwalk was open to the bottom of the cargo hold or tank top. After climbing down the access ladder from the main deck to the ‘tween deck,’ a person would have to walk a few feet forward and descend a second ladder to the bottom or tank top.
“In early March 2006, the Vinland SAGA loaded a cargo of heavy anchor chains in Bilbao, Spain. When the anchor chain was loaded in Bilbao, the ‘tween decks’ were open allowing the chain to fill up most of the cargo hold. John Sorenson and Captain Hovgaard were the captains and John Andreassen was the chief engineer aboard the vessel during the voyage from Bilbao. Captain Sorenson testified that the crew put lashings to secure the ‘tween deck’ plates in place prior to the sea voyage from Bilbao to the United States. In route to Port Forchon, the Vinland SAGA suffered a breakdown in its propulsion system near the Bahamas. After being towed several times, the vessel ultimately arrived in Mobile, Alabama.”

(Capitalization in original; citations to record omitted.) The M/V Vinland Saga arrived at the Harrison Brothers shipyard in Mobile on August 21, 2006. Harrison Brothers personnel and the ship’s officers then jointly inspected the ship to survey the work that needed to be completed, and, on August 30, 2006, the M/V Vinland Saga was moved to drydock so that repairs could begin.

The M/V Vinland Saga’s six-man crew remained onboard the ship while it was in drydock undergoing repair; the crew was actively engaged in performing separate repairs during this time. The crew did not work on the same projects as did shipyard personnel; however, it is undisputed that both the ship’s crew and shipyard personnel had projects in both of the ship’s cargo holds. On September 28, 2006, Harris, a pipefitter by trade, was tasked by Harrison Brothers with removing the fire-line piping from the M/V Vinland Saga. This task required Harris to descend to the bottom of the Number One Hold. Harris was accompanied in this task by a welder, and, as they descended into the Number One Hold for the first time, Harris, upon reaching the tween deck, stepped aside to give the welder some room to come down the ladder. In doing so, Harris stepped off of the unguarded tween-deck ledge and fell approximately seven feet to the bottom of the hold, suffering a severe head injury that has required multiple surgeries and a lengthy rehabilitation.

Because of the circumstances of his injury, Harris received workers’ compensation benefits under the federal Longshore and Harbor Workers’ Compensation Act (“the LHWCA”), 33 U.S.C. § 901 et seq., as opposed to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Like traditional state workers’ compensation statutes, the LHWCA sets forth a compensation scheme for injured longshoremen and shipyard workers that is generally their exclusive remedy for on-the-job injuries. However, § 905(b) of the LHWCA does permit a covered worker to assert a negligence claim against the owner of a ship on which the worker is injured, stating: “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party....”

On April 30, 2008, Carwie, as conservator for Harris, initiated an action against Knudsen pursuant to § 905(b), asserting, among other claims, that Harris’s injuries were the result of Knudsen’s negligence as the owner of the MW Vinland Saga. Instead of filing an answer to that complaint, Knudsen initiated a limitation-of-liability action in the United States District Court for the Southern District of Alabama, which subsequently entered an order limiting the scope of state-court proceedings while it considered certain federal issues. Ultimately, however, the federal issues required the federal district court to consider the issue central to Carwie’s state-court claim: Whether Knudsen had in fact been negligent. Both Carwie and Knudsen filed motions in the federal district court for a summary judgment focusing on that issue and specifically whether Knudsen had breached any of the duties a shipowner owes to longshoremen or shipyard workers working aboard its ship. As the federal district court noted in its April 28, 2010, order ruling on those motions: “‘The starting point in this regard must be [the Supreme Court’s] decision in Scindia Steam [Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981),] which outlined the three general duties shipowners owe to longshoremen.’ ” 710 F.Supp.2d at 1269 (quoting Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994)). The Supreme Court has described the three general duties outlined in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), as follows:

“The first, which courts have come to call the ‘turnover duty,’ relates to the condition of the ship upon the commencement of stevedoring operations. See [Scindia ] at 167. The second duty, applicable once stevedoring operations have begun, provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the ‘active control of the vessel.’ Ibid. The third duty, called the ‘duty to intervene,’ concerns the vessel’s obligations with regard to cargo operations in areas under the principal control of the independent stevedore. See id., at 167-178.”

Howlett, 512 U.S. at 98, 114 S.Ct. 2057. The federal district court accordingly reviewed the evidence submitted by Carwie and Knudsen in support of their summary-judgment motions with regard to these three duties and held that factual issues precluded the entry of a summary judgment in either party’s favor with regard to whether Knudsen had breached the active-control duty or the duty to intervene; however, it held that Knudsen was entitled to a summary judgment with regard to the turnover duty. The federal district court then concluded its order entering a partial summary judgment in favor of Knudsen by noting that the issue whether the second and third Scindia duties were breached remained to be tried. 710 F.Supp.2d at 1274.

The record before this Court does not reveal exactly what transpired next in the federal district court; however, it apparently elected to let the state-court action proceed and for the state court to conduct the trial to determine whether the second and third Scindia duties had been breached. A four-day nonjury trial was held beginning January 10, 2011, and, at the close of all the evidence, Knudsen moved the trial court to enter a judgment in its favor. On February 3, 2011, the trial court granted that motion without making specific findings of fact and without explaining its rationale. Carwie subsequently appealed that judgment, and it now falls upon this Court to review that judgment pursuant to the following standard of review:

“Because the trial judge made no specific findings of fact, this Court will assume that the trial judge made those findings necessary to support the judgment. Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & Assocs., Inc., 578 So.2d 1061 (Ala.1991). Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless ‘found to be plainly and palpably wrong.’ Fitzner, 578 So.2d at 1063. ‘The trial court’s judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989); see, also, Norman v. Schwartz, 594 So.2d 45 (Ala.1991).”

Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Thus, this Court must affirm the judgment in favor of Knudsen unless Carwie establishes that that judgment is “plainly and palpably wrong,” that is, wholly without credible evidence to support it. As will be explained below, I believe Car-wie has met that burden; the only conclusion that can be made based on the evidence adduced at trial is that Knudsen did in fact breach the Scindia active-control duty.

The active-control duty was described as follows in Scindia: 451 U.S. at 167, 101 S.Ct. 1614. Carwie argues that the undisputed evidence established that the Number One Hold was under the active control of Knudsen during the time the shipyard crew worked on the M/V Vinland Saga and that Knudsen failed to exercise due care to protect Harris from the open tween deck, thus breaching its duty to him. Knudsen argues that it presented ore terms evidence indicating that it had turned over control of the entire ship to the shipyard and that the trial court’s judgment should accordingly be affirmed. However, although Knudsen’s witnesses did testify that the M/V Vinland Saga was under the control of the shipyard at the time of Harris’s injury, that conelusory testimony is refuted by the actual evidence.

“It is also accepted that the vessel may be liable if it actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation.” .

It is undisputed in this case that the crew of the M/V Vinland Saga was actively engaged in its own repair projects while the M/V Vinland Saga was in drydock and that crew members did their own work in the same general areas where Harrison Brothers personnel worked, including the Number One Hold. The testimony provided by Jonas Lyborg, Knudsen’s combination fact and expert witness, under cross-examination illustrates these facts and also serves as the basis for Knudsen’s argument as to why it did not have active control over the tween-deck area:

“Q. But the ship never took a step back here in the cargo hold, did it? The ship continued to work in the cargo hold the same area where the shipyard was working?
“A. They were doing painting and chipping in various cargo holds, yes, according to them.
“Q. Day after day from August 14th on through the date of the accident, correct?
“A. It’s mentioned in the log book several times, yes, frequently.
“Q. It’s an ongoing process?
“A. Looks like it.
“Q. And you reviewed the handover report the night before the accident, correct?
“A. I’ve seen the handover report, yes.
“Q. And the captain said that major work has been going on in the holds plural, both holds, correct?
“A. Yes.
“Q. And it’s not final yet, correct?
“A. No, the handover report indicates it’s not final.
“Q. So it’s going to continue in the future, okay. So in that scenario the ship controls the same area where the shipyard is working, the cargo hold?
“A. No.
“Q. Why not?
“A. Control the area would have meant that the crew member would be standing on deck at that hatch, that access hatch that was all before and say, ‘Mr. Lyborg, you are going down to the cargo hold. Okay, I accept that. Mr. Smith, you want to go down? No you are not going down.’ So they did not control the access to the cargo hold at all. And on the specific morning where the accident happened, there was — we don’t even know if there was any crew members there.
“Q. But the ship’s crew used the same access as the shipyard, correct?
“A. The crew used the same access, yes.
“Q. And worked in the same hold?
“A. Worked in the same hold, yes, correct.”

Thus, even though the ship’s crew was active in the Number One Hold where Harris was injured, Knudsen asserts that it did not have active control over the area because it did not exercise exclusive and unfettered control over the area. However, although it is undoubtedly true that Knudsen did not exercise that level of control over the Number One Hold, it is equally true that the shipyard workers did not exercise exclusive control over the Number One Hold because the crew members appear to have had access to the hold whenever they desired it. See Baham v. Nabors Drilling USA, LP, 721 F.Supp.2d 499, 510 (W.D.La.2010) (“[A]lthough [the contractor] had begun his inspection of the underside of the crane, [the contractor] never had complete control over the ladder and walkway in question. To the contrary, this equipment remained in the control of [the shipowner] at the time of [the contractor’s] accident. [The shipowner’s] employees were never denied access to the crane via the ladder or pedestal walkway during [the contractor’s] inspection.”).

The only finding that the evidence supports, therefore, is that Knudsen and the shipyard workers shared control over the Number One Hold, including the tween deck. In cases with similar instances of shared control, courts have consistently held that the Scindia active-control duty is implicated when control over an area is shared between a ship’s crew and shipyard workers. See, e.g., Green v. United States, 700 F.Supp.2d 1280, 1303 (M.D.Fla.2010) (“The active operations duty does not require Defendant’s exclusive control; concurrent control is sufficient to invoke the broader duty of care.”); Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 537 (3d Cir.1994) (“The active operations duty applies to those areas under the vessel’s active control, even if the stevedore shares control with the vessel or if at some earlier time the area was under the stevedore’s exclusive control.”); and Lampkin v. Liberia Athene Transport Co., 823 F.2d 1497, 1502 (11th Cir.1987) (discussing Scindia and stating: “Establishing different standards of liability, contingent upon the degree of control exercised by the shipowner and the stevedore, is certainly desirable from a policy perspective. Otherwise, a shipowner would be free to ignore hazardous conditions that develop within areas under its exclusive or concurrent control, pending notification by the stevedore.”).

Thus, because the crew of the M/V Vineland Saga shared active control over the Number One Hold, Knudsen had a duty to exercise due care to protect Harrison Brothers personnel like Harris from hazards in that area. Knudsen argues that the open and unguarded tween deck Harris fell into was not a hazard; however, this argument is refuted by decades of caselaw indicating that an open and unguarded deck does present a hazard to shipyard workers and longshoremen unless there is evidence establishing that the deck was left open and unguarded for an essential purpose, such as to allow for the loading of cargo. There is no evidence in the record, however, indicating that the tween deck had been left open and unguarded for any specific purpose at the time of Harris’s accident.

