author: BOLIN, Justice. MURDOCK, Justice

text:
    George E. CUTLER v. UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C., and Paul G. Matz, M.D.
    1150546.
    Supreme Court of Alabama.
    July 8, 2016.
    Stephen D. Heninger of Heninger Garrison <& Davis, LLC, Birmingham, for appellant.
    Sybil V. Newton and J. Will Axon of Starnes Davis Florie LLP, Birmingham, for appellees.
   BOLIN, Justice.

George E. Cutler appeals from a judgment of the Jefferson Circuit Court dismissing his medical-malpractice action against the University of Alabama Health Services Foundation, P.C. (“the University”), and Paul G. Matz, M.D. We affirm.

I. Facts and Procedural History

On October 14, 2015, Cutler filed a medical-malpractice action against the University and Dr. Matz, a neurologist and employee of the University (hereinafter collectively referred to as “the defendants”). The gravamen of Cutler’s complaint is that the defendants had been negligent and wanton in failing to inform him of a two-centimeter tumor/lesion in the right frontal region of his brain that was discovered by a magnetic resonance imaging (“MRI”) scan of his brain taken on June 28, 2005; rather, he was told at that time that the tumorfiesion was a bruise. Cutler attached to the complaint a copy of the MRI report, which the trial court did not exclude. Because the MRI report is central to Cutler’s complaint and referred to in the complaint, there was no necessity to, and we will not, treat the defendants’ motion to dismiss as a motion for a summary judgment. See Donoghue v. American Nat’l Ins. Co., 838 So.2d 1032 (Ala.2002) (noting that, if defendant’s exhibit is central to and referred to in the complaint, its consideration does not convert a motion to dismiss into a motion for a summary judgment). The following facts concerning the alleged malpractice are taken from the complaint:

“1. On or about ... June 27, 2005, [Cutler] was injured in a motorcycle accident when he was thrown from a motorcycle and hit the back of his head on the ground. [Cutler] was seen at the Northeast Regional Medical Center in Anniston, Alabama for his injury and his history of having lost consciousness for 5 minutes. A CT [computerized tomography scan] was performed of his head which showed a low density zone in the medial right frontal lobe and the recommendation was made that he should have [a] follow-up MRI and neurological consultation. [Cutler] was transferred to [the University at Alabama in Birmingham (‘UAB’) Hospital], for this further evaluation and consultation on his head injury.
“2. On June 28, 2005, [Cutler] was transferred to UAB Hospital and was seen in the Emergency Room Department for evaluation of his head injury.... [T]he neurosurgeon consulting on [Cutler] was Paul G. Matz, M.D., an employee of Defendant, University of Alabama Health Services Foundation, P.C. [Cutler] was informed that he simply had a bruise on his brain and was discharged on the same day, June 28, 2005. No instructions of concern were given to [Cutler] for the need of further testing or treatment. However, ... [Cutler] in fact had a tumor/lesion that was described in the records as a ‘right frontal parafalcine hypodensity’ and that ‘Neurosurgery [was] to contact patient.’ The records further state that ‘the appearance of this lesion was atypical for a contusion.’ [Cutler] was never informed of this lesion/tumor and, instead was told it was a bruise. ...
“3. Throughout the following years, [Cutler] went without any information or disclosure of the finding of this lesion/tumor. [Cutler] had no contact from the Defendants regarding any such finding or the need for further testing or treatment. He was completely ignorant of this concern and had been told it was simply a bruise. Meanwhile, it continued to grow in his brain without disclosure or information. What was known to Defendants as a concern was allowed to continue to grow and become malignant without disclosure or any information to [Cutler]. [Cutler] was completely unaware of this developing process and was adversely affected by this lack of disclosure or information and was totally unaware of any concerns or signs of this process so that his cause of action had not legally accrued, despite the adverse beginning of the growth process within the 4 years following June 28, 2005.
“4. On February 11, 2015, [Cutler] was involved in a single vehicle incident where witnesses stated that his pick-up truck was failing to stay in his lane and that he appeared to be having medical issues when he was seen leaning to his right in the truck he was driving before he left the roadway and rolled over. [Cutler] was seen by Dr. Cumberbatch of Georgia where it was determined he had likely suffered a seizure while driving because of a large right frontal lesion in his brain. It was determined that this was the same lesion that was seen by Defendants on June 28, 2005, by MRI but that it had grown much larger in the interim without signs and symptoms until this fateful seizure while driving on February 11, 2015. The tumor had been growing and becoming malignant while he was left unaware of its presence and culminated in legal and medical injury to him on February 11, 2015.
“5. [Cutler] avers that Defendants ... negligently failed to disclose to [him] on June 28, 2005, that testing showed he had a lesion/tumor in his right front temporal area of the brain that was not a contusion. Instead, [Cutler] was negligently informed that he had suffered a bruise to his brain. Defendants negligently failed to make this disclosure to [Cutler] and negligently failed to follow up on this concerning finding and failed to give any instructions to [Cutler] to have any further follow-up and/or treatment. Defendants negligently failed to have neurosurgery contact [Cutler] with these concerns and findings.... As a proximate consequence, thereof, [Cutler] was left ignorant of this tumor/lesion; the tumor/lesion continued to grow and become malignant during this period of ignorance without any demonstrable signs or symptoms to his detriment; the process was started within the two years after this testing on June 28, 2005, but did not accrue into a legal injury until he suffered a seizure and automobile accident as set forth above; the same tumor/lesion that was evident to Defendants on June 28, 2005, greiv and became malignant causing legal injury to [Cutler] and creating this cause of action; [Cutler] has required and undergone surgical resection of this now large tumor which has been diagnosed in a late fashion as Grade II Astrocytoma; he has required medical treatment and has been caused to suffer severe physical pain and mental anguish; and he has been permanently injured.
“6. [Cutler] further avers that Defendants fraudulently concealed the existence of the tumor/lesion described above from [Cutler]. The Defendants had a duty to disclose this information to [Cutler] and such disclosure was material to [Cutler’s] health and he relied upon and trusted Defendants to his detriment. As a proximate cause thereof, [Cutler] was injured and damaged as set forth in Paragraph 5 above.[]
“7. [Cutler] further avers that Defendants wantonly failed to advise [Cutler] of the tumor/lesion referred to in Paragraph 5 above in reckless disregard of the serious concerns shown on the MRI referred to above. Defendants wantonly failed in their duty to advise [Cutler] of this finding and failed to contact him to follow up on their own records as indicated they would. As a proximate consequence thereof, [Cutler] was injured and damaged as set forth above.”

(Emphasis added.)

On November 19, 2015, the defendants moved the trial court to dismiss the complaint against them pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that the complaint alleged facts that demonstrated a manifest, legal injury and the accrual of Cutler’s cause of action within the four-year period of repose set forth in § 6-5-482(a), Ala.Code 1975. Section 6-5-482(a) provides:

“(a) All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.”

(Emphasis added.) On January 11, 2016, following a hearing, the trial court entered a judgment dismissing the malpractice action against the defendants, concluding that it was barred by the four-year period of repose set forth in § 6-5-482(a). Cutler appeals.

II, Standard of Review

This Court has set forth the standard of review that must be applied in reviewing a dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P.:

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

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted).

III. Discussion

The alleged medical malpractice in this case occurred on June 28, 2005, when the defendants failed to inform Cutler of the presence of a two-centimeter tumor/lesion in the right frontal region of his brain. Cutler filed his complaint against the defendants on October 14, 2015—more than 10 years after the alleged malpractice occurred. Cutler maintains that, although the alleged malpractice occurred on June 28, 2005, his cause of action did not accrue until February 11, 2015, when, he says, he first suffered a legal injury—the seizure requiring him to undergo a surgical resection of the tumor/lesion, which was ultimately diagnosed as grade II astrocytoma. Cutler thus argues that because his cause of action did not accrue until February 11, 2015, his complaint filed on October 14, 2015, was timely. In other words, Cutler maintains that when the alleged medical malpractice and the resulting injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6-5-482 begins to run when the legal injury occurs. See Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1196 (Ala.2008)(stating that “ ‘[w]hen the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6-5-482 commences when the legal injury occurs’ ” (quoting Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala.1994))); see also Ramey v. Guyton, 394 So.2d 2, 4 (Ala.1981)(stating that when the negligent act and the resultant injury do not coincide, “the accrual date of the cause [of action] is delayed to the date when the injury occurred”).

The trial court noted in its judgment of dismissal that the facts of Cutler’s case were “remarkably similar” to the facts of Crosslin, supra. In Crosslin, the plaintiff presented at the emergency room at Huntsville Hospital on February 23, 2002, complaining of nausea, dizziness, and weakness. The physician evaluated the plaintiff and ordered diagnostic tests. A radiologist reviewed the images produced by a CT scan and issued a preliminary radiology report indicating the presence of a tumor on the plaintiffs pituitary gland. Subsequently, the physician spoke with the plaintiff concerning his condition but failed to inform him of the findings of the preliminary radiology report indicating the presence of a pituitary tumor. There was no allegation that the symptoms from which the plaintiff suffered on February 23, 2002, were related to the pituitary tumor. The plaintiff was discharged from Huntsville Hospital.

