author: DONALDSON, Judge. DONALDSON, Judge.

text:
    David Lamar JOHNSON v. Jefferson S. DUNN et al.
    2150040.
    Court of Civil Appeals of Alabama.
    May 13, 2016.
    Opinion Issued on Denial of Rehearing Aug. 26, 2016.

      David Lamar Johnson, pro se.
    Submitted on appellant’s brief only.
   DONALDSON, Judge.

David Lamar Johnson appeals from the judgment of the Montgomery Circuit Court (“the trial court”) disposing of his claims against Jefferson S. Dunn, Gwendolyn Mosley, Carter Davenport, Derrick Carter, Willie Bryant, J. Peavey, Kevin Teal, and Randy Daniels (“the defendants”). We affirm the judgment insofar as it disposed of the claims Johnson has waived on appeal. Because Johnson was not given a reasonable opportunity to respond or to be heard before the complaint was ruled upon, we reverse the judgment insofar as it disposed of the claim Johnson did not waive on appeal.

Facts and Procedural History

Johnson is an inmate at the Easterling Correctional Facility (“the facility”). He was incarcerated in 2002. Dunn is the commissioner of the Alabama Department of Corrections (“ADOC”), and Mosley is a regional coordinator for ADOC. The rest of the defendants are employed at the facility by ADOC. Davenport and Carter are wardens; Bryant is a correctional officer, holding the rank of captain; Peavey is a correctional officer, holding the rank of lieutenant; and Teal and Daniels are correctional officers.

On August 25, 2015, Johnson filed a complaint against the defendants in the trial court, alleging, among other things, the following. Johnson brought with him a C-PAP breathing machine along with an extension power cord and a three-way-adapter when he underwent processing for incarceration. Johnson alleged that all the defendants knew he had been diagnosed by a physician with sleep apnea, which required him to use a C-PAP breathing machine while sleeping at night. On August 17, 2015, Teal and Daniels searched Johnson’s prison cell and confiscated his extension power cord and his three-way adapter. Teal and Daniels acted under orders given by Bryant, Davenport, and a Larry B. Peavey, who is a correctional officer and a shift commander at the facility. Johnson was placed in a disciplinary-segregation dormitory with restricted privileges. On August 18, 2015, Bryant informed Johnson that his items had been confiscated because Bryant had received information from several inmates who claimed that Johnson had been using the items to illegally charge the cellular telephones of other inmates. On August 19, 2015, Johnson received a citation from ADOC. At the time of the filing of the complaint in the trial court, Johnson remained in the disciplinary-segregation dormitory where he had been unable to use his C-PAP machine without the extension power cord and the three-way adapter. He informed the correctional officer responsible for his cubicle in the dormitory that he could not use his C-PAP machine, but the extension power cord and the three-way adapter were never returned. Johnson denied illegally charging other inmates’ cellular telephones. He alleged that Dunn and Davenport have not responded to his inquiries about having a disciplinary hearing and that he had exhausted his administrative remedies. He further generally alleged that Dunn and Mosley are responsible for the operation of ADOC and that Carter had participated in the “cover-up.”

Johnson sought declaratory and injunc-tive relief, requesting the return of the extension power cord and the three-way adapter, and he claimed damages arising from the deprivation of the use of his C-PAP machine pursuant to 42 U.S.C. § 1983. Regarding his § 1983 claim, he alleged that the defendants’ actions showed deliberate indifference to a substantial risk of serious harm, constituting a violation of his rights under the Eighth Amendment to the United States Constitution. He also alleged claims of intentional infliction of emotional distress, a violation of his due-process rights, and a violation of the Equal Protection Clause of the United States Constitution. He stated the claims against the defendants in their individual and official capacities, and he alleged liability under the theory of respondeat superi- or against all the defendants except for Teal and Daniels.

After Johnson submitted an in forma pauperis declaration, the trial court entered an order waiving the prepayment of the filing fee for his complaint. On September 1, 2015, and again on September 10, 2015, Johnson filed motions for a temporary restraining order or a preliminary injunction, seeking the return of the extension power cord and the three-way adapter. He alleged in these motions that he had complained to medical staff at the facility that he was being deprived of the use of the C-PAP machine but, he alleged, they responded by saying that he had to request from ADOC the return of the extension power cord and the three-way adapter.

On September 18, 2015, the trial court entered an order setting a hearing for September 30, 2015, presumably in response to Johnson’s motions for injunctive relief. There is no indication in the record as to whether the trial court conducted a hearing on that date. On September 22, 2015, Johnson filed a motion for leave to file an amended complaint to dismiss J. Peavey as a defendant and to add Larry B. Peavey as the correct party. He asserted that, although he had named J. Peavey as a defendant, the allegations in the complaint refer only to Larry B. Peavey. There is no ruling from the trial court on the motion to amend the complaint. Johnson does not claim on appeal that the lack of such a ruling affects the issue being reviewed.

On September 29, 2015, the day before the scheduled hearing, the defendants filed a motion to dismiss the complaint or, in the alternative, for a summary judgment. In the motion, the defendants asserted that Johnson’s claim that he could not use his C-PAP machine was not true; that sovereign immunity pursuant to Art. I, § 14, Ala. Const.1901, barred Johnson’s claims against them in their official capacities; and that state-agent immunity barred Johnson’s state-law claims against them in their individual capacities. In the motion, the defendants observed that state-agent immunity is distinct from qualified immunity under federal law. The defendants argued that they were entitled “to have all claims against them either dismissed based on failure to state a claim or, alternatively, stricken upon summary judgment.”

The defendants asserted that, in their individual capacities, they were immune from liability based on state-agent immunity unless they acted “willfully, maliciously, fraudulently, in bad faith, beyond [their] authority, or under a mistaken interpretation of law.” In support of their motion, the defendants submitted affidavits from Davenport, Carter, Bryant, Teal, Daniels, and Larry Peavey. Davenport testified that he did not order a search of Johnson’s cell. Bryant testified that he had received complaints from inmates that Johnson had been using a power cord to charge the illegal cellular telephones of other inmates in exchange for payments. Larry Peavey testified to ordering Teal and Daniels to conduct a search of Johnson’s cell and his possessions. Teal and Daniels testified to conducting the search and confiscating an extension power cord and a three-way adapter. Bryant testified that he informed Johnson of the complaints of the other inmates and that Johnson was disciplined for having contraband. Bryant further testified that the wall plug Johnson had used had been replaced for overuse and that he had instructed Johnson to use a new wall plug.

Carter testified that Johnson’s C-PAP machine had not been taken and that Johnson had not been deprived of the ability to use the machine. There is testimony in all the affidavits indicating that Johnson did not have permission to possess the extension power cord and the three-way adapter. Davenport testified that “the items described by inmate Johnson as an extension cord are pieces of electrical wiring and an electrical junction box taped together” and that “[a]ny inmate that requires the use of any approved medical appliance inside the dormitory that requires electricity is assigned to a bed that is in close proximity to the electrical outlet in order to use the electrical cord supplied by the manufacturer of the appliance.” Larry Peavey, Teal, and Daniels further testified that Johnson’s assigned bed was close enough to a wall outlet that an extension cord was not needed.

On October 2, 2015, three days after the defendants filed the motion, the trial court entered an order stating: “THIS CAUSE' comes before the Court on Defendants’ Motion to Dismiss, or in the alternative, Motion for Summary Judgment. The Court having considered the same finds the motion is due to be granted. Therefore, it is hereby ORDERED, ADJUDGED and DECIDED that this cause be DISMISSED.” (Capitalization in original.)

On October 9, 2015, after the trial court had already entered its order disposing of his claims, Johnson filed a response to the defendants’ motion, submitting an affidavit from himself and statements from a number of other inmates. The information submitted by Johnson contradicted much of the testimony submitted by the defendants in support of their motion. Johnson argued that the defendants had failed to meet the burden of demonstrating that there is no genuine issue of material fact, which, if met, would entitle them to a summary judgment; that the defendants were not entitled to state-agent immunity or sovereign immunity; and that dismissal for failure to state a claim was not warranted.

On October 15, 2015, Johnson filed an appeal to this court. This court transferred the appeal to the supreme court for lack of subject-matter jurisdiction. The supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala. Code 1975. Johnson filed a brief with this court; however, none of the defendants have filed a brief.

