author: THOMPSON., Presiding Judge.

text:
    CITY OF MOBILE v. Cassandra A. MATTHEWS.
    2150237.
    Court of Civil Appeals of Alabama.
    July 15, 2016.
    Rehearing Denied Sept. 2, 2016.
    Certiorari Denied Oct. 14, 2016 Alabama Supreme Court 1151292.
    See also 182 So.3d 547.

      Ricardo A. Woods, E. Erich Bergdolt, and Wanda B. Rahman, Mobile, for appellant.
    Ronnie L. Williams, Mobile, for appellee.
   THOMPSON., Presiding Judge.

The City of Mobile (‘‘the City”) and Cassandra Matthews have .been before this court in a previous matter. In Matthews v. City of Mobile, 182 So.3d 547 (Ala.Civ. App.2014), the City notified Matthews of its decision to suspend her without pay for 24 hours. Pursuant to Act No. 470, Local Acts of 1939, as amended (“the Act”), Matthews filed a written notice of her intent to appeal that 24-hour suspension to the Mobile County Personnel Board (“the Board”). While, that appeal was pending, the City notified Matthews that it had terminated her employment based on an incident separate from the incident forming the basis of thé 24-hoúr suspension. 182 So.3d at 549. Matthews then attempted to appeal the termination decision by sending a notice via e-mail to the Board’s personnel director to inform him of her desire to appeal the termination of her employment. On July 26, 2011, the Board purported to reverse Matthews’s termination, and it reinstated Matthews to her employment. 182 So.3d at 551. This court held that Matthews’s attempt to appeal the City’s termination of her employment to the Board via e-mail was ineffective because the e-mail did not constitute a filing, Matthews v. City of Mobile, 182 So.3d at 550-51, Accordingly, we concluded that the order of the Board, as well as the later order entered by the Mobile Circuit Court (“the trial court”) on the City’s appeal of the Board’s decision, were void. Matthews v. City of Mobile, 182 So.3d at 551. In other words, this court held that the Board’s July 26, 2011, decision reversing the City’s termination of Matthews’s employment was void. Id.

This court’s opinion in Matthews v. City of Mobile, supra, was released on December 5, 2014, and this court denied Matthews’s application for rehearing on February 13, 2015. Matthews filed a petition for a writ of certiorari to our supreme court, and our supreme court denied her petition on April 10,2015.

The current record on appeal indicates that while Matthews v. City of Mobile, supra, was pending in the trial court and in this court, Matthews had been reinstated to her “employment” pursuant to the void July 26, 2011, decision of the Board. The City then notified Matthews of its intent to terminate her “employment” based on an allegation that Matthews had failed to follow rules and procedures in performing her job duties. On January 29, 2013, the City notified Matthews that it had terminated her “employment.” Matthews properly appealed the January 29, 2013, termination decision to the Board, which entered a decision on July 2, 2013, upholding the City’s January 29, 2013, termination decision. Matthews then appealed to the trial court.

The trial court entered a judgment on September 15, 2015, in which it purported to affirm the Board’s July 2, 2013, decision. However, after considering Matthews’s postjudgment motion, the trial court, on December 1, 2015, entered a new judgment in which it purported to reverse the Board’s July 2, 2013, decision and to order that Matthews be reinstated to her employment. The trial court based its December 1, 2015, judgment on its determination that the Board had violated Matthews’s constitutional due-process rights by refusing to allow Matthews to be present at the hearing before the Board. The City timely appealed to this court on December 8, 2015. On appeal, the City argues that the trial court erred in failing to affirm the Board’s decision, and it argues that the trial court erred in basing its ruling on a constitutional issue not properly raised by the parties.

After the City’s appeal was submitted to this court, this court entered an order requesting that the parties submit letter briefs on the issue of whether the decision in Matthews v. City of Mobile, supra (and our supreme court’s denial of the writ of certiorari as to that appeal), rendered moot the issues presently before this court. Both parties submitted letter briefs.

In her letter brief, Matthews argues that this appeal is “controlled and limited” by the current record on appeal. Matthews maintains that because the record on appeal, as designated by the City in filing its notice of appeal, purportedly does not contain information about the litigation in Matthews v. City of Mobile, supra, there is no indication that the City’s current appeal is moot. However, a court may take judicial notice of its own records. See Butler v. Olshan, 280 Ala. 181, 187-88, 191 So.2d 7, 13 (1966). Moreover, a lack of justiciability is a jurisdictional defect of which a court must take notice, even ex mero motu. Baldwin Cty. v. Bay Minette, 854 So.2d 42, 45 (Ala.2003). Matthews makes no argument that the decision in Matthews v. City of Mobile, supra, does not render the City’s 2013 decision to terminate Matthews’s “employment” moot.

In its letter brief, the City asserts that this court’s holding in Matthews v. City of Mobile, supra, renders issues pertaining to the 2013 termination of Matthews’s employment moot.

“ ‘ “ A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned.’” Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala. 2006) (quoting American Fed’n of State, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 830-31 (1958)). “The test for mootness is commonly stated as whether the court’s action on the merits would affect the rights of the parties.” Crawford v. State, 153 S.W.3d 497, 501 (Tex.App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993)). “A case becomes moot if at any stage there ceases to be an actual controversy between the parties.” Id. (emphasis added) (citing National Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.1999)).’ ”

Underwood v. Alabama State Bd. of Educ., 39 So.3d 120, 127 (Ala.2009) (quoting Chapman v. Gooden, 974 So.2d 972, 983 (Ala.2007)).

In this case, Matthews’s employment was terminated in May 2011, and no valid appeal was taken from that termination decision. Matthews v. City of Mobile, supra. Although the Board purported to enter an order reinstating Matthews on July 26, 2011, that order was void. Id. Accordingly, Matthews was not validly employed by the City at the time the City again attempted to terminate her “employment” in January 2013. This court’s review of the City’s 2013 termination decision, therefore, would be meaningless because this court’s decision in Matthews v, City of Mobile, supra, established that the termination of her employment in May 2011 was effective. Therefore, there is no controversy concerning Matthews’s employment that can be decided by this court, and the issue is moot. See Florence Surgery Ctr., L.P. v. Eye Surgery Ctr. of Florence, LLC, 121 So.3d 386, 388-89 (Ala. Civ.App.2013) (explaining that the lack of a justiciable controversy renders an appeal moot); Underwood v. Alabama State Bd. of Educ., 39 So.3d at 127-28.

The City argues in its letter brief submitted to this court, however, that this court should consider the merits of the appeal, regardless of the fact that the dispute between the parties-is moot, under an exception to the rule that courts lack jurisdiction to consider moot issues. There are two exceptions to the prohibition against considering a dispute that is moot: “ ‘questions of great public interest and questions that are likely of repetition of the situation.’ ” Underwood v. Alabama State Bd. of Educ., 39 So.3d at 127 (quoting Arrington v. State ex rel. Parsons, 422 So.2d 759, 760 (Ala.1982)). The City argues that this court should consider its appeal under the public-interest exception to the mootness doctrine.

“‘The criteria for applying the public interest exception to the mootness doctrine include the public nature of the question, the desirability of an authoritative determination for the purpose of guiding public officers, and the likelihood that the question will generally recur.’ [1A C.J.S. Actions § 81 (2005) ] (footnote omitted). However, this ‘exception is construed narrowly ... and a clear showing of each criterion is required to bring a case within its terms.’ In re Adoption of Walgreen, 186 Ill.2d 362, 365, 238 Ill.Dec. 124 [125], 710 N.E.2d 1226, 1227 (1999).”

Chapman v. Gooden, 974 So.2d 972, 989 (Ala.2007).

The City argues that the issue it presents has the requisite public nature and that it is likely that the question will recur. See Chapman v. Gooden, 974 So.2d at 989. In this case, the trial court determined that, by being excluded from the hearing before the Board, Matthews’s constitutional rights were violated, and, based on that finding, the trial court reversed -the Board’s decision upholding the termination of Matthews’s “employment.” The City argues that this is- a matter of public concern because of the number .of the City’s employees who might be impacted by the appeal process provided under the Act. The City maintains that issues similar to the one it raises in this appeal are likely to recur if the Board or a trial court addresses constitutional issues in an employee’s administrative appeal under the Act. In .fact, the City cites other cases pending before this court in which, it says, similar issues have been raised. We do not reach a determination as to whether the issue raised by the City in this appeal is of a public" nature and is likely to recur. Even assuming that the issue is of a public nature and is likely to recur, it is clear that the City cannot establish the second criteria for the public-interest exception to the mootness doctrine, i.e., the need for an authoritative decision on the issue.

The City argues in its appeal of the December 1, 2015, judgment, and in its letter brief to this court, that the trial court erred by deciding the purported dispute concerning the 2013 termination of Matthews’s “employment” on a constitutional basis. It contends that the trial court could not properly consider that constitutional issue as a part of Matthews’s administrative appeal from the decision of the Board. The City relies on Wright v. City of Mobile, 170 So.3d 656, 661 (Ala.Civ. App.2014), in support of its argument that this court has decided that constitutional issues that might be raised in administrative proceedings such as those under the Act must be raised in a collateral action. Id. (citing Ex parte Averyt, 487 So.2d 912 (Ala.1986); Turner v. Mobile Cty. Pers. Bd., 689 So.2d 168, 170 (Ala.Civ.App.1997); City of Mobile v. Robertson, 863 So.2d 117, 120 (Ala.Civ.App.2003); and City of Homewood v. Caffee, 400 So.2d 375, 378 (Ala.1981)). The City argues that the trial court’s decision in its December 1, 2015, judgment is “directly contrary to” the decision in Wright v. City of Mobile, supra, and the authority relied upon in that opinion and that this court should issue an “authoritative decision” on the issue. It is clear that the issue identified in this appeal by the City has already been decided by this court; in other words, there already exists an authoritative decision with regard to the issue presented in this appeal by the City. The City, in substance, wants this court to reiterate prior holdings and apply those holdings to this and other cases in which it is a litigant. We reject the City’s argument that this case presents an issue that warrants application of the public-interest exception to the mootness doctrine.