The United States Court of Appeals for the First Circuit explained the test for determining whether a condition constitutes a hazard as follows in a similar case brought pursuant to § 905(b) of the LHWCA, stating:

“Generally speaking, the fact-finder should assess the ‘reasonableness’ of the vessel owner’s conduct ‘by balancing the usefulness to the [vessel] of the [allegedly] dangerous condition and the burden involved in curing it against the probability and severity of the harm it poses.’ ”

Keller v. United States, 38 F.3d 16, 25 (1st Cir.1994) (quoting Johnson v. A/S Ivarans Rederi, 613 F.2d 334, 348 (1st Cir.1980) (emphasis added in Keller)). Johnson is particularly relevant to the present case because it discusses the specific danger an open and unguarded tween deck presents and notes that the “reasonableness” analysis is merely a continuation of pre-LHWCA law:

“This approach for determining the reasonableness of a shipboard danger is also reflected in the pre-1972 law concerning open cargo hatches. While it was negligence for a vessel to leave tween deck hatch covers open and the hatch unlighted and unguarded if the hatch was not to be loaded with cargo, the existence of the very same conditions did not constitute negligence if the cargo was to be loaded into the hatch, since an open hatch is essential to the task of loading and unloading a ship. Compare Miller v. The Sultana, 176 F.2d 203, 206 [ (2d Cir.1949) ], with Badalamenti v. United States, 160 F.2d 422, 425-26 [ (2d Cir.1947) ].”

613 F.2d at 348. See also United States Fid. & Guar. Co. v. Jadranska Slobodna Plovidba, 683 F.2d 1022, 1026 (7th Cir.1982) (in which Judge Richard Posner notes that this reasonableness analysis echoes the analysis used by Judge Learned Hand in a 1947 maritime-negligence case, United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947)). Thus, it is the general rule that a shipowner is negligent in leaving a hatch or deck open and unguarded unless it does so for an essential purpose, such as the loading or unloading of cargo.

In the present case, Knudsen has identified no benefit it received from not guarding the open tween deck. It is also readily apparent that the builder of the M/V Vin-land Saga recognized that an open and unguarded tween deck was a hazard, because sockets were constructed along the edge of the ledge so that a stanchion and chain barrier could be inserted when the tween deck was open. See Woodruff v. United States, 710 F.2d 128, 130-31 (4th Cir.1983) (“ ‘The Navy obviously knew that there was a hazard in this area because they designed in their plans, when they built the ship ... a stanchion and rope system to guard against that opening.’ Placing the manual stanchions as a barrier against [the plaintiff] or anyone else working in the area falling overboard required a minimum of effort.” (quoting the trial court’s order)).

Thus, there is no evidence indicating that there was a useful reason for the tween-deck ledge to be unguarded. It is also apparent that a guard could have been installed without placing any significant burden upon Knudsen. As noted swpra, the infrastructure for installing such a guard was built into the ship. Furthermore, the United States Court of Appeals for the Seventh Circuit in United States Fidelity & Guaranty Co., 683 F.2d at 1027, another maritime-negligence case involving a longshoreman’s fall from an unguarded and open tween deck, identified various other low-cost ways such an accident could be prevented:

“As to ... the burden of precautions, there were various ways the shipowner could have prevented the accident. He could have lit the hold, locked the hatchway leading to it from the weather deck ..., roped off the open hatch, or placed a sign at the hatchway (though the effectiveness of this last precaution may be doubted).”

There was also specific evidence in this case indicating that it was possible to use a rope guard to protect against falls off of the tween deck of the M/V Vinland Saga.

Finally, the fact that the builder of the M/V Vinland, Saga deemed it advisable to include a built-in stanchion-and-chain system to prevent falls into the open tween deck, as well as the number of legal opinions dealing with falls into open decks, indicate that open and unguarded decks pose a not insignificant probability of harm. The possibility of severe harm resulting from a fall off an approximately seven-foot drop to a metal floor is self-evident. Knudsen’s argument that others successfully navigated the tween deck while moving from the main deck to the bottom of the hold might be considered as an argument that the probability of harm posed by the unguarded ledge was sufficiently low that there was effectively no hazard; however, similar arguments have been rejected by other courts. See, e.g., Jupitz v. National Shipping Co. of Saudi Arabia, 730 F.Supp. 1358, 1363 n. 9 (D.Md.1990) (“This is not to say, however, that proof that a worker has not been injured on previous occasions while working under similar conditions is proof that the circumstances encountered on those occasions were not unreasonably hazardous.”). Moreover, as noted previously, such an argument would fly in the face of decades of caselaw holding that the risk of severe injury posed by an unguarded open deck is sufficiently high as to outweigh even that low probability. See Johnson, 613 F.2d at 342 (“The general rule concerning injuries received by longshoremen who fell into the open holds of ships was that the vessel was not negligent in leaving cargo hatches open and unguarded to permit the loading of cargo. See, e.g., Miller v. The Sultana, 176 F.2d 203, 206 (2d Cir.1949); Ove Tysko v. Royal Mail Steam Packet Co., 81 F.2d 960, 962 (9th Cir.1936); Long v. Silver Line, Ltd., 48 F.2d 15, 16 (2nd Cir.1931). However, it was negligence for the vessel to leave cargo hatches open and unguarded on a working deck if the particular hatch was not to be worked. See, e.g., Badalamenti v. United States, 160 F.2d 422 (2d Cir.1947); The Omsk, 266 F. 200 ([4]th Cir.1920); West India and P.S.S. Co. v. Weibel, 113 F. 169 (5th Cir.1902).”). Weighing the facts that the unguarded and open tween deck apparently served no useful purpose and that the ledge could have been guarded with a minimum of effort against the probability of an accident and the obvious risk of severe harm posed by a fall, one can only conclude that the unguarded tween deck presented an unreasonable risk of harm to shipyard workers transferring ladders on the tween deck and was, therefore, a hazard.