Discussion

In its judgment, the trial court granted the defendants’ motion to dismiss or, in the alternative, for a summary judgment without stating the basis for its judgment. One of the grounds for dismissal asserted in the motion was that Johnson “fail[ed] to state a claim.” Rule 12(b), Ala. R. Civ. P., provides, in part:

“If, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, [Ala. R. Civ. P.,] and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

(Emphasis added.) There is no indication that the matters outside the pleadings presented by the defendants in support of their motion were excluded.

Among his arguments on appeal, Johnson asserts that the judgment was entered before he had an adequate opportunity to respond to the defendants’ motion as one for a summary judgment. “Under Rule 12 and Rule 56, Ala. R. Civ. P., the nonmovant must receive ‘(1) adequate notice that the trial court intends to treat the motion as one for summary judgment and (2) a reasonable opportunity to present material in opposition.’” Traywick v. Kidd, 142 So.3d 1189, 1195 (Ala. Civ.App.2013) (quoting Phillips v. Am-South Bank, 833 So.2d 29, 31 (Ala.2002), quoting in turn Graveman v. Wind Drift Owners’ Ass’n, 607 So.2d 199, 202 (Ala. 1992)). The defendants’ motion was filed only one day before the date for a scheduled hearing on September 30, 2015. It is not clear in the record whether the hearing was held. Nonetheless, the hearing was scheduled to address only Johnson’s motions seeking a temporary restraining order or a preliminary injunction. Furthermore, the judgment disposing of the case was entered only three days after the defendants filed their motion. See Rule 56(c)(2), Ala. R. Civ. P. (requiring a motion for a summary judgment and all materials in support of the motion to be submitted at least 10 days before a hearing). It is apparent that, to the extent the defendants’ motion to dismiss for failure to state a claim or, in the alternative, for a summary judgment was granted, Johnson did not have a reasonable opportunity to present materials in opposition to the defendants’ motion. See Singleton v. Alabama Dep’t of Corr., 819 So.2d 596, 600 (Ala.2001)(reversing a judgment entered 10 days after the filing of a motion to dismiss that had been converted into a motion for a summary judgment). Therefore, the judgment cannot be affirmed as a summary judgment or as a dismissal for failure to state a claim.

We now turn to whether the judgment should be affirmed as a dismissal of Johnson’s claims for the other reasons asserted by the defendants—namely, that Johnson’s claims are barred by sovereign immunity and/or state-agent immunity. We note that there is an entry in the case-action summary that states that this case was dismissed without prejudice. Although “an action dismissed without prejudice will not support an appeal because there is no judgment ‘that conclusively determines the issues before the court and ascertains and declares the rights of the parties,’ ” “a judgment dismissing an action on the basis of a lack of subject-matter jurisdiction would support an appeal because the issue before the court, i.e., the court’s power to entertain the action, had been conclusively determined.” Double B Country Store, LLC v. Alabama Dep’t of Tramp., 171 So.3d 28, 30-31 n. 1 (Ala.Civ.App.2015) (quoting Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995)). “The issue of [state] immunity is jurisdictional. ‘This constitutionally guaranteed principle of sovereign immunity, acting as a jurisdictional bar, precludes a court from exercising subject-matter jurisdiction. Without jurisdiction, a court has no power to act and must dismiss the action.’ ” Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 810 (Ala. 2002) (quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (Ala.2001)). Unlike a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, a trial court may consider evidentiary matters submitted on a motion to dismiss attacking jurisdiction. Hutchinson v. Miller, 962 So.2d 884, 886 n. 2 (Ala.Civ.App.2007). Therefore, the judgment disposing of Johnson’s claims can be reviewed as a Rule 12(b)(1) dismissal based on the trial court’s lack of jurisdiction. We review such a judgment in this matter de novo, without a presumption of correctness. Hill v. Hill, 89 So.3d 116, 118 (Ala.Civ.App.2010).

We note that, again, Johnson claims his complaint was dismissed before he had an opportunity to be heard. “Under the plain language of [Rule 78, Ala. R. Civ. P.,] and the comments to the rule, a trial court may not grant a motion to dismiss without a hearing, although, in some circumstances, it may deny such a motion.” Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala. 2002). “In the event the court has any inclination toward the granting of the motion to dismiss, a hearing will continue to be required.” Committee Comments on 1973 Adoption of Rule 78, Ala. R. Civ. P.

Although Johnson’s complaint appears to allege a number of different claims, the only claim for which he presents arguments on appeal is his deliberate-indifference claim brought pursuant to 42 U.S.C. § 1983. Accordingly, to the extent that Johnson alleged other claims in his complaint, those claims are waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”). Furthermore, Johnson fails to present arguments supported by legal authority regarding his claims for injunctive and declaratory relief. As a result, those claims are also waived. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) (“Rule 28(a)(10)[, Ala. RApp. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.”); and Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“This court will address only those issues properly presented and for which supporting authority has been cited.”).

The deliberate-indifference claim asserted by Johnson arises under a federal law, 42 U.S.C. § 1983. See Bedsole v. Clark, 33 So.3d 9, 12-13 (Ala.Civ. App.2009) (“A claim alleging deliberate indifference to an inmate’s serious medical needs in violation of the inmate’s constitutional rights is a federal action, brought pursuant to 42 U.S.C. § 1983.”). The defendants asserted sovereign immunity and state-agent immunity pursuant to Art. I, § 14, Alabama Const.1901. However, “§ 14 immunity and State-agent immunity have no applicability to federal-law claims.” King v. Correctional Med. Servs., Inc,, 919 So.2d 1186, 1191 (Ala.Civ.App. 2005). Consequently, the type of immunity asserted by the defendants does not appear to bar Johnson’s claim of deliberate indifference pursuant to § 1983 seeking money damages. Therefore, based on the record before us, the complaint was not barred by the immunity raised by the defendants.

Accordingly, we reverse the judgment as to Johnson’s claim of deliberate indifference pursuant to § 1983 seeking money damages, but we affirm the judgment insofar as it disposes of Johnson’s other claims, which he has waived on appeal. Our opinion is not intended to speak to the merits of Johnson’s remaining claim, only the procedure by which the complaint was disposed. We remand the cause for proceedings consistent with this opinion.

Johnson’s “motion to compel,” requesting that this court enter a judgment in his favor is denied as moot.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

On Application for Rehearing

DONALDSON, Judge.

Jefferson S. Dunn, Gwendolyn Mosley, Carter Davenport, Derrick Carter, Willie Bryant, J. Peavey, Kevin Teal, and Randy Daniels (“the defendants”) have filed an application for rehearing and a motion to suspend the application of Rule 40(a)(2), Ala. R.App. P., which states: “No party can, as a matter of right, apply for a rehearing unless, on original submission, a brief was filed with the clerk as provided by the rules.” Although the defendants did not file a brief on original submission of this appeal, this court granted the motion to suspend the application of Rule 40(a)(2) primarily because the materials submitted indicated that David Lamar Johnson did not properly serve the defendants on original submission.

On original submission, this court reversed the trial court’s judgment insofar as it disposed of Johnson’s 42 U.S.C. § 1983 deliberate-indifference claim but affirmed the judgment insofar as it disposed of Johnson’s other claims. Johnson v. Dunn, 216 So.3d 1217, 1219 (Ala.Civ.App. 2016). On application for rehearing, the defendants argue that the dismissal of Johnson’s complaint was without prejudice and therefore would not support an appeal. Rule 41(b), Ala. R. Civ. P., addressing involuntary dismissals, provides, in part:

“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, [Ala. R. Civ. P.,] operates as an adjudication upon the merits.”

In our opinion on original submission, we noted that, although the case-action summary indicated that the dismissal of Johnson’s claims was without prejudice, the judgment had not specified that the action was dismissed without prejudice. 216 So.3d at 1223. As we also stated, a dismissal for lack of subject-matter jurisdiction is renewable on appeal regardless of whether the action was dismissed with or without prejudice. 216 So.3d at 1222; Rule 41(b), Ala. R. Civ. P,; Double B Country Store, LLC v, Alabama Dept of Transp., 171 So.3d 28, 30-31 n. 1 (Ala.Civ. App.2015).