The matter before this court is moot, and the appeal is therefore dismissed. Underwood v. Alabama State Bd. of Educ., 39 So.3d at 132.

APPEAL DISMISSED.

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

      . This court also held that, although the Board had had jurisdiction to consider Matthew’s 24-hour suspension, Matthews had improperly attempted to appeal the Board’s af-firmance of that decision via another e-mail. Therefore, this court held that the trial court never obtained jurisdiction to review the suspension decision. Matthews v. City of Mobile, 182 So.3d at 552.

      . The decision in Matthews v, City of Mobile, supra, by determining that the July 26, 2011, decision of the Board was void, necessarily means that the May 2, 2011, termination of Matthews’s employment remained effective by virtue of Matthews’s failure to properly appeal the termination of her employment. Accordingly, Matthews was not properly reinstated to her employment under the void July 26, 2011, decision of the Board.

      . Matthews has not argued that this court may not, under the holding of Butler v. 01-shan, take judicial notice of our own record and opinion in Matthews v. City of Mobile, supra. We note that under Butler v. Olshan, supra, an appellate court may take judicial notice of its own record in another case if the following circumstances are met:
      "First, the pleading in the instant case must refer to the other proceeding; second, the other proceeding must be of record in the trial court whose decree or judgment is the basis for the instant appeal; and, third, the prior proceeding must be of record in [the appellate court] in another appeal here or be set out in the instant record.”
      280 Ala. at 188, 191 So.2d at 14.
      In this case, the underlying action in Matthews v. City of Mobile, supra, was decided by the trial court and was of record in this court. Also, in this case, Matthews referred to the 2011 termination decision, and to the then-pending appeal of that decision in the trial court, and she sought to incorporate her arguments asserted in that appeal in her challenge to the January 29, 2013, termination decision. In her brief submitted to this court, Matthews also refers to facts relating to the litigation pertaining to her 2011 termination and to this court’s decision in the appeal pertaining to that termination decision, although she does not specifically cite Matthews v. City of Mobile, supra. Accordingly, this court could, and does, properly take judicial notice of its own record in Matthews v. City of Mobile, supra.


source: Caselaw Access Project

author: PITTMAN, Judge.'

license: Public Domain

text:
    Steve EVANS v. W.G. WALDROP.
    2150342.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2016.
    Certiorari Denied Oct. 14, 2016 Alabama Supreme Court 1151206.

      Charles C. Tatum, Jr., Jasper, for appellant.
    Richard E. Fikes of Jackson, Fikes, Hood & Brakefield, Jasper, for appellee.
   PITTMAN, Judge.'

Steve Evans appeals from a judgment of the Walker Circuit Court in favor of W.G. Waldrop for unpaid rent. We affirm the trial court’s judgment. ,,

Procedural History

In 1999, Evans leased from Waldrop a piece of commercial real property (“the property”), which was part of a larger commercial shopping center. The lease term commenced on April 1, 1999, and ended on March 1, 2004. Evans stopped paying rent after May 2000. Accordingly, Waldrop sued Evans, alleging a breach of the lease agreement. In defense, Evans asserted that Waldrop had unreasonably withheld his consent to a sublease of the property.

After a nonjury trial, the trial court entered a judgment in favor of Waldrop, awarding him unpaid rent and prejudgment interest. There are no specific findings of fact contained in that judgment. In response to a postjudgment motion filed by Evans, the trial court entered an order vacating the judgment, but expressly declining to rule on Evans’s request for a new trial; in that same order, the trial judge recused himself from further proceedings in the matter, leaving the issue of whether to grant a new trial for the successor judge. Waldrop appealed, arguing that the trial court had erred in vacating the judgment and that the trial-court judge had erred in recusing himself. This court dismissed Waldrop’s appeal as having been taken from a nonfinal judgment. See Waldrop v. Evans, 181 So.3d 355 (Ala.Civ.App.2015).

After this court dismissed Waldrop’s appeal, the action was assigned to a successor trial-court judge, who entered a judgment stating that he had reviewed the trial transcript, the exhibits submitted during the trial, and the parties’ pleadings and legal memorandums. Based on a review of those materials, the trial court awarded Waldrop $36,000 in damages for unpaid rent. After the parties submitted post-judgment motions, the trial court entered an order amending its judgment in order to also award Waldrop prejudgment interest. Evans appealed.

There has been no argument that the successor trial-court judge erred in entering a judgment based on his review of the trial transcript and the evidence submitted during the trial, which had been presided over by the predecessor trial-court judge. See Rule 63, Ala. R. Civ. P. (governing further proceedings when “the judge is unable to proceed” and stating that, “[i]n a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed” (emphasis added)). See generally Kurtis A. Kemper, Annotation, Power of Successor or Substituted Judge, in Civil Case, to Render Decision or Enter Judgment on Testimony Heard by Predecessor, 84 A.L.R. 5th 399 (2000) (collecting cases in which courts have held that parties may consent to a successor judge’s rendering a decision based on evidence heard by a predecessor judge).

Although the successor trial-court judge based his judgment on a review of the trial transcript and documentary evidence, Evans asserts in his appellant’s brief to this court that this appeal is from “a trial court’s judgment based on its assessment of disputed evidence and testimony.” Thus, he invites this court to apply the deferential ore tenus standard of review to the trial court’s determinations of fact.

Precedent, however, indicates that, when an action is submitted on briefs, transcribed testimony, and documentary evidence, appellate courts typically do not apply the ore tenus rule. See Jackson v. Strickland, 808 So.2d 993, 995 (Ala.2001) (“[W]here ‘[t]he testimony was taken by depositions’ or was taken in a previous proceeding, ‘[t]here is ... no presumption of the correctness of the conclusion of the circuit court.’ ” (quoting Smith v. Cook, 220 Ala. 338, 341, 124 So. 898, 900 (1929))); and Hanks v. Spann, 33 So.3d 1234, 1237 (Ala.Civ.App.2009) (“Because Judge Carter reviewed the record of the bench trial conducted by Judge Aderholt and heard no oral testimony, the ore tenus rule does not apply to our review of the judgment he rendered.”). Regardless, however, of the applicable standard of review, we agree with the trial court’s judgment.

Discussion

Evans does not dispute that he stopped paying rent to Waldrop after May 2000, which was before the lease term expired. Rather, Evans argues that he cannot be held liable for breaching the lease agreement because, he asserts, Waldrop refused to allow Evans to sublease the property to a new tenant, who proposed to operate an “electronic-bingo parlor” on the property. Although the lease agreement between Waldrop and Evans contained a provision prohibiting Evans from assigning the lease or subleasing the property without Wal-drop’s written consent, that provision also provided that Waldrop’s consent “may not be unreasonably withheld.” The trial court found that Waldrop’s refusal to consent to the sublease was reasonable.

In June 2000, after he stopped paying rent, Evans moved off of the property. Waldrop testified that, thereafter, he began searching for a new tenant; that he negotiated with multiple prospective tenants, including automotive-parts sellers and furniture dealers; but that he was unable to immediately re-lease the property.

According to Waldrop, Evans telephoned him at some point and talked to him about the possibility of leasing the property to someone who wanted to operate an “arcade” on the property. Unbeknownst to Waldrop, Evans had recorded that conversation (as well as a subsequent conversation), and the recording revealed that Evans had informed Waldrop that Evans had been contacted by a person who wanted “to put a game room” on the property.

The recording indicates that, after Evans had mentioned the “game room,” Wal-drop stated that he did not want anything too “wild” on the property and that he did not want any “carrying on” on the property. He stated that, if the business was “up to par,” he would not object.

■ Evans testified that the person he -had spoken to about a “game room” was Christine Miller’s husband. Miller testified that she had wanted to operate an electronic-bingo parlor on the property. She described the-business to the trial court as “an arcade where, you know, they have the machines, bingo machines and different ones. It’s adult machines, you know.” Miller testified further that she had- called Waldrop on the telephone, that she had “explained to him. exactly what kind of business it was to be,” that Waldrop had said “that was fine with him,” .and that Waldrop had “agreed to everything and ... knew exactly what [Miller] was going to do there.”

According to Miller, after she had spoken to Waldrop, she was under the impression that she would be allowed to sublease the property. Waldrop, on the other hand, testified that he did not know who Miller was and that he could not recall having had any conversations with her, Waldrop did not remember telling Miller that she could sublease the property. As Evans points out, the trial court found that “[t]he [proposed] sub-lease was contingent on [Waldrop’s] agreement which at first was given but quickly was revoked.” It is not clear whether, in making that finding, the trial court relied on Miller’s testimony or on the referenced recorded telephone conversation between Evans and Waldrop.

Miller also testified that she and Evans had signed a sublease. It appears that the testimony of Miller and Evans indicates that they executed the sublease after Miller’s alleged telephone conversation with Waldrop.- Miller also testified that she had borrowed funds, had opened a bank account, and had obtained a business license in preparation for opening the electronic-bingo parlor. Finally, Miller testified that she had given Evans a check in the amount of $2,400 for one month’s rent and a “security deposit.”

Evans testified that he had informed Waldrop that Miller had executed a sublease and that, “within probably two or three days,” Waldrop told Evans that “he had changed his mind.” One of the recorded telephone conversations between Waldrop and Evans indicates that Wal-drop’s other tenants had expressed disapproval of Miller’s operating her business on the property.

According to Evans, in response to Wal-drop’s having allegedly changed his mind, Evans stated that he would ask Miller if she “want[ed] to give up the lease.” Evans testified that, in response to that inquiry, Miller had “said she didn’t want to be [on the property] if it was going to cause a conflict,” that Evans had returned Miller’s security deposit, and that Miller had returned the keys to the property to Evans.

Consistent with Evans’s testimony, Miller testified that Evans had called her on the telephone and stated that ‘Waldrop had changed his mind and [that] he didn’t want that type of business in his building.” Miller also confirmed that Evans had returned her security deposit and that she had returned the keys to the property. She agreed that doing so “pretty much ... end[ed] the situation.”

