source: Caselaw Access Project

author: THOMPSON, Presiding Judge. MOORE, Judge, dissenting.

license: Public Domain

text:
    EX PARTE ALABAMA STATE BOARD OF PHARMACY
    (In re: Demetrius Yvonne Parks et al. v. Alabama State Board of Pharmacy)
    2160266
    Court of Civil Appeals of Alabama.
    June 9, 2017
    James S. Ward of Ward & Wilson, LLC, Birmingham, for petitioner.
    Julian L. McPhillips of McPhillips Shinbaum, LLP, Montgomery, for respondents.
   THOMPSON, Presiding Judge.

The Alabama State Board of Pharmacy ("the board") petitions this court for a writ of mandamus directing the Montgomery Circuit Court ("the circuit court") to vacate its "order supplementing stay on a temporary basis" ("the supplemental order") entered on January 5, 2017. The supplemental order added certain requirements to a stay order ("the stay order") entered by the circuit court on December 1, 2016, that, among other things, put in place specific restrictions on Demetrius Yvonne Parks's ability to practice pharmacy pending judicial review of the board's decision to suspend her license to practice pharmacy ("the license"). The stay order also directed a pharmacy owned by Parks to meet specific requirements during the pendency of the judicial review.

The materials before this court indicate the following. On October 1, 2016, after a hearing on 46 counts alleging various improper practices, the board entered an order suspending Parks's license for 5 years and levying an administrative fine against her in the amount of $27,000. The board also placed the pharmacy permits of two of Parks's pharmacies-Parks Pharmacy #2 and Parks Pharmacy #4-on probation for five years. Those two pharmacies, as well as one other pharmacy Parks owned (hereinafter referred to collectively as "the pharmacies"), were also ordered to pay administrative fines.

On November 22, 2016, Parks and the pharmacies filed a complaint in the circuit court seeking judicial review of the board's decision. That same day, they also filed a motion to stay the board's decision pending the outcome of the judicial review. A hearing on the stay motion was scheduled for November 30, 2016. On November 28, 2016, two days before the scheduled hearing, Parks and the pharmacies filed an emergency motion to stay. Two affidavits were submitted in support of that motion-one from Parks and the other from Adam Andrews. In her affidavit, Parks testified that the suspension of her license was causing her "irreparable harm" because, she said, medical suppliers, including her "main supplier," were unwilling to provide supplies to her pharmacies. She noted that the permits for two of her pharmacies were not suspended but were only on probation. However, she said, "the personal suspension of me taints and sullies my pharmacies and is making it extremely difficult, if not impossible, for my pharmacies to continue in business so long as I am suspended."

In his affidavit, Andrews stated that he was a party to a telephone conversation with Parks's attorney, Julian McPhillips, and the attorney representing Parks's primary medical supplier. Andrews's relationship to Parks or the pharmacies is not made clear in the affidavit. However, he states that McPhillips and he "were pitching to" the supplier that, despite Parks's license being suspended, the pharmacies were still authorized to do business and were open to the public even though two of them were "on probationary status." Andrews said that, during the telephone conversation, he heard the attorney for the supplier say that even though the pharmacies were still allowed to do business, the supplier, "pursuant to its contract with [the pharmacies], was electing not to continue selling supplies [to] Ms. Parks' pharmacies." Andrews also said that the supplier's attorney said "that it looks bad" for the supplier to sell to the pharmacies because the owner, Parks, was suspended.

A transcript of the hearing on the stay motion is not contained in the materials before this court. On December 1, 2016, the circuit court entered an order staying the suspension of Parks's license subject to her compliance with specific enumerated terms, including that Parks "shall not be involved in the dispensing of legend or controlled drugs." Parks Pharmacy #4 was also directed to hire a supervising pharmacist, who had to be approved by the board, and to make certain records available to the board upon its request.

On December 14, 2016, two weeks after the stay order was entered, Parks and the pharmacies filed an "emergency supplemental motion to stay" in which they sought the removal of language from a Web site of the National Practitioner Data Bank ("the NPDB") relating "to the original suspension, now stayed." According to a document from the United States Department of Health and Human Services, which is included in the materials before this court, the NPDB "is a confidential information clearinghouse created by Congress to improve health care quality, protect the public, and reduce health care fraud and abuse in the U.S." The specific language that Parks and the pharmacies complained of from the Web site was not set forth in the motion. However, Parks and the pharmacies alleged that, because of the unspecified language, Parks's participation as an Alabama Medicaid provider had been revoked and medical suppliers were refusing to sell to them. Parks and the pharmacies sought a hearing "on an emergency basis" and asked the circuit court to "enter a corrected [stay] order that applies to the NPDB website."

The hearing on the December 14, 2016, motion was originally scheduled for December 27, 2016. On December 27, 2016, the circuit court entered an order resetting the hearing for January 5, 2017. On January 3, 2017, the circuit court entered another order granting the board's motion to continue the scheduled January 5, 2017, hearing. The order stated that the hearing "will be reset." We note that the board's motion to continue is not contained in the materials before this court.

Although the circuit court had continued the January 5, 2017, hearing, it also entered an order that day supplementing the stay "on a temporary basis." In the supplemental order, the circuit court stated that,

"because this matter had to [be] continued for various reasons, and deeming the relief requested to be in order, [the stay order] is hereby modified as follows ...
"1. [Parks], whose suspension was lifted by this court's order of December 1, 2016, is hereby allowed to work as a pharmacist until further order of this court.
"2. [The board] is hereby ORDERED to immediately clear and remove all language in its entirety sent to the [NPDB] concerning [the pharmacies] and [Parks] herself."

In the supplemental order, the circuit court scheduled a status conference for February 15, 2017.

It is from the supplemental order that the board filed its petition for a writ of mandamus. See note 1, supra. In addition, on January 9, 2016, the board filed in the circuit court a motion to reconsider the supplemental order or for a stay of that order. In the motion, the board stated that its attorney had had "rather serious lumbar surgery" scheduled for December 20, 2016, necessitating a continuance of the December 27, 2016, hearing on the supplemental emergency motion for a stay. Because the attorney was still recovering from the surgery, on December 30, 2016, the board requested a second continuance of the hearing, which had been rescheduled for January 5, 2017. As mentioned, the circuit court granted that request, adding that the hearing would be "reset."