The defendants assert that, although this court had appellate jurisdiction to affirm the judgment on the basis of the jurisdictional issues of state-agent immunity or state sovereign immunity, this court lacked appellate jurisdiction over the issue whether Johnson properly stated a deliberate-indifference claim and, thus, whether such a- claim was appropriately dismissed pursuant to Rule 12(b)(6), Ala. R. Civ, P. Because the judgment did not specify otherwise as to that claim, the dismissal of Johnson’s complaint on the basis of a failure to state a claim for which relief can be granted is an adjudication on the merits pursuant to Rule 41(b). See Havis v. Marshall Cty., 802 So.2d 1101, 1103 n. 2 (Ala.Civ.App.2001) (“We note that Rule 41(b), Ala. R. Civ. P., provides' that all dismissals not provided for in that rule, which would necessarily include dismissals under Rule 12(b)(6), operate as adjudications on the merits.”). “A judgment which dismisses a complaint on 12(b)(6) grounds, with leave being granted to the plaintiff to amend, is a final order capable of supporting an appeal if a plaintiff declares his intention to stand on his complaint.” Purnell v. Covington Cty. Bd. of Educ., 519 So.2d 560, 561 (Ala.Civ.App.1987). In the absence of any indications to the contrary, we construe the filing of a notice of appeal as an indication that, under such circumstances, the plaintiff intends not to amend his or 'her complaint. Id. In this case, Johnson filed a notice of appeal without any indication that he intended to' amend his complaint. Therefore, to the extent the dismissal of the deliberate-indifference claim was based on Rule 12(b)(6), the trial court’s judgment in regard to that claim was final and subject to our review.

The defendants next argue that Johnson was provided the opportunity to present materials in opposition to their motion to dismiss when he submitted a brief after the judgment had been entered. We note that the trial court made no reference to Johnson’s brief. Under the circumstances, the postjudgment filing did not cure the due-process defect. See Cherry v. Pinson Termite & Pest Control, LLC, 206 So.3d 557, 565 (Ala.2016) (holding that a party’s filing of a postjudgment motion did not cure the due-process defect when that party had been prejudiced by the lack of notice and opportunity to respond to an issue that became the basis for a summary judgment).

The defendants also argue that the trial court was authorized to dismiss Johnson’s complaint without a hearing pursuant to § 14-15-4(d)(l)e., Ala.Code 1975,.a provision of the Alabama Prisoner Litigation Reform Act, § 14-15-1 et seq., Ala.Code 1975 (“the Act”); § 14-15-4(d)(l)e. states: “The court, on its own motion or on the motion of a party, may dismiss any prisoner pro se civil action if the court is satisfied that the action is any of the following: ... e. Fails to state a claim upon which relief can be granted.” However, § 14-15-4(f)(2), Ala.Code 1975, provides: “After providing the parties an opportunity to file supporting and opposing memoranda, a court may rule on exceptions and motions without holding a hearing.” As noted in our opinion on original submission, the trial court failed to provide Johnson with an opportunity to file materials in opposition to the defendants’ motion to dismiss or to hold a hearing before entering its judgment. As a result, the trial court’s actions did not comport with § 14—15—4(f)(2), even if the Act was applicable.

The defendants further argue that Johnson’s complaint failed to state a claim upon which relief can be granted and, therefore, was properly dismissed. The defendants assert that Johnson failed to allege that he suffered a physical injury, or at least an injury that was not de minimis. In his claim of deliberate indifference, Johnson alleged that he faced a substantial risk of harm and that he suffered an inability to sleep from the alleged deprivation of the C-PAP breathing machine that alleviated his sleep apnea.

“On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted). Under this standard of review, we cannot say that Johnson’s complaint alleging deliberate indifference failed to state a sufficient claim. See also Murray v. Prison Health Servs., Inc., 112 So.3d 1103, 1107-08 (Ala.Civ.App. 2012) (holding that a complaint alleging a deprivation of medical treatment that caused pain stated a claim alleging relief for deliberate indifference).

As we noted in the opinion on original submission, the defendants pleaded only the defenses of state-agent immunity and state sovereign immunity, and those defenses are not applicable to Johnson’s deliberate-indifference claim. See King v. Correctional Med. Servs., Inc., 919 So.2d 1186, 1191 (Ala.Civ.App.2005) (“[Section] 14 [sovereign] immunity and State-agent immunity have no applicability to federal-law claims.”). The defendants assert that Johnson’s deliberate-indifference claim, brought pursuant to 42 U.S.C. § 1983, is barred by the federal-law doctrine of qualified immunity, but they did not assert that defense before the trial court. “[An appellate court] cannot consider arguments raised for the first time on appeal; rather, [its] review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

During the pendency of the application for rehearing, Johnson filed a motion to clarify, seeking an order from this court specifying a date by which the trial court should enter an order in his favor. Such an order is not appropriate in this case, in which Johnson’s deliberate-indifference claim remains pending. After we had entered the order allowing the defendants to file an application for rehearing, Johnson subsequently filed two more motions, arguing against the defendants’ request to suspend the application of Rule 40(a)(2), Ala. R.App. P., and against the trial court’s continuance of a hearing originally scheduled for June 15, 2016. Because the issues raised in those motions are now moot, Johnson’s motions are denied.

For the foregoing reasons, we overrule the defendants’ application for rehearing.

APPLICATION OVERRULED.

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

      . 42 U.S.C. § 1983 provides:
      "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    N.G. and P.G. v. BLOUNT COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2150316, 2150317, and 2150318.
    Court of Civil Appeals of Alabama.
    May 13, 2016.
    Rehearing Denied Aug. 12, 2016.

      Austin Burdick of Burdick Law Firm, Bessemer, for appellants.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

N.G. (“the father”) and P.G. (“the mother”) appeal from a judgment of the Blount Juvenile Court (“the juvenile court”), which was entered in three separate actions, finding H.G., Ha.G., and J.G. (“the children”) dependent. We affirm the juvenile court’s judgment.

Procedural History

On March 2, 2015, the Blount County Department of Human Resources (“DHR”) filed separate petitions alleging, among other things, that the children were dependent. On that same day, the juvenile court entered a separate shelter-care order as to each child, placing temporary custody of the children with DHR, pending a hearing, and directing the Blount County sheriffs office to assist DHR with taking the children into its custody. Following a hearing, the juvenile court entered an order on March 11, 2015, listing the case numbers for all three children and placing the children in DHR’s custody. Among other things, that order noted that the court had been advised that an agreement had been reached to place the children in the shelter care of DHR. On May 6, 2015, the mother and the father filed a motion to dismiss each case, asserting that the children were no longer dependent. A hearing was held on September 29, 2015. On November 4, 2015, the juvenile court entered a single judgment that disposed of each of the dependency petitions. That judgment, among other things, found the children dependent and placed the children in DHR’s custody. The mother and the father filed a motion to alter, amend, or vacate the juvenile court’s judgment on November 16, 2015; that motion was denied on November 23, 2015. The mother and the father filed a timely notice of appeal in all three cases on November 30, 2015.

Facts

Donna Southern, an investigator for DHR, testified that she had first met the father on February 27, 2015, at the Blount County Courthouse in response to a report that had been made to DHR that the father was trying to obtain a protection-from-abuse order against the mother. According to Southern, when she met the father at the courthouse, he was wearing a hospital gown and sweatpants and he informed her that the mother had shot him twice at their house in the early morning hours of February 27, 2015. Both Southern and Amanda Maynard, a foster-care caseworker for DHR who took over the cases from Southern, testified that the father had told them on separate occasions that, because the mother had purportedly abused her medications, he and the mother had agreed for him to monitor her medications and to distribute them to her; that, on the night of the shooting incident, the father was going to retrieve the mother's medications from an outbuilding outside the family’s house; that, while his back had been turned, the mother had shot him; that he had turned around and stated, “[P.G.], you shot me”; that the mother had shot him again; and that he had taken off running after the second shot. Southern testified that, when she met the father at the courthouse, he was wearing bandages and slings and had an abrasion to his face, which the father had told her was the result of the mother’s having attacked and choked him earlier on the day of the shooting incident. According to DHR’s dependency petitions, an ex parte protection order awarding the father temporary custody of the children and exclusive possession of the marital home had been entered by the Blount Circuit Court,

Southern stated that, following her meeting with the father, DHR had obtained a pickup order for the children and that, when she arrived at the family’s house, the mother had been present. According to Southern, based on her experience, it appeared that the mother was under the influence of drugs on that occasion because her speech was slurred and she was “nodding out.” Southern testified that the mother had stated that she had not shot the father, that the father was involved with “shady people,” that he had been selling drugs for drug dealers, and that she believed that one of the drug dealers had shot him. According to Southern, while she was at the house, the father appeared at the house with the deputies who had gone to the house with Southern to serve the mother with the father’s protection-from-abuse order. Southern stated that the father had not been angry at the mother, that he had declined to press charges against her, and that he had stated that he just wanted her to get some help and that he loved her.

