author: BRYAN, Judge.

text:
    Ex parte MASSEY CHEVROLET, INC. (In re Travis C. Aderhold v. Massey Chevrolet, Inc.) Massey Chevrolet, Inc. v. Travis C. Aderhold.
    2071082 and 2071089.
    Court of Civil Appeals of Alabama.
    Jan. 23, 2009.

      Joseph H. Driver, Judson W. Wells, Sr., and Heather M. Houston of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner/appellant Massey Chevrolet, Inc.
    Richard E. Browning, Mobile, for respondent/appellee Travis C. Aderhold.
   BRYAN, Judge.

In August 2005, Travis C. Aderhold sued Massey Chevrolet, Inc., seeking to recover workers’ compensation benefits. Aderhold worked as a mechanic for Massey Chevrolet. In his complaint, Aderhold alleged that he had injured his neck at work on January 5, 2004, when his head struck the tire of an automobile as he attempted to exit from under the automobile. Aderhold and Massey Chevrolet subsequently entered into a settlement agreement regarding Aderhold’s workers’ compensation claim. On March 26, 2007, the trial court entered a judgment approving the settlement agreement. The settlement agreement provided that Aderhold’s “medical disability is based on injuries to his head and neck” and that Aderhold retained “any and all rights to recover future medical expenses necessary and directly related to the subject injury.” The settlement agreement also provided that “[Massey Chevrolet] does not admit, but expressly denies, that [Aderhold’s] disability is as serious and extensive as claimed.”

On May 9, 2007, Aderhold filed a motion seeking to compel Massey Chevrolet to pay for Aderhold’s medical treatment. Aderhold’s motion asserted that Massey Chevrolet had refused to pay for medical treatment provided to Aderhold by Dr. Charles Aprill. The motion also asserted that Massey Chevrolet had refused to authorize any future treatment of Aderhold by Dr. Aprill. Massey Chevrolet filed a response to Aderhold’s motion, denying liability for any medical treatment that Ad-erhold had obtained or would seek to obtain from Dr. Aprill.

On June 1, 2007, the trial court entered an order finding that Massey Chevrolet was not liable for the initial medical treatment provided by Dr. Aprill to Aderhold on January 31, 2005. That order also stated that the trial court would hold a hearing regarding Massey Chevrolet’s potential liability for “further treatment” provided by Dr. Aprill to Aderhold. Following a hearing, the trial court entered a judgment only ordering Massey Chevrolet “to fund the medical treatment prescribed and provided by Dr. Aprill.” Massey Chevrolet appealed the trial court’s judgment to this court. This court reversed the judgment, and we remanded the case to the trial court for that court to enter a judgment complying with § 25-5-88, Ala.Code 1975, which requires a workers’ compensation judgment to “contain a statement of the law and facts and conclusions as determined by [the trial] court.” Massey Chevrolet, Inc. v. Aderhold, 991 So.2d 750 (Ala.Civ.App.2008).

After remand, the trial court, on July 8, 2008, rendered, but did not enter, a written judgment finding that Dr. Aprill is an authorized treating physician of Ader-hold, granting Aderhold’s motion to compel medical treatment, and ordering Massey Chevrolet to continue to pay for Dr. Ap-rill’s medical treatment of Aderhold. On August 21, 2008, Massey Chevrolet prematurely filed a notice of appeal, and, on August 22, 2008, Massey Chevrolet filed a petition for a writ of mandamus. According to the State Judicial Information System, the trial court entered its judgment in favor of Aderhold on August 22, 2008; pursuant to Rule 4(a)(4), Ala. R.App. P., Massey Chevrolet’s appeal was held in abeyance until the trial court entered its judgment on that date. Because an appeal is an available remedy for Massey Chevrolet in this case, we deny the petition for a writ of mandamus. “ ‘A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal.’ ” Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)).

Section 25-5-81(e), Ala.Code 1975, provides the standard of review in workers’ compensation cases:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

On appeal, Massey Chevrolet first argues that the trial court erred in finding that Dr. Aprill is an authorized treating physician of Aderhold. In Overnite Transportation Co. v. McDuffie, this court stated:

“Section 25-5-77(a) indicates that the employer shall make the initial choice of a physician who shall be authorized to treat the employee. The statute also provides that the employer shall be responsible for paying the costs of ‘reasonably necessary’ medical treatments for the employee. Accordingly, the employer is responsible for paying for the treatment choice made by the authorized treating physician so long as that choice falls within the parameters of what is ‘reasonably necessary’ to treat the employee. See Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1046 n. 4 (Ala.Civ.App.2002). This principle has been applied repeatedly in cases in which the ‘treatment’ recommended by the authorized physician is a treatment to be administered by a second physician.
“For example, in Jasper Community Hospital, Inc. v. Hyde, 419 So.2d 594 (Ala.Civ.App.1982), the employee’s Alabama physician referred her to the Campbell Clinic in Memphis, Tennessee. This court concluded that the employee’s ‘treatment at the Campbell Clinic in Memphis, Tennessee was authorized by the [employer]. The record clearly indicates that Dr. Russell[, the employee’s physician,] referred her there for diagnosis and treatment. Since we have found that Dr. Russell’s treatment of [the employee] was authorized, we have no difficulty in determining that other reasonably necessary medical treatment prescribed by him was also authorized.’ 419 So.2d at 597.
“To similar effect was this court’s holding in Blue Bell, Inc. v. Nichols, 479 So.2d 1264 (Ala.Civ.App.1985). As this court explained:
“ ‘[W]e find that the evidence would have supported a holding that the employee was given the impression that he had the authority from [the employer] to at least see Dr. Pyle, who referred him to Dr. Hatchett. Since the consultation with Dr. Pyle was authorized [by the employer], we have no difficulty in determining that other reasonably necessary medical treatment consisting of the referral of the patient to Dr. Hatchett and the subsequent hospitalization were also authorized.’
479 So.2d at 1267.
“In Genpak Corp. v. Gibson, 534 So.2d 312 (Ala.Civ.App.1988), the employer authorized the employee to be treated by Dr. Frank Gogan, a general practitioner. Id. Dr. Gogan admitted the employee into the hospital so that a myelogram could be performed on her. Id. The employer gave the employee the names of three doctors who it authorized to perform the myelogram. Id. at 313-14. Before the employee’s admittance to the hospital, the employer had informed both the employee’s attorney and Dr. Gogan that Dr. Jackson Bostwick was not acceptable to perform the myelo-gram. Id. at 314. In spite of the employer’s unequivocal and express refusal to authorize treatment by Dr. Bostwick, Dr. Gogan asked Dr. Bostwick to perform the myelogram on the employee, which he did. Id. at 314.
“After a trial on the employee’s workers’ compensation claim, the trial court found the employee totally and permanently disabled and, among other things, ordered the employer to pay $805 to reimburse the employee for the treatment that Dr. Bostwick had provided to the employee. Id. at 313. On appeal, the employer argued that that award was improper because the employer had not authorized the employee’s treatment by Dr. Bostwick and, in fact, had expressly refused to authorize treatment by him. Id. This court disagreed. Citing Jasper Community Hospital and Blue Bell, Inc., this court held as follows:
“ ‘Since Dr. Gogan, the employer’s physician, admitted the employee into the hospital and subsequently requested Dr. Bostwick to perform the myelogram, we have no difficulty in determining that the myelogram performed by Dr. Bostwick was authorized.’
534 So.2d at 314.
“As this court stated more recently in Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala.Civ.App.2003), albeit in the context of a referral for a functional capacities evaluation, ‘the [authorized treating] physician is empowered under the Act to treat the employee for so long as is reasonably necessary and to refer the employee to other medical providers for reasonably necessary treatment.’ (Emphasis added.) See generally City of Auburn v. Brown, 638 So.2d 1339, 1341 (Ala.Civ.App.1993) (‘We hold that, as a general rule, the employer may not dictate to the employee that he may not have the medical treatment recommended by his authorized, treating physician.’).”

933 So.2d 1092,1096-97 (Ala.Civ.App.2005) (footnote omitted).

In this case, Massey Chevrolet authorized Dr. Brendt Peterson, an orthopedic surgeon, as Aderhold’s initial treating physician. In June 2004, Dr. Peterson performed an anterior cervical diskectomy and fusion at the C5-6 level of Aderhold’s neck. According to Dr. Chris Nichols’s deposition testimony, Dr. Peterson referred Aderhold to Dr. Nichols for pain management in September 2004. In December 2004, Dr. Peterson suggested that a cervical diskogram be conducted on Ad-erhold to determine if additional procedures on his neck would be beneficial. On January 19, 2005, Dr. Peterson made the following entry in Aderhold’s medical file: “[Aderhold] scheduled for cervical disco-gram with Dr. Aprilfl] in New Orleans on 01-31-05 scheduled per W/C.” Aderhold visited Dr. Aprill on January 31, 2005; however, Dr. Aprill did not perform a cervical diskogram on Aderhold on that date. Instead, Dr. Aprill administered facet injections to Aderhold’s neck and performed a CT scan. Dr. Aprill treated Aderhold several times after this initial visit, performing facet injections and radiofrequen-cy denervation procedures designed to reduce Aderhold’s pain. It is unclear from the record on appeal how many times Dr. Aprill has treated Aderhold.

While Dr. Aprill was treating Aderhold, Dr. Nichols, the physician to whom Dr. Peterson had referred Aderhold for pain management, treated Aderhold for pain by prescribing various medications. On January 29, 2007, Dr. Nichols made the following treatment notes regarding Aderhold:

“Mr. Aderhold is here again. I have a note from Dr. Dumitrescu who works with Charles Aprill in New Orleans. They apparently performed a right C4-5, 5-6, 6-7, 7-T1, and a left C7-T facet joint injection. Of course his pain was down to 7 out of 100 from 50 out of 100. Mr. Aderhold wants to go on through with whatever treatment they recommend. I told him certainly at this point.
“... [Aderhold] may get some measure of relief from any injection or radio-frequency procedure but I don’t know if it is going to reduce any medication usage or any other behavior. ... I am not sure what else to recommend. I cannot wholeheartedly recommend continuous procedures in his neck. I think it is somewhat in the nature of beating a dead horse[.] I am not sure if Dr. Petersen thinks it is valuable and [I will] maybe revisit that with him but I will continue his medications]. I don’t know what else to do for further treatment at this point. In regards to injections I have outlined my thoughts above. I have explained to him and the case manager that I cannot see that he is getting great relief unless he is taking less medicines and in fact he wanted something more for headaches today. So, I am not sure that anything else needs to be done. It has not been useful in any objective way other than [Aderhold’s] subjective decreased complaints for a period of time but he seems to always have neck pain and headaches .... ”

(Emphasis added.)