Evans argues first that Waldrop could not “withhold” his consent to the sublease because, Evans asserts, Waldrop actually consented to the sublease but later “withdrew” that consent. We note initially that the original lease required Wal-drop’s consent to be expressed in writing, and -it is undisputed that Waldrop never provided a written document exhibiting his consent to. the sublease. - Evans does not expressly argue, in his appellant’s brief to this court, that Waldrop waived any rights he had under the lease by orally consenting to the sublease, and he does not point to any authority governing waiver. Although Evans makes a waiver argument in his reply brief, this court typically will not consider arguments made for the first time in a reply brief. Meigs v. Estate of Mobley, 134 So.3d 878, 889 n. 6 (Ala.Civ.App. 2013).

In any event, assuming Waldrop’s alleged oral consent was sufficient, the evidence clearly indicates that, after Waldrop “changed his mind," Evans and Miller rescinded the sublease they had executed. See L.B. Whitfield, III Family LLC v. Whitfield, 150 So.3d 171, 188 (Ala.2014) (indicating that parties to a contract may rescind their agreement by mutual consent). Evans addresses that rescission in his appellant’s brief to this court only by asserting that Waldrop “forced” Evans to rescind the sublease. The evidence, however, does not support the suggestion that Waldrop exercised undue pressure on Evans. Rather, the evidence indicates that Waldrop expressed that the other tenants were unhappy with Miller’s business being located on the property, that Evans responded that he would “ask [Miller if] she want[ed] to give up the lease,” and that Miller “said she didn’t want to be there if it was going to cause a conflict.” In addition, Evans does not point to any authority that would support his suggestion that the rescission of the sublease was somehow ineffective.

Thus, Mattox v. Wescott, 156 Ala. 492, 47 So. 170 (1908), upon which Evans relies in his reply brief, is distinguishable. In that case, our supreme court held that a landlord, by orally consenting to a sublease, had waived the right to consent in writing. There was no indication in Mat-tox, however, that the sublease, which had been executed in reliance on the landlord’s oral consent, was rescinded after the landlord purported to revoke that consent. Accordingly, we reject Evans’s argument that Waldrop’s alleged oral consent precluded him from later withholding that consent.

Evans also argues that Wal-drop’s withholding of consent was unreasonable. It is the tenant’s burden to show that a landlord has acted unreasonably in refusing to consent to a sublease or to an assignment of a lease. Pantry, Inc. v. Mosley, 126 So.3d 152, 158 (Ala.2013). “The reasonableness of a landlord’s failure to consent to [a sublease or] an assignment of a lease is judged in accordance with a commercial-reasonableness standard.” Id. (citing Rowley v. City of Mobile, 676 So.2d 316, 318 (Ala.Civ.App.1995), and Homa-Goff Interiors, Inc. v. Cowden, 350 So.2d 1035, 1038 (Ala.1977)).

“‘Among the legitimate factors landlords may consider in assessing reasonableness [are]: the financial responsibility of the proposed assignee or subtenant, whether the new tenant’s use will require alteration of the premises, the legality of the proposed use, the nature of the occupancy, and the compatibility of the tenant’s use with the uses of the other tenants in the same shopping center or office building. Courts have held it improper for a landlord to reject an assignee or sublessee on considerations of personal taste, sensibility or convenience.’ ”

Rowley v. City of Mobile, 676 So.2d at 319 (quoting 12 D. Thomas, Thompson on Real Property § 97.06(c)(22)(iii) at 108 (1994)). According to our supreme court, whether a landlord has acted reasonably is a question of fact for the trier of fact. Homa-Goff Interiors, Inc. v. Cowden, 350 So.2d at 1038.

“[A] landlord does not unreasonably withhold consent to an assignment unless the landlord is presented with — and rejects — a prospective assignee who ... meets commercially reasonable standards.” Rowley, 676 So.2d at 319.

“A tenant has the burden of furnishing sufficient information about the proposed assignee to enable the landlord to determine whether it will consent to an assignment. D’Oca v. Delfakis, 130 Ariz. 470, 636 P.2d 1252 (Ariz.App.1981).
“ ‘The lessor is under no duty to seek out such information. In the absence of information concerning the proposed tenancy and the tenant, the lessor is justified in withholding consent.’
“D’Oca v. Delfakis, 130 Ariz. at 472, 636 P.2d at 1254.”

Rowley, 676 So.2d at 320.

Consistent with the above-stated principles, the trial court in the present case found that any suggestion that Miller’s business “would have been successful ... is all based on speculation,” noting that, for all that appeared from the evidence, it would have been Miller’s first attempt at operating any business, including an electronic-bingo parlor. The trial court determined that Miller’s testimony was not sufficient by itself to establish “that the bingo business was financially solvent” and likely to succeed.

Evans argues that he “was not required to prove that [Miller’s] business would have been an actual success.” He asserts that he was required to show only that Miller met the commercial-reasonableness standard. This court, however, is not convinced that the likelihood of a proposed new tenant’s success is not a legitimate concern under the commercial-reasonableness standard. See Gary L. Hall, Annotation, Construction and Effect of Provision in Lease that Consent to Subletting or Assignment Will Not Be Arbitrarily or Unreasonably Withheld, 54 A.L.R.3d 679, § 2[a] (1973) (“[T]he courts appear to have recognized that a key factor in determining whether a landlord’s refusal is unreasonable is whether the landlord may be assured that the covenants of the lease, particularly the covenant to pay rent, will be met.”).

Evans also suggests that the evidence actually did show that Miller’s business was likely to succeed. In support of his assertion, he points to the fact that Miller was able to open a bank account, to obtain a business license, to borrow funds, and to pay the first month’s rent and a security deposit. He also relies on Miller’s testimony that her business would need a “big parking lot” and Waldrop’s alleged initial consent to the sublease. Simply put, this court disagrees that those circumstances established a likelihood of Miller’s success.

Evans also asserts that there was no evidence presented indicating that Wal-drop had refused to consent to the sublease because of any concerns he had with Miller’s business acumen. As noted, Wal-drop testified that Evans had told him that Miller wanted to operate an “arcade,” and a recorded telephone conversation indicated that Evans had referred to the proposed business as a “game room.” According to Waldrop, “[i]t was never explained to [him] what [the arcade or game room] would have been,” and he stated that he did not “know whether that was intended to be bingo or what the arcade would have been.” He also testified that he was never given any written materials regarding the business. Thus, there was at least some evidence presented tending to support a conclusion that Waldrop did not have sufficient information upon which to judge the likelihood of Miller’s business succeeding.

Regardless, Waldrop also testified that he believed that he had a duty to protect the interests of the other tenants in the shopping center and that, although he was not certain, he most likely had made a decision that Miller’s business could adversely affect their interests. He testified that he “would not have been happy with a sublease to an arcade” and that “[njeither would the current tenants have been happy with an arcade sublease.” As noted, one of the recorded telephone conversations indicates that Waldrop’s other tenants had expressed their displeasure with Miller’s business. The nature of the new tenant’s proposed occupancy and the compatibility of the new tenant’s proposed use with that of the other tenants are legitimate concerns. Rowley, 676 So.2d at 319. This court may affirm the trial court’s judgment for any legitimate reason supported by the record. DWOC, LLC v. TRX All., Inc., 156 So.3d 978, 983 (Ala.Civ. App.2014). We conclude that Waldrop did not act unreasonably in refusing to consent to Miller’s subleasing the property based on the objections of Waldrop’s other tenants.

Finally, we note that Evans asserts in the statement-of-facts section of his appellant’s brief that he also found “an established restaurant that wanted to lease the property.” One of the recorded telephone conversations between Evans and Waldrop shows that Evans claimed to have known of “a restaurant guy,” who operated a restaurant called “Victoria’s,” that was interested in the property. Waldrop responded that he would “rather not” have a restaurant on the property because it would conflict with the interests of another tenant that was already operating a restaurant in the shopping center. In the argument section of his brief, Evans does not expound upon his suggestion that it was unreasonable for Waldrop to refuse to consent to a sublease to the restaurant operator. See Rule 28(a)(10), Ala. R.App. P. (setting forth the requirements of the argument section of an appellant’s brief). In any event, we note that there is not much information in the record regarding the restaurant. No representative of the restaurant owner testified, and there was no other evidence indicating that the restaurant owner was ready and willing to lease the property, other than Evans’s claim that he had been interested in leasing the property. Moreover, Evans also agreed during the trial that the restaurant in question was similar to the restaurant that was already located in the shopping center. Thus, we conclude that Evans has not met his burden of showing that Wal-drop acted unreasonably in allegedly withholding consent to a sublease to the restaurant operator.

Based on the foregoing, the trial court’s judgment is due to be affirmed.

AFFIRMED.

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

      . Our supreme court in Alabama Power Co. v. Wallace, 548 So.2d 1372, 1375 (Ala. 1989), suggested that a previous version of Rule 63 did not authorize a successor judge to rule on the credibility of witnesses whose testimony he or she did not hear. That version of Rule 63, however, has since been amended, and, in any event, the supreme court did not hold in Wallace that parties could not stipulate to such a procedure or that an appellate court should, without argument from the appellant, consider the issue sua sponte.

      . This court recognizes that Evans’s strategy in asking this court to apply the ore tenus standard of review is based on his position that the trial court made a factual determination that, Evans asserts, is favorable to his position.

      . The parties’ arguments are somewhat ambiguous as to whether the proposed sublease was to be a true sublease or was, rather, a proposed assignment of Evans’s interest in the property. That distinction, however, is not material to the issues addressed by this opinion. For the sake of simplicity, we will refer to the proposed agreement as a sublease.

      .There has been no argument that Waldrop accepted Evans’s abandonment of the property during any of the period for which Waldrop has sought unpaid rent. Waldrop eventually was able to re-lease the property to a new tenant, and he has not claimed unpaid rent for any time thereafter.