Southern testified that she had spoken to the mother on February 28, 2015, and that the mother had maintained at that time that drug dealers had shot the father, that, three weeks before the shooting, the father had spanked one of the children with a belt and had left a bruise, and that the father had taken some of her medications and had been “high.” Southern stated that she next spoke to the mother and the father at the shelter-care hearing on March 2, 2015, and, according to Southern, the mother had appeared to be under the influence of drugs at that time because she was nodding, her eyes were closing, and her speech was slurred. Southern stated that, after that date, she had not had any further contact with the mother and the father and the cases had been turned over to Maynard.

Maynard stated that she had first met the mother and the father on March 2, 2015, at the 72-hour shelter-care hearing. She stated that the father’s behavior on that date had been “a little erratic” in that he was very loud and “hard to follow,” and, she said, the mother had appeared to be under the influence of medication because her speech was slurred and she could not hold her head up or keep her eyes open. According to Maynard, the father had maintained on that date that the mother had shot him twice in the back. Maynard stated that an Individualized Service Plan (“ISP”) meeting had been conducted at the shelter-care hearing and that they had discussed that DHR had wanted each parent to undergo a psychological evaluation to determine why the shooting had occurred.

Maynard testified that she had visited the family’s house on March 11, 2015, that the father had been present, and that he had walked her along the property as he recounted the story of the shooting. She stated that the mother had been staying with her aunt near the property on that occasion but that she had seen the mother, who had appeared to Maynard be under the influence of medication because she could not stand on her feet, she was very wobbly, and she was slurring her words. According to Maynard, the mother had stated that she had been out of her medicine for approximately two weeks, that her blood pressure had been very high because of anxiety, and that she had gone to the emergency room, where they had given her a shot of Demerol, a prescription pain medication.

Maynard stated that she had held a 30-day ISP meeting on April 17, 2015, at DHR’s headquarters, where she had discussed with the parents supervised visits, psychological evaluations, marriage counseling, domestic-violence counseling, and possible random drug screenings, and, she said, they had been very cooperative. She testified that she had scheduled psychological evaluations for the mother and the father and that the mother had stated at a later home visit that she was going to begin an outpatient drug-treatment program at “Hope House”; however, at the time of the final hearing, neither the mother nor the father had submitted to a psychological evaluation and the mother had not been to Hope House for a drug assessment or classes. Maynard stated that she had been unable to get in touch with the mother and the father to set up random drug screens because they would never return her telephone calls. She stated that she had not had consistent contact with the mother and the father in the three months preceding the final hearing despite having made telephone calls, having left messages, and having sent a letter. According to Maynard, of 26 visits that had been scheduled with the children, the father had missed 4 of the visits and the mother had missed 16. She stated that the father had contacted her in advance to cancel 3 of his 4 missed visits but that the mother had not provided any advance notice that she would miss any of the 16 visits she missed, although, she said, the mother had missed 2 of the visits because the protection-from-abuse order was still in effect.

Maynard testified that the mother had maintained that she had not shot the father; she also stated that the father had later told her that his back had been turned during the shooting and that he did not know what had happened. Maynard testified that, in approximately July 2015, the father had told her that he and the mother had been advised by their attorney not to participate in the psychological evaluations. She stated that the father had also confirmed at that time a report that had been made to DHR indicating that the husband of a woman with whom the father was having an affair had shot the father. Maynard stated that the father had declined to give her the name of the shooter because he had been advised by whoever had shot him that there would be repercussions if the father involved that person. Maynard testified that, in her opinion and in DHR’s opinion, the parents’ house is not safe for the children because there are domestic-violence concerns and because the mother’s instability and abuse of her prescription medications may be an issue. She stated that DHR cannot be sure that another shooting incident will not occur at the house and that the father’s claims that someone other than the mother had shot him needed to be investigated further. Maynard testified that the father had told her that he and the mother have to have help with the children because of the mother’s health conditions. She stated that the father had asked his oldest daughter, who is not involved in these proceedings, to help with the children when they began home-schooling because the mother was suffering from severe depression at that time. Maynard stated that, because of the questions surrounding the shooting, the mother’s mental health, and the mother’s having appeared under the influence of drugs at times since the outset of the cases, it was her opinion that the house was not safe for the children.

Maynard testified that there had been previous incidents of violence involving the family; specifically, she testified that, in approximately 2003, the father had filed a police report claiming that the mother had pulled a gun on him and that, during that incident, the mother and the father had each claimed that the other had threatened to kill him or her. She stated that the mother had filed a protection-from-abuse petition at that time that indicated that the mother was worried about the father because he had hit her and had threatened to kill her. Maynard stated that that incident had caused the Jefferson County Department of Human Resources to remove H.G. from the family’s house due to domestic-violence issues, but, she said, H.G. had been returned to the custody of the parents and, as far as she knew, the family had been together without incident from 2003 until February 2015.

Monica Keller, an employee of the Youth Advocate Program, which supervises visitations and the interaction between parents and children, testified that she had been contacted by DHR to provide services to the mother and the father. She stated that she had supervised approximately 24 visits, that the father,had been present for 19 of the scheduled visits, and that the mother had been present for 9 of the scheduled visits. Keller stated that the father had interacted appropriately with the children during the visits, that the mother had appeared to be very -disengaged, that the mother had .been very distant, and that the mother had not evenly split her attention among the children.

The father admitted that, on the day of the shooting incident, -he had told law-enforcement officers that the mother had shot him; that he had gone to the courthouse the next day to file a petition for a protection-from-abuse order against the mother; that he had signed that petition under oath, stating that the mother had shot him twice; that he had told Southern and the judge that had issued the protection-from-abuse order that the mother had shot him; that he had also told Southern that the mother had scratched his face earlier in the day on the day of the shooting incident; that he had stated in court on March 2, 2015, that he did not want to press charges against the mother and that he just wanted her to get help; and that he had showed Maynard where the mother had allegedly shot him at their house. He testified also that he had stated that the mother had abused her medications and that there had been occasions when he had not been able to wake her up. The father testified, however, that those statements had been lies.

The father testified that he had been having an affair with another woman and that he had said that the mother had shot him because, he said, he had some problems with their marriage “going back long term” because the mother had had medical issues following a hysterectomy and they had not had “desires toward each other in nearly a year.” The father testified that he had wanted a divorce for a long time and that he did not want the mother to receive all the assets of the marriage. He stated that he wanted the assets of the marriage and custody of the children and that he had seen the opportunity “to take it from [the mother]” after “being caught in what [he] was doing.” When asked the name of the individual with whom he was having an affair, the father testified that her name was “Dana,” that they “dealt on a first-name basis,” and that he had begun meeting her at a service station down the road from his house. The father testified that the affair had lasted several months, that they had not exchanged addresses until Dana became pregnant, and that he had given her his address so that they could meet and discuss the situation on the night of the shooting incident. He stated that he had been shot when he went to meet her and that he believed that Dana’s husband had shot him. According to the father, approximately two weeks after the shooting incident, he had been approached by a man at the service station where he had met Dana and the man had informed him that Dana and her husband had moved out of the state and that they were raising the baby as their own child. The father testified that he was no longer seeking a divorce from the mother.

The mother testified that she did not shoot the father and that she was not abusing drugs. The mother stated that she had missed some visitations-with the children because of “[h]ealth, death, and lies.” She stated that she did not know about the affair until May 2015, when the father had admitted the affair to her. The mother testified that she had missed only seven visits with the children and that Maynard had lied about not being able to get in touch with her and the father.

Analysis

The mother and the father first argue on appeal that the juvenile court erred in finding the children dependent.