On September 1, 2005, the plaintiff returned to Huntsville Hospital complaining of a loss of vision in his left eye and decreased vision in his right eye. A CT scan of the plaintiffs head indicated the presence of the pituitary tumor that had been previously identified. It was on this date that the plaintiff first learned of the pituitary tumor, and he alleges that he was unaware before this date of any facts that would have reasonably led to the discovery of the tumor.

On September 3, 2005, surgery was performed to remove the tumor. Following the surgery, the plaintiffs vision did not improve, and he suffered from blindness and/or severely limited vision in both eyes.

On February 24, 2006, the plaintiff sued the physician and Huntsville Hospital asserting a medical-malpractice claim and alleging that Huntsville Hospital and the physician had been negligent and wanton by failing to inform him of the existence of the pituitary tumor following the CT scan in 2002 that identified the tumor. Huntsville Hospital and the physician moved to dismiss the claims against them pursuant to Rule 12(b)(6), Ala. R. Civ. P. Huntsville Hospital and the physician argued in the motion that the alleged breach of the standard of care in that case was a failure to inform the plaintiff of the presence of a pituitary tumor on February 23, 2002, and that, if Huntsville Hospital and the physician breached the standard of care and caused damage as the plaintiff claims, he would have been damaged on the same date the alleged negligence occurred, because he was already suffering from the tumor. Because the plaintiff did not file his complaint until four years and one day after February 23, 2002, Huntsville Hospital and the physician argued that the plaintiffs action was barred by the four-year period for repose set forth in § 6—5—482(a).

The plaintiff amended his complaint to allege that he suffered bodily injury after February 24, 2002, and argued in opposition to the motion to dismiss that his cause of action did not accrue until he suffered an injury, which, according to his amended complaint, allegedly happened after February 24, 2002. Thus, he argued, his complaint was not barred by § 6-5-482(a).

The trial court granted Huntsville Hospital and the physician’s motion to dismiss. In reversing the trial court’s order dismissing the plaintiffs action as untimely, this Court stated:

“This Court has held that the four-year period of repose in § 6-5-482(a) ‘is an “absolute bar to all medical malpractice claims which are brought more than four years after the cause of action accrues.”’ Ex parte Sonnier, 707 So.2d 635, 637 (Ala.1997) (quoting Bowlin Horn v. Citizens Hosp., 425 So.2d 1065, 1070 (Ala.1982)). ‘A cause of action “accrues” under § 6-5-482 when the act complained of results in legal injury to the plaintiff.’ Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala.1994). ‘When the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6-5-482 commences when the legal injury occurs.’ Id.; see also Grabert v. Lightfoot, 571 So.2d 293, 294 (Ala.1990) (‘ “The statutory limitations period does not begin to run until the cause of action accrues .... A cause of action accrues when the act complained of results in injury to the plaintiff.”’ (quoting Colburn v. Wilson, 570 So.2d 652, 654 (Ala. 1990))); Ramey v. Guyton, 394 So.2d 2, 4 (Ala.1980) (noting that when the negligent act and the resultant harm do not coincide, the accrual date of a cause of action under the [Alabama Medical Liability Act] is the date of the latter).
“In the present case, [the plaintiff] has alleged that Huntsville Hospital and [the physician] failed to inform him that he had a tumor on his pituitary gland on February 23, 2002. [The plaintiff] has alleged that, as a result of the failure of Huntsville Hospital and [the physician] to inform him of the existence of the pituitary tumor, he later suffered vision loss in both of his eyes. Thus, it appears that the legal injury [the plaintiff] is alleging is that, because Huntsville Hospital and [the physician] did not inform him of the existence of the pituitary tumor when it was discovered on February 23, 2002, he did not have the condition remedied before the tumor worsened and other physical injuries were caused by it.
“The allegations of the complaint, if taken as true, do not foreclose the possibility of [the plaintiffs] proving a set of facts that would entitle him to relief. For example, the evidence might show that the tumor was not in a growth phase when [the physician] first diagnosed it on February 23, 2002, and therefore that the tumor did not worsen on that date. Nor do the allegations of the complaint foreclose the possibility of proof that, even if the tumor did worsen on February 23, 2002, a disclosure of the presence of the tumor to [the plaintiff] on February 23, 2002, would likely not have resulted in surgery on that same day so as to halt whatever worsening of his condition otherwise would have occurred between that day and the following day, February 24, 2002. Indeed, even after the tumor was discovered in a much advanced state several years later, surgery to remove it was not scheduled until two days after its discoveiy. In other words, the complaint does not, on its face, establish that Huntsville Hospital’s and [the physician’s] failure to inform [the plaintiff] of the tumor on February 23, 2002, resulted in any actual injury to [the plaintiff] before February 21, 2002, the first day of the four-year period in question.
“... [The plaintiff] has not alleged when he was harmed as a result of the tumor remaining in his body longer than it would have had Huntsville Hospital and [the physician] immediately informed him of its presence. The complaint alleges only that injury occurred ‘after February 24, 2002.’ ”

Crosslin, 5 So.3d at 1196-99 (footnotes omitted). Hence, in Crosslin, the complained-of negligent act—the failure to inform the patient of the presence of a tumor—did not immediately cause an identifiable legal injury insofar as the complained-of negligent act occurred on February 23, 2002, and the amended complaint alleged that the actual injury, i.e., the worsening of the tumor, occurred after February 24, 2002. This Court noted that the complaint did not, on its face, establish that the defendants’ failure to inform the plaintiff of the tumor on February 23, 2002, resulted in any actual injury to the plaintiff before February 24, 2002, the first day of the four-year period in question. Rather, this Court concluded that, although the complained-of negligent act occurred beyond the four-year period of repose in 6-5-482(a), the plaintiff may have been able to prove a set of facts indicating that the actual legal injury occurred within the four-year period of repose.

In this case, the trial court explained in its order dismissing Cutler’s medical-malpractice action that the primary difference between Crosslin and the instant case is that Crosslin alleged in his complaint only that his injury occurred at a point after February 24, 2002, and, thus, “Crosslin may [have been] able to prove a set of facts establishing that he suffered no actual injury until within the applicable four-year period at issue.” 5 So.3d at 1198. Cutler’s complaint, on the other hand, alleges that the tumor/lesion culminated in a legal injury on February 11, 2015, despite “an adverse beginning of the growth process within the four years following June 28, 2005.” (Emphasis added.) Based on this averment, the trial court concluded that, regardless of the date of the discovery of any injury, the statute of repose would have begun to run at the latest by June 28, 2009, and would have expired at the latest by June 28,2013. We agree.

It is well settled that in medical-malpractice actions the legal injury occurs at the time of the negligent act or omission, regardless of whether the injury is or could be discovered within the statutory period. See, e.g., Ex parte Hodge, 153 So.3d 734 (Ala.2014)(holding that patient suffered actionable legal injury, and period of repose began to run, when physician left hemostat clamp in patient’s body, regardless of when or to what extent the complications from the negligent act would be discovered); Ex parte Sonnier, 707 So.2d 635 (Ala.1997)(holding that legal injury resulting from allegedly unnecessary performance of hysterectomy occurred on date hysterectomy was performed); Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala.1994)(noting that “[w]hether [Delchamps’s] claims are barred by § 6-5-482 depends on when in fact she first suffered the alleged legal injury, i.e., bone degeneration in her jaw. Delchamps’s complaint, as presently amended, alleges the date of which the implant was placed in her jaw and the date on which she first became aware of the alleged injury to her jaw. The key fact not alleged is the time when Delchamps first suffered the alleged bone degeneration.”); Grabert v. Lightfoot, 571 So.2d 293 (Ala.1990)(holding that statute of limitations began to run on patient’s medical-malpractice action against surgeon after first operation, during which surgeon failed to locate hernia, even though full extent of patient’s injury was not known until second operation); and Jones v. McDonald, 631 So.2d 869 (Ala.1993)(holding that plaintiffs cause of action accrued on the date the ophthalmologist performed the initial surgery and left the gauze at the surgical site).

The key fact in this case is the time at which Cutler first suffered a legal injury caused by the defendants’ failure to inform him of the tumor/lesion appearing on the June 28, 2005, MRI. In Crosslin, this Court stated that “it appears that the legal injury [the plaintiff] is alleging is that, because [the defendants] did not inform him of the existence of the pituitary tumor when it was discovered ..., he did not have the condition remedied before the tumor worsened and other physical injuries were caused by it.” 5 So.3d at 1197. Likewise in this case, it appears that the legal injury Cutler is alleging is that, because the defendants did not inform him of the existence of the tumor/lesion when it was discovered on the MRI, he did not have the condition remedied before the tumor/lesion began its adverse growth process and became malignant. Unlike the fact scenario in Crosslin—in which the complaint did not on its face establish that the defendants’ failure to inform the plaintiff of the tumor on February 23, 2002, resulted in any actual injury to the plaintiff before February 24, 2002, the first day of the four-year period of repose—Cutler specifically alleges that his tumor/lesion began its adverse growth process and/or became malignant “within the 4 years following June 28, 2005,” and/or that “the process was started within the two years after [the MRI] on June 28, 2005.” Accordingly, as noted by the trial court, the four-year statute of repose would have begun to run at the latest by June 28, 2009, despite the fact that Cutler did not learn of the presence of the tumor/lesion until February 11, 2015.