In his deposition testimony dated August 2, 2007, Dr. Nichols discussed his and Dr. Aprill’s treatment of Aderhold for pain management:

“[Aderhold will] get some measure of relief he’ll report [from receiving the facet injections from Dr. Aprill], but it won’t ever be permanent and sometimes [the relief lasts] a week, sometimes it [lasts] days. And so what[] it [has] boiled down to is everyone wants to know do we keep doing these shots [provided by Dr. Aprill], do we keep providing these things? And what I finally said and what I believe is [this:] great, if you get a year or six months of relief and you come and tell me hey, you know, they did this thing in my neck and it’s better, I don’t have to take your Lortab or your Oxycontin, but that has not happened once.
“So I have to have some reason to say something’s better, the patient is saying it. What I can say is Mr. Aderhold always is wanting some medicine and he’ll get a little window of relief with one of these injections by somebody and think that he needs to get more, then we can do that if he got some permanence.
“But I haven’t ever seen any decrease in medicine usage, or I could fully recommend hey, go get some more of those [facet injections], you are doing good, you are not taking as much medicine, you look better, your posture is better. But I haven’t seen any clinical improvement that I can measure and I haven’t seen any medication decrease, so it’s hard for me to keep recommending injections or even radio frequencies or whatever in anyone’s neck because there’s danger with those, you can have complications with those. Unless there’s a huge benefit, you don’t need to keep doing that. You are going to one day hit something, one day get an infection the more of those you do, and I tried to explain that to Mr. Aderhold, but we go in vicious cycles.
“And I can’t, you know, basically recommend a lot more — you know, a lot more procedures or intervention because I think you’re running a risk of side effects and detriment[.] Mr. Aderhold, I understand his problem, he’s got a bad neck and pain but we’re just trying to help him and not harm him. I think we are going to end up harming him if anything else is done to him.
“So at this point ... I’m happy to provide medicines if it makes his situation more comfortable and that’s where our treatment has kind of went. Mr. Aderhold wants injections, he’s been promised he can be pain free by [Dr. Aprill and his associate]....
“And there’s no way you get permanent relief with those, you get some relief but you got to measure it some way. [Dr. Aprill and his associate] are doing the procedure, they are not measuring anything. I’m the one seeing the patient on a chronic basis. And I can’t measure any improvement any kind of way, so I can’t keep recommending treatment over and over—
“Q. And you’re—
“A. — at this point.
“... [C]an [you] state to a reasonable degree of medical certainty that you don’t believe that an injection at that level is going to provide him any major benefit or long-term benefit?
“A. So far it hasn’t. He’s had some ... radio frequency procedures where they burn nerves. And that’s what I said, I’d get him burned at every level up and down his neck if he came back and said man, it’s doing so good, I don’t have to take Lortab as much or something like that.
“Q. Or decrease the Lortab?
“A. But he never has. ... I have to have a reason to say okay, it’s working. ... It hasn’t worked clinically and there’s no measurable benefit.
“Q. And that was the purpose for you and/or Dr. Petersen to refer him to Dr. April[l] and his associates over in New Orleans for a benefit, correct?
“A. Well, what we are trying to do is get rid of his pain first, if we can, if the procedure works. I’m not talking about it working for a week or three weeks or four weeks or two months[;] if it works for a year or eight months or three years, that’s what we’re talking about and we’ve not seen anything work very long.
“And then we are asked well, Doctor, do you recommend this and I’d be like I would wholly recommend it and I recommend it every day for patients that get relief and they get relief and don’t see me for a year after one of those dener-vations and [they] say man, I need it again. I’m fine, get another one. But that’s not been the case at all with Mr. Aderhold. I have not seen him — I haven’t seen any relief.
“... [The treatment being provided to Aderhold by Dr. Aprill is] not working!;] that’s my opinion. It’s not providing any long-term benefit. It gives him some short window of relief ....
“But you have to understand the side effects that could happen. You can’t keep burning these nerves and doing these shots in someone’s neck for two weeks of relief. The risk benefit ratio is much against Mr. Aderhold, and I can’t recommend that as a physician.”

(Emphasis added.)

The record indicates that Dr. Peterson, Aderhold’s original treating physician, referred Aderhold to Dr. Aprill for a cervical diskogram in January 2005; Dr. Peterson did not refer Aderhold to Dr. Aprill for pain-management treatment. Instead, Dr. Peterson referred Aderhold to Dr. Nichols for pain-management treatment beginning in September 2004. However, the record further indicates that Dr. Nichols subsequently recommended some pain-management treatment provided by Dr. Aprill to Aderhold in the hope that that treatment would provide him pain relief. At some point, however, Dr. Nichols determined that Dr. Aprill’s treatment of Aderhold was not sufficiently benefiting Aderhold; consequently, Dr. Nichols determined that he could no longer recommend that treatment. It is unclear from the record precisely when Dr. Nichols withdrew his recommendation of Dr. Aprill’s treatment of Aderhold. According to Dr. Nichols’s treatment notes, as early as January 29, 2007, Dr. Nichols doubted the usefulness of Dr. Aprill’s treatment of Aderhold and noted that he could no longer “wholeheartedly recommend continuous procedures” by Dr. Aprill. On that same date, however, Dr. Nichols told Aderhold that he could continue to receive treatment from Dr. Aprill “at [that] point.” In his deposition testimony of August 2, 2007, Dr. Nichols opined that Dr. Aprill’s treatment was providing only short-term pain relief for Ader-hold and that the risks of that treatment outweighed any short-term pain relief. Dr. Nichols then concluded that he could no longer recommend Dr. Aprill’s pain-management treatment. Therefore, the record suggests that Dr. Nichols had withdrawn his recommendation of Dr. Aprill’s treatment of Aderhold by August 2, 2007, at the latest.

As we have noted,

“[t]he employer is responsible for paying for the treatment choice made by the authorized treating physician so long as that choice falls within the parameters of what is ‘reasonably necessary5 to treat the employee. ... This principle has been applied repeatedly in cases in which the ‘treatment’ recommended by the authorized physician is a treatment to be administered by a second physician.”

Ovemite Tramp., 933 So.2d at 1096. Dr. Peterson, Aderhold’s original treating physician, referred Aderhold to Dr. Nichols for the specific purpose of providing Aderhold pain-management treatment. Accordingly, Dr. Nichols was implicitly authorized to control Aderhold’s pain-management treatment. The record indicates that Dr. Nichols maintained control over Aderhold’s recovery as it related to pain management and, as a part of this recovery, recommended that Aderhold obtain some pain-management treatment from Dr. Aprill. Because Dr. Nichols had been implicitly authorized to provide pain management to Aderhold, Dr. Aprill’s pain-management treatment was in turn implicitly authorized insofar as that treatment was recommended by Dr. Nichols. As noted, however, it is unclear precisely when Dr. Nichols withdrew his recommendation of Dr. Aprill’s pain-management treatment.

In its judgment, the trial court found that Dr. Aprill was an authorized physician, and it ordered Massey Chevrolet “to continue to pay for the treatment” provided by Dr. Aprill to Aderhold. We hold that the pain-management treatment provided by Dr. Aprill to Aderhold was authorized only insofar as that treatment was recommended by Dr. Nichols, the authorized physician in charge of Aderhold’s pain-management treatment. Accordingly, we reverse the judgment of the trial court, and we remand the case for the trial court to determine which of Dr. Aprill’s pain-management treatments were in fact recommended by Dr. Nichols.

Our decision today does not conflict with this court’s decision in City of Auburn v. Brown, 638 So.2d 1339 (Ala.Civ.App.1993). In City of Auburn, the employee, following his back injury, was initially treated at a family-care center. Id. at 1339. The employee was then referred to a neurosurgeon, who recommended surgery. Id. at 1339-40. The employer subsequently authorized two other neurosurgeons to treat the employee; neither of those neurosurgeons recommended surgery. Id. at 1340. The employee expressed a desire to undergo the surgery, but the employer would not approve the surgery. Id. Given those facts, this court held “that, as a general rule, the employer may not dictate to the employee that he may not have the medical treatment recommended by his authorized, treating physician.” Id. at 1341.

“City of Auburn, stands for the proposition that when two qualified physicians, each of whom is authorized by the employer, recommend two different treatments, each of which can be considered a reasonably necessary treatment for the employee’s condition, an employer cannot dictate which physician, and thereby which treatment, must be chosen. The choice between physicians in this circumstance belongs to the patient.”

Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1048 (Ala.Civ.App.2002).

Each of the three neurosurgeons in City of Auburn were authorized to control the course of the employee’s recovery; the employee in that case could have chosen any reasonably necessary treatment prescribed by any of those three physicians. By contrast, in this case, the record does not indicate that Dr. Aprill was authorized to control the course of Aderhold’s pain-management treatment. Dr. Aprill’s authorization to provide pain-management treatment to Aderhold derived solely from Dr. Nichols’s limited recommendation of that treatment. Dr. Nichols did not yield control of Aderhold’s recovery to Dr. Ap-rill in this case. Instead, Dr. Nichols permitted Aderhold to obtain some pain-management treatment from Dr. Aprill in the hope that that treatment would benefit Aderhold’s recovery. When Dr. Nichols determined that Dr. Aprill’s treatment was compromising Aderhold’s recovery, Dr. Nichols concluded that he could no longer recommend that treatment. Given these facts, we conclude that, unlike the three neurosurgeons in City of Auburn, Dr. Nichols and Dr. Aprill are not on equal footing regarding their roles in Aderhold’s treatment.