      . We also reject Evans’s suggestion that a binding contract existed between Waldrop and Miller that precluded Waldrop from withholding consent to Miller’s sublease of the property. It is undisputed that Waldrop never signed the sublease. In any event, it is clear that Miller agreed to a rescission of any such agreement.

      . Although Evans asserts that Waldrop’s other tenants objected to Miller’s business based on their own personal tastes or sensibilities, he does not point to any evidence that supports that assertion, other than Waldrop’s testimony, which was stricken upon motion by Evans’s counsel, that one of Waldrop's other tenants, a church, had thanked him for not allowing Miller to sublease the property. We note that there was also some evidence presented suggesting that Miller’s business might require the use of an unusually large amount of parking spaces and that Waldrop responded “I have no idea" when asked by Evans's counsel whether Miller’s proposed electronic-bingo parlor would have been legal. See generally Barber v. Cornerstone Cmty. Outreach, Inc., 42 So.3d 65, 86 (Ala.2009) (indicating that certain types of electronic "bingo” machines were not permitted under a local constitutional amendment allowing the game of "bingo"). Finally, we also note that, although Rowley indicates that a landlord may not withhold consent to a sublease based solely on his or her personal tastes or sensibilities, Evans does not point to any authority indicating that a landlord cannot properly take into consideration his other tenants' objections to a proposed sublease based on their tastes or sensibilities.

      . Our holding obviates the need to consider whether Evans’s breach of duty to pay rent, which undisputedly occurred before Waldrop refused to consent to a sublease with Miller, relieved Waldrop of any duty he had to consider subleasing the property. See generally Ryals v. Laney, 338 So.2d 413, 415 (Ala.Civ. App.1976) ("We need not decide the effect on an award of damages to a lessor occasioned by his alleged refusal to sublet to a responsible individual when-the evidence discloses no such refusal. However, we do note that when the tenant abandons the leased premises prior to the expiration of the term agreed upon in the lease, ‘it is the option of the lessor to allow the premises to remain vacant and re- ■ cover rent for the whole term, or to put an end . to the lease by re-entry.’ ” (quoting McClure v. Daniel, 45 Ala.App. 558, 562, 233 So.2d 500, 502 (1970))).


author: BOLIN, Justice.

text:
    EX PARTE Steve EVANS (In re: Steve Evans v. W.G. Waldrop)
    1151206
    Supreme Court of Alabama.
    October 14, 2016
    Charles C. Tatum, Jr., Jasper, for petitioner.
    Submitted on certiorari petition only.
   BOLIN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

Parker, Murdock, Main, and Bryan, JJ., concur.


author: THOMPSON, Presiding Judge.

text:
    BOARD OF ZONING ADJUSTMENT OF the CITY OF HUNTSVILLE. v. Janet M. WATSON.
    2150314.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2016.
    Certiorari Denied Oct. 14, 2016 Alabama Supreme Court 1151200.

      Jeffrey K. Grimes, asst, city atty., Huntsville, for appellant.
    Julian D. Butler and Benjamin R. Little of Sirote & Permutt, P.C., Huntsville, for appellee.
   THOMPSON, Presiding Judge.

Janet M. Watson appealed to the Board of Zoning Adjustment of the City of Huntsville (“the Board”) challenging a decision of the zoning administrator of the City of Huntsville (“the City”) that denied her request for a variance to allow a parcel of property she owned (“the parcel”) to be deemed a nonconforming lot so that a house could be constructed on the parcel. On May 21, 2014, the Board upheld the zoning administrator’s denial of Watson’s request for a variance, and Watson appealed the Board’s decision to the Madison Circuit Court (“the trial court”). The trial court conducted an ore tenus hearing, and on September 15, 2015, it entered a judgment reversing the decision of the Board and ordering that the variance be granted. The Board filed a postjudgment motion, which was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. The Board timely appealed.

Before the Board and the trial court, Watson sought an area variance based on her contention that failing to allow her a variance so that a house could be built on the parcel, which undisputedly is too small a lot on which to construct a house under the area specifications of the applicable zoning requirements, would cause her an “unnecessary hardship.” See Ferraro v. Board of Zoning Adjustment of Birmingham, 970 So.2d 299, 307 (Ala.Civ.App.2007) (explaining the differences between a use variance and an area variance). A board of adjustment, among other things, may grant a variance that would “not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the [zoning] ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.” § 11—52—80(d)(3), Ala.Code 1975.

In its September 15, 2015, judgment, the trial court ordered that Watson’s request for a variance be granted without making any findings of fact. When a trial court fails to make factual findings, this court will assume that it made those findings necessary to support its judgment. City of Prattville v. Post, 831 So.2d 622, 628 (Ala.Civ.App.2002). Accordingly, we conclude that, in granting Watson the relief she requested, the trial court implicitly found that the denial of the variance would cause Watson an unnecessary hardship.

“ ‘Generally, where the trial court receives ore tenus evidence, the trial court’s judgment based on that evidence is entitled to a presumption of correctness and will not be reversed on appeal absent a showing that it is plainly and palpably wrong. Alverson v. Trans-Cycle Indus., Inc., 726 So.2d 670 (Ala.Civ. App.1998). However, that presumption of correctness applies to the trial court’s findings of fact, not to its conclusions of law. City of Russellville Zoning Bd. of Adjustment v. Vernon, 842 So.2d 627 (Ala.2002). Further, the presumption favoring the judgment of the trial court has no application when the trial court is shown to have improperly applied the law to the facts. Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415 (Ala.1994).’ ”

Ferraro v. Board of Zoning Adjustment of Birmingham, 970 So.2d at 302 (quoting Town of Orrville v. S & H Mobile Homes, Inc., 872 So.2d 856, 858 (Ala.Civ.App. 2003)).

The transcript of the ore tenus hearing before the trial court reveals the following pertinent facts. Watson testified that she is a retired real-estate developer who had developed two or three subdivisions before she purchased a large tract of land, which included the parcel in 1988. Watson testified that the large tract of land was zoned by the City as “Rl-A,” a designation permitting residential use. Lots in an area zoned Rl-A are required by the City’s zoning ordinances to have an area of 12,-000 square feet and be at least 75 feet in width.

Watson said that she hired an engineer to design the division of the large tract of land into lots for a residential subdivision known as “Huntington Place, Second Addition” (“the subdivision”). Watson agreed that she hired the engineer to fashion a division of the large tract that would maximize her revenue from selling the subdivided lots. The City’s planning commission approved the subdivision in 2002. Watson testified that she sold the lots in the subdivision and that others constructed the houses placed on those lots. The parcel, however, was not included in the plat for the subdivision.

Before the trial court, Watson testified that the parcel was not included in the subdivision because the size of the parcel was too small, under the applicable zoning ordinance, to allow the construction of a house on it. The parcel has a curb, and, therefore, it looks like the other lots on Heatherwood Drive. The parcel is located at the end of Heatherwood Drive, which does not end in a cul-de-sac but, rather, is “stubbed out.” Watson explained that a street is “stubbed out,” or simply ended, when it is anticipated that further development might occur and that the road would, at some time in the future, be extended to accommodate the anticipated further development. The parcel abuts a large tract of land' with only three or four residences on it, referred to by the parties as “the Fanning property.” The Fanning property is divided among members of the Fanning family, pursuant to a plan referred to as a “family subdivision,” into four large lots.

In November 2013, Blake Cantrell, who testified that he works in the real-estate business, approached Watson to inquire about purchasing the parcel. Cantrell entered into a contract to purchase the parcel; that contract was contingent on Watson’s obtaining from the City a variance that would allow Watson to construct a house on the parcel. Thereafter, Watson requested the variance, but the city’s zoning administrator and the Board denied that request.

Watson testified that the parcel has no reasonable use under the Rl-A zoning designation, and, therefore, she stated, the failure to grant her a variance for the parcel caused her an undue hardship. Watson pointed out that, because the parcel is less than 75 feet in width, a house or other residential building cannot be constructed on it under the applicable zoning ordinance.

Watson also testified that, when she created the subdivision, she had anticipated that the Fanning property would be developed in the future and that, assuming that that anticipated future development would occur, she had hoped to attempt to purchase additional property adjacent to the parcel so that the parcel could be developed under the applicable zoning ordinances. Watson testified that her expectation of further development was reasonable, as evidenced, she says, by the City’s agreeing to allow Heather-wood Drive to be “stubbed out” rather than ended in a cul-de-sac.

Watson testified that, after Cantrell sought to purchase the parcel, she had attempted to buy additional land from adjacent landowners to enlarge the parcel and make it compliant with the width and area requirements of the applicable zoning ordinance. However, Watson testified, the adjacent landowners had refused to sell her any portion of their properties.

It is undisputed that the Panning property is zoned as Rl-A, as is the parcel and the .other lots containing residences on Heatherwood Drive. Watson testified before the trial court that she did not believe that Heatherwood Drive would be further developed in the future. Therefore, Watson stated, she did not believe that she would be able to purchase additional property to enlarge the parcel so that it would be compliant with the width and area requirements of the applicable zoning ordinance. Watson explained that, to extend Heatherwood Drive into the Fanning property, three different landowners would have to agree to sell at least a portion of their property. Watson testified that she believed that it was unlikely she could obtain the agreement of all the necessary landowners, so, she believed, it was not likely that the Fanning property would be developed. We note that the Board presented evidence indicating that Watson purchased the large tract of land that she later subdivided, and of which the parcel was a part, from three different péoplé, all of whom were apparently within the Fanning family.