Importantly, this conclusion cannot be avoided merely because of the application here of the ore tenus standard of review and because there was testimony at trial indicating that some witnesses did not consider the unguarded tween deck to be a hazard. If there was any evidence in the record indicating that the ship’s crew had left the tween deck open and unguarded on the date of Harris’s accident for some necessary reason or as an essential part of their work, the judgment of the trial court would of course be due to be affirmed under the ore tenus standard. However, no such evidence has been identified, and, in fact, Knudsen has emphasized that there is no evidence establishing that the ship’s crew was working in the Number One Hold at all on the morning of Harris’s accident before he fell, which would seem to indicate that there was no special purpose in leaving the deck unguarded. I disagree that the eonclusory opinions of witnesses who believe that a condition does not constitute a hazard — without any supporting evidence or consideration of the relevant analysis — is sufficient under the ore tenus standard to support a finding that that condition is not a hazard, espe-dally when those condusory opinions are contradicted by decades of caselaw holding that decks left open and unguarded for no apparent reason are a hazard.

Thus, the evidence indicates that the unguarded tween deck was a hazard in an area over which the crew of the M/V Vin-land, Saga shared active control. Knudsen therefore had a duty to exercise due care to protect Harrison Brothers personnel from that hazard. It failed to do so, and that breach, that is, the failure to guard the tween-deck ledge, was a proximate cause of Harris’s accident and injury. The judgment entered by the trial court in favor of Knudsen is accordingly unsupported by the evidence and is therefore due to be reversed. I respectfully dissent from the majority’s no-opinion affirmance, which, I believe, is in stark contrast to decades of jurisprudence in similar maritime cases involving falls into unguarded and open decks. See, e.g., Johnson, 613 F.2d at 342-48.

PARKER, J., concurs.

      . "Vessel” is defined in 33 U.S.C. § 902(21) to include the "vessel’s owner, owner pro hac vice, agent, operator....”


author: THOMAS, Judge.

text:
    GOLD KIST, INC. v. Delores Diane SMITH.
    2110274.
    Court of Civil Appeals of Alabama.
    Aug. 10, 2012.
    Rehearing Denied Sept. 28, 2012.
    Certiorari Denied Dec. 7, 2012 Alabama Supreme Court 1120057.

      Robert P. Fann of Fann & Rea, P.C., Birmingham, for appellant.
    Neil Taylor, Jr., Russellville, for appel-lee.
   THOMAS, Judge.

Gold Kist, Inc. (“Gold Kist”), appeals from a judgment awarding workers’ compensation benefits to Delores Diane Smith. The Franklin Circuit Court found that Smith was permanently and totally disabled as a result of a work-related injury to her right ankle. We reverse and remand.

On November 22, 2006, Smith filed a complaint seeking workers’ compensation benefits, alleging that she had injured her right ankle in a work-related accident on December 3, 2004, and also asserting a retaliatory-discharge claim. On January 4, 2007, Gold Kist filed a motion to dismiss the complaint or in the alternative to stay the proceedings and compel arbitration. Smith filed a motion opposing Gold Kist’s motion to compel arbitration. On February 7, 2007, the trial court dismissed Smith’s retaliatory-discharge claim with prejudice. Thus, the only claim remaining was the workers’ compensation claim. On October 9, 2007, Smith filed an amended complaint alleging that she was permanently and totally disabled as a result of the December 3, 2004, injury to her ankle. Gold Kist filed an amended answer denying the material allegations of the amended complaint.

On May 10, 2011, the trial court conducted a trial at which it heard ore tenus evidence and numerous exhibits were offered into evidence. The evidence presented at trial indicated the following. The parties stipulated that Smith had fractured her right ankle in a December 3, 2004, injury that had arisen in the line and scope of her employment with Gold Kist. Smith testified that immediately following the injury she had been taken to Gold Kist’s nurse, Debbie Sharp, and that Sharp, without removing her boot or sock, had determined that Smith had pulled ligaments. She further testified that Sharp had sent her home with ice, ibuprofen, and instructions to elevate the ankle. Smith testified that the pain was so intense that she had a family member drive her to the emergency room where a medical professional confirmed that she had fractured the ankle and that the fracture required a surgical procedure. Dr. Edward Fisher performed the surgical procedure on Smith’s ankle, and he placed three screws and a plate in the ankle. Smith testified that, following the surgery, she complained to both Dr. Fisher and to Sharp that her toes, her foot, and her leg were burning and numb.

Following the surgical procedure, she testified that she returned to work at Gold Kist in the “pack out” division lining boxes. Smith testified that she continued to experience pain in her right ankle but that she continued to work. Specifically, she stated that “[she] started having shooting pains on the inside of [her] ankle, [her] toes felt like they were like flopping ... [a]nd [she] had like a blistering feel on the outside bone where the plate was.” Based on those symptoms, she continued to see Dr. Fisher regarding the December 2004 ankle injury. The medical records admitted into evidence indicate that Smith had complained to Dr. Fisher that she had had trouble walking in February 2006, because, she said, her ankle becomes “aggravated” with excessive walking. Dr. Fisher suggested a second surgery to remove the hardware in order to alleviate some of Smith’s pain, and, on February 24, 2006, Dr. Fisher performed a second surgery in which he removed the hardware from Smith’s right ankle.

On March 16, 2006, Dr. Fisher released Smith back to work without any restrictions. Smith testified that she was returned to work with restrictions limiting her standing and walking and that, initially, Gold Kist provided her with a stool to allow her to rest but that eventually the stool was taken away causing her to have to stand too long on her injured ankle. She testified that she had requested to be transferred to the “tenders” division because, she opined, that work would be more in line with her limitations. However, she stated that her transfer request was never approved. She continued to see Dr. Fisher as a result of the pain associated with her ankle.

Carolyn Simms, Smith’s workers’ compensation case manager, testified that in April 2006 Smith requested a panel of four physicians pursuant to § 25-5-77(a), Ala. Code 1975. Simms testified that Smith informed her that she had determined that she would prefer to remain under Dr. Fisher’s care after having been provided with the panel of four physicians. In contrast, Smith testified that she had attempted to contact a physician on the panel-of-four list but that she had not been able to attain an appointment with that physician and, thus, had continued to see Dr. Fisher.