Cutler argues on appeal that he never pleaded when the tumor grew or became malignant; rather, he pleaded only that the “process” of growth and malignancy occurred during the interim between June 28, 2005, and February 11, 2015, and that the defendants did not cause this process—rather, this process is a natural process that does not imply or prove injury. Cutler cites Griffin v. Unocal Corp., 990 So.2d 291, 293 (Ala.2008), for the proposition that “ ‘a cause of action accrues only when there has occurred a manifest, present injury.’” (Quoting Cline v. Ashland, Inc., 970 So.2d 755, 773 (Ala.2007)(Harwood, J., dissenting).) Thus, he contends that his cause of action accrued and the period of repose in § 6-5-482 commenced when, and only when, his injury was sustained. However, even if the “manifest, present injury” rule in Griffin, applicable to toxic-substance-exposure cases, is applicable to medical-malpractice actions, which we need not address, Cutler fails to acknowledge that, in Griffin, this Court, in overruling Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), adopted Justice Harwood’s dissent in Cline, 970 So.2d at 761, in which Justice Harwood elaborated on manifest, present injury as follows:

“The proper construction of the term ‘accrued’ in § 6-2-30(a)[, commencement of actions for injuries resulting from exposure to asbestos,] in the context of toxic-substance-exposure cases should honor the rule that a cause of action accrues only when there has occurred a manifest, present injury. I understand ‘manifest’ in this context to mean an injury manifested by observable signs or symptoms or the existence of which is medically identifiable. ‘Manifest in this sense does not mean that the injured person must be personally aware of the injury or must know its cause or origin. All that is required is that there be in fact a physical injury manifested, even if the injured person is ignorant of it for some period after its development. This approach is mandated by the rule stated as early as Kelly v. Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917), and as late as Gilmore v. M & B Realty Co., LLC, 895 So.2d 200, 208 (Ala.2004), and on innumerable occasions in between, that ‘plaintiffs ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, [does not] postpone the running of the statute [of limitations] until the tort or injury is discovered.’ ...”

970 So.2d at 773 (Harwood, J., dissent-ing)(emphasis added).

In this case, it is clear from the allegations of his complaint that Cutler suffered a legal injury “within the [four] years following [the] June 28, 2005,” MRI, because it is within that time that Cutler alleges the tumor/lesion began its growth process and/or became malignant. Thus, Cutler’s argument that his “legal injury” could not have manifested itself until he actually suffered harm is unavailing. See Garrett v. Raytheon Co., 368 So.2d at 518 (noting that the statute of limitations in a medical-malpractice action begins to run regardless of whether the full amount of damage is apparent at the time of the first legal injury).

IV. Conclusion

After reviewing the allegations of Cutler’s complaint in light of the applicable standard of review, we conclude that Cutler would be unable to prove any set of facts to support his claim that his legal injury occurred beyond the expiration of the four-year period of repose. Cutler has alleged on the face of complaint specific facts demonstrating that his legal injury occurred within the four-year period of repose, which began to run on June 28, 2005. Because Cutler filed his complaint well beyond the four-year period of repose in § 6-5-482(a), the trial court did not err in dismissing the medical-malpractice action against the defendants.

AFFIRMED.

SHAW and MAIN, JJ., concur.

MURDOCK, J., concurs specially.

BRYAN, J., concurs in the result.

MURDOCK, Justice

(concurring specially).

I concur with the main opinion, but in so doing I wish to make note of two matters. First,, consistent with the cases cited in both the trial court and in this Court, the parties have framed the dispositive issue as being when George E. Cutler’s cause of action accrued. Our review is limited accordingly. Compare Crosslin v. Health Care Auth. of City of Huntsville, 5 So.3d 1193, 1196 n. 1 (Ala.2008)

Second, I note that the main opinion cites Grabert v. Lightfoot, 571 So.2d 293 (Ala.1990), and a number of other cases for the proposition that “in medical-malpractice actions the legal injury occurs at the time of the negligent act or omission, regardless of whether the injury is or could be discovered within the statutory period.” 215 So.3d at 1071. For the sake of clarity, I note that what was said of this proposition in Crosslin is still true:

“We note that the Grabert Court also quoted Street v. City of Anniston, 381 So.2d 26 (Ala.1980), for the proposition that ‘ “in malpractice actions, legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period.” ’ Grabert, 571 So.2d at 294 (quoting Street, 381 So.2d at 31). In making this statement, the Court was focused on a different issue than the one before this Court in the present case. In contrast to the present case, the focus of this statement was the issue of discovery of an injury and, more specifically, whether a failure to discover an injury postpones the accrual of a cause of action based on the injury. (The six-month discovery provision in § 6-5-482(a) was not applicable in either Gra-bert or Street.) The quoted passage does not speak to the situation where there is a failure of the injury and the negligent act to occur simultaneously, but instead presupposes that the injury occurs immediately upon the taking place of the negligent act or omission. See Grabert (involving a negligently performed surgery and a resultant immediate physical injury to the plaintiff); Street, 381 So.2d at 31 (rejecting the plaintiffs effort to distinguish certain previous cases, and instead reconciling those cases with Street on the ground that they involved the occurrence of an injury ‘which resulted immediately upon the taking place of the negligent act omission’).”

Crosslin, 5 So.3d at 1197 n. 2.

      . We note that Cutler makes no argument in his brief concerning the allegations in this paragraph 6 of his complaint regarding fraud; rather, his arguments concerning the alleged malpractice are couched in terms of negligence.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Romulus PETRINA v. Kimberly PETRINA.
    2140870.
    Court of Civil Appeals of Alabama.
    July 15, 2016.
    William K. Bradford of Bradford Lad-ner, LLP, Mountain Brook, for appellant.
    Thomas A. Radney and David G. Thomas of Radney, Radney & Jackson, L.L.C., Alexander City, for appellee.
   THOMAS, Judge.

Romulus Petrina (“the husband”) and Kimberly Petrina (“the wife”) executed a prenuptial agreement in February 2009, and they were married in March 2009. There are no children of the marriage. The wife is the owner and operator of A-l Employment Services, Inc. (“A-l Employment”). On March 13, 2014, the husband filed a complaint in the Lee Circuit Court seeking a divorce from the wife and a division of the marital assets and debts subject to the terms of the prenuptial agreement. The wife filed an answer to the husband’s complaint and a counterclaim seeking a divorce from the husband and a division of the marital assets and debts. A two-day trial began on January 26, 2015, and, on March 19, 2015, the circuit court entered a judgment (“the divorce judgment”) divorcing the parties and dividing the marital assets and debts. The divorce judgment provides, in pertinent part:

“(7) In considering the remaining relief requested by the [husband], the Court has carefully reviewed the evidence and the notes made by the Court during arguments. The Court finds:
“Prior to his marriage to the [wife], the [husband] was a 28 year-old Romanian-born illegal alien making approximately $10 per hour, or $20,800 per year. During his marriage to the [wife], the evidence established that the [husband] lived the life, and enjoyed the lifestyle, of a very wealthy man. The evidence also reveals that the [husband’s] accession to wealth was due entirely to his having married the [wife], who earns substantial income, especially as it compares to the [husband’s] earnings, and [the husband’s] earning capacity, at the time of the marriage. The [husband] contributed 5% of the earnings of the parties during the marriage, according to the evidence. The evidence reveals that at the end of the marriage, a year after his separation from the [wife], the [husband] is now earning $67,500 per year, or $82.50 per hour. The Court finds that this incredible increase in income and earning potential is due to two factors.
“First, the [husband] is now a naturalized citizen of the United States, and will remain so after his divorce from the [wife]. The Court is of the opinion that American Citizenship is of inestimable value. Its benefits are capable of measurement, however. According to a 2012 study of the Migration Policy Institute, on average, a naturalized citizen earns 67% more than a non-citizen [see Madeleine Sumption <⅞ Sarah Flamm, Migration Policy Inst., The Economic Value of Citizenship for Immigrants in the United States, (September 2012))]. The [husband], as a 2015 United States citizen now earns over 300% more than he did as a 2009 illegal alien. However, [the husband’s] citizenship status alone—which resulted from his marriage to the [wife—] can only account for part of this difference in earnings, and earning potential.
“Second, the [husband] is now a valued commodity in the U.S. labor force, to wit: he is a skilled worker with multiple years of job experience. This fact was established by the evidence at trial, and the fact that [the husband] currently works in the same field as he worked during the marriage while working for his wife’s company, A-l Employment, Although the evidence confirms that the [husband] took full advantage of this employment opportunity at A-l Employment by working hard to develop his skills and abilities, it is axiomatic that the opportunity was presented to the [husband] by his wife, the founder and owner of A-l Employment. The same Migration Policy Institute study referred to above projects that a naturalized citizen is far less likely to ever live in poverty or be unemployed, as compared to a non-citizen. (And it should be noted that ‘non-citizen,’ as referred to in the afore-mentioned study, involved lawful permanent residents, as opposed to illegal residents.) The [husband] is likely to enjoy resulting future job security.
“The [husband’s] earning potential as an experienced American worker should result in increased net earnings of between one and two million dollars—if not more, over his working career, a benefit solely attributable to having been married to the [wife]. Normally, improvements in status such as the [husband] is enjoying would result from the attainment of a college degree, or from a decade or more of on-the-job training, and that for a natural born American. In sum, the [husband’s] marriage to the [wife] has brought upon him immeasurable benefits, both tangible and intangible.
“Having carefully considered all of the evidence at trial and the matters set forth herein, and taking account of all remaining assets and debts of the parties, the Court orders that the [wife] pay to the [husband], as his equitable share in the marital estate, the sum of $100,000.00, to be paid within 30-days.”