Massey Chevrolet also argues that, even if Dr. Aprill is an authorized physician, the trial court erred by requiring Massey Chevrolet “ ‘to pay for the treatment [provided by] Dr. Aprill,’ regardless of whether that treatment meets the requirements of the Alabama Workers’ Compensation Act[, § 25-5-1 et seq., Ala.Code 1975].” Massey Chevrolet’s brief at 18-19. More specifically, Massey Chevrolet argues that the trial court’s judgment ignores Massey Chevrolet’s right to challenge the reasonable necessity of Dr. Aprill’s treatment through the utilization-review process. See § 25-5-293(g) and (k), Ala.Code 1975; and Rule 480-5-5-.01 et seq., Ala. Admin. Code (Alabama Dep’t of Indus. Relations).

“[A]n employer may refuse to pay for treatment of an employee by a physician to whom the employee has been referred on the ground that that treatment is not ‘reasonably necessary’ if it does so pursuant to a utilization review or medical-necessity determination conducted in accordance with the regulations contemplated by § 25-5-293(k).”

Ovemite Transp., 933 So.2d at 1098 n. 4. We have determined that the pain-management treatment provided by Dr. Aprill to Aderhold was implicitly authorized insofar as that treatment was recommended by Dr. Nichols. We do not read the trial court’s judgment as purporting to preclude Massey Chevrolet from exercising its right to dispute, through the utilization-review process, the reasonable necessity of Dr. Aprill’s treatment recommended by Dr. Nichols; Massey Chevrolet possesses that right.

Massey Chevrolet also ai'gues that, even if Dr. Aprill provided authorized treatment to Aderhold, portions of that treatment were unrelated to the injury caused by Aderhold’s accident at work on January 5, 2004. In other words, Massey Chevrolet contends that Dr. Aprill provided treatment to Aderhold for an injury that was not medically caused by his accident.

“ ‘For an injury to be compensable, it must be “caused by an accident arising out of and in the course of’ the employee’s employment. § 25-5-51, Ala.Code 1975. The phrase “arising out of’ an employee’s employment requires a causal connection between the injury and the employment. ... In accidental cases, i.e., those involving a sudden and traumatic event, an employee must ... establish medical causation by showing that the accident caused or was a contributing cause of the injury.’ ”

Page v. Cox & Cox, Inc., 892 So.2d 413, 417 (Ala.Civ.App.2004) (quoting Pair v. Jack’s Family Rests., Inc., 765 So.2d 678, 681 (Ala.Civ.App.2000)).

As noted, Dr. Peterson performed an anterior cervical diskectomy and fusion at the C5-6 level of Aderhold’s neck. Massey Chevrolet notes that Dr. Nichols observed that Dr. Aprill has provided treatment to levels of Aderhold’s neck other than the C5-6 level. Massey Chevrolet contends that Aderhold has not established that his accident at work caused any injury to the levels of his neck other than the C5-6 level. The medical evidence in the record indicates that Aderhold had degenerative disk disease and facet-joint arthropa-thy, i.e., a joint disease, in his neck before his accident. The medical evidence also indicates that Aderhold did not have a history of neck pain before his accident.

In his deposition testimony dated October 18, 2006, Dr. Aprill discussed whether Aderhold’s accident had contributed to the neck condition for which Dr. Aprill had been providing treatment. Dr. Aprill testified:

“Q. If we assume that he was gainfully and regularly employed as an auto mechanic for this 25-year history, not only in that field but with the same employer for that time period, has this injury and now all of these symptoms follow and assuming that what you were told was correct that he does not have a prior history of neck problems, is it more likely than not that that was the precipitating event for his current symptoms?
“A. ... [I]t would seem more likely than not that this was a precipitating event that started off a downward spiral which symptomatically continues to date. I just don’t know — I can’t blame all of the pathology on the blow to the head. But if he’s not had neck symptoms before, I believe he certainly does now; and I have no reason not to believe that the man is having considerable problems with his neck now. And I would have to say that it seems more likely than not that they were precipitated by this incident.
“Q. So that’s your basis for saying that you cannot state with any reasonable degree of medical probability that all of his symptoms are attributed to this accident of January 5, 2004?
“A. That’s correct. I can say with some degree of confidence that the pathology that we see, the facet joint ar-thropathy, did preexist his hitting of his head. But if he’s not been seeing physicians, with somebody complaining of pain prior to that, one would have to assume that this was asymptomatic ar-thropathy, which does occur and it occurs commonly.
“Q. But you don’t know whether it would have become—
“A. I can’t say. I don’t believe that you can say whether this, would become symptomatic in the future or not. It is now, and there is the incident that occurred from a temporal point of view one would think that there’s a cause- and-effeet relationship.
“Q. With regard to his condition and you said it’s very safe to assume that there was a degenerative process ongoing before his injury in January of ’04, can and sometime does an injury accelerate a degenerative process in someone?
“A. That’s not the word I would use. Yes, it can. But more commonly, injury can affect segments that are undergoing degeneration simply because they’re more vulnerable. I don’t believe it necessarily accelerates the process. It can convert an asymptomatic situation to a symptomatic situation because the components are vulnerable to injury because they’re not normal.”

Dr. Aprill’s testimony constitutes substantial evidence indicating that Aderhold’s accident of January 5, 2004, contributed to his neck injury treated by Dr. Aprill. Accordingly, the trial court did not err in finding that Aderhold established medical causation regarding that injury.

The pain-management treatment provided by Dr. Aprill to Aderhold was authorized only insofar as that treatment was recommended by Dr. Nichols. Accordingly, we reverse the judgment of the trial court, and we remand the case for the trial court to determine which of Dr. Aprill’s pain-management treatments were in fact recommended by Dr. Nichols. The trial court’s judgment does not preclude Massey Chevrolet from exercising its right to challenge, through the utilization-review process, the reasonable necessity of any medical treatment obtained by Aderhold through an authorized physician. The trial court had before it substantial evidence indicating that Aderhold’s accident of January 5, 2004, medically caused the neck injury for which he was treated by Dr. Aprill. Because an appeal is an available remedy for Massey Chevrolet in this case, we deny Massey Chevrolet’s petition for a writ of mandamus.

2071082 — PETITION DENIED.

2071089 — REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . After remand, the trial court assigned this case a new docket number, CV-05-3116.80. The trial court had previously assigned this case the docket number CV-05-3116.51. Those two docket numbers designate the same case.

      . A diskogram is a "radiograph of an inter-vertebral disk." Dorland’s Illustrated Medical Dictionary 545 (30th ed.2003).

      3. It is unclear from the selected portions of Dr. Nichols's deposition testimony contained in the record what level of Aderhold's neck this question refers to.


source: Caselaw Access Project

author: SMITH, Justice. MURDOCK, Justice

license: Public Domain

text:
    Ex parte Travis C. Aderhold (In re MASSEY CHEVROLET, INC. v. Travis C. ADERHOLD).
    1080560.
    Supreme Court of Alabama.
    May 22, 2009.

      Richard E. Browning and Katherine M. Browning of Richard E. Browning, P.C., Mobile, for petitioner.
   SMITH, Justice.

WRIT DENIED. NO OPINION.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur in denying the petition for a writ of certiorari filed by Travis Aderhold. I do not wish, however, to be understood as necessarily agreeing with the analysis in the opinion of the Court of Civil Appeals in this case. Ex parte Massey Chevrolet, Inc., 23 So.3d 33 (Ala.Civ.App.2009). The Court of Civil Appeals held that Ader-hold’s employer, Massey Chevrolet, Inc., was liable under the Alabama Workers’ Compensation Act for paying for procedures and treatments administered to Ad-erhold by Dr. Charles Aprill to the extent that those procedures and treatments were authorized by Dr. Chris Nichols. Dr. Nichols, however, was not Aderhold’s authorized treating physician. Consequently, the Court of Civil Appeals has gone further than previous decisions of that court and of this Court in its holding in this case.

In reaching its decision, the Court of Civil Appeals correctly quoted Overnite Transportation Co. v. McDuffie, 933 So.2d 1092 (Ala.Civ.App.2005), as follows:

“ ‘[T]he employer is responsible for paying for the treatment choice made by the authorized treating physician so long as that choice falls within the parameters of what is “reasonably necessary” to treat the employee. See Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1046 n. 4 (Ala.Civ.App.2002). This principle has been applied repeatedly in cases in which the “treatment” recommended by the authorized physician is a treatment to be administered by a second physician.’

Ex parte Massey Chevrolet, Inc., 23 So.3d at 36 (quoting Overnite Transportation, 933 So.2d at 1096 (emphasis added)). The Court of Civil Appeals also noted the holding in Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala.Civ.App.2003), that “ ‘ “the [authorized treating ] physician is empowered under the [Workers’ Compensation] Act to treat the employee for so long as is reasonably necessary and to refer the employee to other medical providers for reasonably necessary treatment.” ’ ” 23 So.3d at 37.

Dr. Nichols was not Aderhold’s “authorized treating physician” under the Act; Dr. Brendt Peterson was Aderhold’s authorized treating physician. I do not wish to be understood, therefore, as having concluded for purposes of this case that Dr. Nichols had the authority to bind Massey Chevrolet to pay for treatment by another physician. The authority upon which the Court of Civil Appeals bases its conclusion, including those authorities quoted above, would apply to Dr. Aprill only if he had been authorized by Dr. Peterson to treat Aderhold.

In Ovemite Transportation, the employer authorized Dr. John Hackman to serve as the employee’s treating physician. Dr. Hackman, in turn, referred the employee to Dr. Edwin Kelsey for pain management. The Court of Civil Appeals held as follows:

“Consistent with this court’s holding in Genpak [Corp. v. Gibson, 584 So.2d 312 (Ala.Civ.App.1988),] and the other cases cited above, because the treating physician prescribed treatment by Dr. Kelsey, and because there is no evidence indicating that that treatment did not fall within the parameters of what was ‘reasonably necessary’ as contemplated by § 25-5-77(a), [Ala.Code 1975,] that treatment was authorized under the Workers’ Compensation Act.

933 So.2d at 1097 (emphasis added).

Massey Chevrolet has not sought certio-rari review of the Court of Civil Appeals’ decision. I concur in the decision to deny the petition for certiorari review filed by Aderhold, the employee.