The medical records indicate that Smith complained to Dr. Fisher that the surgical incisions were tender and that she was experiencing some cramping in her toes on May 80, 2006. The records further indicate that on May 80, 2006, Dr. Fisher placed Smith at maximum medical improvement and sent her to work without any restrictions, noting that there was only minimal tenderness around the scars and that Smith’s range of motion was normal.

The medical records indicate that on October 12, 2006, Smith informed Dr. Fisher that she was having “a lot of trouble with her back” and was complaining “more about her ankle.” Specifically, the October 12, 2006, records indicate that “[Smith] [wa]s complaining of the toes flopping again, numbness on the top of the foot and sharp pain going up the medial side of the ankle.” Smith testified that she continued to experience pain in her ankle but that several physicians refused to see her because the injury was a workers’ compensation claim. She testified that Dr. Jerry Jenkins, her primary physician, referred her to Dr. David R. Long-mire, a physician concentrating in pain management and neurophysiology, to perform testing on the ankle in 2007.

Dr. Longmire’s deposition was admitted into evidence. In his deposition, Dr. Longmire testified that he had examined Smith on two occasions — once on August 14, 2007, for an initial consultation and then again on September 5, 2007, for an EMG, a nerve-conduction study. He testified that Smith complained of tingling on the lateral side of the right foot, shooting pain near her right heel, and that she had trouble with the movement of her toes. Additionally, he testified that Smith had complained of pain with light touching of the foot. After conducting the nerve-conduction study and observing Smith, Dr. Longmire opined that she suffered from allodynia, which is the sensitivity to light touch. He stated that, as a result of the allodynia, even a light touch such as a sheet could be extremely painful. He further opined that, based on his observation of her movement, she suffered from mechanical allodynia, a gait disorder, because, he said, he had observed her walking in a way so as to not promote additional pain in her ankle by readjusting her weight. However, Dr. Longmire testified that he was not able to identify just a single nerve injury but that Smith’s pain symptoms related to other tissues. He further opined that one of Smith’s joints in her right foot was not functioning properly, which was causing the pain and abnormal sensations. He testified that, based on his limited testing, he could not determine whether Smith’s abnormality was a result of problems with her back or her right ankle or a combination of problems with her back and her ankle. He further testified that Smith had failed to make any further appointments following the September 5, 2007, appointment.

Smith testified that she had been unable to continue seeing Dr. Longmire due to financial limitations. She testified that she had begun using a walking cane after her examination by Dr. Longmire. She also testified that the pain interfered with her ability to sleep, clean her home, visit with her grandchildren, and maintain employment. Specifically, she testified that she had left her employment with Gold Kist on May 17, 2006, and had begun working for DSI Securities at Wayne Farms in Decatur as a security guard. She testified that she had liked her job there because she could sit and stand in the guard shack as needed but that she had had to leave her employment at DSI Securities because she had been unable to perform the amount of walking required to do “rounds” because, she said, she would have severe pain in her toes and ankle. Smith testified that she then worked at the Wal-Mart distribution center located in Russellville as a shelf-stocker. She stated that she could not perform the duties required of a shelf-stocker because, she said, her right ankle was not strong enough to allow her to move a pallet loaded with groceries by herself. She then worked for the Phil Campbell Armstrong Pie Factory as a dishwasher and then a pie packer. She testified that she could not pack the pies quickly enough because her injury required her to take breaks and sit down to rest. Smith testified that she had last worked at Sara Lee as a sandwich maker but that she had been terminated from her employment there for failure to reveal the work-related injury to her ankle. She testified that Sara Lee became informed of her previous work-related injury because, she said, she had been experiencing pain in her back, leg, and ankle and had reported the pain to the Sara Lee nurse. She also testified that she had been to the emergency room on two occasions as a result of the pain. Smith testified that she had suffered from a degenerative disease in her back but that her back pain had intensified since she had injured her right ankle.

Smith testified that her pain was severe and that she had not sought any further employment after her experience at Sara Lee. She testified that her pain interferes with her everyday activities because, she said, her foot feels heavy and constantly throbs. Smith testified that she takes Ef-fexor, a muscle relaxer that starts with the letter “M,” and over-the-counter Motrin for the pain. She testified that she needed to get a new prescription for Ultram, a pain reliever, because she had run out. She further testified that she has a strong pain tolerance and that she does not take pain medication until it gets “too bad.” She further clarified that she takes the medications only “occasionally” as needed.

On July 12, 2011, the trial court entered a judgment finding Smith totally and permanently disabled, awarding workers’ compensation benefits, and awarding attorney fees. On August 8, 2011, Gold Kist filed a motion to alter, amend, or vacate the trial court’s judgment, arguing that the trial court had erred in awarding Smith compensation outside the schedule provided in § 25 — 5—57(a)(3), Ala.Code 1975 (“the schedule”), based on the evidence presented at trial. On October 19, 2011, Gold Kist filed a motion to stay the execution of the judgment, which the trial court granted. Gold Kist’s postjudgment motion was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P. Gold Kist filed a timely notice of appeal to this court on December 12, 2011.

Gold Kist raises one issue on appeal: whether the trial court erred in finding Smith permanently and totally disabled as a result of the injury to her ankle and awarding benefits outside the schedule.

“The standard of appellate review in workers’ compensation cases is governed by § 25-5-81(e), Ala.Code 1975, which provides, in part, that, ‘[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’ § 25 — 5—81 (e)(2). ‘Substantial evidence’ is “‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989)).”

G.UB.MK Constructors v. Davis, 78 So.3d 998, 1002 (Ala.Civ.App.2011).

On appeal, Gold Kist contends that the trial court erred in finding Smith permanently and totally disabled and awarding her benefits outside the schedule because, it says, Smith suffered an injury to her ankle, a scheduled member, and that the evidence presented was insufficient to support any award of benefits outside the schedule based on the “pain exception.” In support of its argument, Gold Kist cites numerous authorities, including Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), and Ex parte Hayes, 70 So.3d 1211 (Ala.2011).