Watson testified that she has to pay property taxes on the parcel and maintain the parcel, and, she said, since 2018, she has received multiple notices from the City indicating that, by, failing to properly maintain the vegetation on the parcel, she was violating a local weed ordinance. On one occasion, when Watson failed to have the parcel maintained, the .City’s workers mowed the parcel and billed Watson $197 for that maintenance. Watson testified that the Fanning property was overgrown and that .she believed that the weed ordinance was selectively enforced by the City, However, Jim McGuffey, the manager of planning services for the City, testified that the weed ordinance was enforced based on complaints from nearby property owners. ■ ■

Several property owners who live near the parcel testified that they believed that the house ■ Cantrell proposed to build on the parcel if a variance was granted would be out of character for the neighborhood bécause of - its narrowness and height. The neighbors believed that the construction of Cantrell’s proposed residence would decrease their property values. Watson disputed the neighbors’ contentions that the size and shape of the house was inconsistent with the neighborhood because, she noted, townhouses are located at the start of Heatherwood Drive, which is only two to three blocks in length.

The evidence indicates that the lots on Heatherwood Drive, as designed by Watson in her creation of the subdivision, are all between 95 and 105 feet in width. McGuffey testified that nothing in the City’s zoning ordinances had prevented Watson, when she was creating the subdivision, from creating a division of property that would not have resulted in the parcel being too small to contain a house; the subdivision could have been divided into a greater number of smaller lots, or each of the lots created could have been larger. On cross-examination, Watson admitted that the large tract of land could have been divided to create the same number of slightly larger lots and that, as an alternative, she could have made the parcel sufficiently large to comply -with the Rl-A zoning requirements by making the other nearby lots in the subdivision slightly smaller. However, Watson stated that she elected to leave the parcel out of the subdivision because she thought she could make a profit from the parcel at some point in the future.

On appeal, the Board argués that the trial court erred in reversing the Board’s decision and ordering that Watson’s variance request be granted. Watson sought the variance based on her claim of an “unnecessary hardship.” The Board argues on appeal that the evidence does not support a conclusion that Watson suffered an “unnecessary hardship,” as that term is defined under Alabama law, that would warrant the granting of the requested variance. “We have repeatedly recognized that variances should be granted sparingly, and only under unusual and exceptional circumstances where the literal enforcement of the ordinance would result in unnecessary hardship.” Board of Zoning Adjustment for Fultondale v. Summers, 814 So.2d 851, 855 (Ala.2001).

“[T]he primary question in variance cases is whether, due to special conditions, a literal enforcement of a zoning ordinance will result in an unnecessary hardship. Board of Zoning Adjustment for Fultondale v. Summers, 814 So.2d [851,] 855 [(Ala.2001)]. ‘An “unnecessary hardship” sufficient to support a variance exists where a zoning ordinance, when applied to the property in the setting of its environment, is “so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property.” ’ Ex parte Chapman, 485 So.2d 1161, 1162 (Ala.1986) (quoting McQuillin, Municipal Corporations § 25.167 (3d ed.1983)). Furthermore, “‘the unnecessary hardship which will suffice for the granting of a variance must relate to the land rather than to the owner himself. Mere personal hardship does not constitute sufficient ground for the granting of a variance.” ’ Ex parte Chapman, 485 So.2d at 1164 (quoting 82 Am.Jur.2d, Zoning & Planning § 275 (1976)). Finally, a ‘“self-inflicted or self-created hardship may not be the basis for a variance or for a claim thereof.”’ Ex parte Chapman, 485 So.2d at 1163 (quoting Thompson, Weinman & Co. v. Board of Adjustment, 275 Ala. 278, 281, 154 So.2d 36, 39 (1963)).”

Ferraro v. Board of Zoning Adjustment of Birmingham, 970 So.2d at 307.

The Board contends that the hardship of which Watson complains in seeking the variance is self-created and that, therefore, it may not serve as the basis for granting a variance. Ferraro, supra. See also Board of Zoning Adjustment for Fultondale v. Summers, 814 So.2d at 856 (“When the owner, by his own conduct, creates the exact hardship he alleges exists, he will not be permitted to take advantage of it.”); and Board of Adjustment of Prichard v. Creel, 500 So.2d 1147, 1148-49 (Ala.Civ.App.1986) (“[T]here can be no basis for claiming that a variance should be granted if the hardship is self-created or self-inflicted.”).

The evidence in the record is undisputed that, in creating the subdivision, Watson elected to create the parcel so that, under the applicable zoning ordinance, it would be too small to contain a house and to exclude the parcel from the land platted in the subdivision. Watson admitted that she could have included the land composing the parcel to create larger subdivision lots or more lots of a smaller size. However, Watson stated that she elected not to do so in the hope that she could make money from the parcel if adjacent property were developed in the future. Unfortunately, the land abutting the parcel has not been developed, and Watson has been left with nonconforming property for far longer than she had anticipated.

Watson points out that if she sold the parcel, any subsequent owner would have the same difficulties of which she complains, i.e., being unable to construct a house or other residential building on the parcel and incurring the expenses of paying property taxes and maintaining the parcel. Watson contends, therefore, that the “unnecessary hardship” runs with the land. We note, however, that there is no evidence indicating that the land abutting the parcel will not, at some future date, be developed, thereby creating the possibility of alleviating the problem causing the parcel not to comply with the Rl-A zoning requirements.

However, this court has discovered no authority for the proposition that a property owner can create a hardship that would run with the land and then seek a variance under a claim of an undue hardship. Rather, the applicable caselaw establishes that a self-inflicted hardship cannot serve as a basis for a variance. Ferraro, supra; Board of Zoning Adjustment for Fultondale v. Summers, supra; and Board of Adjustment of Prichard v. Creel, supra. Watson’s arguments and evidence focused on the condition of the parcel. However, the defense asserted by the Board that the claimed unnecessary hardship was self-inflicted focused on Watson’s conduct, and that defense, if supported by the evidence, would serve as a complete bar to a claim of an unnecessary hardship. Vernon’s Tri-State Pawn, Inc. v. City of Mobile Bd. of Adjustment, 571 So.2d 309, 311 (Ala.Civ. App.1990).

We conclude that the evidence is clear that Watson’s own choices created the hardship of which she complained in seeking the variance.

“[A] ‘self-inflicted or self-created hard ship may not be the basis for a variance or for a claim thereof.’ Thompson, Weinman & Co. v. Board of Adjustment, 275 Ala. 278, 281, 154 So.2d 36, 39 (1963); Martin [v. Board of Adjustment, 464 So.2d 123 (Ala.Civ.App.1985) ]. When the owner himself by his own conduct creates the exact hardship which he alleges to exist, he certainly should not be permitted to take advantage of it.’ Josephson v. Autrey, 96 So.2d 784, 789 (Fla.1957), cited with approval in Thompson, Weinman & Co., supra.

Ex parte Chapman, 485 So.2d 1161, 1163 (Ala.1986). Based on well settled law, we hold that the trial court erred in applying the applicable law to the facts, and, therefore, we reverse the judgment.

We note that Watson argues in her brief submitted to this court that the Board failed to address in its brief to this court all of the bases the trial court considered in deciding to grant the variance. When a trial court does not specify the basis of its judgment, an appellant’s failure to address an issue on which the trial court might have relied results in an affirmance, because the appellate courts will not assume error on the part of the trial court. Soutullo v. Mobile Cty., 58 So.3d 733, 739 (Ala.2010) (“If an appellant defaults on his or her duty to show error by failing to argue in an opening brief an unstated ground that was placed in issue below, then, a fortiori, a challenge to the judgment [on that unstated ground] is waived.... ”). In this case, however, Watson sought the variance on only one legal theory, which was her claim for a variance based on an alleged unnecessary hardship. Watson argues that the trial court could have relied on other legal bases. The division of the adjacent Fanning property into a family subdivision, the enforcement of the weed ordinance, and the assessment of taxes on the parcel were the “grounds” identified by Watson as purported alternate bases for the trial court’s judgment. However, the other “grounds” upon which Watson contends the trial court relied are actually factors pertaining to whether there was an unnecessary hardship.

“‘“No one factor determines the question of what is practical difficulty or unnecessary hardship, but all relevant factors, when taken together, must indicate that the plight of the premises in question is unique in that they cannot be put reasonably to a conforming use because of the limitations imposed upon them by reason of their classification in a specified zone.” ’
“City of Mobile v. Sorrell, 271 Ala. 468, 471, 124 So.2d 463, 465 (1960), quoting Brackett v. Board of Appeal, 311 Mass. 52, 39 N.E.2d 956 (1942).”

Ex parte Chapman, 485 So.2d at 1162. Accordingly, we reject Watson’s argument that the Board failed to address alternate bases upon which the trial court could have reached its judgment.

REVERSED AND REMANDED.

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

      . There is no dispute that the residence that Cantrell proposed to place on the parcel would meet all applicable setback requirements imposed by the City’s zoning ordinances.

      . Watson did not explain why the division of the Fanning property into a family subdivision was relevant to the issue of whether she had suffered an unnecessary hardship justifying the requested variance.


author: THOMPSON, Presiding Judge. DONALDSON, Judge,

text:
    Larry MAGRINAT v. Myra MADDOX.
    2150357.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.
    Certiorari Denied Oct. 14, 2016 Alabama Supreme Court 1151241.

      Mark Erdberg of Jaffe & Erdberg, P.C., Birmingham, for appellant.
    Alex L. Holtsford, Jr., of Holtsford, Gil-liland, Higgins, Hitson & Howard, P.C., Montgomery, for appellee.
   THOMPSON, Presiding Judge.

Larry Magrinat appeals from a judgment of the Lee Circuit Court (“the trial court”) awarding him $42,000 in compensatory damages in his negligence action against Myra Maddox; Magrinat challenges the amount of damages awarded and contends that the trial court used the wrong measure of damages in determining that amount.