“As a matter of constitutional law, a parent who has exercised custody over a child has a prima facie right to the continued custody of the child. See In re Moore, 470 So.2d 1269, 1270 (Ala.Civ. App.1985). The presumptive right of parents to the custody of their child may be overcome by clear and convincing evidence demonstrating that the parents are currently unable to discharge their responsibilities to and for the child and that the child requires additional care and supervision through the state, i.e., that the child is ‘dependent.’ See Ala. Code 1975, § 12-15-102(8)a.6; see also Y.W. v. G.W., 990 So.2d 414, 417 (Ala. Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (‘ “[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.” ’). ‘Clear and convincing evidence’ is defined as
“ ‘ “[elvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.” ’
“L.M. v. D.D.F., 840 So,2d 171,179 (Ala. Civ.App.2002) (quoting Ala.Code 1975, § 6-ll-20[ (b) ](4)).
“On appeal from a judgment finding a child dependent following an ore tenus proceeding, we presume the juvenile court’s factual findings are correct. J.W. v. C.H., 963 So.2d 114,119 (Ala.Civ. App.2007). Those findings will not be disturbed if they are supported by sufficient evidence. Ex parte Floyd, 550 So.2d 982, 984 (Ala.1989). In passing on the question of the .sufficiency of the evidence as to a finding of dependency, this court does not reweigh the evidence; instead, this court determines whether the juvenile court, acting in its fact-finding role, reasonably could have determined from its own weighing of the evidence that the dependency of the child was proven by clear and convincing evidence as that standard is defined above. J.B. v. DeKalb County Dep’t of Human Res., 12 So.3d 100, 112 (Ala.Civ, App,2008).”

R.F.W. v. Cleburne Cty. Dep’t of Human Res., 70 So.3d 1270, 1272 (Ala.Civ.App. 2011). See also Ala.Code 1975, § 12-15-311(a) (“If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that a child is dependent, the juvenile court may proceed immediately, in the absence of objection showing good cause or at a postponed hearing, to make proper disposition of the case.”).

“We are not allowed to substitute our judgment for that of the trial court, even when this court might have reached a different result, unless the trial court’s resolution of the facts is plainly and palpably wrong. L.R.M. v. D.M., 962 So.2d 864, 873-74 (Ala.Civ.App.2007) (citing Griggs v. Griggs, 638 So.2d 916, 918-19 (Ala.Civ.App.1994), quoting in turn Young v. Young, 376 So.2d 737, 739 (Ala.Civ.App.1979)). ‘ “[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.” ’ Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004) (quoting Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003)). When addressing the inability of an appellate court to reweigh the evidence and substitute its judgment for that of the trial court, our supreme court recognized:
“ ‘The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited—factfinding.’
“Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000).”

“J.B. v. Cleburne Cty. Dep’t of Human Res., 992 So.2d 34, 39-40 (Ala.Civ.App. 2008).

Section 12-15-102(8), Ala.Code 1975, defines a “dependent child” as one

“who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“8. Who, for any other cause, is in need of the care and protection of the state.”

In the present cases, the juvenile court found that the father’s “claim of being shot by an unknown jealous husband is not credible.” With regard to the ore tenus rule, this court has stated that,

“[bjecause appellate courts do not weigh evidence, particularly when ‘the assessment of the credibility of witnesses is involved,’ Knight [v. Beverly Health Care Bay Manor Health Care Ctr.], 820 So.2d [92] at 102 [ (Ala.2001) ], we defer to the trial court’s factual findings. ‘The ore tenus rule reflects this deference; it accords a presumption of correctness to the trial court’s findings because of that court’s unique ability to observe the demeanor of witnesses.’ Id.; see also Fitzgerald v. Jeter, 428 So.2d 84, 85 (Ala.Civ.App.1983), and Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1185 (Ala.Civ.App.2007). The father gave at least two diametrically opposed versions of the events of his shooting. The juvenile court determined, based on its assessment of the father as he testified, that the father’s first version of events—that the mother had shot him— was true and that the second version of events—the jealous-husband story—was not true. This court is bound by that determination.

The credible evidence as accepted by the juvenile court shows that the mother shot the father twice in the back; that the mother had abused her medications to the extent that she had shot the father; that the father had run away from the family’s house after being shot, leaving the children with the mother; and that the mother and the father continued living together at the time of the dependency hearing. Additionally, the juvenile court noted in its judgment that the mother had “appeared incapacitated, unable to open her eyes or hold up her head, and having slurred speech, on at least three occasions since February 27, 2015, including [on] March 2, 2015, before this court.” Testimony of both Southern and Maynard also indicated that the mother had appeared to be under the influence of drugs, having slurred her speech and having been unable to hold her head up or keep her eyes open, on different occasions since they had become involved in the cases. Thus, the evidence supports a finding that the mother’s condition would necessarily affect her ability to provide for the care of the children. Based on the mother’s condition and the domestic violence between the mother and the father, we conclude that the juvenile court reasonably could have been clearly convinced that the children are dependent.

The mother and the father next argue on appeal that the juvenile court disregarded their due-process rights. First, they argue that the juvenile court deprived them of the custody of their children without requiring clear and convincing evidence of the children’s dependency. Because we have already concluded that the juvenile court’s dependency determinations are supported by sufficient evidence, we reject this argument.

Next, the mother and the father argue that the juvenile court violated the father’s due-process rights by failing to appoint counsel to represent the father at the shelter-care hearing. However, an indigent parent does not have a constitutional right to the appointment of an attorney in a dependency proceeding. See T.L. v. W.C.L., 208 So.3d 66 (Ala.Civ.App.2016). Section 12-15-308(c), Ala.Code 1975, provides, in pertinent part, that, “[a]t the commencement of the 72-hour hearing requirement, the juvenile court shall advise the parent, legal guardian, or legal custodian of the right to counsel and shall appoint counsel if the juvenile court determines he or she is indigent.” Section 12—15—308(c) creates a statutory duty on the part of a juvenile court to inform a parent at a shelter-care hearing of his or her right to counsel and to affirmatively investigate the ability of the parent to afford counsel if the circumstances indicate that the parent might be indigent. See generally J.S. v. J.C., 181 So.3d 1067 (Ala.Civ.App.2015).

In these cases, the juvenile court appointed counsel for the mother at the shelter-care hearing based on its determination that she was indigent. Because the father resided with the mother, the circumstances required the juvenile court to inquire into the financial condition of the father and to appoint counsel for the father if he was found to be indigent. The March 11, 2015, shelter-care order indicates that the juvenile court advised the parties of “their rights and the procedures to be followed.” The record does not contain a transcript of the shelter-care proceeding, so the record does not affirmatively show that the juvenile court failed or refused to perform its statutory duty. See Walnut Equip. Leasing Co. v. Graham, 532 So.2d 655, 655 (Ala.Civ.App.1988) (“A party who complains of error by the trial court must affirmatively show from the record on appeal that such error was in fact committed.”); see also Rule 28(a)(5), Ala. R.App. P. (requiring appellant in civil cases to “identify the adverse ruling or rulings from which the appeal is taken and asserted as error on appeal, with a reference to the pages of the record on appeal at which the adverse ruling or rulings can be found”).

The mother and the father next argue that the juvenile court violated their constitutional rights by maintaining the children in shelter care without taking any evidence. In its March 11, 2015, shelter-care order, the juvenile court indicated that it was maintaining the children in shelter care based on an agreement of the parties. The order states, in pertinent part:

“After advising the parties of their rights and the procedures to be followed, the Court was advised an agreement was reached with the mother, a partial agreement with the father, but the father wanted to make a statement to the court. The Court allowed [the father] to make his statement which was that he agreed to shelter care for his children for a very short duration, but wanted a hearing date set earlier than the customary 60 to 90 days after the shelter care. The Court advised that hearings were based on the Court’s extremely busy docket, but consideration to an earlier date would be given.”

The order shows that the parties waived their right to the evidentiary hearing ordinarily required by Ala.Code 1975, § 12-15-128, and stipulated to the continuation of shelter care. That stipulation was not transcribed, but neither Rule 24(B), Ala. R. Juv. P., nor L.F. v. Cullman County Department of Human Resources, 175 So.3d 183 (Ala.Civ.App.2015), cited by the mother and the father, require such transcription. The March 11, 2015, shelter-care order indicates that the stipulation was made in open court so as to be binding on the parties pursuant to Rule 47, Ala. R.App. P.; see also K.D. v. Jefferson Cty. Dep’t of Human Res., 88 So.3d 893, 896 (Ala.Civ.App.2012) (juvenile court may adjudicate child as dependent based solely on stipulation). Accordingly, the mother and the father cannot now complain that they were deprived of their right to testify and to cross-examine witnesses for the state. See Wood v. State Pers. Bd., 705 So.2d 413, 422 (Ala.Civ.App.1997) (party who waived due-process rights by actions at trial could not raise alleged deprivation of those rights as error on appeal).