        "2This case does not present the arguably different question of whether McDuffie would be entitled to reimbursement of the cost of being treated by a physician to whom Dr. Kelsey, in turn, might have referred him."


author: PITTMAN, Judge.

text:
    Reynalda Alanis DURAN et al. v. GOFF GROUP.
    2070763.
    Court of Civil Appeals of Alabama.
    Feb. 6, 2009.
    Certiorari Denied May 8, 2009 Alabama Supreme Court 1080592.
    Greg L. Davis, Montgomery, for appellants.
    Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

In Taliaferro v. Goff Group, 947 So.2d 1073 (Ala.Civ.App.2006), this court considered an appeal from a judgment of the Shelby Circuit Court determining that under § 25-5-82, Ala.Code 1975, a portion of the Alabama Workers’ Compensation Act (“the Act”), no compensation benefits were payable to the dependents of Luis Martinez Silva (“the employee”), i. e., Reynalda Alanis Duran, Martin Martinez Alanis, and Carlos Martinez Alanis (collectively, “the dependents”), on account of the employee’s death. We reversed the trial court’s judgment on purely procedural grounds in Goff, holding that the dependents were necessary parties that had not yet been joined in the action:

“The present case involves death benefits payable to dependents under the Workers’ Compensation Act. Under Alabama law, those benefits, and the right to bring an action for their recovery, belong solely to the dependents of the deceased worker. Ala.Code 1975, § 25-5-60; Lawrence v. United States Fid. & Guar. Co., 226 Ala. 161, 164-65, 145 So. 577, 580 (1933); Baughn v. Little Calla-ba Coal Co., 213 Ala. 596, 597, 105 So. 648, 649 (1925); and Ex parte Havard, 211 Ala. 605, 607, 100 So. 897, 898 (1924). So long as there are dependents, the deceased worker’s estate is not the proper party to bring a suit to recover death benefits. See id.”

947 So.2d at 1078 (emphasis added). On remand from this court, the dependents were joined as parties, and, ultimately, a new judgment was entered by the trial court that again determined, in pertinent part, that no compensation benefits were payable to the dependents; in that judgment, the trial court stated:

“The Alabama Workers’ Compensation Act provides:
“ ‘Compensation for the death of an employee shall be paid only to dependents who, at the time of the death of the injured employee, were actually residents of the United States. No right of action to recover damages for the death of an employee shall exist in favor or for the benefit of any person who was not a resident of the United States at the time of the death of such employee.’
“Ala.Code[ 1975, § 25-5-82], ...
“None of the dependents [resided in the] United States at the time of the death of [the employee]. Accordingly, as a matter of law, the dependents are not entitled to recover death benefits under the Alabama Workers’ Compensation Act. The dependents contend that [§ ] 25-5-82 is unconstitutional. However, this section has never been deemed unconstitutional, and the Court denies the dependents’ claims for benefits under the Act.”

The dependents timely appealed from the trial court’s judgment on remand. Their sole contention on appeal is that § 25-5-82, by denying death benefits to nonresident alien dependents of deceased workers who are subject to the Act, contravenes equal-protection and due-process guaranties contained in the United States Constitution. However, the dependents, being neither citizens of nor resident aliens in the United States, are not entitled to invoke those constitutional guaranties on their own behalf, because those guaranties are inapplicable to nonresident noncitizens. As the United States Supreme Court noted in United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), leading cases of that Court discussing federal constitutional rights of aliens, such as those relied upon by the dependents in this appeal, “establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country” (emphasis added).

Perhaps cognizant of their tenuous claim to federal constitutional protection in their own individual capacities, the dependents attempt to assert in their brief to this court the rights of the employee not to be discriminated against. Their attempt to do so is perhaps unsurprising given the split of authority among the various American decisions that have addressed state-law restrictions upon full payment of workers’ compensation death benefits to nonresident noncitizen dependents. The majority of those cases have upheld the power of state legislatures to distinguish between resident alien beneficiaries and nonresident alien beneficiaries. Jalifi v. Industrial Comm’n of Arizona, 132 Ariz. 233, 235-36, 644 P.2d 1319, 1321-22 (Ct. App.1982) (60% benefit limitation); Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190, 191-93, 429 S.E.2d 671, 672-73 (1993) ($1,000 benefit limitation); Jarabe v. Industrial Comm'n, 172 Ill.2d 345, 348-51, 666 N.E.2d 1, 3-4, 216 Ill.Dec. 833, 835-36 (1996) (50% benefit limitation); Maryland Cas. Co. v. Chamos, 203 Ky. 820, 821, 263 S.W. 370, 371-72 (1924) (50% benefit limitation); Gregutis v. Waclark Wire Works, 86 N.J.L. 610, 614-15, 92 A. 354, 355-56 (1914) (total bar to benefits); Pedrazza v. Sid Fleming Contractor, Inc., 94 N.M. 59, 61-63, 607 P.2d 597, 599-601 (1980) (total bar to benefits); Alvarez Martinez v. Industrial Comm’n of Utah, 720 P.2d 416, 417-19 (Utah 1986) (50% benefit limitation); cf. Gambalan v. Kelcaha Sugar Co., 39 Haw. 258 (1952) (American territory’s total bar to benefits summarily held constitutional). The Florida and Kansas opinions heavily relied upon by the dependents that hold to the contrary, i.e., De Ayala v. Florida Farm Bureau Casualty Insurance Co., 543 So.2d 204 (Fla.1989), and Jurado v. Popejoy Construction Co., 253 Kan. 116, 853 P.2d 669 (1993), are in the clear minority.

In Jarabe v. Industrial Commission, supra, the Illinois Supreme Court considered the competing lines of authority as to restrictions on payability of workers’ compensation death benefits to nonresident aliens and expressly sided with the majority line of cases, opining that it had been “persuaded by those courts which have concluded that the nonresident aliens challenging the constitutionality of similar statutes lack the requisite standing to do so.” 172 I11.2d at 350, 666 N.E.2d at 3, 216 Ill.Dec. at 835. In rejecting “the notion that a nonresident alien beneficiary may step into the constitutional shoes of the deceased employee,” id., the Jarabe court noted that under Illinois precedent, in contrast to Florida and Kansas precedent, “a deceased employee’s beneficiary under the workers’ compensation statute has no rights derivative of the deceased employee” (id. at 350, 666 N.E.2d at 4, 216 Ill. Dec. at 836), and that a right of action for death benefits “is a statutory benefit exclusively for the dependents and over which the employee has no control and is powerless to release, waive or extinguish” {id. at 350-51, 666 N.E.2d at 4, 216 Ill.Dec. at 836).

Thus, as Jarabe correctly observes, the analytical touchstone separating the majority and minority lines of authority in this area is whether the beneficiaries of a particular deceased worker step into the worker’s shoes in maintaining an action for death benefits under the worker’s compensation laws of the pertinent state. Alabama precedent provides a clear answer to that question. In Ex parte Woodward Iron Co., 277 Ala. 133, 167 So.2d 702 (1964), a worker who claimed in a civil action that he was disabled because of occupational pneumonoconiosis arising out of and in the scope of his employment died during the pendency of that action, and the worker’s surviving spouse sought to be substituted as the plaintiff. The Alabama Supreme Court held that the spouse had no right to be substituted as the plaintiff:

“A claim of an employee for compensation for injuries, and the claim of his widow or other dependents after his death on account of such injuries are separate and distinct causes of action. The employee’s claim results from his injury; his dependent’s claim results from his death. Wade & Richey v. Oglesby, 251 Ala. 356, 37 So.2d 596 [ (1948) ]; United States Steel Corp. v. Baker, 266 Ala. 538, 97 So.2d 899 [(1957)].
“The right of the surviving dependents does not arise until the death of the workman, while his right accrued immediately upon his injury. Tennessee Coal, Iron & R. Co. v. King, 231 Ala. 303, 164 So. 760 [ (1935) ].
“Here the wife’s cause of action did not arise and had not accrued when the original suit was filed, and she had no right to be substituted as plaintiff in the original action. The two different claims, the husband’s and the wife’s, could not exist at the same time. His rights terminated at his death, and hers did not exist prior to his death.”

277 Ala. at 135, 167 So.2d at 703 (emphasis added). We deduce from that analysis that the rights of the dependents in this case to death benefits under the Act are similarly “separate and distinct” from the rights of the now-deceased employee rather than derivative of the employee’s rights. Accord 2 Terry A. Moore, Alabama Workers Compensation § 18:2 (1998) (dependents do not inherit an employee’s inchoate compensation claim for disability benefits but are granted “an independent right to claim death benefits for their own loss when the death is caused under circumstances giving rise to liability under the workers’ compensation laws”).

Viewed in the appropriate legal context, then, § 25-5-82 does not implicate any constitutional rights of the employee; rather, to the extent that that statute bars the dependents from having a valid claim to benefits under the Act upon the employee’s death, the statute acts in a sphere that is not occupied by the due-process and equal-protection guaranties of the United States Constitution. Thus, the trial court properly entered its judgment denying death benefits to the dependents notwithstanding the dependents’ constitutional objections. The judgment of the Shelby Circuit Court is, therefore, affirmed.

AFFIRMED.

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


text:
    Robert L. MILLOY v. H.H. WOODS AND WOODS & SONS CONSTRUCTION.
    2070514.
    Court of Civil Appeals of Alabama.
    Feb. 13, 2009.
    Certiorari Denied May 8, 2009 Alabama Supreme Court 1080614.

      Gregory A. Kennemer, Birmingham, for appellant.
    Tyrone Townsend, Birmingham, for ap-pellees.
   On Application for Rehearing

BRYAN, Judge.

This court’s opinion of October 3, 2008, is withdrawn, and the following is substituted therefor.

Robert L. Milloy appeals from the trial court’s denial of his motion to set aside a default judgment entered in favor of H.H. Woods and Woods & Sons Construction (collectively “Woods”). We reverse and remand.