In its motion to reconsider the supplemental order, the board argued that the circuit court had entered that order without giving the board an opportunity to be heard and without any evidentiary support from any of the parties. It also argued that the supplemental order directing the board to have language removed from the NPDB Web site violated federal law governing the reporting requirements the board must follow. On January 18, 2017, the board filed a supplement to its motion to reconsider, pointing out that it is a member of the National Association of Boards of Pharmacy and that it had utilized that association for its "mandatory and required reporting of disciplinary actions" to the NPDB.

Four months have passed since the board filed its motion to reconsider. The circuit court has not ruled on that motion, and the record does not indicate that the status conference scheduled for February 15, 2017, was held. Thus, the supplemental order remains in effect.

In its petition for a writ of mandamus, the board raises the same issues it presented to the circuit court in seeking reconsideration of the supplemental order. A petition for a writ of mandamus is the proper vehicle for seeking review of an order staying the suspension of a professional license pending the judicial review of the licensing agency's decision. See Ex parte Alabama Dep't of Mental Health, 207 So.3d 743, 753 (Ala. Civ. App. 2016) ; Ex parte Medical Licensure Comm'n of Alabama, 13 So.3d 397, 401 (Ala. Civ. App. 2008).

"In Ex parte Davis, 930 So.2d 497, 499 (Ala. 2005), our supreme court stated:
" 'The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala. 1993). Therefore, [an appellate] Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002).'
" ' "Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion." ' Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001) (quoting State v. Cannon, 369 So.2d 32, 33 (Ala. 1979) )."

Ex parte J.N.M., 187 So.3d 1156, 1159 (Ala. Civ. App. 2015).

In its petition, the board specifically argues that, pursuant to the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala. Code 1975, the circuit court was required to allow it to present evidence in connection with Parks's request for a change in conditions related to the stay. Judicial review of final decisions by the board is governed generally by § 41-22-20, Ala. Code 1975, a part of the AAPA. See Jones v. Alabama State Bd. of Pharmacy, 624 So.2d 613, 614-15 (Ala. Civ. App. 1993) ; § 34-23-94, Ala. Code 1975. Section 41-22-20(c) addresses the procedure for considering the suspension or revocation of licenses issued by state agencies pending judicial review. That statute provides, in pertinent part:

"The filing of the notice of appeal ... does not itself stay enforcement of the agency decision. If the agency decision has the effect of suspending or revoking a license, a stay or supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the reviewing court, upon petition of the agency, determines that a stay or supersedeas would constitute a probable danger to the public health, safety, or welfare."

(Emphasis added.)

In Ex parte Medical Licensure Commission of Alabama, 13 So.3d at 401, this court wrote:

"Pursuant to § 41-22-20(c), there is an implied presumption that staying a license revocation will not jeopardize the public health, safety, or welfare. If the agency seeks to prevent the issuance of a stay, it must rebut that presumption by establishing that a stay would 'constitute a probable danger to the public health, safety, or welfare.' "

In this case, the board contends that, in entering the supplemental order without first giving the board an opportunity to be heard on the "supplemental" requirements the circuit court added to the stay order, the circuit court deprived it of the opportunity to rebut the presumption that allowing Parks to work as a pharmacist would not constitute a probable danger to the public health, safety, or welfare and to address the NPDB's reporting requirements. Key among the board's arguments is that the circuit court exceeded its authority in ordering the board to delete reports that the board says federal law requires.

In the supplemental order, the circuit court appears to have removed the condition that Parks was not permitted to dispense legend or controlled substances and directs the board to remove language from the NPDB Web site. When the circuit court made those substantive changes to the stay order, it did so without allowing the board to present evidence to support its position. Moreover, at the time the circuit court entered the supplemental order, Parks had presented no evidence to support her claim that she was entitled to additional protections other than those put in place by the stay order.

In her response to the petition for a writ of mandamus, Parks contends that neither the board nor its attorney "bothered to show up" at hearings on the motion that led to the entry of the supplemental order. She also states: "[G]iven the court's full warning to [the board] in advance, and given the [board's] blatant and continued refusal to show up for emergency hearings, bordering on contempt, the [circuit court] properly issued" the supplemental order. Parks also notes that the circuit court set the matter for a status conference and that, "[t]hus, [the board] was accorded a perfect opportunity to challenge the supplemental [order]."

Parks's characterizations and comments are wholly unsupported by the materials before this court. Nothing in the materials suggests any impropriety in the board's requests for continuances, which the circuit court granted. There is also nothing to suggest that the circuit court threatened the board with contempt. Furthermore, the materials do not reflect that a status conference was actually held on February 15, 2017, and no order on the board's motion to reconsider the entry of the supplemental order has been issued by the circuit court, which would indicate that it had taken the board's arguments into consideration.

Section 41-22-20(c) provides that the board have an opportunity to present evidence to challenge the presumption that a stay, or the conditions placed on a stay, is proper. In entering the supplemental order that essentially removed the conditions on Parks's ability to practice pharmacy, which had been included in the stay order, without first giving the board the opportunity to challenge the relief Parks sought, the circuit court erred. Furthermore, the circuit court did not allow the board to present evidence or arguments regarding the propriety of its decision to direct the board to delete language from the federal NPDB Web site. Thus far, the circuit court has not fulfilled its obligation to allow the board to present its case against the terms Parks requested in her motion seeking the supplemental order. Accordingly, we grant the board's petition for a writ of mandamus and direct the circuit court to vacate the supplemental order. We further direct the circuit court to hold a hearing so that the parties can present their evidence and arguments regarding the relief Parks has requested in her emergency supplemental motion for a stay.

PETITION GRANTED; WRIT ISSUED.

Pittman, J., concurs.

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

Moore, J., dissents, with writing, which Thomas, J., joins.

MOORE, Judge, dissenting.

The materials before the court on this petition for a writ of mandamus show that the Alabama Board of Pharmacy ("the Board") suspended the license of Demetrius Yvonne Parks to practice pharmacy on October 1, 2016, and placed several pharmacies owned by Parks on probation. On November 22, 2016, Parks sought, in the Montgomery Circuit Court, judicial review of the suspension and probation order; she also moved the circuit court for a stay. The circuit court entered an order staying the suspension of Parks's license to practice pharmacy on December 1, 2016. In that order, the circuit court established as a condition of the stay that "Parks shall not be involved in the dispensing of legend or controlled drugs."