The mother and the father last argue that they were deprived of their right to a speedy trial, pursuant to Rule 23, Ala. R. Juv. P. Rule 23(A), Ala. R. Juv. P., provides, in pertinent part, that “[a]n adjudicatory hearing in a delinquency, dependency, or child-in-need-of-supervision case in the juvenile court shall be scheduled for the earliest practicable date.” At the dependency hearing, the juvenile court stated that the hearing in the present cases had been expedited. The record contains no evidence indicating that the hearing could have been held earlier than September 29, 2015. The mother and the father have failed to cite any authority indicating that a violation of due process has occurred or that failing to hold the hearing sooner warrants reversal of the judgment. “[I]t is not the function of [an appellate] court to do a party’s legal research.” Spradlin v. Spradlin, 601 So.2d 76, 78 (Ala.1992). The mother and the father have failed to demonstrate that the juvenile court committed reversible error on this point.

For the foregoing reasons, the judgment of the juvenile court is affirmed.

2150316—AFFIRMED.

2150317—AFFIRMED.

2150318—AFFIRMED.

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

      . Neither Southern, nor Maynard, nor the father indicated which medications the mother had purportedly abused. The mother testified that she had been prescribed drugs for pain management following her delivery of each of the children. The mother also testified that she was on approximately four medications for her blood pressure at the time of the final hearing and that those medications had changed approximately five times in the past. Reports filed by DHR with the juvenile court indicate that the mother had been prescribed Ambien, Valium, and Zanaflex for issues related to depression and sleep deprivation, as well as blood-pressure medications.


author: THOMPSON, Presiding Judge.

text:
    Suzette OSBORNE v. Andrew OSBORNE.
    2150319.
    Court of Civil Appeals of Alabama.
    May 13, 2016.
    Certiorari Denied Aug. 12, 2016
    Alabama Supreme Court 1150893.

      M. Adam Jones, Dothan, for appellant.
    William C. White II of Parkman White, LLP, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Suzette Osborne (“the wife”) appeals from a summary judgment the Houston Circuit Court (“the trial court”) entered in favor of Andrew Osborne (“the husband”). Specifically, the trial court found that the wife’s assault-and-battery claim against the husband in the underlying civil action (“the civil action”) was barred by the doctrine of res judicata, and, thus, it entered a summary judgment in favor of the husband on the wife’s assault-and-battery claim in the civil action.

The record indicates the following. The parties were married in 2004. During the course of the marriage, the husband had physically abused the wife. As the result of an incident that occurred on October 19, 2010, the husband was convicted of domestic abuse in the second degree, which is a felony offense. On October 22, 2010, the wife filed an action in the trial court seeking a divorce from the husband (“the divorce action”). One of the grounds asserted in the divorce action was that the husband had physically and emotionally abused the wife; the details of the October 19, 2010, incident were set forth in the divorce complaint.

On October 18, 2012, after a trial that included testimony regarding the October 19, 2010, incident and other instances of abuse, the trial court entered a judgment divorcing the parties on the ground of incompatibility of temperament. In the divorce judgment, the trial court, among other things, divided the marital assets and ordered the husband to pay the wife $4,200 a month in periodic alimony. The day after the divorce judgment was entered, October 19, 2012, the wife filed the civil action.

In the civil action, the wife alleged that, on October 19, 2010, the husband beat the wife, “causing her to suffer severe and permanent physical injuries, emotional distress, mental anguish, pain and suffering, scarring, disfigurement, and medical expenses .... ” The wife sought compensatory and punitive damages and demanded a jury trial. The husband filed a counterclaim against the wife, alleging assault and battery, defamation, malicious prosecution, and abuse of process.

On February 7, 2014, the husband filed a motion to dismiss the wife’s assault-and-battery claim in the civil action, arguing that the matter of the October 19, 2010, assault and battery had been litigated in the divorce action and had been considered by the trial court when it fashioned its property-division, child-support, and periodic-alimony awards. Thus, the husband contended, the wife’s assault-and-battery claim was barred by the doctrine of res judicata. The wife opposed the husband’s motion, arguing that the divorce action and her claim of assault and battery were not the same cause of action, that they sought different forms of damages, and that she had not received any compensation from the husband for the injuries she had suffered in the October 19, 2010, incident. Because both the husband and the wife attached exhibits to their respective motions, the trial court treated the husband’s motion to dismiss as a motion for a summary judgment.

On June 9, 2014, the trial court entered a summary judgment in favor of the husband as to the wife’s assault-and-battery claim in the civil action. In the judgment, the trial court found:

“The parties’ divorce [judgment] does not specifically address the assault and battery claims. However, it is undisputed that the husband’s assault upon the wife was listed among the wife’s grounds for divorce within her complaint. It is also undisputed that, at the divorce trial, the wife presented evidence relating to the assault, including medical testimony relating to her injuries allegedly suffered therefrom.”

The trial court further found that “the status of the law on this topic (i.e. res judicata as applied to civil claims post divorce) involves a controlling question of law as to which there is substantial ground for difference of opinion.” Nevertheless, the trial court determined that the wife’s assault-and-battery claim in the civil action was barred by the doctrine of res judicata.

The judgment of June 9, 2014, did not address the husband’s counterclaims against the wife. On June 11, 2014, the trial court certified to the Alabama Supreme Court that the wife’s assault-and-battery claim in the civil action involved a controlling question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal from the order would materially advance the ultimate termination of the litigation. The wife filed a petition seeking permission from our supreme court to appeal from the June 9, 2014, order. See Rule 5, Ala. R.App. P. The supreme court treated the petition as one seeking a writ of mandamus, and it denied the petition, without an opinion, on October 24, 2014. Ex parte Osborne (No. 1131039, Oct. 24, 2014), 205 So.3d 711 (Ala.2014)(table).

The husband voluntarily moved to dismiss his counterclaims, and the trial court entered an order granting that motion, without prejudice, on November 23, 2015. The trial court entered a judgment dismissing the action on January 4, 2016. The wife filed a notice of appeal to the Alabama Supreme Court on January 4, 2016. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, the wife argues that the trial court erred in applying the doctrine of res judicata to support the entry of the summary judgment on her assault-and-battery claim in the civil action. However, before we reach the merits of the wife's appeal, we first address whether our supreme court’s denial of the wife’s .earlier petition for a writ of mandamus seeking review of the same issue has a “res judica-ta effect” on this appeal, i.e., whether the supreme court’s earlier determination precludes this court’s consideration of the same issue in this appeal. In Curvin v. Curvin, 6 So.3d 1165, 1170 (Ala.Civ.App. 2008), we wrote:

“ ‘Alabama law is clear: “ ‘[T]he denial [of a petition for a writ of mandamus] does not operate as a binding decision on the merits.’” Ex parte Shelton, 814 So.2d 251, 255 (Ala.2001) (quoting R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994)). “[Because of the extraordinary nature of a writ of mandamus, the denial of relief by mandamus does not have res judi-cata effect.” Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala. 2000); see also Bedsole v. Goodloe, 912 So.2d 508, 516 n. 4 (Ala.2005) (noting “that ‘without ordering an answer and briefs and without issuing an opinion, [the denial of a petition for the writ of mandamus] cannot have res judicata effect on subsequent proceedings in light of the extraordinary nature of the writ of mandamus’ ” (quoting R.E. Grills, 641 So.2d at 229) (alterations in original)).’
“EB Inv., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502, 510 (Ala.2005).”

Because the supreme court’s denial of the wife’s petition for a writ of mandamus does not constitute a binding decision on the merits and, thus, has no “res judicata effect,” this court can consider the issue on appeal. Therefore, we turn now to the merits of the wife’s appeal.

The wife contends that the divorce action and her assault-and-battery claim in the civil action involve separate causes of action, and, thus, she says, the doctrine of res judicata cannot be used to bar her assault-and-battery claim in the civil action.

“Res judicata is a judicially created doctrine that precludes the relitigation of matters that have been adjudicated or that could have been adjudicated in the prior action. Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507 (Ala.2002). The elements of res judicata are ‘ “(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.” ’ Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 919 (Ala.2007)(quoting Equity Res. Mgmt, Inc. v. Vinson, 723 So.2d 634, 636 (Ala. 1998)).”