On June 21, 2004, Woods sued Milloy, alleging breach of contract. Woods attached to the complaint a copy of a contract between Woods and Milloy in which Woods agreed to perform improvements and repairs to a house belonging to Milloy. That contract called for Woods to remove and replace plasterboard in several rooms, remove and replace fixtures in two bathrooms, repair parts of the floor, and “res-tick, redeck and reshingle” at least a portion of the roof. The contract, executed in June 2002, called for Milloy to pay Woods $45,000 for the improvements and repairs to be made to the house. Woods also attached to the complaint an undated proposal indicating that Woods had made additional improvements and repairs to the house in the amount of $3,500; that proposal was not signed by Milloy. The complaint alleged that Woods had completed work on the house in August 2002. The complaint sought compensatory damages in the amount of $13,500 and attorney fees in the amount of $2,500.

On January 4, 2005, Milloy served interrogatories, requests for production, and requests for admission on Woods. One of the requests for admission stated: “Please admit that [Woods] does not hold a license from the Home Builders Licensure Board.” Woods did not respond to the discovery requests. On April 7, 2005, Mil-loy filed a motion to compel discovery and a motion requesting that the matters addressed in the requests for admission be deemed admitted. On April 14, 2005, the trial court granted Milloy’s motion to compel discovery, and it granted the motion to have the matters addressed in the requests for admission be deemed admitted. The trial court ordered Woods to respond to discovery within 30 days of its order. Woods, however, never responded to the discovery requests. On May 23, 2005, Mil-loy filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss.

On June 26, 2006, Woods moved for a default judgment, and the trial-court clerk subsequently entered a default against Milloy. On September 12, 2006, the trial court entered a default judgment against Milloy in the amount of $16,000.

On November 21, 2007, Milloy filed a Rule 60(b), Ala. R. Civ. P., motion seeking relief from the default judgment on various grounds. In that motion, Milloy asserted, pursuant to Rule 60(b)(4), that he was entitled to relief from the default judgment on the ground that that judgment was void. Milloy asserted that the default judgment was void because, Milloy said, Woods was an unlicensed home builder and, therefore, was statutorily barred from suing Milloy. Milloy attached to his motion the affidavit of J.R. Carden, Jr., the executive director of the Alabama Home Builders Licensure Board (“the Board”). In his affidavit, Carden testified that “H.H. Woods” and “Woods & Sons Construction” had never been licensees of the Board. Carden testified that the Board had first issued “Herbert Hill Woods” a license in June 2005 and that the application for that license had listed “Woods & Sons Construction” as a trade name. Following a hearing, the trial court denied Milloy’s Rule 60(b) motion. Milloy timely appealed to this court.

On appeal, Milloy first argues, as he did in his Rule 60(b)(4) motion, that the default judgment entered against him is void because, he says, Woods lacked standing to maintain a breach-of-contract claim.

“[Ujnder Alabama law, a judgment is ‘void’ within the scope of [Rule 60(b)(4) ] ‘only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.’ Smith v. Clark, 468 So.2d 138, 141 (Ala.1985). Although a trial court’s ruling on a motion filed pursuant to Rule 60(b) will generally be reversed only upon a showing of an abuse of discretion, a motion attacking the underlying judgment as void is subject to a different standard of review: ‘If the judgment is void, it is to be set aside; if it is valid, it must stand.’ Id.”

Williams v. Williams, 910 So.2d 1284, 1286 (Ala.Civ.App.2005). “As a nullity, a void judgment has no effect and is subject to attack at any time. ... [A] motion for relief from a void judgment is not governed by the reasonable-time requirement of Rule 60(b).” Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003).

At the time Woods sued Milloy in 2004, § 34-14A-14, AUuCode 1975, provided, in pertinent part:

“A residential home builder, who does not have the license required, may not bring or maintain any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of this chapter [Title 34, Chapter 14A, ‘Home Building and Home Improvement Industries,’ Ala.Code 1975, §§ 34-14A-1 through 34-14A-18].”

Section 34-14A-5(a), Ala.Code 1975, provides that “[ajll residential home builders shall be required to be licensed by the Home Builders Licensure Board annually.” In pertinent part, § 34-14A-2(10), Ala. Code 1975, defines a “residential home builder” as

“[o]ne ... who, for a fixed price, commission, fee, or wage, undertakes or offers to undertake ... the repair, improvement, or reimprovement [of a residence or structure] ... when the cost of the undertaking exceeds ten thousand dollars ($10,000). ... Anyone who engages or offers to engage in such undertaking in this state shall be deemed to have engaged in the business of residential home building.”

The contract between Woods and Milloy indicated that Woods agreed in June 2002 to repair and make improvements to Milloy’s house and that the cost of those repairs and improvements exceeded $10,000. That contract called for Woods to remove and replace plasterboard in several rooms, to remove and replace fixtures, to repair parts of the floor, and to make improvements to the roof. Woods’s June 2004 complaint alleged that Woods completed work on Milloy’s house in August 2002. The affidavit of Carden, the executive director of the Board, established that Woods was unlicensed as a residential home builder before June 2005. Further, because Woods failed to respond to Milloy’s requests for admission, the matters addressed in those requests were deemed admitted. Rule 36(a), Ala. R. Civ. P. One of Milloy’s requests for admission stated: “Please admit that [Woods] does not hold a license from the Home Builders Licensure Board.”

The record on appeal indicates that Woods was an unlicensed residential home builder when he contracted to perform work on Milloy’s house. None of the exemptions found in § 34-14A-6, Ala.Code 1975, appear to apply in this case. Therefore, Woods was statutorily barred from maintaining a breach-of-contract action against Milloy. § 34-14A-14; Hollinger v. Wells, 3 So.3d 216 (Ala.Civ.App.2008) (concluding that an unlicensed home builder who had contracted to repair a house was statutorily barred from maintaining a breach-of-contract claim on that contract); Hooks v. Pickens, 940 So.2d 1029, 1033 (Ala.Civ.App.2006) (stating that “[bjecause Pickens was not licensed and was not exempt from the licensing requirement of the home builders licensure statute, Pickens was not entitled to maintain a breach-of-contract action against Hooks. § 34-14A-14”); and Fausnight v. Perkins, 994 So.2d 912, 921 (Ala.2008) (noting that “in the statutory framework before us[, § 34-14A-1 et seq.], ... an unlicensed home-builder [is] unable to use Alabama courts to enforce its contracts related to residential home building .... ”).

“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). “The absence of subject-matter jurisdiction renders void any judgment entered in the action.” Moore v. John Hancock Life Ins. Co., 876 So.2d 443, 448 (Ala.2003). Because Woods lacked standing to maintain the breach-of-contract claim against Mil-loy, the trial court lacked subject-matter jurisdiction in this action. The default judgment entered in favor of Woods is void, and the trial court, therefore, erred in failing to set aside the default judgment pursuant to Milloy’s Rule 60(b)(4) motion. Accordingly, we reverse the judgment, and we remand the case for proceedings consistent with this opinion. This holding pretermits discussion of the other arguments made by Milloy for setting aside the default judgment, i.e., that Milloy’s Rule 12(b)(6) motion tolled the time for filing an answer and that Milloy was not given proper notice of the hearing on the application for a default judgment, pursuant to Rule 55(b)(2), Ala. R. Civ. P.

Woods’s request for an award of attorney fees on appeal is denied.

OPINION OF OCTOBER 3, 2008, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; REVERSED AND REMANDED.

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

      . In 2006, the legislature amended § 34-14A-14 to substitute the word ‘‘shall” for "may” in the above-quoted portion of § 34-14A-14.


author: MOORE, Judge.

text:
    LIBERTY MUTUAL INSURANCE COMPANY v. GREENWAY ENTERPRISES, INC.
    2070393.
    Court of Civil Appeals of Alabama.
    March 13, 2009.
    Rehearing Denied May 8, 2009.

      Chris S. Christ and David E. Hodges, Birmingham, for appellant.

      Palmer A. Hoovestal, Helena, Montana, for appellee.
   MOORE, Judge.

Liberty Mutual Insurance Company appeals from judgments entered by the Madison Circuit Court (“the trial court”) in favor of Greenway Enterprises, Inc. We dismiss the appeal in part and affirm in part.

On January 9, 2006, Liberty Mutual sued Greenway, seeking to recover allegedly unpaid premiums due on a workers’ compensation and employers’ liability insurance policy Liberty Mutual had issued to Greenway. Greenway filed an answer on April 11, 2006, denying liability, asserting various affirmative defenses, and requesting that costs and fees be taxed against Liberty Mutual. On March 22, 2007, Greenway moved for a summary judgment on Liberty Mutual’s claim for unpaid premiums, and the trial court set the motion for a hearing on May 18, 2007. On May 17, 2007, Liberty Mutual filed its opposition to the summary-judgment motion, along with a motion to allow it to file its opposition even though it was untimely, and a motion to amend its responses to Greenway’s requests for admissions. During the hearing on the summary-judgment motion on May 18, 2007, Greenway moved to strike Liberty Mutual’s dilatory filings as untimely. The trial court denied Liberty Mutual’s motion to file its untimely opposition materials, granted Greenway’s motion to strike Liberty Mutual’s tardy opposition to its summary-judgment motion, and denied Liberty Mutual’s motion to amend its responses to Greenway’s requests for admissions. The trial court entered a summary judgment in favor of Greenway on May 22, 2007. The trial court subsequently vacated that summary judgment on its own motion and entered an amended summary judgment the same day, simply adding “costs are taxed as paid.”

On May 29, 2007, Greenway moved the trial court to order Liberty Mutual to pay its costs and attorney fees. Greenway maintained in that motion that, pursuant to Rule 54(d), Ala. R. Civ. P., it should recover costs and that, pursuant to the insurance contract between the parties and because Liberty Mutual had filed a frivolous complaint in violation of the Alabama Litigation Accountability Act (“the ALAA”), Ala.Code 1975, § 12-19-270 et seq., it should recover attorney fees. On June 7, 2007, Liberty Mutual filed a motion to alter, amend, vacate, or set aside the May 22, 2007, summary judgment. The trial court set those motions for a hearing to take place on July 12, 2007, but the trial court continued the hearing at Greenway’s request and reset the hearing to August 16, 2007. On June 28, 2007, Greenway filed an opposition to Liberty Mutual’s motion to alter, amend, vacate, or set aside. On August 2, 2007, Liberty Mutual’s counsel informed the trial court of a scheduling conflict, which prompted the trial court to reschedule the August 16, 2007, hearing to October 1, 2007. On August 10, 2007, Greenway filed a “motion requesting court to rule on pleadings in lieu of hearing.” Liberty Mutual filed an objection to that motion on August 14, 2007. On October 1, 2007, the trial court granted Greenway’s motion to continue the hearing and reset the case for “trial” to take place on October 22, 2007. The trial court then reset the case for “trial” to take place on November 19, 2007. On November 16, 2007, Liberty Mutual filed its memorandum of law in support of its motion to alter, amend, vacate, or set aside the summary judgment, as well as its opposition to Greenway’s motion to tax costs and attorney fees. Greenway moved to strike those filings as untimely.