On December 14, 2016, Parks filed a motion entitled "Emergency Supplemental Motion to Stay." In that motion, Parks argued, among other things, that the continuation of certain "very harmful and damaging language" on the "NPDB [National Practitioner Data Bank] website" was in violation of "the letter and spirt" of the December 1, 2016, stay order, and asserted that the Board had refused to remove that language, despite its authority to do so, thereby rendering the stay order ineffective. Parks also requested that the circuit court enter a "supplemental stay" based on alleged violations of her due-process rights.

The circuit court scheduled a hearing on the "emergency" motion for December 27, 2016, at 8:30 a.m. The Board did not file a written response to that motion before the scheduled hearing date and did not file a motion to continue the hearing. On December 27, 2016, at 9:00 a.m., 30 minutes after the hearing was scheduled to commence, the circuit court entered an order rescheduling the hearing to January 5, 2017. The parties dispute the reasons for the rescheduling, and the materials before us do not contain any information that settles that dispute. On December 30, 2016, the Board moved to continue the January 5, 2017, hearing on the basis that its counsel, James Ward, was recovering from back surgery and could not travel to Montgomery from Birmingham to attend the hearing. On January 3, 2017, the circuit court granted the motion to continue the hearing indefinitely.

On January 5, 2017, without holding a hearing, the circuit court entered an order "supplementing [the] stay on a temporary basis" to allow Parks to work as a pharmacist. Additionally, the circuit court ordered the Board to "clear and remove all language in its entirety sent to the National Practitioner Data Bank (NPDB)" concerning Parks and the relevant pharmacies she owned. The Board moved the circuit court to reconsider the supplemental stay order and to vacate that part of the order requiring it to remove the language from the National Practitioner Data Bank ("NPDB") Web site. The circuit court had not acted on the motion to reconsider when the Board filed its notice of appeal on January 19, 2017, which this court has elected to treat as a petition for a writ of mandamus.

In its mandamus petition, the Board asserts that the circuit court modified its original stay order to allow Parks to work as a pharmacist, which would include dispensing medication to the public, without affording the Board an opportunity to present evidence indicating that the stay would endanger the health, safety, and welfare of the public. Section 41-22-20(c), Ala. Code 1975, provides that a stay should be entered as a matter of right when a license has been suspended, "unless the reviewing court, upon petition of the agency, determines that a stay or supersedeas would constitute a probable danger to the public health, safety, or welfare." (Emphasis added.) The materials before this court do not contain any "petition" filed by the Board requesting a hearing to determine that a stay of the suspension of Parks's license to practice pharmacy would probably endanger the public. Parks requested a hearing to have the original stay order modified, but the Board did not counter with a motion of its own to maintain the conditions in the original stay order to protect the public, and it did not make any such assertions in its motion to reconsider.

To obtain a writ of mandamus, a petitioner must show, among other things, a refusal of the respondent judge to perform an imperative duty. See Ex parte City of Prattville, 56 So.3d 684, 688 (Ala. Civ. App. 2010). "[T]his court will not issue a writ of mandamus to compel a trial court to perform an act that the trial court was never requested to perform." Id. at 689. Thus, I dissent from the main opinion insofar as it orders the circuit court to conduct a hearing to determine whether the stay of the suspension of Parks's license to practice pharmacy should be denied based on the exception stated in § 41-22-20(c).

The Board also mainly argues that the circuit court exceeded its discretion in ordering the Board to remove its report from the NPDB Web site. Section 41-22-20(c) authorizes a circuit court to stay any administrative order "upon appropriate terms." The Board basically contends that the circuit court included an inappropriate term in its January 5, 2017, supplemental stay order because the circuit court could not lawfully require it to remove information about Parks and her pharmacies that was reported by the Board to the NPDB. The Board points out that federal law requires the Board to report adverse actions taken against the licenses of pharmacists and their pharmacies to the NPDB. See 42 U.S.C. § 1396r-2 ; see also 45 C.F.R. § 60.1 et seq. The Board also cites cases supporting its position that federal law preempts state law and prevents an Alabama circuit court from ordering the Board to remove required information from the NPDB Web site. See, e.g., Diaz v. Provena Hosps., 352 Ill.App.3d 1165, 817 N.E.2d 206, 288 Ill.Dec. 81 (2004). Based on that authority, the Board maintains that the circuit court exceeded its authority in ordering the Board to remove its report from the NPDB Web site.

The part of the January 5, 2017, supplemental stay order about which the Board complains requires the Board to "clear and remove all language in its entirety sent to the National Practitioner Data Bank (NPDB)" concerning Parks and the relevant pharmacies she owned. The Board did not attach to its petition a copy of the language to which the order refers. See Rule 21(a)(1)(E), Ala. R. App. P. (requiring petitioner to append to the petition "copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition"). In the absence of that material, we cannot discern whether the information reported by the Board to the NPDB and appearing on the NPDB's Web site falls within the scope of the federal laws and regulations cited by the Board. "A writ of mandamus is extraordinary relief and will not issue unless the right to the relief sought is clear and certain, with no reasonable basis for controversy." Ex parte Toyokuni & Co., Ltd., 715 So.2d 786, 788 (Ala. 1998). Because it is not clear and certain that the circuit court violated federal law, the writ cannot issue. I therefore dissent to any part of the main opinion requiring the circuit court to vacate, or to consider vacating, that part of its January 5, 2017, supplemental stay order directing the Board to remove its report from the NPDB Web site.

Thomas, J., concurs.

      The board filed a notice of appeal of the supplemental order within 14 days of the entry of that order, believing it to be appealable because it was injunctive in nature. See Rule 4(a)(1)(A), Ala. R. App. P. On February 15, 2017, Demetrius Yvonne Parks filed in this court a motion to dismiss the appeal. On February 23, 2017, this court entered an order treating the appeal as a petition for a writ of mandamus and denying Parks's motion to dismiss.