Ex parte Chesnut, 208 So.3d 624, 635 (Ala. 2016).

The wife argues that, on the authority of our supreme court’s opinion in Ex parte Harrington, 450 So.2d 99 (Ala.1984), her civil action must be allowed to proceed. The husband, on the other hand, argues that our supreme court’s opinion in Weil v. Lammon, 503 So.2d 830 (Ala.1987), requires a determination that the doctrine of res judicata bars the wife’s assault-and-battery claim in the civil action.

In Ex parte Harrington, supra, Margaret Harrington (“Margaret”) filed an action in Montgomery . County seeking to divorce her husband, James Harrington (“James”). In the divorce complaint, Margaret alleged the following:

“ ‘On or about, to-wit, February, 4, 1983, [James] willfully and wantonly attacked [Margaret], shooting her with a gun, causing severe personal injury to her person, rendering her a paraplegic, permanently paralyzed from the waist of her body to her feet. She was caused to be hospitalized for a long period of time and caused to suffer excruciating and severe mental and physical pain and anguish and the prognosis is that she will be confined to a wheelchair for the rest of her natural life and be caused to incur extensive costs and expenses for care, maintenance and treatment.’ ”

Ex parte Harrington, 450 So.2d at 99.

While the divorce action was pending in Montgomery County, Margaret filed a tort action against James in Elmore County, alleging;

‘“On or.about, to-wit, the 4th day of February, at or near, to-wit, County Road 29 near Powell’s Grocery in El-more County, Alabama, [James’s] willfully or wantonly shot [Margaret] with a gun.
“ ‘As a proximate consequence of [James’s] willful or wanton misconduct, [Margaret] was caused to suffer the following injuries and damages:
“‘[Margaret] was seriously wounded and was caused to be hospitalized for a long period of Time and has been permanently and severely injured and paralyzed from the waist down, she suffers severe pain and mental anguish and will continue to suffer severe pain and mental anguish and will be paralyzed for the rest of her natural life, she has been caused to incur large expenses for hospital, doctor and other medical treatment for her injuries, she has been permanently and severely injured and paralyzed and is unable to enjoy the normal pursuits of life and happiness, she will be confined to a wheelchair for the rest of her natural life and be caused to incur extensive costs and expenses for her care, maintenance, treatment and support, , and she will continue to suffer excruciating mental and physical pain and anguish for the rest of hei natural life.’ ”

Id. at 99-100.

James sought to dismiss the tort action on the ground that, because the same wrongful act was alleged as a ground for the divorce, Margaret should not be permitted to pursue a separate action alleging assault and battery. James argued that the tort action was required to be joined with the divorce action. Our supreme court disagreed with James’s assertion, holding: “The mere fact that [Margaret] included in her divorce action a charge that [James] assaulted her does not make the divorce action a cause of action identical to the assault and battery action brought in Montgomery County.” Id. at 101-02.' Accordingly, our supreme court allowed Margaret to proceed with her tort action in Elmore County.

In Weil v. Lammon, supra, the case the husband primarily relies on in support of his position, Herbert Weil and Dorothy Lammon had been married “for little more than 30 days” when Weil filed a complaint for a divorce. Weil, 503 So.2d at 831. Lammon filed a counterclaim in which she alleged that Weil, “ ‘through misrepresentation and deceit, encouraged her to terminate her prior marriage and stated he would take care of her financially for the remainder of her life. [Lammon] relied on the statements and representations made by [Weil].’ ” Id.

In the divorce judgment, the trial court awarded Lammon $1,000 as alimony in gross. Lammon filed a postjudgment motion asserting that, given the fraudulent means by which Weil induced Lammon to marry him and Weil’s “ ‘admitted propensity to become physically and emotionally involved’ ” with his female coworkers, she had been “‘the victim of a fraudulent scheme’” whereby Weil “‘enticed her to marry him, probably solely for [his] sexual gratification.’” Id. She argued that the award of alimony in gross of only $1,000 constituted a gross abuse of discretion and that a substantial award of alimony in gross and periodic alimony were required to

“‘adequately compensate her for the damage done to her as a result of ... Weil’s fraud, the wicked and wanton manner in which he treated her during the brief time they lived together, and to punish ... Weil to some degree, to discourage further activity of this kind on his part.’ ”

Id.

While her postjudgment motion was pending, Lammon filed a tort action against Weil seeking compensatory and punitive damages based on the alleged fraud and deceit on the part of Weil in misrepresenting that he would take care of Lammon financially for the rest of her life if she would marry him. Id. Weil moved to dismiss the tort action on the ground of res judicata. The trial court denied the motion, but our supreme court reversed the trial court’s order, holding that when “a spouse’s alleged fraud, misrepresentation, or deceit is made an issue in the divorce action, as it was here, such conduct will not supply the basis for a subsequent action for damages.” Id. at 831-32.

In reaching its holding, our supreme court explained that, in Weil, Lammon had asserted the alleged fraud and misrepresentation of Weil in support of her claim for alimony. “This she had a right to do, as his conduct toward her was a matter for the Court’s consideration on the issue of alimony. She may not thereafter bring an action for damages based upon the same allegations.” Id. at 832 (citation omitted). Our supreme court then wrote:

“In Jackson v. Hall, 460 So.2d 1290 (Ala.1984), this Court held that a prior divorce judgment was an absolute bar to a subsequent tort action for damages based upon an alleged assault and battery which had been one of the grounds for the divorce. The court expressly held that under those circumstances res judicata barred the wife’s action. The same result is compelled under the facts of this case.”

503 So.2d at 832.

Although it is true that, in Jackson v. Hall, 460 So.2d 1290 (Ala.1984) our supreme court did not allow a former wife to pursue a tort action in which she alleged assault and battery against her former husband, the Weil court misstated the holding in Jackson. A subsequent opinion of our supreme court provided a more detailed and more accurate representation of the holding in Jackson, explaining:

“Prior to filing her tort action, [the wife in Jackson ] had entered into a settlement agreement in the divorce action in full and final settlement of ‘all property matters and other matters between the parties.’ In Jackson, we said:
“ ‘The question here, however, is whether or not that action is barred under the material before the trial court on the summary judgment motion. The answer to this question depends upon the construction of the agreement of the parties and the effect of the divorce decree.
“ ‘This agreement was merged into the divorce decree and thus became a part of that decree, final and not subject to modification. Thus, the question of liability for a pre-existing cause of action for an assault by one spouse against the other was decided in the divorce action.’
460 So.2d at 1292 (citations omitted).”

Coleman v. Coleman, 566 So.2d 482, 484-85 (Ala.1990).

In Jackson, our supreme court pointed out that the agreement between the parties was clear and unambiguous, specifically stating:

“Here, the agreement between the parties, clear and ambiguous, was that ‘[i]n full settlement of all claims between the parties, the Wife does hereby accept the sum of $2,300,’ and that agreement was expressly made a ‘full, final and complete settlement of all property matters and other matters between the parties.’ One of those matters was the wife’s cause of action for assault and battery. The language of the agreement clearly demonstrates an intent on the part of [the wife] to make a final settlement of ‘all claims,’ including her claim for assault and battery. ‘All claims’ means just that.”

460 So.2d at 1292. The Jackson court pointed out that the agreement was one of the evidentiary bases for the entry of the divorce judgment. Id.

Moreover, in Smith v. Smith, 530 So.2d 1389, 1391 (Ala.1988), our supreme court explained that, in Weil, it “did not overrule the case of Ex parte Harrington, ... leaving for it a field of operation where there has not been a settlement of all claims by the parties, or a claim fully litigated in a divorce case that had proceeded to a final judgment.”

In Smith, our supreme court did not allow a wife to pursue a tort action in which she alleged assault and battery against her husband after they divorced. However, as was the case in Jackson, although the parties in Smith did not have a written settlement agreement, it was undisputed that they had reached a settlement in the divorce litigation that specifically included the issue of physical cruelty and the wife’s need for continued health insurance and payment of medical bills for injuries the wife had allegedly received as a result of the husband’s physical abuse. Id. at 1390. Furthermore, the wife asked the trial court to delay entering the final judgment in the divorce action so that she could remain covered by the husband’s health-insurance policy in the event she required future surgery. Id. at 1391. Our supreme court held that, “[h]aving taken the position that [the wife] did in the divorce action, she is now estopped from relitigating matters that were settled in that action.” Id.