On April 20, 2015, the husband filed a timely postjudgment motion. On May 26, 2015, the husband filed an “amended and supplemental” postjudgment motion. On June 15, 2015, the circuit court entered orders denying the husband’s post-judgment motion and his amended post-judgment motion. On July 21, 2015, the husband filed a timely notice of appeal.

The husband seeks our review of the property-settlement provision in the divorce judgment; specifically he seeks review of whether the circuit court erred by considering the husband’s citizenship status, by taking judicial notice of information gleaned from the September 2012 publication of the Migration Policy Institute (“the publication”) referenced in the divorce judgment, by failing to enforce the terms of the prenuptial agreement, and by failing to require the wife to refinance the marital residence in her name only.

“ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust’ Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Id.”

Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005).

Because we find the issue to be disposi-tive, we consider only whether the circuit court erred by awarding the husband $100,000 as a result of its express reliance on the publication to determine the husband’s earning potential as a naturalized citizen as opposed to his earning potential as a “non-citizen.” The husband argues that the information recited in the divorce judgment regarding his citizenship amounted to “data or information that is outside the record or which is not actually evidence in the case.” Our review of the transcript reveals that the husband is correct that the publication was neither mentioned nor offered into evidence at the trial; thus, the circuit court’s findings regarding the husband’s earning potential are without sufficient supporting evidence. Furthermore, we conclude that the findings are outside the realm of common knowledge and, therefore, not appropriate for judicial notice.

“Rule 201, Ala. R. Evid., allows a court to take judicial notice of certain facts, even ex mero motu. See Rule 201(b) (‘A court may take judicial notice whether requested or not.’).
“ ‘A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’
“Rule 201(b), Ala. R. Evid. This rule has been explained as follows:
“‘Consistent with historic practice, a court is to dispense with the customary methods of proof “only in clear cases.” Fed.R.Evid. 201 advisory committee’s note. A court is to take judicial notice of adjudicative facts only when those facts are beyond reasonable dispute either because they , are generally known within the court’s territorial jurisdiction or because they can be accurately and readily determined by consulting sources that are acknowledged to be accurate. This limit upon judicial notice is consistent with historic Alabama law. See, e.g., Peebles v. Miley, 439 So.2d 137 (Ala.1983) (court judicially knows that great majority of collections are done on a contingent fee basis); Strother v. Strother, 355 So.2d 731 (Ala.Civ.App.1978) (judicial notice of increases in cost of living due to inflation); Mutual Bldg. & Loan Ass’n v. Moore, 232 Ala. 488, 169 So. 1 (1936) (facts found in reliable source).’
“Advisory Committee Notes, Rule 201, Ala. R. Evid. (emphasis added).
“However, Alabama courts have concluded that some matters are outside the general or common knowledge and, therefore, not appropriate for judicial notice. For example, our supreme court has refused to take judicial notice that an arsenal was a ‘sole hub’ for certain Army activities. See Westwind Techs., Inc. v. Jones, 925 So.2d 166, 171 (Ala. 2005) (‘Although the activities of Red-stone Arsenal in Madison County might well form a part of the common knowledge of every person of ordinary understanding and intelligence in Madison County, whether Redstone Arsenal represents the “sole hub of procurement and acquisitions” for the aviation branch of the United States Army would not be a matter susceptible of such common knowledge.’); see also Argo v. Walston, 885 So.2d 180, 183 (Ala.Civ.App.2003) (concluding that the trial court erred in determining the appropriate amount of damages when that determination was based in part on the judge’s personal knowledge about fishing ponds). Also, in Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 484, 213 So.2d 211, 217 (1968), our supreme court concluded that the reasonableness of certain bills for medical treatment and medication were matters ‘outside the realm of common knowledge.’ ”

B.H. v. R.E., 988 So.2d 565, 569-70 (Ala. Civ.App.2008). See also Independent Life Insurance Co. v. Carroll, 222 Ala. 34, 37, 130 So. 402, 405 (1930) (explaining that courts do not take judicial notice of facts merely because they may be ascertained by reference to dictionaries or other publications or of facts that cannot be known without, for example, expert testimony).

The circuit court erred by relying on information outside the record or, insofar as it did so, by taking judicial notice of information contained in the publication to award the husband $100,000. Because we reverse the award of $100,000 as the husband’s equitable share in the marital estate, we must also reverse the circuit court’s judgment regarding the property division in its entirety. Thus, we preter-mit consideration of the other issues presented by the husband. On remand, the circuit court is instructed to create an propei'ty division in compliance with the provisions of prenuptial agreement without consideration of any information outside the record.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The 30th day after the judgment was entered was Saturday, April 18, 2015. Therefore the husband had until Monday, April 20, 2015 to file a postjudgment motion. See Rule 59(b), Ala. R. Civ. P., and Rule 6, Ala. R. Civ. P.

      . This is the second time the parties have been before this court. See Ex parte Petrina, 204 So.3d 382 (Ala.Civ.App.2016).


author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    Jerry W. KENT v. Heather HERCHENHAN.
    2140916.
    Court of Civil Appeals of Alabama.
    July 15, 2016.

      Joan-Marie Sullivan, Huntsville, for appellant.

      Donald A. Chapman, Decatur, for appel-lee.
   MOORE, Judge.

Jerry W. Kent (“the father”) appeals from a judgment entered by the Morgan Circuit Court (“the circuit court”) in an action to modify and enforce a previous custody judgment. We reverse the circuit court’s judgment.

Procedural History

On July 21, 2009, the Morgan Juvenile Court (“the juvenile court”) entered a judgment adjudicating the father to be the legal father of K.K. (“the child”) and ordering him to pay child support to the child’s mother, Heather Herchenhan (“the mother”). On August 24, 2010, the juvenile court entered a judgment modifying the father’s child-support obligation. On November 5, 2013, the circuit court entered a judgment that, among other things, awarded the father custody of the child, awarded the mother supervised visitation, and ordered the mother to pay child support.

On October 21, 2014, the mother filed a complaint requesting, among other things, that the circuit court enter a judgment modifying her visitation with the child; she also sought a finding of contempt against the father for his failure to comply with the prior visitation judgment and requested the circuit court to punish the father for his noncomplianee and to order him to pay her attorney’s fees. On December 4, 2014, the father answered the complaint. On December 17, 2014, the father filed a counterclaim requesting that the circuit court hold the mother in contempt for failure to pay child support. On February 23, 2015, the mother replied to the counterclaim.

After a trial, the circuit court entered a judgment on May 13, 2015, awarding the mother unsupervised visitation with the child, finding the father in contempt for interfering with the mother’s visitation, ordering the father to be incarcerated for 120 days but suspending that sentence and placing the father on probation for 24 months, ordering the father to pay the mother’s attorney’s fees, and declining to hold the mother in contempt but determining the amount of her child-support ar-rearage. On June 10, 2015, the father filed a postjudgment motion challenging, among other things not relevant to this appeal, the visitation award, the contempt finding, and the award of attorney’s fees to the mother. The father requested oral argument and the opportunity to present evidence in support of his motion. The circuit court denied the father’s post-judgment motion on June 25, 2015, without holding a hearing. On August 5, 2015, the father filed his notice of appeal.

Discussion

On appeal, the father argues that the circuit court lacked jurisdiction to enter its November 5, 2013, and May 13, 2015, judgments. Specifically, he argues that the circuit court did not have jurisdiction to modify the juvenile court’s previous custody determination.

“After January 1, 2009, the effective date of the Alabama Juvenile Justice Act (‘the AJJA’), Act No. 2008-277, Ala. Acts 2008, now codified as § 12-15-101 et seq., Ala.Code 1975, and before May 14, 2012, the effective date of Act No. 2012-383, Ala. Acts 2012, which, among other things, amended the AJJA in certain respects, this court held in several cases, including J.H. v. J.W.[, 69 So.3d 870 (Ala.Civ.App.2011),] and Ex parte T.C., [63 So.3d 627 (Ala.Civ.App.2010),] that, after the effective date of the AJJA, a juvenile court no longer had continuing jurisdiction over a child as to whom it had adjudicated custody unless its judgment adjudicating custody had found the child to be dependent, delinquent, or in need of supervision. In response to those decisions, the legislature enacted Act No. 2012-383. Among other things, Act No. 2012-383 amended the AJJA to add a provision now codified as § 12-15-117.1, Ala.Code 1975. Subsection (a) of § 12-15-117.1 states:
“ ‘The Legislature finds that it was its original intent in the adoption of the Alabama Juvenile Justice Act (Act 2008-277) for a juvenile court to retain continuing jurisdiction in all cases in its jurisdiction to the extent provided by law. Act 2012-383 is curative and shall apply retroactively to ratify and confirm the exercise of continuing jurisdiction of the juvenile court to modify and enforce a judgment in cases filed in juvenile court on or after January 1, 2009, and prior to May 14, 2012. Any order of a juvenile court issued while exercising jurisdiction pursuant to this subsection during this time shall be deemed valid.’ ”

Ex parte F.T.G., 199 So.3d 82, 85 (Ala.Civ. App.2015). Accordingly, if the action resulting in the entry of the circuit court’s November 5, 2013, judgment was commenced “ ‘on or after January 1, 2009, and prior to May 14, 2012,’” id., the circuit court’s exercise of jurisdiction in this matter is deemed valid. The record does not indicate when that action was commenced.