On November 19, 2007, the trial court conducted a hearing on the various pending motions. The trial court entered an order on November 80, 2007, denying Liberty Mutual’s motion to alter, amend, vacate, or set aside the summary judgment and granting Greenway’s motion to tax costs and attorney fees. The trial court directed Greenway to submit a proposed judgment to include additional costs and attorney fees incurred by Greenway since the filing of its motion to tax costs and fees. On December 4, 2007, Greenway submitted an affidavit of its attorney along with a proposed order. The trial court entered an order on December 12, 2007, awarding Greenway $571.10 in costs and $4,081.39 in attorney fees. Liberty Mutual filed its notice of appeal on January 22, 2008.

On December 4, 2008, Liberty Mutual filed its appellate brief with this court, arguing that the trial court had erred in denying its motion to amend its responses to Greenway’s requests for admissions, in granting Greenway’s motion for a summary judgment, and in awarding Green-way attorney fees under the ATA A. Following the filing of Greenway’s appellee’s brief and Liberty Mutual’s reply brief, this court, on February 2, 2009, directed the parties to further brief the court regarding the timeliness of Liberty Mutual’s appeal and the validity of the December 12, 2007, judgment taxing costs and assessing attorney fees against Liberty Mutual. Liberty Mutual filed its letter brief on February 18, 2009, and Greenway filed its letter brief on February 17, 2009.

We cannot address the issues raised by Liberty Mutual regarding the May 22, 2007, summary judgment. That judgment conclusively determined all the issues before the court and put an end to the proceedings, leaving nothing for further adjudication except Greenway’s request in its answer for the imposition of costs and fees. Rule 58(c), Ala. R. Civ. P., states, in pertinent part, that “[t]he entry of the judgment or order shall not be delayed for the taxing of costs.” Hence, the failure to tax costs did not affect the finality of the summary judgment. Holman v. Bane, 698 So.2d 117, 119 (Ala.1997). Pursuant to caselaw, the failure to award attorney fees also does not render the summary judgment nonfinal. See Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1201 (Ala.2002) (holding a summary judgment to be final although motion to assess attorney fees remained pending because award of attorney fees is collateral to judgment).

Pursuant to Rule 4(a)(1), Ala. R.App. P., Liberty Mutual had 42 days from the date of the entry of the summary judgment to file its notice of appeal. Liberty Mutual tolled that time by filing its postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., on June 7, 2007. See Rule 4(a)(3), Ala. R.App. P. That motion was deemed denied by operation of law on September 5, 2007. See Rule 59.1, Ala. R. Civ. P. (stating that Rule 59 motion generally is denied by operation of law if not granted within 90 days of its filing). Thus, the time for filing a notice of appeal from the summary judgment expired on October 17, 2007. Because Liberty Mutual did not file its notice of appeal until January 22, 2008, we cannot consider any error alleged by Liberty Mutual relating to the summary judgment. Therefore, we dismiss Liberty Mutual’s appeal insofar as it relates to the May 22, 2007, summary judgment.

Liberty Mutual did, however, timely file a notice of appeal from the December 12, 2007, judgment. That judgment constitutes a final judgment regarding the collateral issues of costs and attorney fees that will itself support an appeal. See James River Corp. v. Bolton, 14 So.3d 868, 871 n. 3. (Ala.Civ.App.2008) (holding that judgment establishing amount of attorney fees previously awarded is a final judgment). Hence, Liberty Mutual properly invoked this court’s jurisdiction to consider the propriety of that award.

Liberty Mutual argues that the trial court violated Ala.Code 1975, § 12-19-273, a part of the ALAA, and Pacific Enterprises Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409 (Ala.1993), by failing to set out the reasons for its award of attorney fees in specific findings of fact. Liberty Mutual maintains further that the trial court did not have sufficient evidence before it to conclude that Liberty Mutual had filed its complaint against Greenway “without substantial justification,” as is required to justify an award of attorney fees under the ALAA. See Ala.Code 1975, § 12-19-272(a). However, Liberty Mutual overlooks that Greenway sought attorney fees on two alternate and independent grounds. In its May 29, 2007, motion, Greenway requested the trial court to impose attorney fees either under the ALAA or under the terms of its insurance contract with Liberty Mutual. The trial court simply “granted” that motion on November 30, 2007, without specifying the ground for its decision.

We note that, at the time of the November 30, 2007, order, the trial court had no jurisdiction to award attorney fees under the ALAA because the trial court did not reserve jurisdiction to award fees under the ALAA in its summary judgment. See Casey v. McConnell, 975 So.2d 384, 388-89 (Ala.Civ.App.2007). A party may move a trial court to amend a final judgment to include a reservation of jurisdiction to award attorney fees under the ALAA. Id. at 389. In this case, in its May 29, 2007, motion, Greenway did not specifically request that the trial court amend the summary judgment to reserve jurisdiction to award attorney fees under the ALAA. Moreover, even if such a request could be implied, that request was denied by operation of law by the trial court’s failure to rule on the motion within 90 days from its filing. See Rule 59.1.

We must therefore assume that the trial court awarded fees to Greenway pursuant to the terms of the insurance contract. The fact that the trial court did not enter written findings of fact specifying its reasons for awarding the fees only bolsters our conclusion that the trial court did not rely on the ALAA in making the award. Liberty Mutual has not raised any argument that the trial court erred in awarding attorney fees to Greenway pursuant to the terms of the insurance contract. Hence, we consider that issue to be waived. See Smith v. Mark Dodge, Inc., 934 So.2d 875, 380 (Ala.2006) (holding that judgment cannot be reversed on a ground not argued in brief). Because Liberty Mutual has not provided this court with any basis for reversing the trial court’s judgment awarding attorney fees, we must affirm as to that issue.

APPEAL DISMISSED IN PART; AFFIRMED IN PART.

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

      . Liberty Mutual moved to set aside that answer because it was filed by an attorney not licensed to practice law in Alabama. An attorney licensed to practice law in Alabama subsequently appeared for Greenway and moved to admit Greenway's original attorney for admission to practice law in Alabama pro hac vice. The trial court granted the motion and denied Liberty Mutual's motion to set aside Greenway's answer.

      . Rule 56(c)(2), Ala. R. Civ. P., requires any statement or affidavit in opposition to a motion for a summary judgment to be "served at least two (2) days prior to the hearing."

      . Although the trial court referred to a “trial,” it evidently meant a "hearing.”

      . Although neither party raised these issues in their initial briefs to this court, " ‘[flurisdic-tional matters are of such importance that a court may take notice of them ex mero motu.’ ” Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007) (quoting McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004)).

      . Liberty Mutual does not argue any error in regard to the award of costs.


text:
    J.K. v. N.J. and Jefferson County Department of Human Resources.
    2080199.
    Court of Civil Appeals of Alabama.
    May 1, 2009.
    T. David Roper, Bessemer, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lees.
    Neil C. Clay, Bessemer, for appellee N.J.
   BRYAN, Judge.

J.K. (“the father”) appeals from a judgment of the Jefferson Juvenile Court ordering that, pursuant to § 15-20-26(c)(4), Ala.Code 1975, the father shall not reside with his children.

The facts in this case are undisputed. N.J. (“the mother”) and the father were in a relationship in February 2002, when the father pleaded guilty to first-degree rape of his nine-year-old niece. The mother and the father have two children, both girls, Ja.K. and Ji.K. (hereinafter collectively referred to as “the children”). At the time of the hearing in this matter, the children were ages four and two, respectively. The parties have resided together since Ja.K. was born, but they never married. The record shows that the father has at all times provided for the financial, physical, and emotional needs of the children. In October 2007, the Jefferson County Department of Human Resources (“DHR”) did a routine background check on the mother and the father after Ja.K. came to school with an injury to her left eye.

A representative from DHR went to the residence shared by the mother, the father, and the children to evaluate their home. The DHR representative later called the mother and informed her that, because of the father’s status as a criminal sex offender, DHR would be required to take custody of the children if the mother did not immediately remove the children from the residence they shared with the father. The mother fully complied with DHR’s request, and she and the children moved in with the maternal grandparents of the children.

DHR filed a dependency petition for each child, alleging that the children were dependent because they had shared a residence with a criminal sex offender convicted of committing an offense involving a child. After an initial hearing, on November 27, 2007, the juvenile court awarded custody of the children to the mother, and the father was ordered not to reside in the same residence with the children. After the dispositional hearing, on February 20, 2008, the court ordered that custody of the children remain with the mother, ordered the father to continue to keep his own residence, and awarded the father supervised visitation with the children. After another dispositional hearing, on September 2, 2008, the father was adjudged the legal father of the children as the result of genetic testing, and the court found the children dependent based on an admission of the parties. The court ordered that custody of the children remain with the mother, with the father having supervised visitation. On November 13, 2008, the court held a final custody hearing to determine the rights of the parties.

Tiffany Portis, a social worker with DHR, testified that DHR has two “indicated” child-abuse and neglect reports on the father: the first was dated January 21, 2000, and involved the father’s fondling a girl at his high school; the second, dated May 14, 2001, involved the incident from which the father pleaded guilty to first-degree rape of his nine-year-old niece.

Portis also testified that she had visited the children on a monthly basis from November 2007 to November 2008. She had observed the children interacting with the father and found that the children have a bond with the father. She testified that she had never observed any inappropriate conduct between the father and the children and that she had received no reports of inappropriate conduct involving the father and the children. She further testified that the father has been responsible for the physically demanding element of caring for the children because the mother has significant health problems, including congestive heart failure, for which she is waiting for a heart transplant.