      The board took disciplinary action against another pharmacist in connection with this matter. That pharmacist is not involved in the appeal to the circuit court.


author: THOMPSON, Presiding Judge.

text:
    James DRIGGERS v. Loryn DRIGGERS
    2160020
    Court of Civil Appeals of Alabama.
    June 16, 2017
    Melissa L. Isaak of the Issak Law Firm, Montgomery, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

James Driggers ("the father") appeals from a judgment divorcing him from Loryn Driggers ("the mother"), awarding the parties joint legal custody of their child ("the child"), and awarding the mother sole physical custody of the child subject to the father's visitation rights.

The statement of the facts the father included in his appellate brief is less than two pages. Although he includes additional facts in the argument portion of his brief, those facts support his contentions on appeal and are not part of a full, narrative rendition of facts as required by Rule 28(a)(7), Ala. R. App. P. This court has studied the full record on appeal. The evidence adduced during the May 16, 2016, trial of this case tends to show the following. The parties married on February 4, 2011. They separated four years later, on September 26, 2015, and the mother filed a complaint for a divorce. The child was six years old at the time of the trial. The father had custody of a child from a previous relationship ("the half sister") who was 14 years old at the time of the trial. Evidence indicated that the child missed the half sister when she was away from her.

The mother testified that, at the time of the trial, she worked at a dentist's office as the "front desk coordinator" earning $12.50 an hour. She also worked at a restaurant at night on occasion. She said that she was usually home by 9:00 or 9:30 p.m. those nights, depending on how crowded the restaurant was. The mother testified that, after the father and she separated, she only "filled in" at the restaurant occasionally. During the parties' marriage, the mother had held several jobs, including working for Hyundai Motor Manufacturing of Alabama ("Hyundai") and for a local automobile dealership. The mother acknowledged that her job with Hyundai was terminated after she was involved in a physical altercation with another employee. She said that she had worked at the automobile dealership for "a week or so."

The father testified that he earns approximately $98,000 annually but that his income fluctuates. He works as an assistant manager of the body shop at the Hyundai plant. In that position, the father is required to rotate his work schedule among the three shifts at the plant. He said that when he works first shift, his hours are from 6:15 a.m. to 3:00 p.m. His hours on second shift are from 2:15 p.m. to 11:00 p.m.; third shift hours are from 10:15 p.m. to 7:00 a.m. The mother testified that the father worked between 11 and 12 hours each day, regardless of which shift he was working. The mother testified that the father's working hours, as well as his need to sleep during the day when the child would be with him, was a primary reason for her belief that she should have custody of the child.

The mother testified that she was the child's primary caretaker. For example, the mother said, she was the parent who took the child to doctors' appointments. The mother also said that, before the parties separated, the father was either at work or asleep during much of the child's waking hours. She also asserted that, when he worked second shift, the father would leave work early enough to go out and sing at a karaoke bar as often as three nights a week rather than come home to spend time with the family.

The father testified that he enjoyed singing karaoke but that he went out to do so only once a week when his work hours permitted. He said that, because the parties were sharing custody, he had spent much more time with the child since the parties had separated. He said that he had always enjoyed spending time with the child and that, when his work schedule had allowed, he had bathed the child and put her to bed.

The parents conceded that they had different parenting styles. The mother described herself as a disciplinarian. The father disagreed with the mother's stricter approach with the child. A neighbor who testified on behalf of the father said that she had seen the mother discipline the child. Although she would not characterize the mother's discipline as "inappropriate," the neighbor did say that the mother was more "stern" with the child than was the father.

The father testified that the mother had anger and honesty issues. In addition to the evidence regarding the circumstances surrounding the termination of the mother's employment with Hyundai, the father elicited evidence indicating that, in 2005, when the mother was a minor, she was arrested for writing a worthless check. It is unclear whether she was convicted of that offense. In 2010 or 2011, the mother said, she was arrested for theft of property in connection with a deposit that had not been made at the business she had worked for years earlier. The mother denied that she had played any role in the missing money and stated that the charge had been dismissed. The father also presented evidence indicating that, since the parties' separation, the mother had been involved in an altercation at a bar one night. The details of the altercation were disputed, but the fight was between the mother and a woman with whom, the mother said, she believed the father was having an affair. The father was not present at the time.

The father testified that he wanted to have custody of the child half of the time. If that was not possible, he said, he wanted sole physical custody of the child. He said that he had people ready and willing to help him with the child when he had to work. When he worked first shift, the father testified, he would wake the child up at 5:30 a.m. "and get her started." He also said that, when he had to work third shift, he was willing to take the child to the mother's house before he left for work so that the child could go to bed, then awaken and prepare for school at the mother's house.

The father remains in the marital residence; the mother has moved to a nearby town. No evidence was presented regarding where the child attended school, the amount of time she had to travel from each party's house to reach the school, or other similar topics.

The guardian ad litem, who the father had asked to be appointed to represent the child, recommended to the trial court that the mother "be vested with primary physical custody" of the child. In support of his recommendation, the guardian ad litem stated that the father's "work schedule makes it extremely difficult for him to personally provide primary physical custody." He also noted that the parties had an "inability to co-parent" and that, therefore, joint physical custody would be highly unlikely to succeed. The guardian ad litem also recommended that the father be granted "extremely liberal visitation" with the child.

On June 10, 2016, the trial court entered the judgment divorcing the parties. On the issues involving custody, the trial court awarded the parties joint legal custody of the child "and [ordered] that primary physical custody of [the] child" be vested with the mother, subject to the award of standard visitation to the father. The trial court made clear that, in light of the father's custody of the half sister and his work schedule, the parties could mutually agree to "formally adjust the schedule of visitation" within 30 days of the entry of the judgment and that the trial court would "consider amending the schedule" to the mutually agreeable schedule.

The trial court went on to state the following in the judgment:

"The parties are admonished that joint legal custody of [the] child established in each party co-equal responsibility for decisions regarding major areas which touch upon the health, education, moral development, and welfare of [the] child. Each party shall have the opportunity to provide meaningful input into those areas and shall be entitled to receive and/or inspect any and all records which contain information relative to the child. Such records may include, but are not limited to, medical records, education records, and report cards. The father shall receive reasonable notice of, and opportunity to attend and/or participate in, any and all activities in which the child becomes involved.
"(a) In the event the parents are unable to reach a mutual agreement concerning areas which touch upon the health, education, moral development, and welfare of the child, the [mother] is vested with the final decision-making authority which she shall exercise only after full and fair consideration of the [father's] ideas, opinions, and input."