“An appellate court does not presume error; the appellant has the affirmative duty of showing error. Perkins v. Perkins, 465 So.2d 414 (Ala.Civ.App.1984). Appellate review is limited to the record and cannot be altered by statements in briefs, Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984). Error asserted on appeal must be affirmatively demonstrated by the record. If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala.Civ.App. 1981).”

Greer v. Greer, 624 So.2d 1076, 1077 (Ala. Civ.App.1993). Because, in the present case, the father has failed to show that the circuit court’s exercise of jurisdiction that resulted in the entry of the November 5, 2013, judgment was not valid, we must presume that the circuit court’s actions were proper.

The father also argues that the circuit court erred in declining to hold a hearing on his postjudgment motion.

“This court has held that
“ ‘[generally, a movant who requests a hearing on his or her post-judgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000). A trial court’s failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221.’
“Dubose v. Dubose, 964 So.2d 42, 46 (Ala.Civ.App.2007); see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala.Civ.App. 1988) (‘[Rule 59(g) ] mandates that, when a hearing is requested on a motion for new trial, the hearing must be granted.’).
“[However], this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala.Civ.App.1998) (‘A trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g); however, that error is not necessarily reversible error.’). ‘On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule.’ Palmer v. Hall, 680 So.2d 307, 307-08 (Ala.Civ.App. 1996); see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala.Civ.App.1993) (‘Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found.’). The Alabama Supreme Court has stated:
“‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’
“Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989). However, ‘[w]hen there is probable merit to the motion, the error cannot be considered harmless.’ Dubose, 964 So.2d at 46.”

Wicks v. Wicks, 49 So.3d 700, 701 (Ala.Civ.App.2010).

In the present case, we conclude that at least one of the issues raised in the father’s postjudgment motion—whether the circuit court erred in ordering him to pay the mother’s attorney’s fees—has probable merit. The circuit court’s judgment stated:

“The Court finds that the Father interfered with the Mother’s visitation on 24 occasions and is sentenced to jail for 5 days for each occasion the Father interfered with the Mother’s visitation for a total of 120 days in the Morgan County Jail. The 120 days in the Morgan County Jail are suspended and the Father is placed on Probation for 24 months. The Father must not interfere with the visitation of the Mother with the minor child during that 24 months of probation.”

“Civil contempt sanctions seek to compel or coerce compliance with orders of the court in the future, while a criminal contempt is one in which the purpose of the proceeding is to impose punishment for disobedience of orders of the court.” Charles Mfg. Co. v. United Furniture Workers, 361 So.2d 1033, 1035 (Ala. 1978). “Sanctions for criminal contempt are limited by statute to a maximum fine of $100 and imprisonment not to exceed five days. See Ala.Code 1975, § 12-11-30(5). On the other hand, sanctions for civil contempt may exceed those limits and may continue indefinitely until the contem-nor performs as ordered.” Pate v. Guy, 934 So.2d 1070, 1072 (Ala.Civ.App.2005).

“ ‘The question of whether [an action involves] civil contempt or criminal contempt becomes important ... because a contemnor must be in a position to purge himself from the contempt. Mims v. Mims, 472 So.2d 1063 (Ala.Civ. App.1985). In order to purge himself in a criminal contempt case, the contemnor must pay the fine imposed, serve the authorized time, or do both. Kalupa v. Kalupa, 527 So.2d 1313 (Ala.Civ.App. 1988), In order to purge himself in a civil contempt case, the contemnor must comply with the court’s order. Rule 33.4(b), A[la]. R.Crim. P.’ ”

Davenport v. Hood, 814 So.2d 268, 272-73 (Ala.Civ.App.2000) (quoting Hill v. Hill, 637 So.2d 1368, 1370 (Ala.Civ.App.1994)).

In the present case, the mother petitioned the circuit court to punish the father for willfully violating the supervised-visitation provisions of the November 5, 2013, judgment. The circuit court found that the father had committed contempt of court by interfering with the mother’s court-ordered visitation on 24 separate occasions. The circuit court “sentenced” the father to jail for 5 days for each act of contempt, but it suspended the sentence and placed the father on “probation” for 24 months. As a condition of probation, the circuit court ordered the father to comply with its new visitation order, which it instituted in the May 13, 2015, judgment. Based on the terminology used, the order of a definite schedule of incarceration in accordance with the limits of the criminal-contempt statute, and the institution of conditions in which probation could be revoked, we conclude that the contempt finding was in the nature of a criminal-contempt finding. Pate, 934 So.2d at 1072 (concluding that trial court’s order of 24 hours’ incarceration for failure to comply with visitation order was in the nature of a criminal-contempt finding); Mullins v. Sellers, 80 So.3d 935, 942 (Ala.Civ.App. 2011) (“Accordingly, despite the fact that the order of commitment to jail indicates that the father was found guilty of civil contempt, we conclude that the trial court found the father guilty of criminal contempt because it imposed a definite jail sentence as the sanction for the father’s specific and identifiable violations of the August 2001 modification judgment from June 2002 through October 2008.”).

We disagree with the dissent that the judgment found the father in civil contempt. See 215 So.3d at 1088 (Thompson, P.J., concurring in part and dissenting in part). The purpose of the sanctions imposed by the circuit court clearly is not to compel compliance with the visitation provisions entered on November 5, 2013. The circuit court amended the visitation provisions in its May 13, 2015, judgment so that the original visitation provisions are no longer in effect. At this point, the father cannot comply with the November 5, 2013, visitation provisions.

Furthermore, the requirement that the father comply with the amended visitation provisions while on probation does not transform the criminal contempt into civil contempt. In Taylor v. Taylor, 560 So.2d 768, 770 (Ala.Civ.App.1990), the trial court found a husband in contempt for violating a restraining order and sentenced the husband to 5 days’ confinement plus an additional 25 days’ confinement that was suspended conditioned upon his compliance with the order. This court stated:

“[W]e find the court’s imposition of an additional twenty-five-day sentence to be improper. Because the sentence is to be immediately imposed upon the husband’s violation of the trial court’s directives, it is primarily penal and not coercive in nature. Thus, it appears to this court to be an attempt to punish the husband for any future criminal contempt, despite the trial court’s statement that such sentence was imposed to ensure compliance with the trial court’s orders.”

560 So.2d at 770. As in Taylor, the circuit court suspended the sentence of the father on the condition that he comply with the amended visitation provisions. Should the father fail to meet that condition, the circuit court can revoke his probation and impose the sentence; thus, the sentence is “primarily penal and not coercive in nature.” Id.

“[I]n a criminal-contempt action, ‘the award of attorney’s fees is not proper.’ ” Ex parte Collins, 860 So.2d 1259, 1260 (Ala.2003) (quoting State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So.2d 538, 545 (Ala.1977)). Although the mother cites Ala.Code 1975, § 30-2-54, in support of the circuit court’s judgment,

“we note that the legislature enacted § 30-2-54, Ala.Code 1975, to allow an attorney-fee award to a prevailing party in actions for divorce or to recover unpaid child-support, alimony, or maintenance awards. The pertinent ‘action’ in this case [in which the mother was the prevailing party] concerned child visitation, not support, and § 30-2-54, Ala. Code 1975, thus does not apply.”

Pate, 934 So.2d at 1072-73. We note that the mother’s attorney filed an affidavit after the trial averring that he had spent a total of 20.5 hours on this case, that he charges $150 per hour, and that his attorney’s fee on this case totaled $3,075. He also averred that the court costs for this case were $321.36. The circuit court ordered the father to pay “the [mjother’s attorney fees and court cost in the amount of $3,075.00 in attorney fees and $321.36 for court cost[s] for a total of $3396.36.” Thus, it is clear that the circuit court ordered the father to pay the entirety of the fees charged by the mother’s attorney for his time expended on this case. Presumably, at least a portion of the attorney’s time was spent working on the contempt issues; hence, the trial court’s award of attorney’s fees would be at least partially directly related to the contempt issues. Because the father’s argument regarding the attorney-fee issue has probable merit, we conclude that the circuit court’s error in failing to hold a hearing on the father’s postjudgment motion was not harmless.

Because we cannot conclude that the father’s postjudgment motion has “‘no probable merit’” and because we cannot “ ‘resolve[ ] the issues presented ... as a matter of law, adversely to the [father],’ ” we cannot conclude that the circuit court’s error in failing to hold a hearing on the postjudgment motion was harmless. Wicks, 49 So.3d at 701. Based on the foregoing, we reverse the circuit court’s judgment and remand the cause with instructions to the circuit court to hold a hearing on the father’s postjudgment motion. Because we have already determined that at least one issue raised in the father’s postjudgment motion has probable merit, we pretermit discussion of the father’s remaining substantive arguments on appeal that were raised in his post-judgment motion.