Portis testified that she could not recommend that the father be allowed to reside in the home with the children because the law forbids him from residing in a residence with a minor because his rape victim was under the age of 12. She testified that she does not have any safety concerns with the father having supervised visitation but that she would have safety concerns if the father was awarded unsupervised visitation because he is a sex offender. She also testified that, but for the father’s status as a sex offender, she would have no safety concerns about the father’s residing with the children.

Christy Risher, and employee of the Jefferson County district attorney’s office, testified that in February 2002 the father pleaded guilty to first-degree rape of his nine-year-old niece. The father was sentenced to two years in prison and five years of probation following his release.

The mother testified that it is her desire for the father to live with her and the children. She also testified that the children miss the father, and she believed it was in the best interest of the children for the father to have unsupervised visitation with the children. The mother testified that, although she was aware that the father had pleaded guilty to raping his nine-year-old niece, she has never been concerned for the safety of her children when they are with the father. She testified that it did not concern her to know that the father was the uncle of his rape victim.

The mother further testified that because of her physical disabilities she depended on the physical and emotional support the father provided, and, she stated, because the father is not permitted to reside with the children, the mother has been dependent on her family members to meet the physical demands of raising children.

During his closing statements, the father’s counsel stated: “Judge, we feel that [the father] has a constitutional right to live with his family. We feel that the testimony presented no evidence of anything other than a prior conviction that would impinge on that right.” The juvenile-court judge asked the father’s counsel at the conclusion of his closing statement: “If [the father] lives with his children and exercises those constitutional rights, wouldn’t he violate criminal law in the State of Alabama?” The father’s counsel replied: “It’s my understanding he would be in violation of the criminal law in the State of Alabama ... [and] could be subject to an arrest and felony prosecution

The father’s counsel moved the juvenile court to award the father unsupervised visitation if the court would not allow the father to reside with the children. In his argument in support of the motion, the father’s counsel stated: “Judge, [the father] is in a situation where he cannot change the facts. He has to fight the law which we believe is an unconstitutional and unjust law.” These references to the constitutionality of § 15-20-26(c)(4) are the only argument the father presented to the juvenile court regarding the constitutionality of that statute.

In its final order, entered on November 18, 2008, the juvenile court found that custody of the children was to remain with the mother, and it awarded the father unsupervised visitation pursuant to this court’s decision in S.A.N. v. S.E.N., 995 So.2d 175 (AIa.Civ.App.2008). The juvenile court also ordered that, due to the proscription of § 15-20-26(c)(4), Ala.Code 1975, the father shall not reside with the children. The father timely appeals.

On appeal the father argues that § 15-20-26(c)(4), Ala.Code 1975, violates his substantive-due-process rights under the 14th Amendment of the United States Constitution because, he asserts it denies him his fundamental rights as a father. The father also argues that § 15-20-26(c)(4) violates his equal-protection rights under the 14th Amendment of the United States Constitution.

After careful review of the record, we conclude that the father did not preserve his constitutional arguments for appeal. It is a fundamental principle of appellate procedure that appellate courts cannot “consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration ....” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005) (citing Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 97 (Ala.2003)).

Although the father’s counsel made a general statement to the juvenile court in his closing arguments, asserting that he believed § 15-20-26(c)(4) to be unconstitutional, he never presented specific arguments as to why he believed the statute was unconstitutional. The juvenile court never heard the constitutional arguments the father makes here on appeal. Therefore, the juvenile court lacked the ability to determine whether § 15-20-126(c)(4) violated the father’s substantive-due-process or equal-protection rights under the 14th Amendment to the United States Constitution.

In Alabama Power Co. v. Turner, 575 So.2d 551, 553 (Ala.1991), the Supreme Court of Alabama held:

“In order for an appellate court to review a constitutional issue, that issue must have been raised by the appellant and presented to and reviewed by the trial court. HealthAmerica v. Menton, 551 So.2d 235 (Ala.1989); Marion v. Hall, 429 So.2d 937 (Ala.1983); Stephens v. Central of Georgia R.R., 367 So.2d 192 (Ala.1979). Additionally, in order to challenge the constitutionality of a statute, an appellant must identify and make specific arguments regarding what specific rights it claims have been violated. Central Alabama Elec. Co-Op. v. Tapley, [546 So.2d 371 (Ala.1989) ].”

The father did not meet this burden because he simply asserted that § 15-20-26(c)(4) was unconstitutional and he failed to present a specific argument to the juvenile court regarding the specific rights he claimed were being violated by § 15-20-26(c)(4).

The Court of Criminal Appeals addressed this issue in Cole v. State, 721 So.2d 255 (Ala.Crim.App.1998). In that case, “Cole made a general assertion of the unconstitutionality of [two] statutes before the trial judge on the first day of trial.” Id. at 260. Cole also submitted a motion to the trial court that stated: “ ‘The collective statutes utilized in this ease are all unconstitutional; should be void for vagueness; are overbroad and ambiguous. ...’”/& The trial court denied his motion after determining that the statutes were not overly broad or vague.

On appeal, the Court of Criminal Appeals held: “Because of the general and nonspecific character of the grounds assigned in support of Cole’s motion, we cannot say the trial court’s ruling was in error. ... ‘[T]he trial court should not be made to cast about for reasons why a statute might be unconstitutional.’ ” Id. (quoting Perry v. State, 568 So.2d 339, 340 (Ala.Crim.App.1990)).

Comparing Cole to this case on appeal, it is clear that the father’s general arguments regarding the constitutionality of § 15-20-26(c)(4) were not adequate to preserve the constitutional issues he presents on appeal. The record reveals that the father never put forth an argument regarding his substantive-due-process or equal-protection rights.

In Olympia Spa v. Johnson, 547 So.2d 80 (Ala.1989), our supreme court refused to review constitutional questions concerning Alabama’s Wrongful Death Act because the appellants had not preserved the constitutional issues for appeal. In the trial court, the appellants’ counsel had made the following statement to the trial judge, after the judge had charged the jury: “ ‘Simply in the event that we may look at [the issue of punitive damages] later on, we would object to punitive damages [as] being unconstitutional in the current state of Alabama law.’ ” Id. at 86. In its opinion, the supreme court stated, “[t]his general statement did not produce any ruling by the trial court, so there is nothing to review here.” Id. The supreme court continued, “[i]t is settled that constitutional issues must be raised before the trial court in order to be preserved for review upon appeal.” Id.

As in Johnson, in this case the father’s counsel simply made a general statement to the juvenile court at the end of the proceeding, which produced no ruling by the juvenile court. Therefore, there is no ruling for this court to review, and we affirm the juvenile court’s judgment.

AFFIRMED.

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

      . Alabama Code 1975, § 15-20-26(c)(4), states:
      "(c) No adult criminal sex offender shall establish a residence or any other living accommodation where a minor resides. Notwithstanding the foregoing, an adult criminal sex offender may reside with a minor if the adult criminal sex offender is the parent, grandparent, or stepparent of the minor, unless one of the following conditions applies:
      "(4) The adult criminal sex offender has ever been convicted of any criminal sex offense involving a child, regardless of whether the offender was related to or shared a residence with the child victim."

      . DHR argues that the father's appeal is untimely because it was not filed within 14 days of the juvenile court's first order on November 27, 2007, forbidding him from residing with the children. However, we find that the father properly appealed from the juvenile court’s final order of November 18, 2008. See Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990) C'[A]n appeal ordinarily will lie only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.”).


text:
    Ethel M. LEE v. Carol M. Lee OLIVER, Cassandra M. Lee, and Cynthia Lee Bush.
    2071229.
    Court of Civil Appeals of Alabama.
    May 1, 2009.

      Elizabeth T. Cvetetic, Huntsville, for appellant.
    Claude E. Hundley III and Jeffrey T. Kelley of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee Carol Lee Oliver.
   BRYAN, Judge.

Ethel M. Lee (“the widow”), the widow of Clarence Lee, Jr., deceased (“the decedent”), appeals a judgment of the Madison Circuit Court (“the circuit court”) determining that a document that the widow asserted was a photocopy of a lost will executed by the decedent on June 5, 1997 (“the purported will”), was not valid. We conclude that the circuit court lacked jurisdiction to adjudicate the validity of the purported will and that, therefore, the judgment of the circuit court is void. Because a void judgment will not support an appeal, we must dismiss the appeal.

The decedent died on April 27, 2006, at the age of 68. He was survived by the widow, whom he had married in 1992, and three daughters by a previous marriage, Carol M. Lee Oliver, Cassandra M. Lee, and Cynthia Lee Bush (“the daughters”). On January 9, 2007, the daughters filed a petition in the circuit court. The petition recited that the widow had filed a photocopy of the purported will in the Probate Court of Madison County (“the probate court”), that the original of the purported will had not been located, and that, therefore, the photocopy of the purported will had been offered for probate as a lost will. The daughters’ petition did not recite that the purported will had been admitted to probate. As relief, the daughters’ petition sought, among other things, the removal from the probate court of the proceeding instituted by the widow and a determination that the purported will was not a valid will of the decedent. Although the record does not contain an order of the circuit court removing the proceeding in the probate court to the circuit court, the circuit court treated that proceeding as though it were removed to the circuit court. The record contains no evidence indicating that, before the daughters filed their petition contesting the purported will in the circuit court, the purported will had been admitted to probate or a will contest had been filed in the probate court. Following a bench trial, the circuit court entered a judgment determining that the purported will was not valid. Thereafter, the widow timely appealed to this court. Because this court lacked jurisdiction, we transferred the widow’s appeal to the supreme court; the supreme court then transferred the appeal back to this court pursuant to § 12-2-7(6), Ala. Code 1975.

“In Alabama, a will may be contested in two ways: (1) before probate, a contest may be instituted in the probate court pursuant to Ala.Code 1975, § 43-8-190; or (2) after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated, pursuant to Ala.Code 1975, § 43-8-199. Stevens v. Gary, 565 So.2d 73 (Ala.1990). In order to contest a will under either of these methods, the contestant must strictly comply with the statutory language in order to quicken jurisdiction of the appropriate court. Bullen v. Brown, 535 So.2d 76 (Ala.1988).”