Similarly, in Coleman, supra, our supreme court affirmed a trial court’s summary judgment barring the wife’s tort claim against the husband alleging that he had negligently or wantonly infected her with a venereal disease during their marriage. In their previous divorce action, the parties had reached a settlement agreement, which was incorporated into the divorce judgment, that contained the following provision:

“ ‘SIXTEENTH: MUTUAL RELEASE: Each party, in consideration of this Agreement, expressly releases the other party from any and all claims and demands, other than under the provisions of this Agreement, for the settlement of property rights.’ ”

Id. at 483.

Evidence indicated that the wife was aware that she had the venereal disease before she entered into the settlement agreement and that she had used the disease as leverage in increasing her settlement award. Id. at 485. In affirming the trial court’s conclusion that the subsequent tort action was barred by the doctrine of res judicata, our supreme court wrote:

“We agree with the trial court that to allow [the wife] to use the fact that she may have been infected with a venereal disease by her husband as leverage in her divorce settlement, and then to permit her to bring a subsequent tort action, would seriously undermine the settlement of divorce actions in the future.”

Id.

In the most recent case involving the issue of whether a divorce judgment barred a subsequent tort action, Ex parte Howle, 776 So.2d 133 (Ala.2000), our supreme court prevented a wife’s action in which she alleged assault and battery against her husband from going forward. In that case, the wife, Tyndal, had filed a divorce action that included a claim alleging assault and battery against her husband, Howie. The assault-and-battery claim was severed and transferred to the civil division of the circuit court. The divorce judgment was entered while the assault-and-battery claim was pending. As part of the divorce judgment, Tyndal was awarded “‘$1,500 for any dental and/or doctor bills incurred by her as a result of [Howie’s] striking [her] on or about the date of their separation.’ ” Id. at 134.

In holding that Tyndal’s assault-and-battery claim was barred, our supreme court explained:

“Tyndal reserved the issue of the alleged battery and that issue was severed; Tyndal, nevertheless, raised that issue in the divorce action and, as a result of the judgment in that action, accepted payment of medical expenses related to the alleged battery. Had she adhered to her reservation of the issue of the alleged battery, this would be a different case. However, on the facts of this case, the trial court correctly entered the summary judgment in favor of Howie on Tyndal’s assault-and-battery claim because that claim is barred by the doctrine of res judicata.”

Id. at 136.

After reviewing the Alabama opinions considering whether a tort action against a former spouse is barred under the doctrine of res judicata after the entry of a final judgment of divorce, we conclude that, in this case, the wife’s assault-and-battery claim in the civil action is not barred by the doctrine of res judicata. There was no settlement agreement between the parties in the divorce action. Therefore, there could have been no settlement of claims existing between the parties incorporated into the divorce judgment that would preclude litigation of the assault-and-battery claim.

Further, as pointed out in Harrington, supra, although an allegation of abuse, i.e., assault and battery, can be a basis for a divorce, a claim for a divorce and a claim alleging assault and battery are separate causes of action. The wife in this case acknowledges that the circumstances of October 19, 2010, i.e., the physical altercation that was made the basis of her assault-and-battery claim in the civil action, “did have a meaningful part in the divorce trial.” In the divorce action, there was evidence indicating that the husband had assaulted the wife on the occasion made the basis of the assault-and-battery claim in the civil action. There was also evidence presented indicating that the husband had assaulted the wife on other occasions.

Additionally, our review of the record on appeal indicates that no evidence was presented in the divorce action regarding the cost of the medical expenses the wife incurred as a result of injuries she sustained in the October 19, 2010, incident, and the husband does not refer to any such evidence in his appellate brief. There is no indication in the record before us that, as was the case in Weil, the wife sought damages in the divorce action to compensate her for her injuries, for pain and suffering, for her alleged scarring and disfigurement, or for her mental distress and anguish. We note that the circumstances in Weil are rare, if not unique, in that, after only a month of marriage, Lammon expressly sought substantial alimony in gross and periodic alimony based solely on what she said was Weil’s fraudulent inducement to have her marry him by promising to support her financially for the rest of her life. Lammon specifically requested substantial alimony to punish Weil for his “ ‘wicked and wanton’ ” behavior. 503 So.2d at 831.

Alimony in gross is considered compensation for the recipient spouse’s inchoate marital rights and may also represent a division of the fruits of the marriage when liquidation of a couple’s jointly owned assets is not practicable. Lacey v. Lacey, 126 So.3d 1029, 1031 (Ala.Civ.App.2013)(quoting Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974)). Periodic alimony is intended for the support of the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage. Id. (quoting O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996)). Although fault in bringing about the end of the marriage may be a factor to consider when a trial court awards periodic alimony and alimony in gross, neither form of alimony is intended to punish a spouse for wrongdoing during the marriage, as Lam-mon had requested.

In this case, although evidence of the assault and battery made the basis of the wife’s claim in the civil action was presented in the divorce action as proof of one of the grounds for divorce alleged by the wife, we cannot say that the assault-and-battery claim was fully litigated in the divorce action. See Ex parte Chesnut, 208 So.3d at 635-36. Furthermore, unlike in Ex parte Howie, supra, the trial court in the divorce action did not award the wife compensation for her medical expenses incurred as a result of the injuries she received as a result of the assault and battery. In fact, as the trial court pointed out in its summary-judgment order disposing of the wife’s assault-and-battery claim in the civil action, the divorce judgment does not mention the assault and battery at all. Thus, to the extent, if any, a claim alleging assault and battery was raised in the divorce action, we cannot say that a judgment was entered on the merits of that claim. See Ex parte Chesnut, 208 So.3d at 635.

We also think the wife’s point is well taken that, because she has a constitutional right to have the assault-and-battery claim tried before a jury, she should not have been required to litigate that claim as part of the divorce action, for which she is not entitled to a jury trial. In Abbott v. Williams, 888 F.2d 1550, 1554-55 (11th Cir.1989), the United States Court of Appeals for the Eleventh Circuit considered the implications that forcing the joinder of tort claims in a divorce action would have on a party’s right to a trial by jury, writing:

“The Wisconsin Supreme Court considered precisely this issue in Stuart v. Stuart, 143 Wis.2d 347, 421 N.W.2d 505 (1988). The court held that forcing such a dilemma on a divorcing spouse would contravene public policy:
‘If an abused spouse cannot commence a tort action subsequent to a divorce, the spouse will be forced to elect between three equally unacceptable alternatives: (1) Commence a tort action during the marriage and possibly endure additional abuse; (2) join a tort claim in a divorce action and waive the right to a jury trial on the tort claim; or (3) commence an action to terminate the marriage, fore-go [sic] the tort claim, and surrender the right to recover damages arising from spousal abuse. To enforce such an election would require an abused spouse to surrender both the constitutional right to a jury trial and valuable property rights to preserve his or her well-being. This the law will not do.’
“Id., 421 N.W.2d at 508 (adopting language of intermediate Wisconsin appellate court). Since a jury trial is not available in an Alabama divorce action, a divorcing spouse in Alabama would be in the same predicament. We do not believe that the Alabama courts would be any less protective of the light to a jury trial than the courts of Wisconsin.”

(Emphasis added.) Writing in a special concurrence in Weil, 503 So.2d at 832, Justice Adams stated:

“I am of the opinion that actions for divorce are sui generis. To rule that in every divorce case a party’s cause of action must be litigated in that proceeding, of necessity, would deny the right to trial by jury. Trial by jury is not provided for in divorce actions in Alabama.”

We agree with Justice Adams and the Eleventh Circuit Court of Appeals that a divorcing spouse should not be required to include tort claims in a divorce action, because to do so would deprive each party of his or her right to have a tort action tried before a jury.

For the reasons set forth above, we conclude that, under the facts of this case, the doctrine of res judicata does not preclude the wife’s assault-and-battery claim in the civil action. Accordingly, the summary judgment barring that claim must be reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

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

      . This court affirmed the divorce judgment without issuing a written opinion. Osborne v. Osborne, 177 So.3d478 (Ala.Civ.App.2014)(ta-ble).

      . Even if, because there were no additional claims pending as of the entry of the order, the November 23, 2015, order dismissing the husband’s counterclaims against the wife was considered the final judgment in this matter, we note that the wife’s notice of appeal was filed within 42 days of the November 23, 2015, “order”; thus, her notice of appeal was timely filed. See Rule 4(a)(1), Ala. R.App. P.