The father makes one remaining argument that was not raised in his post-judgment motion—that the circuit court erred in calculating the amount of the mother’s child-support arrearage. He argues that the correct arrearage amount is “$6,139.55 in arrearage and $389.80 in interest.” In her brief to this court, the mother correctly notes that the circuit court’s judgment on this point is “convoluted,” and she concedes that the father’s calculations are correct. Therefore, we reverse the circuit court’s judgment insofar as it determined the amount of the mother’s child-support arrearage, and we instruct the circuit court to reconsider that issue in light of the parties’ agreement on the arrearage amount. See Lowe v. Nationwide Ins, Co., 521 So.2d 1309 (Ala. 1988) (accepting stipulation of error on appeal).

REVERSED AND REMANDED WITH INSTRUCTIONS.

DONALDSON, J., concurs.

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

THOMPSON, P.J., concurs in part and dissents in part, with writing, which THOMAS, J., joins.

THOMPSON, Presiding Judge,

concurring in part and dissenting in part.

I dissent to that portion of the main opinion finding probable merit to the contention that Jerry W. Kent (“the father”) raised in his motion to alter, amend, or vacate the judgment that the trial court erred in awarding an attorney fee to Heather Herchenhan (“the mother”). Whether there is probable merit to that issue first turns on a determination of whether the trial court found the father to be in civil contempt or in criminal contempt.

The main opinion concludes that, because the trial court sentenced the father to a jail term “in accordance with the limits of the criminal-contempt statute” and because it appears that the trial court intended to punish the father for his noncompliance with the then existing visitation order, “the contempt finding was in the nature of a criminal-contempt finding.” 215 So.3d at 1084. I disagree. A trial court’s decision to sentence a contemnor to serve time in jail for a period allowed pursuant to the criminal contempt statute, § 12-11-30(5), Ala.Code 1975, is not the determinative factor in deciding whether a finding of contempt is criminal or civil in nature, as the main opinion suggests.

In Pate v. Guy, 934 So.2d 1070, 1072 (Ala.Civ.App.2005), this court discussed the difference between civil contempt and criminal contempt, writing:

“In general, civil contempt seeks to compel compliance with a trial court’s judgment or order, while criminal contempt imposes punishment for failure to obey a judgment or order of the court. Rule 70A, Ala. R. Civ. P.; see also State v. Thomas, 550 So.2d 1067, 1072 (Ala.1989). An essential element of a finding of criminal contempt is that such a finding is intended to punish the contemnor, while a finding of civil contempt seeks to compel future compliance with court orders. See generally Chestang v. Chestang, 769 So.2d 294 (Ala.2000). Sanctions for criminal contempt are limited by statute to a maximum fine of $100 and imprisonment not to exceed five days. See Ala.Code 1975, § 12-11-30(5). On the other hand, sanctions for civil contempt may exceed those limits and may continue indefinitely until the contemnor performs as ordered.
“... In Chestang v. Chestang, supra, our Supreme Court reviewed the provisions of Rule 70(A), Ala. R. Civ. P., the rule that governs contempt in civil cases. The Supreme Court noted that Rule 70A(a)(2)(C) defines two types of criminal contempt: (1) misconduct that obstructs the administration of justice and (2) willful disobedience or resistance to a court order or judgment ‘ “where the dominant purpose of the finding of contempt is to punish the contemnor.”’ Chestang, 769 So.2d at 297-98. Concluding that the trial court’s judgment in Chestang was not designed to punish the contemnor but that it was instead designed to compel compliance on the part of the contemnor, our Supreme Court affirmed the award of an attorney fee in that contempt case.”

This court has also recognized that a finding of contempt can be both civil and criminal in nature. See, e.g., Norland v. Tanner, 563 So.2d 1055, 1058 (Ala.Civ.App. 1990); Parker v. Parker, 640 So.2d 979, 981 (Ala.Civ.App.1994). “There is no legal prohibition against the finding of both criminal and civil contempt in an appropriate factual setting. Wilson v. Freeman, 402 So.2d 1004 (Ala.Civ.App.1981).” Tanner, 563 So.2d at 1058.

“In United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), the United States Supreme Court held:
“ ‘Common sense would recognize that conduct can amount to both civil and criminal contempt. The same acts may justify a court in resorting to coercive and to punitive measures. Disposing of both aspects of the contempt in a single proceeding would seem at least a convenient practice.’
330 U.S. at 298-99, 67 S.Ct. 677. (Footnotes omitted.).”

Fludd v. Gibbs, 817 So.2d 711, 714 (Ala. Civ.App.2001).

Furthermore,

“ ‘[t]he question of whether [an action involves] civil contempt or criminal contempt becomes important ... because a contemnor must be in a position to purge himself from the contempt. Mims v. Mims, 472 So.2d 1063 (Ala.Civ. App.1985). In order to purge himself in a criminal contempt case, the contemnor must pay the fine imposed, serve the authorized time, or do both. Kalupa v. Kalupa, 527 So.2d 1313 (Ala.Civ.App.1988). In order to purge himself in a civil contempt case, the contemnor must comply with the court’s order. Rule 33.4(b), A[la]. R.Crim. P.’ ”

Davenport v. Hood, 814 So.2d 268, 272-73 (Ala.Civ.App.2000) (quoting Hill v. Hill, 637 So.2d 1368, 1370 (Ala.Civ.App.1994)).

In Pate, supra, the record indicated that the mother in that case “had consistently stymied earlier court efforts to institute reasonable paternal visitation with the parties’ children” and had failed to follow pendente lite visitation instructions. 934 So.2d at 1072. The mother also failed to comply with a supervised-visitation schedule. This court stated: “In an attempt to impress upon the mother the importance of following the visitation provisions in the divorce judgment, the trial court found the mother in contempt and sentenced her to 24 hours in jail. This is the very essence of criminal contempt.” Id.

On the other hand, in Hudson v. Hudson, 494 So.2d 664 (Ala.Civ.App.1986), the trial court in that case found Rebecca Ann Hudson (“Rebecca”) in civil contempt for failing to obey the visitation requirements in the parties’ divorce judgment. For Rebecca’s civil contempt, the trial court sentenced her to jail “‘every weekend until the Court is satisfied that she has purged herself of contempt.’” Id. at 665. The judgment further stated:

“‘Execution of the sentence for civil contempt is suspended to allow [Rebecca] to comply with the Court orders regarding visitation.... In the event the Court is not satisfied that [Rebecca] appreciates the significance of the civil contempt citations, the Court reserves the right to execute said sentence by ordering [Rebecca] to jail until such time as the Court is satisfied that its orders are being obeyed and [Rebecca] has purged herself of the civil contempt.’”

Id. at 667. This court noted that the language the trial court used in the judgment indicated that the sentence the trial court imposed for civil contempt “was not to punish [Rebecca], but to coerce her to obey the visitation and other requirements of the parties’ divorce decree.” Id.

Similarly, in Parker, supra, the trial court in that case found Joyce Faye Parker (“Joyce”) in “ ‘criminal contempt’ ” for removing certain items that, pursuant to the parties’ divorce judgment, “ Vent with the house’ ” and were to be sold to pay the parties’ debts. 640 So.2d at 980. Joyce sold the items herself and retained the proceeds for her own use. In the contempt judgment, the trial court ordered Joyce confined to the county jail for five days. However, the trial court continued, Joyce “ ‘may purge herself of this criminal contempt if within 60 days of the date of the filing of this Order said items are returned and installed to the marital home, ... [or] [Joyce] may substitute new items.’ ” Id.

This court found that the trial court’s order directing Joyce to pay an attorney fee to her former husband was not error, explaining:

“Although the trial court’s order contains the term ‘criminal contempt,’ the distinction between criminal and civil contempt has been determined. The purpose of a finding of criminal contempt is to punish the- contemnor for disobeying an order of the court; a finding of civil contempt seeks to coerce compliance'with an order of the court. Norland v. Tanner, 563 So.2d 1055 (Ala. Civ.App.1990).
“The ‘purge clause’ allowed [Joyce] control of her incarceration; therefore, no absolute sentence was imposed. While the trial court may have intended to punish [Joyce] for defiance of the original judgment of divorce, it clearly sought compliance with the January 15 [contempt] order. We conclude that the finding of contempt was civil in nature, although it had characteristics of both criminal and civil contempt. Lightsey v. Kensington Mortgage & Finance Corp., 294 Ala. 281, 315 So.2d 431 (1975). Consequently, the award-of an attorney fee was not in error.”

Id. at 981.

In the instant case, the trial court did not specify in its judgment the type of contempt in which it found the father. The judgment stated:

“[T]he father is in contempt of court for his interference with the court’s order allowing supervised visitation for the mother with the minor child. The court finds that the father interfered with the mother’s visitation on 24 occasions and is sentenced to jail for 5 days for each occasion the father interfered with the mother’s visitation for a total of 120 days in the Morgan County Jail. The 120 days in the Morgan County Jail are suspended and the father is placed on probation for 24 months. The father must not interfere with the visitation of the mother with the minor child during that 24 months of probation.”