The evidence relevant to the issue on appeal indicates the following. Magrinat was injured on May 15, 2012, in Lee County when the automobile Maddox was driving collided with the rear of the pickup truck Magrinat was driving. Magrinat suffered injuries to his left ankle and his left arm in the accident. He received treatment for his injuries from a number of health-care providers, including having surgery at St. Vincent’s Hospital in Birmingham. Dr, David Shane Buggay, an orthopedic surgeon with OrthoSports Associates, LLC, performed the surgery. Dr. Buggay testified in his deposition that the surgery was required to repair the injury to Magrinat’s arm. Evidence indicated that St. Vincent’s Hospital charged Magrinat $17,467.54 for the surgery and that Dr. Buggay billed Magrinat $9,281 for his services. Dr. Buggay testified that OrthoUSA purchased Magrinat’s debt to Dr. Buggay for $3,200, meaning Dr. Bug-gay “wrote off’ the approximately $6,000 remaining on the total debt. . In his deposition, Dr. Buggay explained that OrthoU-SA

“is a company that will, for example, pay for the hospital bill or my bill or whoever’s bill it wants to kind of let them have the debt. You know, these are basically debt because they don’t .have insurance who are not likely to get paid. But [OrthoUSA will] pay you a portion of the money that they seem to think that, you know, you’re worth, I guess, and to allow you to do the surgery on someone who. doesn’t have insurance and then they take the risk that they won’t get paid in the future and then you get at least something for your work.”

Dr. Buggay also testified that the hospital would not have allowed him to perform the surgery on Magrinat because, he said, it was not an emergency. However, he said, OrthoUSA

“assisted us in getting this case done by putting their money out there in hopes they’d make a return on their investment, I guess. Hopefully it’s, you know, something reasonable. But they win some; they lose some. We understand that. And they allowed me to get [the surgery] done.”

Pursuant to his contract with OrthoUSA, Dr. Buggay said, he agreed not to “go after” Magrinat for the remainder of the debt and allowed OrthoUSA “to try to collect the rest,” that is, the balance of the $9,281 he billed Magrinat for his services.

In his trial brief, Magrinat argued to the trial court that the proper measure of damages in this case should include the amount of the charges for which he is responsible and not the amount that Dr. Buggay agreed to accept from OrthoUSA in selling the debt. In response, Maddox filed a “motion to strike asserted medical damages,” arguing that, under Alabama law, the measure of damages applicable in this case is the amount paid to a medical provider or to be paid to a medical provider.

On December 4, 2015, after a bench trial, the trial court entered a judgment in favor of Magrinat and awarded him $42,000. The trial court did not enter an order on Maddox’s motion to strike Magri-nat’s asserted medical damages. On December 7, 2015, Magrinat filed a motion for a ruling on the amount of medical damages to which he was entitled, i.e., whether he was entitled to receive the entire $9,281 that Dr. Buggay had billed him or only the $3,200 that Dr. Buggay had accepted from OrthoUSA in satisfaction of that bill. Magrinat also requested an itemization of the amount the trial court had awarded to him. On February 17, 2016, the trial court entered an order itemizing the medical damages it had awarded, indicating that the award included $3,200 for Dr. Buggáy’s services.

On January 15, 2016, before the trial court entered its order itemizing the damages it had awarded to him, Magrinat filed a notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court on the ground that this court had appellate jurisdiction over the matter. See 12-3-10, Ala. Code 1975.

On appeal, Magrinat contends that the trial court applied an improper measure of damages in determining that he was entitled to only $3,200 in damages for the treatment he received from Dr. Buggay. Before addressing the merits of that issue, we must address Maddox’s contention that Magrinat failed to preserve the issue for appellate review. In her appellate brief, Maddox contends that the issue relates to the weight or the sufficiency of the evidence. She asserts that the trial court did not make any findings of fact and that, therefore, to preserve the issue for appellate review, Magrinat was required to raise the issue in a motion to alter, amend, or vacate the judgment, pursuant to Rule 59, Ala. R. Civ. P. New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004) (“[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.”). We disagree with Maddox’s assertion.

There is no dispute regarding the amount of the bill Dr. Buggay presented to Magrinat or the amount OrthoUSA paid to Dr. Buggay to “búy the debt” and satisfy Magrinat’s bill. Thus, the material facts relating to the issue are undisputed. Magrinat has framed the issue as whether the trial court applied the proper measure of damages to determine the amount to award him. The proper measure of damages to be applied in a given case is a question of law, not a question of fact. See Poffenbarger v. Merit Energy Co., 972 So.2d 792, 794-95 (Ala.2007). Accordingly, we conclude that the issue Magrinat has raised on appeal does not involve a question of the sufficiency or the weight of the evidence such that Magrinat was required to file a postjudgment motion raising the issue to preserve the issue for appellate review. Moreover, when the material facts are undisputed and the only issue presented involves a pure question of law, the appellate court’s review is de novo. Christian v. Murray, 915 So.2d 23, 25 (Ala.2005); Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

Magrinat argues that he is entitled to recover the amount of Dr. Buggay’s bill for which he is liable, not simply the amount for which Dr. Buggay agreed to sell the debt to OrthoUSA. The issue appears to be a question of first impression in Alabama. Citing AMF Bowling Centers, Inc. v. Dearman, 683 So.2d 436 (Ala.Civ.App.1995), and other cases, Maddox counters that Alabama law provides that the proper measure of damages to be applied in this case is the amount actually paid to Dr. Buggay. She also relies on Crocker v. Grammer, 87 So.3d 1190 (Ala. Civ.App.2011), and McCormick v. Bunting, 99 So.3d 1248 (Ala.Civ.App.2012), in which this court held that, in enacting § 12-21-45, Aa.Code 1975, the legislature modified the common-law collateral-source rule in order to allow Alabama juries to determine whether an award of damages should be reduced as the result of payments of medical and hospital expenses made by third parties on behalf of a plaintiff. The common-law collateral-source rule provided “that an amount of damages [was] not decreased by benefits received by a plaintiff [in a personal-injury action] from a source wholly collateral to and independent of the wrongdoer, including services provided by the state at government expense or decreased by institutionalization at government expense.” Williston v. Ard, 611 So.2d 274, 278 (Ala.1992). Pursuant to Crocker and McCormick, Maddox says, the trial court did not err in awarding Magrinat $3,200 for the treatment Dr, Buggay provided to him because, she says, the trial court determined that the proper measure of damages was “the collateral source ‘lower’ amount.”

Maddox’s argument is based on an incorrect premise. There is no evidence indicating that OrthoUSA purchased Magri-nat’s debt to Dr. Buggay on behalf of Magrinat or-to extinguish or satisfy Magri-nat’s debt, as would have been the case if Dr. Buggay had accepted a lower payment for his services from an insurance company or an agency like Medicare or Medicaid. Instead, the evidence indicates that Dr. Buggay sold Magrinat’s debt to Or-thoUSA in the hope of receiving some payment for treatment provided to an uninsured patient while allowing OrthoU-SA to bear the risk of collecting the debt. In other words, even though Dr. Buggay sold the debt for less than the total amount of the bill, Magrinat still remains liable for the entire bill. He is simply indebted to OrthoUSA rather than Dr. Buggay.

“[T]he general rule regarding the recovery of medical expenses, including hospital expenses resulting from personal injuries, is that a plaintiff may recover those medical expenses that are reasonable and necessary.” Ex parte Hicks, 537 So.2d 486, 489-90 (Ala.1988); Hooks v. Pettaway, 142 So.3d 1151, 1158 (Ala.Civ. App.2013). “This Court has consistently held that ‘Compensatory damages are designed to make the plaintiff whole by reimbursing him or her for the loss or harm suffered.’ Ex parte Moebes, 709 So.2d 477, 478 (Ala.1997); see Torsch v. McLeod, 665 So.2d 934, 940 (Ala.1995).” Ex parte Goldsen, 783 So.2d 53, 56 (Ala.2000); see also Ex parte S & M, LLC, 120 So.3d 509, 510 (Ala.2012).

Research has revealed no Alabama cases on point. In Katiuzhinsky v. Perry, 152 Cal.App.4th 1288, 62 Cal.Rptr.3d 309 (2007), a California appellate court considered the issue of whether the plaintiffs were entitled to present evidence of the full amount of the bill they had received from a medical provider who had sold to a third party the medical lien it held against any recovery the plaintiffs might recover in their personal-injury actions against the tortfeasor. The medical.provider sold the lien at a discount. As in this case, the medical provider wrote off the balance of the debt, but the plaintiff remained liable to the third-party purchaser of the lien for the full amount of their medical bill. 152 Cal.App.4th at 1291, 62 Cal.Rptr.3d at 310. The California appellate court reversed the trial court’s ruling that the plaintiffs could not present evidence of the full amount of the medical provider’s bill to them, concluding that “.[t]he intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering -the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment.” Id. The Katiuzhinsky court explained that, although the medical provider had been willing to accept a discounted rate- for its services, the plaintiffs remained fully liable for the amount of the medical provider’s charges. After noting that a damages award should not place a tort plaintiff in a better position than if the wrong had not been done, the Katiuzhinsky court wrote:

“Under the trial court’s ruling, plaintiffs are placed in a worse position than had the tort not been committed. Despite the fact that plaintiffs are liable for the full amount of the medical bills, the tort-feasor is answerable only for a discounted rate paid by a bill collector that bought the lien from a health care- provider, The result is that plaintiffs are undercompensated and the tortfeasor receives a windfall.”

152 Cal.App.4th at 1296, 62 Cal.Rptr.3d at 314-15.

We agree with the California appellate court’s rationale. - The only way to fully compensate Magrinat for the loss he suffered as a result of the accident is to allow him to recover the amount for which he is liable and not limit the recovery to the amount for which Dr. Buggay agreed to sell the debt. We note that, on appeal, Maddox does not contend that Dr, Bug-gay’s charges for the treatment he provided to Magrinat were not necessary or reasonable.

Ip. her bpief submitted to this court, Maddox contends that the judgment is due to be affirmed because, she says, there is no evidence in the record that OrthoUSA intended to collect from Magrinat the debt it purchased from Dr. Buggay. We find that argument to be without merit. Dr. Buggay testified that OrthoUSA purchases medical debt at a discounted rate in the hope of recovering the full amount, so that, as Dr. Buggay put it, OrthoUSA would receive a “return on.its investment.” The evidence in this case indicates that Magri-nat owes OrthoUSA $9,281. There is no evidence to suggest that OrthoUSA would not attempt to collect that amount. We find no logical reason to require a plaintiff to present evidence. that the- person or entity to whom he or she owes a debt, for whatever reason, intends, to actually collect that debt before damages can be awarded based on the amount of that debt.