The trial court’s judgment found that Smith had “suffered a one hundred percent total disability” due to the injury to her ankle. The judgment stated, in pertinent part:

“6. Testimony indicated that [Smith] fractured her ankle. Despite two surgeries, [Smith] experiences severe pain. [Smith] is unable to stand for periods of time that would be required for future employment. [Smith] walks with the aid of a cane and is unable to perform simple tasks because of the injury. The Court finds [Smith] to be a credible witness and the medical records support her testimony.
“7. The Court finds that [Smith’s] present condition was caused by the accident which occurred within the line and scope of her employment with [Gold Kist] on December 3, 2004. The Court further finds that the injuries received by [Smith] while so employed with Gold Kist have permanently and totally incapacitated her and have prevented her from working and being returned to any gainful employment.”

Thus, the trial court concluded that the injury to Smith’s ankle, a scheduled member, could be compensated outside the schedule based on its finding that Smith suffers from “severe pain” due to the ankle injury.

In Norandal U.S.A., Inc. v. Graben, 18 So.3d 405 (Ala.Civ.App.2009), this court adopted a “pain exception” to allow an employee compensation outside the schedule for an injury to a scheduled member based on the supreme court’s language in Ex parte Drummond Co., 837 So.2d at 836 n. 11. Specifically, in Graben, this court stated that

“footnote [11] reveals our supreme court’s position that pain that is totally, or virtually totally, disabling justifies an award of nonscheduled benefits even if that pain is isolated to a scheduled member. Hence, we hold, consistent with the language from footnote 11 in Ex parte Drummond, that a worker who sustains a permanent injury to a scheduled member resulting in chronic pain in the scheduled member that is so severe that it virtually totally physically disables the worker would not be limited to the benefits set out in the schedule.”

18 So.3d at 416. Thus, an injury to a scheduled member, such as an ankle, can be compensated outside the schedule if the pain from the injury “virtually totally physically disable[s]” the employee. Id.

Moreover, in Goodyear Tire & Rubber Co. v. Haygood, 93 So.3d 132, 142 (Ala.Civ.App.2012), we stated that

“[t]his court has held that ‘for pain in a scheduled member to be totally, or virtually totally, debilitating to the body as a whole, that pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of his or her body.’ G.UB.MK Constructors v. Davis, 78 So.3d 998, 1002 (Ala.Civ.App.2011) (citing Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] — So.3d - (Ala.Civ.App.2010)).”

Therefore, in order for an injury to a scheduled member to be compensated outside the schedule based on pain alone, the employee must present sufficient evidence to meet the “exceedingly high standard” required by the cases illustrating the “pain exception.” Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] — So.3d -, -(Ala.Civ.App.2010).

In this case, Smith testified that she had trouble performing everyday activities, such as cleaning, sleeping, working, and visiting with her grandchildren because of her pain. She also testified that she had had four jobs after leaving Gold Kist but that she had not been able to complete the tasks required by each job because she could not walk or stand without needing periods of rest due to the weakness and pain associated with her ankle injury. Additionally, the medical records indicate that Smith experienced discomfort and pain as a result of her ankle injury, and Dr. Longmire’s deposition testimony also indicates that Smith had suffered nerve damage as a result of her injury. However, the medical records and Dr. Long-mire’s deposition testimony also note that Smith suffered from pain in her back as a result of a degenerative disk disease unrelated to the ankle injury.

Smith testified that she has a high pain tolerance and that she takes her pain medications only “occasionally” as needed. She further testified that she has the ability to walk and perform everyday activities with the use of a cane and occasional breaks to sit as needed. Additionally, the record does not indicate that Smith has any limitations regarding the use of her upper extremities. Therefore, despite the pain in her right ankle, the record indicates that Smith retains significant ability to perform physical activities.

Based on our review of the record, we cannot conclude that substantial evidence supports the trial court’s finding that Smith was permanently and totally disabled as a result of the injury to her ankle. Thus, we hold that the trial court erred in awarding Smith benefits outside the schedule for the injury to her right ankle. Accordingly, we reverse the judgment of the trial court, and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The record also indicates that Smith sought a second opinion from Dr. John T. Murphy in November 2005. The record contains a letter from Dr. Murphy noting that Smith's only complaints were of "mild discomfort and pain." He noted that there was no swelling, that the wound appeared to be "nicely healed,” and that the X-rays showed that the fracture was “reduced perfecdy.”

      . An injury to an employee’s anide is considered an injury to a scheduled member. See Denmark v. Industrial Mfg. Specialists, Inc., 98 So.3d 541, 543 (Ala.Civ.App.2012); and Caseco, LLC v. Dingman, 65 So.3d 909, 923 (Ala.Civ.App.2010).

      . Footnote 11 stated:
      “This case does not present a situation in which the pain, although isolated to the scheduled member, causes a disability to the body as a whole. We recognize that pain can be totally, or virtually totally, debilitating, but this case does not present such a situation; therefore, we decline to address that situation here.”

        Ex parte Drummond Co., 837 So.2d at 836 n. 11.


text:
    L.M.W. v. D.J. and G.J.
    2110522.
    Court of Civil Appeals of Alabama.
    Aug. 10, 2012.
    Rehearing Denied Oct. 26, 2012.
    Certiorari Denied Jan. 4, 2013 Alabama Supreme Court 1120163.

      Patricia Granger, Gadsden, for appellant.
    Roy 0. McCord of McCord & Martin, Gadsden, for appellees.
   THOMAS, Judge.

On February 1, 2010, D.J. (“the grandfather”) and G.J. (“the grandmother”) (sometimes collectively referred to as “the grandparents”) filed a petition to terminate the parental rights of L.M.W. (“the mother”) to her daughter K.A.J. (“the child”); the case was assigned number JU-07-291.02. The Etowah Juvenile Court conducted a trial on the petition on December 9, 2011. On January 17, 2012, the juvenile court entered a judgment terminating the parental rights of the mother. The mother filed a timely appeal from the judgment.