The father filed a timely motion to alter, amend, or vacate the judgment, raising a number of issues. In the motion, the father requested a hearing. The mother and the guardian ad litem both responded to the motion. The trial court never ruled on the father's postjudgment motion, which was deemed denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The father then appealed.

On appeal, the father argues that the trial court erred by failing to hold a hearing on his motion to alter, amend, or vacate the judgment.

" 'Rule 59(g)[, Ala. R. Civ. P.,] provides that posttrial motions "remain pending until ruled upon by the court (subject to the provisions of Rule 59.1 ), but shall not be ruled upon until the parties have had opportunity to be heard thereon." The failure to hold a hearing on a posttrial motion is not always reversible error, however. Our supreme court has stated:
" ' " '[I]f a party requests a hearing on its motion [filed pursuant to Rule 59, Ala. R. Civ. P.], the court must grant the request.' Ex parte Evans, 875 So.2d 297, 299-300 (Ala. 2003) (citing Rule 59(g), Ala. R. Civ. P., and Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala. 1989) ). Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. 'This Court has established, however, that the denial of a postjudgment motion without a hearing thereon is harmless error, where (1) there is ... no probable merit in the grounds asserted in the motion, or (2) 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.' Historic Blakely Auth. v. Williams, 675 So.2d 350, 352 (Ala. 1995) (citing Greene v. Thompson, 554 So.2d 376 (Ala. 1989) )."
" ' Chism v. Jefferson County, 954 So.2d 1058, 1086 (Ala. 2006).'
" Cunningham v. Edwards, 25 So.3d 475, 477 (Ala. Civ. App. 2009).... The issue then becomes whether such error is reversible. Error 'is reversible error only if it "probably injuriously affected substantial rights of the parties." ' Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala. 1993) (quoting Rule 45, Ala. R. Civ. P., and citing Greene v. Thompson, 554 So.2d 376, 380-81 (Ala. 1989), and Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala. 1989) ). 'If the failure to conduct a hearing did not " 'injuriously affect[ ] [the] substantial rights of the parties,' " that failure, while error, was harmless.' DWOC, LLC v. TRX Alliance, Inc., 99 So.3d 1233, 1236 (Ala. Civ. App. 2012) (quoting Kitchens, 623 So.2d at 1088 )."

Frazier v. Curry, 119 So.3d 1195, 1197-98 (Ala. Civ. App. 2013).

In his postjudgment motion, and again in his appellate brief, the father argued that the trial court erred in not allowing him the opportunity to question the guardian ad litem after the guardian ad litem submitted his report and recommendations to the trial court. The record demonstrates that the guardian ad litem's report was submitted to the trial court after the trial was completed. In its judgment, the trial court stated that it had "given considerable weight to the report and opinion of the Guardian ad litem" when making its findings of fact and its custody determination.

In Ex parte R.D.N., 918 So.2d 100, 104-05 (Ala. 2005) (footnotes omitted), our supreme court addressed a similar issue, stating:

"The guardian ad litem's recommendation that the child remain with the mother was not presented as evidence produced in open court and was based on information that may or may not have been properly presented to the court. As a result, the father was denied the opportunity to respond with rebuttal evidence and to present reasons why the recommendation of the guardian ad litem should not be followed. The mother was also denied the opportunity to respond and present reasons why the guardian ad litem's recommendation should be followed.
"The guardian ad litem made no recommendation on the record either by testimony or in a written report before or during the July 2002 hearing. The guardian ad litem apparently formed and expressed her opinion on the merits before the case was presented on the merits and stated conclusions openly hostile to the father's position. There is no evidence in the record indicating that the guardian ad litem had any recognized qualifications that demonstrated that she had a unique ability to make a recommendation on child custody. Consequently, the right to contest the accuracy, substance, impartiality, and quality of the guardian ad litem's recommendation to the court concerning the custody of the child was a procedural right denied the father in this case."

See also Cooper v. Cooper, 160 So.3d 1232, 1243 (Ala. Civ. App. 2014) (noting that "the guardian ad litem's recommendation was presented to all parties at trial and the parties were afforded the opportunity to contest the recommendation," which distinguished the case from Ex parte R.D.N., supra) ; K.U. v. J.C., 196 So.3d 265, 273 n.3 (Ala. Civ. App. 2015) (distinguishing Ex parte R.D.N., supra, because the guardian ad litem's recommendation was not made ex parte and no party objected to the submission of the written recommendation); and C.J.L. v. M.W.B., 879 So.2d 1169 (Ala. Civ. App. 2003) (distinguished in Ex parte R.D.N., 918 So.2d at 103, because "the recommendations of the guardian ad litem were before the court and were contested during the trial on the merits," as opposed to being submitted to the court ex parte).

In this case, the guardian ad litem's recommendation that the mother be vested with "primary physical custody" was not presented as evidence. The guardian ad litem asked questions of witnesses, but he did not serve as a witness himself. The father was not given an opportunity to challenge the guardian ad litem's report, findings, impartiality, or recommendations. Thus, we conclude that the trial court's denial of the father's postjudgment motion injuriously affected the father's substantial rights, and, therefore, the denial of a hearing on the motion was not harmless. The trial court erred to reversal by not holding such a hearing.

The father also asserted in his postjudgment motion and on appeal that the trial court erred by not allowing the father to present all of his witnesses during the trial. In his brief on appeal, the father cites no authority and makes no legal argument to demonstrate that the trial court erred in denying him the opportunity to present additional evidence after the judgment was entered.

" 'It is the appellant's burden to refer this Court to legal authority that supports its argument. Rule 28(a)(10), Ala. R. App. P., requires that the argument in an appellant's brief include "citations to the cases, statutes, [and] other authorities ... relied on." Consistent with Rule 28, "[w]e have stated that it is not the function of this court to do a party's legal research." Spradlin v. Spradlin, 601 So.2d 76, 78 (Ala. 1992) (citing Henderson v. Alabama A & M University, 483 So.2d 392, 392 (Ala. 1986) (" 'Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.' Gibson v. Nix, 460 So.2d 1346, 1347 (Ala. Civ. App. 1984).")).'
" Board of Water & Sewer Comm'rs of City of Mobile v. Bill Harbert Constr. Co., 27 So.3d 1223, 1254 (Ala. 2009)."