Like the judgment in Parker, the judgment in the instant case does not impose an “absolute sentence” on the father. Instead, the trial court’s decision to suspend the jail sentence and place the father on “probation,” with' instructions that he not interfere with the mother’s visitation during the probation: period, demonstrates an intention to coerce the father into complying with the visitation order. Additionally, the father in this case can avoid serving a jail sentence by complying with the trial court’s visitation order in the future, i.e., he can purge himself of contempt by complying with the trial court’s order, not by actually serving time. Thus, based on the authorities discussed above, I conclude that the nature of the contempt finding is civil in nature, not criminal. As this court held in Parker, an award of an attorney fee is not erroneous when it is made in connection with a finding of contempt that is civil in nature. 640 So.2d at 981; see also Norland, 563 So.2d at 1058 (affirming an award of an attorney fee when, in making a finding of contempt, the trial court was attempting to compel compliance with its orders in addition to punishing the con-temnor for past disobedience).

Furthermore, in addition to having the authority to award the mother an attorney fee based on its determination that the father was in civil contempt, the trial court also had the discretion to award the mother an attorney fee because the matter before the trial court involved domestic-relations issues.

“ ‘Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). “Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.” Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala. Civ.App.1986).’
“Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996).”

Martin v. Martin, 85 So.3d 414, 423 (Ala.Civ.App.2011).

In his motion to alter, amend, or vacate the judgment, the father asserted that the trial court’s award of an attorney fee to the mother “is manifestly unjust, against the great weight of the evidence and constitutes an abuse of discretion. Attorney fees cannot be awarded in an action where criminal contempt has been adjudicated.” In his brief on appeal, the father’s only basis for arguing that the award of an attorney fee was made in error was his assertion that “imposition of attorney fees in this criminal contempt action” is improper. Thus, the only ground the father has asserted in this court for challenging the award of an attorney fee is based on what I believe is the mistaken premise that the trial court found him in criminal contempt. Any argument that the father could have made on appeal challenging the award of an attorney fee on any other ground is deemed waived. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala.Civ.App.2005) (“[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.”); see also Palmer v. Palmer, 192 So.3d 12 (Ala.Civ.App.2015) (same).

For the reasons set forth above, I believe there is no probable merit to the father’s contention that the trial court erred in awarding the mother an attorney fee, and I do not believe that, as to this issue, the trial court’s failure to hold a hearing on the father’s postjudgment motion “injuriously affected substantial rights” of the father. Rule 45, Ala. R.App. P.; see also Chism v. Jefferson Cty., 954 So.2d 1058, 1086 (Ala.2006).

I would not reverse the judgment of the trial court based on the attorney-fee issue. Therefore, I respectfully dissent from the main opinion insofar as it reverses the judgment on that ground, and I would address the father’s other contentions on appeal.

I concur with those portions of the main opinion concluding that the trial court had jurisdiction to consider this matter and reversing the trial court’s judgment insofar as it determined the amount of the mother’s child-support arrearage.

THOMAS, J., concurs.

      . "[A] child-support order constitute[s] a custody award in favor of the recipient parent.” M.R.J. v. D.R.B., 17 So.3d 683, 685 (Ala.Civ. App.2009).

      . Rebecca was also found in criminal contempt for disobeying a number of provisions of the divorce judgment, including the visitation provision. The trial court sentenced Rebecca to 120 hours in the county jail on weekends for criminal contempt. Id. at 666.


author: MOORE, Judge.

text:
    Raymond H. QUINN et al. v. Joan MORGAN et al.
    2150189.
    Court of Civil Appeals of Alabama.
    July 15, 2016.

      Felicia A. Long of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; and John Kelley Johnson, Rockford, for appellants.
    Thomas A, Radney and David G. Thomas of Radney, Radney & Jackson, L.L.C., Alexander City, for appellees.
   MOORE, Judge.

Raymond H. Quinn, Gayle Quinn, Peggy Stough, Vaughn Stough, Elsie Arnette, and the Alabama Forest Resources Center, Inc. (hereinafter referred to collectively as “the landowners”), appeal from a judgment of the Coosa Circuit Court (“the trial court”) establishing an easement by prescription in favor of Joan Morgan and her children, Katherine Lynn Morgan, Alan W. Morgan, Stephanie Morgan Bowen, and Stephen Lee Morgan (hereinafter referred to collectively as “the Morgans”). We affirm the trial court’s judgment.

Procedural History

The Morgans filed a petition seeking to establish an easement by prescription along a path (“the roadway”) from the Morgans’ property to a public road; the roadway crosses the properties owned by the landowners. The Morgans asserted, among other things, that their land is landlocked and is not adjacent or contiguous to any public road or highway and that they have no means to access their property other than through the landowners’ properties; they sought an easement by prescription over the landowners’ properties. Following a trial on June 18, 2015, the trial court entered an order on July 31, 2015, in which it concluded, among other things, that the Morgans had used the roadway adversely to the landowners and without their permission from the time they purchased their property and for a period of 20 years thereafter. The trial court granted the Morgans an unobstructed prescriptive easement across each of the landowners’ properties along the roadway, noting, among other things, that that easement shall run with the land. The landowners filed a postjudgment motion, which was denied on September 24, 2015. The landowners timely appealed to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Facts

Joan Morgan testified that she and her husband, Morris Morgan, who is now deceased, had purchased 2.4 acres of property in Coosa County (“the Morgan property”) in 1986, that, at that time, they had to “go off Ridge Road” to access the Morgan property via the roadway, and that she had followed that same roadway to access the Morgan property from 1986 until the time of the trial in the present case. According to Joan, the Morgan property did not have any structures on it at the time she and Morris purchased it, but, she said, they had built a large pavilion and an outhouse on it shortly thereafter and had built a house on the Morgan property in 1997. Joan stated that they had visited the Morgan property continuously since they had purchased it; that she and Morris had moved into the house on the Morgan property in 2001 and had used it as their primary residence; and that, after Morris died in 2008, she had moved into a home in Alexander City, but she and her family had continued using the house on the Morgan property as a vacation home.

Raymond Quinn (“Randy”) testified that he had acquired his property along the roadway in 1981 and that he had acquired additional property along the roadway thereafter. Randy testified that, when he purchased his property in 1981, the roadway was basically a logging road, that it was almost impassable, and that he had begun maintaining the roadway after he purchased his property. According to Randy, he was the president of the Buck Hollow Hunting Club in 1986; he testified that the hunting club had leased property along the roadway in 1986, including a portion of his property, and that, in 1986, Morris had asked if Randy would give him permission to go through the hunting club’s gate along the roadway “and continue on down and through [Randy’s] property.” Randy testified that he had allowed Morris to cross his property along the roadway to get to the Morgan property.

Joan denied that Morris had spoken with Randy to get his permission to cross his property. She testified, on the contrary, that they had not had to get anyone’s permission to use the roadway and that they had never asked permission to use the roadway. According to Joan, nobody had granted her permission to use the roadway, she had “just always used it”; she also testified that, although there had been gates erected along the roadway after 1986, she had always been given a key to the locks on those gates. Alan Morgan, Joan’s oldest son, testified that he was 22 years old when his parents purchased the Morgan property and that, at the time of the purchase, Morris had spoken to the president of the Buck Hollow Hunting Club, which had erected a gate along the roadway off of Ridge Road, and asked if the Morgans could have a key to the gate. Alan stated that the president had given Morris a key and that Morris had also put a lock on that gate, which had remained there from 1986 until the time of the trial. According to Alan, other than on that one occasion, Morris had not had any conversations with anyone about permission to use the roadway.

Alan and Joan testified that they had decided to sell the Morgan property and that, in order for a prospective buyer to borrow money to purchase the Morgan property, they had to have an easement across the roadway allowing them access to the Morgan property. They testified that they had sent letters to the landowners asking for permission to create a deeded easement.

Standard of Review
“‘[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’ ”

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Grane, 342 So.2d 358, 360 (Ala.1977)).

Analysis

The landowners argue on appeal that the trial court erred in granting an easement by prescription in favor of the Morgans,

“To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner. Cotton v. May, [293 Ala. 212, 301 So.2d 168 (1974) ]; Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613 (1969); West v. West, 252 Ala. 296, 40 So.2d 873 (1949).”

Bull v. Salsman, 435 So.2d 27, 29 (Ala. 1983).

The landowners assert that the Morgans’ use of the roadway was permissive and, thus, that the Morgans could not prove use adverse to the landowners in order to establish an easement by prescription. The landowners argue that the circumstances in the present case are similar to those in both Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974), and Hanks v. Spann, 33 So.3d 1234 (Ala.Civ.App.2009), in which prescriptive easements were denied based on the permissive use of the properties at issue in those cases. In Cotton, our supreme court affirmed a judgment determining that the use of a “farm road” or “wagon road” had been permissive and concluded that testimony of witnesses “that they never had ‘to ask permission’ to use the roadway” failed to meet the requirements for the acquisition of a private easement by prescription. 293 Ala. at 214, 301 So.2d at 169.