In 2006, the Etowah County Department of Human Resources (“DHR”) became involved with the mother and her other child, S.N.B., whose case was assigned case number JU-06-0079.0S. A case involving the child was instituted in 2007 and was assigned case number JU-07-291.01. By an order dated July 10, 2008, the juvenile court awarded the grandparents temporary custody of the child and awarded the mother visitation rights in case number JU-07-291.01. The mother was ordered to provide support for the child, although no specific amount was set out in the order. The mother had supervised visitation with both S.N.B. and the child through DHR from September 2008 through December 2009.

On December 1, 2009, after a trial, the mother’s parental rights as to S.N.B. were involuntarily terminated in case number JU-06-0079.03. She appealed the judgment terminating her parental rights to S.N.B., and this court affirmed that judgment. L.M.W. v. Etowah Cnty. Dep’t of Human Res., 55 So.3d 1204 (Ala.Civ.App.2010). The juvenile court then entered an order in case number JU-07-291.01 on December 14, 2009, stating that the mother’s visitation with the child would be at the discretion of the grandparents and relieved DHR of the responsibility of providing supervised visitation.

In its January 17, 2012, judgment, the juvenile court terminated the parental rights of the mother to the child. The trial court considered the factors to consider when determining whether to terminate a parent’s parental rights, set forth in Ala.Code 1975, § 12-15-319, specifically subsections (a)(8), (a)(9), and (a)(11). The juvenile court found that the mother’s parental rights to S.N.B. were terminated on December 1, 2009, see § 12-15-319(a)(8) (“That parental rights to a sibling of the child have been involuntarily terminated.”), that the mother had paid only $80 in child support to the grandparents for the support of the child, see § 12-15-319(a)(9) (“Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support for the child, where the parent is able to do so.”), and that the mother had had a total of three day-time visits with the child since December 2009, had had no overnight visits with the child since December 2009, and had last seen the child at Christmas 2010. See § 12-15-319(a)(ll) (“Failure by the parents to maintain consistent contact or communication with the child.”).

Furthermore, the juvenile court concluded that “the only [possible] alternative [to termination of parental rights] is to maintain the status quo. However, this [would provide] very little, if any benefit to the child.” However, the court concluded that terminating the mother’s parental rights would secure a benefit to the child, because, the juvenile court concluded, if adopted by the grandparents, the child would become eligible to draw from the grandfather’s Social Security benefits and become eligible for insurance coverage through the grandfather. Because it found clear and convincing evidence satisfying three grounds for termination set out in § 12-15-319 and no viable alternative to termination, the juvenile court terminated the parental rights of the mother as to the child.

Under this court’s standard of appellate review of judgments terminating parental rights, “we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the [findings of fact in that] judgment [are] not supported by clear and convincing evidence.” J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007)(citing F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007)). This court has stated that clear and convincing evidence is

“ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’ ”

L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002)(citing Ala.Code 1975, § 6-11-20(b)(4)).

“A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong.” J.C., 986 So.2d at 1183. Therefore, we will “presume that the trial court’s factual findings in this case were correct, and we will not reverse the trial court’s judgment unless the record demonstrates that the judgment is not supported by clear and convincing evidence.” J.C., 986 So.2d at 1186.

When the petitioner seeking termination of parental rights is a nonparent, this court has stated:

“ ‘A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights.’ ”

J.C., 986 So.2d at 1186 (quoting B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004), citing in turn Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)).

“When reviewing a judgment terminating parental rights, this court must determine whether the fact-finder reasonably could have determined that clear and convincing evidence established such facts.” S.U. v. Madison Cnty. Dep’t of Human Res., 91 So.3d 716, 723 (Ala.Civ.App.2012). Section 12-15-319(a) provides, in pertinent part:

“If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(11) Failure by the parents to maintain consistent contact or communication with the child.”

On appeal, the mother argues that the juvenile court’s decision to terminate her parental rights was not based upon clear and convincing evidence. The mother also argues that the juvenile court did not properly consider all viable alternatives to termination of her parental rights. Because we conclude that the mother’s second argument is dispositive of the present appeal, we pretermit discussion of her first argument. See L.R. v. C.G., 78 So.3d 436, 443 (Ala.Civ.App.2011) (citing Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of further issues in light of dispositive nature of another issue)).

The mother argues that the evidence at trial does not support the juvenile court’s conclusion that no viable alternatives to permanent termination of her parental rights existed. She argues that visitation or joint custody was a less drastic, appropriate, and available alternative to termination of her parental rights in this situation. She testified that there remains a bond between her and the child and that she desires to visit with and care for the child. She said that the child expresses love for her and that, although the grandmother had not permitted it, the child had asked the mother to attend her softball games and her school functions.

The mother testified that she has lived at the same residence for six years and is not behind on rent payments. She has a room in her home for the child. The mother also testified that she has been employed at her job as a waitress for two and a half years and also works part time at another restaurant. The mother had previously served in the Navy for three years and was honorably discharged. The mother has a degree as an X-ray technician, but she testified that she is unable to obtain an X-ray technician job because of the lack of jobs in her area.

The mother explained that she had desired to visit with the child more frequently, but she said that the grandmother had allowed her only three visits with the child. According to the mother and the grandmother, the mother telephoned the child once a week until July 2010, when the grandmother restricted the mother’s telephone contact with the child to once a month. The grandmother admitted that she did not communicate with the mother about the child.