For the reasons set forth above, we now hold that, when a third party purchases a medical provider’s debt but the injured party who was treated remains responsible and liable for that debt in full, the injured party is entitled to recover as damages the amount the injured party owes, to the extent it is reasonable and necessary; the injured party is not limited to recovering the amount the medical provider agreed to accept from the third-party purchaser of that debt. Because Magrinat incurred a debt of $9,281 for the treatment he received from Dr. Buggay and remains liable for that amount, the trial court erred in awarding him only $3,200 for that treatment. Accordingly, the judgment awarding Magrinat a total of $42,000 in compensatory damages is reversed, and the cause is remanded for the trial court to apply the proper measure of damages and to recalculate the damages award in light of this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

DONALDSON, J., dissents, with writing.

DONALDSON, Judge,

dissenting.

The action commenced by Larry Magri-nat against Myra Maddox seeking damages as a result of an automobile accident was tried without a jury before the trial court. Magrinat sought, among other things, to recover medical expenses incurred as a proximate result of the negligence or wantonness of Maddox, including the fees of Dr. David Buggay, an orthopedic surgeon who performed surgery on Magrinat. Dr. Buggay testified that he tendered a bill in the amount of $9,281 for his services to Magrinat and that the amount was reasonable. Dr. Buggay also testified, however, that, before he performed the surgery on Magrinat, he sold the right to collect his fees for services rendered to Magrinat to OrthoUSA, a third party, for $3,200. The evidence shows that OrthoUSA purchased Dr. Bug-gay’s rights to pursue collection of any charges as a business investment.

The trial court entered a judgment finding that Maddox had been negligent and awarding $42,000 in compensatory damages to Magrinat. The trial court specifically awarded $3,200 to Magrinat for the services rendered by Dr. Buggay.

I agree with construing the motion filed by Magrinat after the entry of the judgment as one made pursuant to Rule 59, Ala. R. Civ. P., and that his notice of appeal was held in abeyance until the trial court’s ruling on the motion.

Despite the broader characterizations advanced by the parties, the narrow question before us is whether the trial court’s award of $3,200 for the services rendered by Dr. Buggay is to be affirmed or reversed. “[T]he general rule regarding the recovery of medical expenses, including hospital expenses resulting from personal injuries, is that a plaintiff may recover those medical expenses that are reasonable and necessary.” Ex parte Hicks, 537 So.2d 486, 489-90 (Ala.1988). “In a nonju-ry trial, the trial court is the trier of facts.” Ostrander v. Ostrander, 517 So.2d 3, 4 (Ala.Civ.App.1987). “Proof of an amount expended for medical treatment must include the element of reasonableness of the charge for the service and the necessity of the treatment. Each element is one of fact for the [fact-finder].” Sweet v. Foust, 419 So.2d 260, 261 (Ala.Civ.App. 1982). “The [fact-finder] is not bound to award medical expenses merely because they are incurred. It may question the reasonableness and necessity of expenses and determine whether the claimed medical expenses are proximately caused by the negligence of the defendant.” Vinzant v. Hughes, 579 So.2d 681, 683 (Ala.Civ.App.1991). “[T]he discretion given to [the fact-finder] in the assessment of damages is not unbridled, but must be honest, legal, and sound.” Id.

The tortfeasor is not liable for whatever amount an injured party was charged or agreed to pay for expenses incurred as a result of the tortfeasor’s culpable conduct but is responsible for a reasonable amount. To determine the reasonable amount of expenses, evidence was properly admitted regarding the charges billed by Dr. Bug-gay and the amount he accepted from Or-thoUSA before performing the surgery. Documentation indicating that OrthoUSA could attempt to collect the balance of the debt from Magrinat was also properly admitted. The trial court, as the fact-finder, certainly could have determined that the charged amount of $9,281 was reasonable based on that evidence, but instead, the trial court determined that $3,200 was the reasonable amount. That determination does not appear to be arbitrary and has a rational basis from the evidence; therefore, it is exclusively one for the trial court, as the fact-finder, to make. Accordingly, based on the applicable appellate standard of review, I believe the judgment should be affirmed. Therefore, I respectfully dissent.

      . We note that January 15, 2016, was the 42d day after the entry of the judgment. See Rule 4(a)(1), Ala. R.App. P. (designating the time in which to file a notice of appeal). The parties do not raise the issue of whether the motion to itemize damages constituted a post-judgment motion for purposes of tolling the time in which to appeal. Because the notice of appeal was filed within 42 days of the entry of the judgment, the appeal is timely, regardless of whether the motion to itemize damages tolled the time in which to appeal. However, we note that in the motion to itemize damages, Magrinat asserted that, if the trial court had reduced his special damages based on Maddox’s arguments, discussed infra, it had “erred in doing so” and had deprived him of the amount of special damages to which he was entitled. We conclude that the substance of the motion, which apprised the trial court of the asserted error, was sufficient to constitute a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P. Accordingly, we deem that the notice of appeal was held in abeyance until the trial court ruled on the postjudgment motion. See Rule 4(a)(5), Ala. R.App. P.

      , Section 12-2 l-45(a) provides:
      “In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.”


author: JOINER, Judge,

text:
    Ex parte Jennifer WATTERS. (In re: State of Alabama v. Jennifer Watters).
    CR-14-1421.
    Court of Criminal Appeals of Alabama.
    Nov. 10, 2015.
    Brannon Albert Jordan, Birmingham, for petitioner.
    Luther Strange, atty. gen., and Andy Scott Poole, asst. atty. gen., for respondent.
   ORDER

Jennifer Watters filed this petition for a writ of mandamus requesting that this Court direct Judge Tommy Nail to conduct an evidentiary hearing and to declare that Watters is immune from prosecution because, she says, she acted in self-defense. In February 2015, Jennifer Watters was charged with assault in the second degree. On June 7, 2015, Watters moved that Judge Nail hold a pretrial evidentiary hearing on the issue of her immunity from prosecution and that he dismiss the charges against her. On June 9, 2015, Judge Nail denied in part and granted in part Watters’s motion. Judge Nail’s order stated: “Defendant’s motion to dismiss and request for evidentiary hearing filed by Attorney Brannon Jordan is hereby granted in part. In that the motion to dismiss is denied, the request for an evi-dentiary hearing is granted and the evi-dentiary hearing is set on July 14, 2015, at 9:00 a.m.” On July 14, 2015, Judge Nail issued another order stating that the motion would be heard at trial. Watters states that Judge Nail erroneously found that before § 13A-3-23(d), Ala.Code 1975, applied to mandate a pretrial determination on the issue of immunity, the facts of the case must be undisputed. Watters then filed this petition for a writ of mandamus. Watters’s case was scheduled for trial on July 27, 2015. This Court stayed those proceedings in the circuit court until this petition was decided.

Section 13A-3-23(d), Ala.Code 1975, added effective June 1, 2006, provides: “A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.” Citing numerous other jurisdictions, Watters argues that she is entitled to a pretrial evidentiary hearing on the application of § 13A-3-23(d), Ala.Code 1975, and that this Court should adopt a procedure similar to Florida, Georgia, Colorado, and South Carolina, by allowing a defendant the opportunity, before trial, to prove by a “preponderance of the evidence” that he or she is immune from prosecution.

There are no Alabama cases interpreting the application and scope of § 13A-3-23(d), Ala.Code 1975, to criminal charges. To be entitled to the issuance of a writ of mandamus, the petitioner must establish a clear legal right to the relief sought. See Ex parte Jones, 61 So.3d 1104 (Ala.Crim. App.2010). “ ‘Mandamus is a conservative, not a creative, remedy; it enforces existing duties, but does not impose new duties.’ ” Henry v. State, 16 Ala.App. 670, 671, 81 So. 190, 191 (1919), quoting State ex rel. Brickman v. Wilson, 123 Ala. 259, 281, 26 So. 482, 487 (1899). Watters has failed to meet her heavy burden of establishing a clear legal right to the issuance of a writ of mandamus. Accordingly, this petition is DENIED.

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

BURKE and JOINER, JJ., dissent.

JOINER, Judge,

dissenting.

Jennifer Watters petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to conduct an evidentia-ry hearing on Watters’s claim of immunity based on the theory of self-defense under § 13A-3-23, Ala.Code 1975. This Court, in an order, denies Watters’s petition on the basis that Watters has not, the Court says, “[met] her heavy burden of establishing a clear legal right to the issuance of a writ of mandamus.” I disagree with this conclusion and respectfully dissent from the Court’s decision to deny Watters’s petition.

Watters was indicted on November 7, 2014, for second-degree assault, see § 13A-6-21, Ala.Code 1975, for injuries she inflicted on Christina Orr on March 13, 2014. Watters filed a motion on June 7, 2015, asserting that she had acted in self-defense and that she was therefore “immune from' criminal prosecution” under § 13A-3-23(d), Ala.Code 1975. Watters asked the circuit court to conduct a pretrial evidentiary hearing to evaluate Wat-ters’s self-defense claim. The circuit court, in an order dated June 9, 2015, set the matter for an evidentiary hearing on July 14, 2015. On July 14, 2015, the circuit court reset the hearing date on the motion, noting that the motion would “be heard at trial on July 27, 2015.”

On July 21, 2015, Watters filed the instant petition with this Court, and on July 23, 2015, this Court stayed the proceedings in the circuit court to consider Watters’s petition.

Watters’s petition focuses on § 13A-3-23(d), Ala.Code 1975. Section § 13A-3-23(d) provides: “A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.” (Emphasis added.)