In Hanks, this court determined that use of a “field road” or “logging road” was permissive when none of the users had sought the permission of the property owners before they used the road, none of the users had been asked by the owners to discontinue their use of the road, and express permission to use the road was never given. 33 So.3d at 1238. Additionally, in Hanks, on one occasion, one of the owners had confronted the user of the road about tearing the road up and the user had indicated that he would not tear up the road and that he would stop hauling timber along the road if it became a problem. Id. at 1238-39. The user of the road in Hanks also testified that he had told one of the owners that he planned to erect a gate along the road and indicated that he would give the owner a key or make a key available and that he had agreed to leave the gate unlocked when the owner needed access. Id. at 1239. This court determined that the user of the road had presented no evidence indicating that he had engaged in any conduct that would have put the owners on notice that he was asserting a hostile claim to the road and that the acts regarding the gate and the use of the road indicated, rather, that the use of the road had been undertaken in recognition of the owners’ superior rights thereto. Id. at 1238-39.

The Morgans, on the other hand, cite Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613 (1969), and Roberts v. Wilbur, 554 So.2d 1029 (Ala.1989), among other cases, in support of their assertion that their use of the roadway was not permissive. In Belcher, our supreme court determined that, when the users of a right-of-way had used the right-of-way to access their property and the right-of-way was the only means of vehicular ingress and egress, the owners of the land had actual or presumptive knowledge of that use and that the use for over 20 years was a claim of right such that the granting of an easement was proper. 284 Ala. at 257, 224 So.2d at 615. In Roberts, our supreme court cited Belcher in support of its decision affirming a judgment holding that an easement by prescription had been created following the presentation of evidence indicating that friends and relatives of the user of the road at issue had used the road for over 20 years “in such a manner as to constitute sufficient notice to a landowner that the land was being adversely used.” 554 So.2d at 1030.

In the present case, evidence was presented indicating that Joan and Morris had purchased the Morgan property in 1986, that the Morgans had used the roadway to access the Morgan property since that time, and that the roadway is the only means of ingress and egress to the Morgan property. Joan testified that,' when she and Morris had first purchased the Morgan property, they had had the roadway graded several times down to the Morgan property. Alan testified that he and Morris had maintained the roadway from Ridge Road to the Morgan property, including cutting limbs back from the roadway, keeping the water drained from the roadway, and having gravel replaced on the roadway. According to Alan, Morris, Donald Macon, and another landowner, who was dismissed as a defendant in this action, had erected a gate along the roadway and Morris and yet another defendant, who also had been dismissed as a defendant in this action, had erected another gate along the roadway, thereby indicating Morris’s claim of exclusivity.. See Steele v. O’Neal, 87 So.3d 559 (Ala.Civ.App.2011).

Citing Hanks, the landowners argue that, after Joan and Morris purchased the Morgan property in 1986, additional gates had been erected along the roadway by various landowners, that each of the landowners had provided the Morgans a key to them respective gates, and that the act of giving the Morgans a key amounted to permission to access the roadway. We note, however, that, in Hanks, the party seeking the easement, not the property owner, had erected a gate and had offered to provide a key to one of the property owners or to otherwise assure him access through the gate, thereby, according to this court, recognizing the property owner’s superior right to the use of the road at issue in that case. Id. Thus, Hanks does not stand for the proposition asserted by the landowners.

The landowners further argue that Joan was given express permission to drive across the roadway pursuant to crossing-license agreements she had entered into with the Quinns and the Stoughs. Joan testified that she had signed documents entitled “crossing license,” which allowed her permission, as the licensee, to operate and transport motor vehicles across the properties along the roadway belonging to the Quinns and the Stoughs. We note, however, that those crossing-license agreements were signed by Joan on January 30, 2012. Because the 20-year prescriptive period regarding the roadway in the present case began in 1986, the licenses purporting to allow Joan express permission to access the roadway were created after the prescriptive period had ended and Joan already had apparently acquired an easement by prescription in the roadway by that time.

The landowners also argue that an incident in which Alan’s son had apologized to the Quinns for leaving a beer can along the roadway was in deference to the Quinns’ superior right to the roadway. See Hanks, supra. We note, however, that Alan testified that that incident had occurred approximately three years before the trial in June 2015. Because the prescriptive period had run before that incident occurred, any purported deference to the Quinns’ ownership evidenced by that incident occurred after Joan had apparently acquired an easement by prescription in the roadway. To the extent the landowners assert that the Morgans’ letter requesting the creation of an express easement acknowledged the landowners’ superior rights to the roadway, we note that such a request does not preclude a finding that an easement by prescription was created. See Andrews v. Hatten, 794 So.2d 1184 (Ala.Civ.App.2001).

Like in Belcher, the Morgans presented evidence indicating that, following Joan and Morris’s purchase of the Morgan property in 1986, the Morgans had used the roadway for 20 years as their only means of vehicular ingress and egress to the Morgan property, that they had used the roadway to access the Morgan property for recreational activities and to reach their dwelling, and that they had done so without permission. They erected a fence and maintained the roadway, claiming a right to the use of the roadway. Although Randy testified that he had had a discussion with Morris during which he had permitted Morris to use the portion of the roadway that crossed over his property, Joan and Alan testified that Morris had never asked permission to use the roadway.

A number of cases released after Bel-cher support the existence of an easement by prescription in this case. In Apley v. Tagert, 584 So.2d 816 (Ala.1991), our supreme court affirmed its statements in Belcher, concluding that

“it is not necessary that the party seeking an easement be the only one who has used or who has been entitled to use the road, ‘so long as he used it under a claim of right independently of others. ... [T]he user of another’s land for purposes of passage, if continued for the prescriptive period, may operate to create an easement of a right of way, although the owner of the land also passes upon the same line

584 So.2d at 819 (quoting Belcher, 284 Ala. at 257, 224 So.2d at 615; emphasis added in Apley). In the present case, like in Apley, in which our supreme court affirmed the creation of a prescriptive easement, the Morgans used the roadway for the prescriptive period, and the evidence indicates that the landowners were aware that the Morgans were using the roadway to access the Morgan property. See Apley, 584 So.2d at 819.

In Weeks v. Herlong, 951 So.2d 670 (Ala. 2006), our supreme court affirmed a judgment finding that a prescriptive easement had been created when the landowner seeking the easement and his predecessors, “openly and without the permission of the owner of the land, [had] continuously used [the road at issue] ... as a means of ingress and egress to their property since 1965.” 951 So.2d at 679. Our supreme court particularly noted that, because ore tenus evidence had been presented in that case, the trial court had resolved any conflicts in the facts in favor of the landowner seeking the easement and held that the trial court’s resolution of whether a prescriptive easement had been created in that ease was “supported by reasonable inferences to be drawn from the ore tenus evidence,” and, thus, our supreme court determined, the trial court’s decision was neither palpably erroneous nor manifestly unjust. Id. Like in Weeks, the Morgans had openly and, without permission of the landowners, continuously used the roadway since 1986 to access the Morgan property. This court may infer that that use was exclusive, adverse, and under a claim of right considering the evidence presented indicating that the Morgans had used the Morgan property for recreation, had built a house on the Morgan property, had constructed gates blocking the roadway, and had maintained the roadway. Like in Weeks, the trial court’s resolution of the evidence presented in the present case is not palpably erroneous or manifestly unjust.

Our supreme court also relied heavily on the ore tenus rule in Ex parte Gilley, 55 So.3d 242, 245-47 (Ala.2010), in affirming the trial court’s judgment holding that a prescriptive easement had been created along a piece of property that had been used by the parties seeking the easement and their predecessor in title for more than 20 years. In Gilley, the disputed property had been used without express permission as the only means of ingress and egress to the property owned by the parties seeking the easement for over 20 years. Id. at 246. Applying the presumption of correctness accorded a trial court’s judgment in boundary-line disputes, our supreme court affirmed the trial court’s judgment determining that a prescriptive easement had been created. Id. at 247.

In the present case, like in Weeks and Gilley, evidence was presented indicating that the Morgans had used the roadway for over 20 years as the only means of ingress and egress to the Morgan property. The trial court’s determination that that evidence, along with evidence regarding the Morgans’ maintenance of the roadway, their construction of gates along the roadway, and their use of the roadway to build and access a house on the Morgan property, supported the creation of a prescriptive easement is not erroneous, and we decline to substitute our judgment for that of the trial court in this case. We therefore affirm the trial court’s judgment granting an easement by prescription in favor of the Morgans over the roadway.

AFFIRMED.

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

      . Joan Morgan filed the original petition in only her name on January 6, 2014, naming a number of defendants. Between the filing of the original petition and the trial on June 18, 2015, Joan's children were added as plaintiffs, a number of parties were added as defendants, and several named parties were dismissed as defendants, leaving only the landowners, Henry Alvin Miller, Garrett Steed, Cyrus Steed, Larry Reams, Dewey Reams, Retex Inc. Profit Sharing Plan, Donald Macon, Twila Macon, and Alabama Ag Credit, FLCA ("AAC”), as defendants at the time of the trial. We note that the Morgans, Raymond Quinn, and AAC filed a stipulation that AAC holds a valid first-priority mortgage on a portion of the Quinns' property over which the roadway travels, that the mortgage would remain valid regardless of the outcome of the trial, and that the parties had no objection to AAC’s nonappearance at trial. The Alabama Forest Resources Center, Inc., holds a conservation easement from the Stoughs in the Stoughs’ property along the roadway. Only the landowners appealed from the trial court’s judgment.