The grandparents testified that if the mother’s parental rights are terminated, they intend to adopt the child. The grandparents further testified that if they adopt the child, the child would become eligible to draw from the grandfather’s Social Security benefits and the child would be covered under the grandfather’s insurance. The grandmother stated that the child does not want more visitation with her mother, although she contradicted herself when she admitted in her testimony that she had specifically told the child “no” when the child requested that the mother be permitted to attend her softball games. When questioned regarding her refusal to permit the mother to have visitation with the child or to attend the child’s school and extracurricular activities, the grandmother said that the mother “has a mouth on her” and that the grandmother did not feel comfortable when the mother was present. She also indicated that she did not want the child to have the mother’s telephone number because she did not want the child to be able to contact the mother when the grandparents disciplined the child. The grandfather testified that he thinks it is important that the child have a relationship with her mother and that, to an extent, it is important that the mother remain a part of the child’s life.

The evidence presented at trial established that the mother loves the child and wishes to be a part of the child’s life. The evidence also established that the child desires the mother to be a part of her life. As this court has explained:

“‘[I]f, notwithstanding the unfitness of a parent, there remains a significant emotional bond between a child and an unfit parent, and it has been demonstrated that some alternative-placement resource would allow the child to visit periodically with the unfit parent so as to reap the benefit of partially preserving that relationship without incurring the harm of the child being raised on a day-to-day basis by an unfit parent, the court would be required to weigh the advantage of that arrangement against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of these alternatives would be in the child’s best interest.’ ”

C.M. v. Tuscaloosa Cnty. Dep’t of Human Res., 81 So.3d 391, 397 (Ala.Civ.App.2011) (quoting D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala.Civ.App.2003) (plurality opinion)).

As we have noted before, we are aware that in the past we have rejected the argument that maintaining the status quo would be a viable alternative to termination of parental rights:

“ ‘[W]e note that we have previously rejected [maintenance of the status quo as a viable alternative] when grounds for termination exist and the situation is such that, in the foreseeable future, reunification will not be possible. See K.A.P. v. D.P., 11 So.3d 812, 820 (Ala.Civ.App.2008) (rejecting maintenance of the status quo when it appeared that potential reunification would be at least 10 years in the future and commenting that, in order to achieve stability and continuity for children, “appellate courts generally hold that maintaining an indefinite custody arrangement with a third party is not in the best interest of the child”); B.J.C. v. D.E., 874 So.2d 1109, 1118 (Ala.Civ.App.2003), overruled on other grounds, F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007) (rejecting the father’s argument that “maintaining the situation the children had been in for the six years before the termination hearing by leaving them to be raised by family members” was a viable alternative to termination when the father had failed to consistently support or visit with the children and his situation was unlikely to change in the foreseeable future); A.N.S. v. K.C., 628 So.2d 734, 735 (Ala.Civ.App.1993) (rejecting the maintenance of the status quo as an alternative to termination and noting that the father was expecting to be released from prison in seven years but that “[t]he maternal aunt and uncle were willing to adopt the children to give them a feeling of permanency and security”).’ ”

L.R., 78 So.3d at 443 (quoting L.T. v. W.L., 47 So.3d 1241, 1249 (Ala.Civ.App.2009)). We are also aware that the intention underlying the grandparents’ desire to adopt the child is to provide the child with a financial resource from the grandfather’s Social Security benefits and insurance. Although the grandparents’ intentions are commendable, we cannot agree that the parental rights of the mother should be terminated for such reasons. What we said in L.R. applies here as well:

“In a case such as this one, where the child[ ] ha[s] been placed in the permanent custody of a relative, we are not concerned with ‘an indefinite custody arrangement with a third party’ or a lack of stability for the child[ ]. The child[ ] [is] in a stable and loving placement. However, the evidence is clear that the child[ ] and the mother have a relationship that both the child[ ] and the mother desire to preserve .... In addition, the [grandfather] testified [that it was important for the child to have continued contact ‘to an extent’ with the mother], indicating that [he], too, desires to maintain for the child[ ] some connection to the mother.”

78 So.3d at 443-44.

“The right to parent one’s child is a fundamental right, and the termination of that right should occur ‘ “only in the most egregious of circumstances.” ’ ” K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003) (quoting L.M. v. D.D.F., 840 So.2d 171, 172 (Ala.Civ.App.2002), quoting in turn Ex parte Beasley, 564 So.2d at 952). Based on our review of the record, we cannot say that the grandparents have established by clear and convincing evidence that the evidence in support of their petition in this case rises “ ‘to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.’ ” V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998) (quoting East v. Meadows, 529 So.2d 1010, 1012 (Ala.Civ.App.1988)). We conclude that, in this case, maintaining the status quo is a viable alternative to termination of the mother’s parental rights. Accordingly, we reverse the juvenile court’s judgment insofar as it terminates the parental rights of the mother, and we remand the cause to the juvenile court for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

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

      . The grandparents are the paternal grandparents of the child. The father of the child is not a party to this proceeding.

      . The juvenile court’s judgment also denied the mother’s petition for custody and her petition for contempt. The mother did not raise any issues on appeal relating to the denial of either of those petitions.

      . As this court explained in A.M.B. v. R.B.B., 4 So.3d 468, 471-72 (Ala.Civ.App.2007):
      "This court has previously held that it is reversible error for a juvenile court to leave the matter of a noncustodial parent’s visitation rights to the sole discretion of a custodial parent or other legal custodian of the child. See, e.g., L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005) (reversing a juvenile court’s visitation award that placed the father in control of the mother’s visitation with the child), and K.B. v. Cleburne County Dep't of Human Res., 897 So.2d 379 (Ala. Civ.App.2004) (reversing a juvenile court’s visitation award that essentially conditioned the mother’s right to visitation with her child upon the consent of the child’s aunt and uncle); see also D.B. v. Madison County Dep't of Human Res., 937 So.2d 535, 541 (Ala.Civ.App.2006) (plurality opinion reversing a juvenile court’s judgment that made the mother’s visitation ' "subject to any conditions and limitations deemed to be necessary and appropriate” ’ by the child's great aunt, who was awarded custody of the child).”