In denying Watters’s petition, the Court’s legal analysis consists of the following paragraph:

“There are no Alabama cases interpreting the application and scope of § 13A-3-23(d), Ala.Code 1975, to criminal charges. To be entitled to the issuance of a writ of mandamus, the petitioner must establish a clear legal right to the relief sought. See Ex parte Jones, 61 So.3d 1104 (Ala.Crim.App. 2010). ‘ “Mandamus is a conservative, not a creative, remedy; it enforces existing duties, but does not impose new duties.” ’ Henry v. State, 16 Ala.App. 670, 671, 81 So. 190, 191 (1919), quoting State ex rel. Brickman v. Wilson, 123 Ala. 269, 281, 26 So. 482, 487 (1899). Watters has failed to meet her heavy burden of establishing a clear legal right to the issuance of a writ of mandamus. Accordingly, this petition is DENIED.”

As noted, I disagree with the Court’s conclusion that Watters has not demonstrated a clear legal right to the issuance of a writ of mandamus. I also disagree with the Court’s suggestion that, if the legislature wishes to create a substantive, enforceable right, the legislature nevertheless must wait until an appellate court of this State has “interpret[ed] the application and scope of’ the statutory provision delineating that right.

The legislature added subsection (d) to Alabama’s self-defense statute as a part of the 2006 amendment of § 13A-3-23, Ala. Code 1975. See Act No. 2006-303, Ala. Acts 2006. The legislature did not define the phrase "immune from criminal prosecution” or provide a specific procedure for determining immunity, and, as this Court notes in its order, there are no Alabama cases interpreting or applying that phrase. Even so, immunity is not a concept with which the appellate courts of this State are unfamiliar. Watters contends that the phrase “immune from criminal prosecution” creates a substantive right to immunity and that, at a minimum, she is entitled to a pretrial evidentiary hearing on her claim of immunity based on self-defense. I agree.

In support of her position, Watters cites caselaw interpreting and applying concepts regarding immunity in other contexts under Alabama law. Specifically, she cites the Alabama Supreme Court’s decision in Ex parte Auburn University, 6 So.3d 478 (Ala.2008), in which the Court addressed a petitioner’s claim that the trial court had “erred in choosing to address their sovereign-immunity defenses at trial rather than addressing them at the summary-judgment stage of the litigation.” In particular, the Alabama Supreme Court in Ex parte Auburn University discussed the purpose of immunity and how it differs from an affirmative defense. The Court stated:

“ ‘ “One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.”’ Ryan v. Hayes, 831 So.2d 21, 31 (Ala.2002) (quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Additionally, this Court has stated:
“ ‘ “Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation.’ Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege is ‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.’ Ibid. As a result, ‘we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.’ Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).” ’
“Ryan, 831 So.2d at 31-32 (quoting Saucier v. Katz, 533 U.S. 194, 199-202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
“The trial court reasoned that because the parties had waived the right to a jury trial in this case, in favor of a bench trial, a ‘great deal of costs and expense’ associated with a jury trial would be alleviated. However, by delaying until trial its determination of the sovereign-immunity defenses asserted by the petitioners, the trial court has effectively denied the petitioners their privilege of not being subjected to suit and their right to not stand trial and face the burdens of litigation should their immunity defenses prove dispositive, Ryan, supra. Accordingly, we conclude that the trial court erred in failing to address the sovereign-immunity defenses at the summary-judgment stage of the litigation.”

6 So.3d at 484 (emphasis added).

Section 13A-3-23(d), as Watters notes, is similar to immunity provisions in the self-defense statutes in states such as Colorado, Florida, Georgia, and South Carolina. As Watters further explains, courts in 'those states have interpreted their respective immunity provisions in a manner that, is consistent With the above-stated description of immunity by the Alabama Supreme Court. Thus, courts in those states have concluded that immunity is a substantive right and, further, that an accused asserting immunity based on a claim of self-defense has a right to a pretrial determination on the issue of immunity. See, e.g., People v. Guenther, 740 P.2d 971, 975-76 (Colo.1987): Dennis v. State, 51 So.3d 456, 462 (Fla.2010); Fair v. State, 284 Ga. 165, 166, 664 S.E.2d 227, 230 (2008); State v. Duncan, 392 S.C. 404, 409-10, 709 S.E.2d 662, 664-65 (2011). In my opinion, § 13A-3-23(d) likewise creates a substantive right that entitles an accused who claims self-defense under § 13A-3-23 to a pretrial determination of immunity.

Here, as noted above, although the circuit court initially set the immunity claim for a pretrial hearing, -it later entered an order stating that the matter would be considered at Watters’s trial. The State argues in this regard:

“Although the decisions. from other states offer guidance on implementation of the immunity issue, nothing in them requires the granting of the extraordinary writ of mandamus requested by Watters.... [The circuit court’s] order states [that] Watters’s motipn for immunity will be considered by the court; although the question of immunity likely should be determined at the earliest time a court can consider it, there is presently nothing under Alabama law that mandates the timing or even the requirement for a self-defense immunity hearing. Watters is not entitled to a writ of mandamus to get a hearing at the time she likes.... Watters fails to meet her burden of showing legal entitlement to the relief she seeks.”

(State’s brief, pp. 7-8.)

As noted above, the legislature has included no guidance regarding a procedure for a pretrial determination of immunity, and there are no Alabama cases specifically addressing immunity under § 13A-3-23(d). Watters asserts, however, that the trial court is authorized under existing procedural rules to make such a pretrial determination and that such a pretrial determination is necessary to protect her claim of immunity under § 13A-3-23(d). She argues further that at such a pretrial determination she would have the burden of proving, by a preponderance of the evidence, her entitlement to immunity. She cites, in support of her position, decisions from the states discussed above. See, e.g., Guenther, 740 P.2d at 980-81: Dennis, 51 So.3d at 462-63: Bunn v. State, 284 Ga. 410, 413, 667 S.E.2d 605, 608 (2008); Duncan, 392 S.C. at 411, 709 S.E.2d at 665. Illustrative of the procedure envisioned by those decisions is the following from the Supreme Court of Georgia’s decision in Bunn:

“As a potential bar to criminal proceedings which must be determined pri- or to a trial, immunity represents a far greater right than any encompassed by an affirmative defense, which may be asserted during trial but cannot stop a trial altogether. With this in mind, we take guidance from other jurisdictions and find that, to avoid trial, a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence. A similar burden is required of defendants who wish to avoid trial and guilt by showing that they are insane or mentally incompetent. See Hester v. State, 283 Ga. 367(3), 659 S.E.2d 600 (2008); Foster v. State, 283 Ga. 47(1), 656 S.E.2d 838 (2008). If a defendant cannot meet his burden of proving immunity prior to trial, he may nonetheless pursue an affirmative defense at trial, even though these affirmative defenses may be based on the same statutory provisions underlying a prior immunity motion. In this instance, the well-established burden of proof for affirmative defenses would be applicable during trial. See, e.g., Bishop v. State, 271 Ga. 291(2), 519 S.E.2d 206 (1999) (‘[w]hen a defendant raises an affirmative defense and offers evidence in support thereof, the State has the burden of disproving that defense beyond a reasonable doubt’).”

284 Ga. at 413, 667 S.E.2d at 608.

This reasoning in Bunn is persuasive. Like those courts’ holdings regarding the purpose of their respective immunity provisions, the procedure envisioned in Bunn and the other decisions noted above is consistent with Alabama law and, further, is necessary to protect the substantive right to immunity created by § 13A-3-23(d).

Rule 15, Ala. R.Crim. P., which permits the filing of pretrial motions asserting defenses and objections to the charge against an accused, provides a procedural mechanism consistent with the procedure outlined above in Bunn. Rule 15.4, unless a jury trial of factual issues relevant to a pretrial motion is constitutionally required, specifically authorizes the determination of “[a]ll other issues of fact raised by [a pretrial motion asserting defenses or objections] ... by the court -without a jury in such manner as the court may direct.”

As the Alabama Supreme Court made clear in deciding to issue a writ of mandamus in Ex parte Auburn University, delaying the determination of an accused’s immunity defense until trial is, in effect, a denial of the accused’s “privilege of not being subjected to suit and [the accused’s] right to not stand trial and face the burdens of litigation should [the] immunity defense[ ] prove dispositive.” 6 So.3d at 484. Implicit in the issuance of a writ of mandamus in Ex parte Auburn University is the notion that an appeal does not provide an adequate remedy for a party claiming immunity from prosecution. The instant case illustrates that notion. This Court’s refusal to act forces Watters to prepare for and go to trial and turns the substantive right of “immunity” guaranteed by § 13A-3-23 into an illusory promise, Further, the Court’s decision serves as notice to any person claiming immunity based on self-defense that there will be no pretrial recourse in the appellate courts, nor will there be any meaningful posttrial appellate review.

I would grant Watters’s petition for a writ of mandamus and direct the Jefferson Circuit Court to conduct a pretrial hearing on Watters’s claim of self-defense. At that hearing, Watters should have the opportunity to prove, by a preponderance of the evidence, that she is entitled to immunity based on § 13A-3-23, Ala.Code 1975.

BURKE, J., concurs.

      . See, e.g., Colo.Rev.Stat. Ann. § 18-1-704.5 (2015) (“Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.... Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force."); Fla. Stat. § 776.032(1) (2014) (“A person who uses or threatens to use force as permitted in § 776.012, § 776.013, or § 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force.... As used in this subsection, the term ‘criminal prosecution’ includes arresting, detaining in custody, and charging or prosecuting the defendant.”); Ga.Code Ann. § 16-3-24,2 (2014) (“A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16 — 3—23.1, or 16-3-24 shall be'immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 of Article 4 of Chapter 11 of this title,”); S.C.Code Ann. § 16-11-450(A) (2006) (“A person who uses deadly force as permitted by the provisions of this article or another applicable .provision of law is justified in using deadly force . and is immune from criminal prosecution and civil action for the use of deadly force, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known that the person is a law enforcement officer.”).

      . A guilty verdict at trial — which would mean that the State had proved beyond a reasonable doubt that the accused did not act in self-defense — -would defeat any immunity claim on appeal. A not-guilty verdict — from which the accused would have no need (and no right) to appeal — would render such a claim moot.