McConico v. Patterson, 204 So.3d 409, 419 (Ala. Civ. App. 2016). The father has failed to demonstrate that the denial of his postjudgment motion as to this issue injuriously affected his substantial rights.

Because the trial court erred in not holding a hearing on the father's postjudgment motion, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. Consequently, consideration of issues the father raised on appeal that are not addressed in this opinion are pretermitted.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      The child was born before the parties married. There is no dispute regarding the child's paternity.

      Although the father states in his appellate brief that this issue was raised before the trial court during the trial, the record does not reflect that such a discussion or objection took place. "An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal." Martin v. Martin, 656 So.2d 846, 848 (Ala. Civ. App. 1995).


author: DONALDSON, Judge.

text:
    Hope KIRBY v. JACK'S FAMILY RESTAURANTS, LP
    2160220
    Court of Civil Appeals of Alabama.
    June 16, 2017
    Michael L. Weathers, Florence, for appellant.
    Michael L. Thompson and Albert L. Vreeland II of Lehr Middlebrooks Vreeland & Thompson, P.C., Birmingham, for appellee.
   DONALDSON, Judge.

Hope Kirby appeals from an order of the Lauderdale Circuit Court ("the trial court") dismissing her tort-of-outrage claim against Jack's Family Restaurants, LP ("Jack's"). The order did not dismiss all of Kirby's claims against all the defendants, but it was certified as final and appealable pursuant to Rule 54(b), Ala. R. Civ. P. Because we find that the order was not appropriately certified as final, we dismiss the appeal.

The procedural history relevant to this appeal can be summarized as follows. Kirby, who had been an employee of Jack's, filed a complaint in the trial court seeking benefits under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975 ("the Act"), and seeking damages for the tort of outrage and retaliatory discharge. Kirby named as defendants Jack's, the Alabama Self-Insured Worker's Compensation Fund, Employer's Claim Management, Inc., and Directions Management Services, Inc. (hereinafter referred to collectively as "the defendants"). Jack's filed a motion pursuant to Rule 12(b)(6), Ala. R. Civ. P., seeking to dismiss Kirby's claim asserting the tort of outrage. Thereafter, the other defendants also filed similar motions to dismiss. Kirby, with leave of the trial court, filed two amended complaints attempting to support her claim asserting the tort of outrage. On October 5, 2016, after a hearing, the trial court granted the defendants' motions to dismiss. On October 12, 2016, in response to a motion filed by Jack's seeking to clarify the October 5, 2016, dismissal order, the trial court entered an order dismissing Kirby's tort-of-outrage claim asserted against Jack's and clarified that the dismissal was directed to the tort-of-outrage claim asserted in Kirby's second amended complaint. The trial court certified that order as final pursuant to Rule 54(b). On November 22, 2016, Kirby timely filed a notice of appeal to the supreme court. Thereafter, the supreme court deflected the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.

"Although neither party has raised the issue of the appropriateness of the [trial] court's Rule 54(b), Ala. R. Civ. P., certification of its ... order [dismissing Kirby's tort-of-outrage claim], this Court may consider that issue ex mero motu because the issue whether a judgment or order is sufficiently final to support an appeal is a jurisdictional one." Firestone v. Weaver, [Ms. 1151211, May 12, 2017] --- So.3d ----, ---- (Ala. 2017). "This court has appellate jurisdiction over appeals from judgments that are final." Perry v. Perry, 92 So.3d 799, 800 (Ala. Civ. App. 2012).

"An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. See Stone v. Haley, 812 So.2d 1245 (Ala. Civ. App. 2001). In such an instance, an appeal may be had 'only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.' See Rule 54(b), Ala. R. Civ. P.; Baker v. Johnson, 448 So.2d 355, 358 (Ala. 198[3])."

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002). Despite a trial court's certification of an order as final,

" '[n]ot every order has the requisite element of finality that can trigger the operation of Rule 54(b).' Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003) (citing Moss v. Williams, 747 So.2d 905 (Ala. Civ. App. 1999) ). ' " 'Certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.' " ' Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004) (quoting State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002), quoting in turn Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994) ).
" ' " ' "Appellate review in a piecemeal fashion is not favored." ' " ' Id. (quoting Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003), quoting in turn Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala. Civ. App. 1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala. Civ. App. 1996) ).
" ' "It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.
" ' "An appellate court also should not hear appeals that will require it to determine questions that remain before the trial court with regard to other claims." '
" Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala. 2009) (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998) )."

Lund v. Owens, 170 So.3d 691, 695 (Ala. Civ. App. 2014).

The trial court's October 12, 2016, order dismissing Kirby's tort-of-outrage claim asserted against Jack's found, in part, that Kirby's "allegations fail to rise to the level of a cognizable claim of outrage under Alabama law and, therefore, [Kirby] has failed to state a claim for Outrage." That order did not dispose of Kirby's claim seeking workers' compensation benefits or Kirby's claim alleging retaliatory discharge. We note that those claims were not severed pursuant to Rule 21, Ala. R. Civ. P., but remain pending in the same case.

Rule 54(b) certification is not proper when the unadjudicated claims "are so closely intertwined [with those adjudicated in a judgment that has been certified as final so] that separate adjudication would pose an unreasonable risk of inconsistent results." Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987). Furthermore, Rule 54(b) certification is improper "when at least some of the issues presented in the claims still pending in the trial court [are] the same as the issues presented in the claims addressed in the judgment on appeal and ' "[r]epeated appellate review of the same underlying facts would be a probability in [the] case." ' " Lund, 170 So.3d at 696 (quoting Patterson v. Jai Maatadee, Inc., 131 So.3d 607, 611 (Ala. 2013), quoting in turn Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562 (Ala. 2009) ).

We must, therefore, determine whether Kirby's tort-of-outrage claim is "closely intertwined" with the remaining claims alleging retaliatory discharge and seeking workers' compensation benefits. "In order to recover [damages for the tort of outrage], a plaintiff must demonstrate that the defendant's conduct '(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it.' " Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000) (quoting Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38, 44 (Ala. 1990), citing in turn American Road Serv. Co. v. Inmon, 394 So.2d 361 (Ala. 1981) ).