Boshell v. Lay, 596 So.2d 581, 583 (Ala.1992) (emphasis added).

In the case now before us, the record contains no evidence indicating that the purported will had been admitted to probate before the daughters filed their petition contesting the purported will in the circuit court. Therefore, the circuit court did not acquire subject-matter jurisdiction over the daughters’ will contest under § 43-8-199, Ala.Code 1975. Moreover, although § 43-8-198, AIa.Code 1975, provides for the transfer of a will-contest proceeding from probate court to circuit court, the record contains no evidence indicating that the daughters had filed a will contest in the probate court before removing to the circuit court the proceeding instituted in the probate court by the widow. Therefore, the circuit court did not acquire subject-matter jurisdiction over the daughters’ will-contest proceeding under § 43-8-198. See Nottage v. Jones, 388 So.2d 923, 925-26 (Ala.1980) (recognizing that, under the predecessor of § 43-8-198, “there must be a valid will contest pending in the probate court before the probate judge can transfer the contest to the circuit court”).

“A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment. Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 274 (Ala.2000).”

Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008).

Accordingly, we dismiss the widow’s appeal and instruct the circuit court to vacate its judgment determining that the purported will was not a valid will of the decedent.

APPEAL DISMISSED WITH INSTRUCTIONS.

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


author:
SHAW, Judge.
      WELCH, Judge,

text:
    STATE of Alabama v. Wesley Randall QUICK.
    CR-06-2156.
    Court of Criminal Appeals of Alabama.
    June 27, 2008.
    Rehearing Denied Aug. 22, 2008.

      Kim T. Thomas, gen. counsel, and Greg Biggs, asst. gen. counsel, Department of Corrections, for appellant.
    Wesley Randall Quick, pro se.
   SHAW, Judge.

The State of Alabama appeals the circuit court’s order granting Wesley Randall Quick’s petition for a writ of habeas corpus seeking credit for time he spent incarcerated before he pleaded guilty to three burglary charges.

On July 10, 2006, Quick filed a petition for a writ of habeas corpus, in which he alleged that the Department of Corrections (“DOC”) had miscalculated the amount of jail time credited against his sentences for two counts of first-degree burglary and one count of third-degree burglary. After receiving a motion to dismiss from the DOC, the circuit court summarily dismissed Quick’s petition for a writ of habeas corpus. Quick appealed that dismissal to this Court, and this Court, finding that Quick’s claims were facially meritorious and were not refuted by the DOC’s response, remanded the cause for the circuit court to conduct an evidentiary hearing on Quick’s petition. Quick v. State, 983 So.2d 414 (Ala.Crim.App.2007). On June 21, 2007, the circuit court conducted an evidentiary hearing on Quick’s petition. Following the hearing, the circuit court granted Quick’s petition. On October 26, 2007, this Court, on return to remand, issued an unpublished memorandum dismissing the appeal as moot on the ground that Quick had been granted the relief he had requested in his petition. The DOC filed a timely notice of appeal from the circuit court’s order granting Quick’s petition; this appeal follows.

At the hearing, the parties stipulated that Quick had been continuously confined from the time of his arrest on November 5, 1995, until his sentencing for the burglary convictions on October 24, 2003. The record indicates that on November 5, 1995, Quick was arrested for one count of first-degree burglary (case no. CC-96-1746) and for one count of capital murder, and that on January 11, 1996, Quick was arrested for one count of first-degree burglary (case no. CC-96-380S) and one count of third-degree burglary (case no. CC-96-3804). The parties agreed that Quick never posted bond on the burglary charges, and the circuit court noted that an attempt to post bond would have been futile because Quick would not have been released with the capital charge pending.

The record indicates that Quick’s first trial on the capital charge ended in a mistrial because of juror misconduct. Quick was again brought to trial for the capital offense; he was convicted of capital murder on September 30, 1997, and on March 6, 1998, the trial court sentenced Quick to death. On direct appeal from that conviction and sentence, this Court, finding that Quick had shown a particularized need for the transcript of his first trial and the absence of suitable alternatives, held that he was entitled to a free transcript of the prior trial, and we reversed Quick’s conviction and death sentence and remanded the cause for a new trial. Quick v. State, 825 So.2d 246 (Ala.Crim.App.2001). Quick was tried a third time on the capital charge, and on April 21, 2003, he was acquitted.

The record further reflects that following his acquittal of the charge of capital murder the trial court set no bond on the three burglary charges. On October 24, 2003, Quick pleaded guilty to the three burglary charges and was sentenced to 33 years’ imprisonment for each first-degree-burglary conviction (cases no. CC-96-1746 and CC-96-3803) and to 10 years’ imprisonment for the third-degree-burglary conviction (case no. CC-96-3804); the sentences were to run consecutively. The record reflects, and Quick concedes, that he received jail credit for the time he spent incarcerated after he was acquitted of capital murder but before he was sentenced for the burglary charges. Kathy Holt, director of central records division for the DOC, testified at the evidentiary hearing that the calculation of Quick’s release date was correct and that she had spoken with the sentencing judge, who had confirmed that the jail credit Quick had received for the burglary charges was accurate.

After the evidentiary hearing in this matter, the circuit court instructed the parties to submit briefs supporting their respective positions. Quick argued in his trial brief, as he did in his petition, and as he argues in his brief on appeal, that because he was eventually acquitted of the capital-murder charge, he should receive additional jail credit against his burglary sentences for the entire time he spent incarcerated from his arrest on November 5, 1995, until his acquittal of capital murder on April 21, 2003. The DOC argued in its trial brief, as it had argued to the trial court at the hearing, and as it argues in its brief on appeal, that Quick is not entitled to any jail credit for the time he spent incarcerated from November 5, 1995, to his acquittal on the capital-murder charge because, it said, the incarceration was due to the capital-murder charge, not the burglary charges, and that the sentencing judge had made the correct determination as to the proper jail credit. After receiving those briefs, the circuit court issued an order granting Quick’s petition for a writ of habeas corpus.

A petition for a writ of habeas corpus is the proper method by which to test whether the State has correctly calculated the time an inmate must serve in prison. See, e.g., Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996); and Swicegood v. State, 646 So.2d 158 (Ala.Crim.App.1993). “It is well established that a petition for writ of habeas corpus is the proper procedure to determine whether the appellant has been credited with the correct amount of actual time spent incarcerated pending trial for the offense for which he was eventually sentenced.” Taunton v. State, 562 So.2d 614, 614 (Ala.Crim.App.1989).

Section 15-18-5, Ala.Code 1975, provides:

“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.”

“[Section 15-18-5, Ala.Code 1975] does not suggest that the offender should receive credit for the same jail time more than once.” Prichard v. State, 441 So.2d 1052, 1053 (Ala.Crim.App.1983). Further, it is well established that “[a] defendant is not entitled to accumulate credit for time served while he is serving time on another conviction.” Youngblood v. State, 437 So.2d 629, 630 (Ala.Crim.App.1983). Rather, the inmate should receive credit only where the conviction resulting in the sentence is the cause of the inmate’s pretrial confinement. See id.

Based on the record before this Court, including the stipulated facts and the specific arguments presented below and on appeal, it is apparent that although coinciding with the burglary convictions he now seeks credit against, the cause of Quick’s pretrial confinement was the capital-murder charge. At best, Quick’s incarceration beginning on November 5, 1995, was based in part on his arrest on that date for the first-degree-burglary charge in ease no. CC-96-1746, but he has presented no set of facts indicating that that charge resulted in his remaining in jail. Rather, as the State argues, Quick was held without bond on the capital-murder charge, and he could not have gained his release at anytime before his acquittal on the capital-murder charge. Thus, although the timeline of events in this case differs from that in Youngblood, supra, the underlying principle is the same — -the cause of Quick’s pretrial confinement was the capital-murder charge, not the burglary charges. In addition, nothing in our research supports Quick’s bare assertions that because he was acquitted of the capital-murder charge, that acquittal somehow transformed the cause of his confinement during the period in question from the capital-murder proceedings to the pending burglary proceedings. Therefore, Quick was not entitled to the relief requested in his petition, and the circuit court erred in granting Quick’s petition for a writ of ha-beas corpus and ordering that Quick be credited with the jail time he requested in his petition.

Based on the foregoing, the judgment of the circuit court granting Quick’s habeas petition is reversed and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

BASCHAB, P.J., and McMILLAN, J., concur. WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

I believe that the effect of the holding of the majority’s opinion in denying Wesley Randall Quick credit for jail time served from the date of his arrest for burglary and attempting to apply that time to a charge for which he was ultimately acquitted is fundamentally unfair.

Quick was arrested on a charge of first-degree burglary on November 5, 1995, the same day he was arrested on a charge of capital murder. Two months after, he was arrested on two additional counts of burglary. There is no dispute that Quick has remained incarcerated from November 5, 1995, forward, and that he remains incarcerated as of this date. Quick did not attempt to post bond on the burglary charges because to do so would have been futile in light of the capital-murder charge pending against him.

The majority determines that the reason Quick was in jail from November 5, 1995, to the date of his acquittal on the capital-murder charge in April 2003, was because he could not have been released from jail while that charge was pending. I agree that a defendant is not entitled to accumulate credit for time served while he is serving time on another conviction, see Youngblood v. State, 437 So.2d 629 (Ala.Crim.App.1983). However, in this case, Quick was serving time pending the trials of both the capital-murder charge and the burglary charges, and when he was ultimately acquitted of the capital-murder charge, the time he spent in jail awaiting trial should have been applied to one of his remaining burglary convictions, regardless of whether he would have been able to make bond on a pending burglary charge.

For the reasons set forth above, I would affirm the judgment of the trial court. Accordingly, I respectfully dissent from the majority opinion.

      . We note that Quick stated in his petition that he was arrested for capital murder on November 5, 1995, and arrested for all three burglary charges on January 11, 1996. However, the conviction reports in the record indicate that Quick was arrested for first-degree burglary in case no. CC-96-1746 on November 5, 1995. For purposes of this appeal, we will use the November 5, 1995, date, a date more favorable to Quick, despite the assertion in his petition.