As explained above, one of Kirby's claims that remains pending in the trial court is a claim alleging retaliatory discharge.

"In order for an employee to establish a prima facie case of retaliatory discharge the employee must show: 1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the employee's on-the-job injury and the filing of a workers' compensation claim."

Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala. 2002).

In support of both her retaliatory-discharge claim and tort-of-outrage claim in her amended complaint, Kirby relies on facts and circumstances surrounding her injury and termination. It appears that Kirby must rely on the same set of underlying facts to support her claim alleging retaliatory discharge and to prove her claim asserting the tort of outrage. In a recent opinion, our supreme court, in concluding that a trial court had exceeded its discretion in certifying a summary judgment in favor of one of multiple defendants as final pursuant to Rule 54(b), noted that the plaintiff's claims against several defendants in that case, which included conspiracy and the tort of outrage, among others, arose out of the same set of facts, that there was "a probability of '[r]epeated appellate review of the same underlying facts,' " and that "piecemeal adjudication of the claims against the defendants pose[d] an unreasonable risk of inconsistent results." Firestone v. Weaver, --- So.3d at ---- (quoting Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562 (Ala. 2009) ).

Because it appears that Kirby must rely on the same set of underlying facts to prove her claim asserting the tort of outrage and to support her claim alleging retaliatory discharge, there is "a probability of '[r]epeated appellate review of the same underlying facts,' " id., if we were to hold that the trial court's Rule 54(b) certification was appropriate in this case. Kirby's tort-of-outrage and retaliatory-discharge claims are "so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results." Branch, 514 So.2d at 1374. Accordingly, we conclude that the trial court exceeded its discretion in certifying its order dismissing Kirby's tort-of-outrage claim asserted against Jack's as final pursuant to Rule 54(b). As a result, we dismiss the appeal as having been taken from a nonfinal judgment.

APPEAL DISMISSED.

Thompson, P.J., and Moore, J., concur.

Thomas, J., concurs in the result, with writing, which Pittman, J., joins.

THOMAS, Judge, concurring in the result.

Although I agree that the Rule 54(b), Ala. R. Civ. P., certification of the order dismissing Hope Kirby's claim asserting the tort of outrage against Jack's Family Restaurants, LP ("Jack's"), is improper, I reach that conclusion using a different analysis than that expressed by the majority. Our supreme court has set out the considerations relevant to a determination whether a Rule 54(b) certification should be set aside. See Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263-64 (Ala. 2010).

"In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether 'the issues in the claim being certified and a claim that will remain pending in the trial court " 'are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.' " ' Schlarb[ v. Lee], 955 So.2d [418,] 419-20 [ (Ala. 2006) ] (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs.[ v. Guthrie], 20 So.3d [1277,] 1281 [ (Ala. 2009) ] (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required 'resolution of the same issue' as issue pending on appeal); and Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala. 2008) (concluding that the judgments on the claims against certain of the defendants had been improperly certified as final under Rule 54(b) because the pending claims against the remaining defendants depended upon the resolution of common issues).
"Additionally, in considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay, several United States Courts of Appeals have expressly considered whether the resolution of claims that remain pending in the trial court may moot claims presented on appeal. In MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849 (4th Cir. 2010), the United States Court of Appeals for the Fourth Circuit explained:
" 'In determining whether there is no just reason for delay in the entry of judgment, factors the district court should consider, if applicable, include:
" ' "(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in a set-off against the judgment sought to be made final;[ ] (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like."
" ' Braswell [Shipyards, Inc. v. Beazer E., Inc.], 2 F.3d [1331,] 1335-36 [ (4th Cir. 1993) ]... (quoting Allis-Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975) [overruled on other grounds by Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) ] ).
"....'
" 610 F.3d at 855 (emphasis added)."

Lighting Fair, 63 So.3d at 1263-64 (footnote omitted).

This court has before it only Kirby's complaint and amended complaints upon which to base an analysis of the propriety of the Rule 54(b) certification. Kirby alleged that Jack's was liable for the tort of outrage based on the following facts. Because Kirby seeks review of an order dismissing her tort-of-outrage claim under Rule 12(b)(6), Ala. R. Civ. P., I will recount those facts as if they are true. See Ussery v. Terry, 201 So.3d 544, 546 (Ala. 2016) (stating that, when considering whether a complaint is sufficient to withstand a motion to dismiss, an appellate court must take the allegations of the complaint as true).

Kirby injured herself in the line and scope of her employment with Jack's in late August or early September 2015. She reported her injury to her supervisor, Ann Long, later that same day. Long's body language and tone of voice conveyed to Kirby that Long was irritated or agitated that Kirby had suffered an injury. Kirby understood that Long did not wish to report the injury because that would end the restaurant's string of injury-free days.

Long did not file a first report of injury, despite having knowledge of Kirby's injury on the date it occurred. Kirby, who showed visible signs of a knee injury, including limping, complained of continued and increasing pain in her knee to Long over the next several weeks. She requested, in October 2015, that she be authorized to see a physician, after which Long informed Kirby that Long had not filled out a first report of injury within 48 hours of Kirby's injury and, therefore, that Kirby would not be able to seek workers' compensation medical benefits if she saw a physician.

Kirby sought treatment for her knee and learned that she needed surgery to repair her knee. When she explained her need for surgery and for leave from employment for the surgery to Long, Long informed her that she would need to discuss her need for leave with Sheila Parnell, an area supervisor for Jack's. As instructed, Kirby contacted Parnell, who told Kirby that she would not be eligible for leave for surgery until she had worked for Jack's for at least six months. According to Kirby, Parnell, despite having assured Kirby that she would assist her in arranging leave, refused to assist Kirby in arranging leave once Kirby had met the six-month requirement.

Parnell, once made aware that Kirby's injury was allegedly work-related, chided Kirby for failing to properly report the injury although that responsibility was Long's. Long informed Parnell that Kirby had timely reported her injury and that Long had failed to file the first report of injury. According to Kirby, Parnell informed Kirby in February 2016 that, because she had alleged that her injury was work-related and an investigation was being conducted, Kirby would have to see workers' compensation physicians and not her own physician. Long had admitted to Kirby that Long had caused the delay in Kirby's medical treatment by failing to properly document and report Kirby's injury.

Kirby was informed in May 2016 that Jack's had declined to provide her medical treatment under its workers' compensation insurance plan; despite contacting Jack's corporate office as instructed, Kirby was never given a reason for the denial. Parnell then informed Kirby that if Kirby could not perform the duties of her employment, Kirby's employment with Jack's would be terminated. Kirby's employment was terminated in June 2016, by Parnell, who informed Kirby that her employment was terminated because Kirby could not perform the duties of her employment. Kirby described Parnell's demeanor during the discussions leading to her termination from employment as hateful and the content of the discussions as humiliating, degrading, and demoralizing.

Kirby has alleged that she has suffered extreme emotional distress as a result of being denied the medical treatment she needs for the injury to her knee. In her original complaint, she alleged that Jack's had

"intentionally and/or recklessly and/or wantonly caused [Kirby] to suffer severe emotional distress and mental anguish and severe pain and suffering by refusing, without good and valid reasons, to authorize reasonable and necessary medical treatment recommended and requested by [Kirby's] authorized treating healthcare professionals, [from] whom [Jack's] approved [Kirby] to seek treatment."

Her amended complaints contain more factually detailed allegations, but they essentially seek damages for the same emotional distress caused by the failure to provide medical treatment, which distress was caused by severe pain, the inability to earn a living, and depression over her situation. As noted by the majority opinion, Kirby also sought an award of workers' compensation benefits, including medical benefits, under the Alabama Workers' Compensation Act, codified at Ala. Code 1975, § 25-5-1 et seq. ; a penalty for the late payment of those benefits pursuant to Ala. Code 1975, § 25-5-59(b) ; and damages for retaliatory discharge under Ala. Code 1975, § 25-5-11.1.

The majority has concluded that the tort-of-outrage claim and the retaliatory-discharge claim " 'are so closely intertwined that separate adjudication [of those claims] would pose an unreasonable risk of inconsistent results.' " 240 So.3d at 610-11 (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987) ). I am not convinced by the majority's determination that the same unnamed facts underlie both the retaliatory-discharge claim and the tort-of-outrage claim. See id. Instead, I conclude that the determination of the underlying workers' compensation claim and Kirby's request for a penalty under Ala. Code 1975, § 25-5-59(b) ("If any installment of compensation payable is not paid without good cause within 30 days after it becomes due, there shall be added to the unpaid installment an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the installment."), may well moot Kirby's tort-of-outrage claim. See Lighting Fair, 63 So.3d at 1265.

To succeed on a claim seeking damages for the tort of outrage, Kirby "must demonstrate that [Jack's] conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it." Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38, 44 (Ala. 1990). Our supreme court first recognized the tort of outrage in American Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala. 1980). Robert Inmon, the plaintiff, contended that his company's investigation of him and the resulting termination of his employment had been conducted in a manner so outrageous that he had been subjected to severe emotional distress. Inmon, 394 So.2d at 366-67. Our supreme court concluded that although

"the management of Inmon's investigation and termination may have been somewhat disorganized, and a humiliating experience for him personally, nevertheless American Road's behavior throughout cannot, as a matter of law, be characterized as 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' [Restatement (Second) of Torts §] 46, Comment (d), ... at 73 [ (1948) ]. As [Restatement (Second) of Torts §] 46, Comment (g), ... at 76 [ (1948) ] states:
" 'The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress....'
"And Comment (d), id. at 73:
" 'The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities....' "

Inmon, 394 So.2d at 368 (emphasis added).

As noted above, when confronted with an order dismissing a particular claim that has been certified as final, our supreme court has considered whether the resolution of the claim or claims remaining in the trial court would moot the issue that would be considered on appeal. See Lighting Fair, 63 So.3d at 1265 ; see also Ragland v. State Farm Mut. Auto. Ins. Co., 238 So.3d 641 (Ala. 2017). If the dismissed claim is dependent on liability that may be resolved by a determination necessary to a claim that remains pending in the trial court, the certification of the order dismissing the claim as final for purposes of appeal has been held to be improper because the claim on appeal could become moot. See Lighting Fair, 63 So.3d at 1265. Although the tort of outrage does not require as part of its elements proof of a work-related injury, it is Kirby's work-related injury and Jack's refusal to provide Kirby's medical benefits to which she claims entitlement that form the factual basis of the tort-of-outrage claim. Any determination that Kirby did not suffer a work-related injury or that she was not entitled to workers' compensation benefits or medical treatment as a result of that injury could moot her claim asserting the tort of outrage because the refusal to pay for Kirby's medical treatment would then have been Jack's " 'insist[ance] upon [its] legal rights in a permissible way.' " Inmon, 394 So.2d at 368 (quoting Restatement (Second) of Torts § 46, Comment (g), at 76 (1948)). Furthermore, a determination that Jack's had a good-faith basis for contesting its liability for Kirby's injury would eradicate Kirby's claim for a penalty under the § 25-5-59(b). See Goodyear Tire & Rubber Co. v. Bush, 160 So.3d 787, 794 (Ala. Civ. App. 2014) (reversing an award of the statutory penalty when the employer had "presented substantial evidence to controvert the claim" and had therefore defended the claim with good cause), and Goodyear Tire & Rubber Co. v. Muilenburg, 990 So.2d 434, 439 (Ala. Civ. App. 2008) (same). Such determinations would negate Kirby's argument that the denial of medical benefits was, in fact, outrageous, thus rendering the tort-of-outrage claim moot.

Based on the foregoing, I concur in the result.

Pittman, J., concurs.

      The trial court entered similar orders disposing of Kirby's tort-of-outrage claims asserted against the other defendants and certified those orders as final and appealable pursuant to Rule 54(b) ; however, those orders are not at issue in this appeal.

      Note from the reporter of decisions: This May 12, 2017, opinion was withdrawn and another opinion substituted for it on August 11, 2017. The quoted material appears in the substituted opinion.

      Note from the reporter of decisions: This May 12, 2017, opinion was withdrawn and another opinion substituted for it on August 11, 2017. The quoted material appears in the substituted opinion.

      Note from the reporter of decisions: This May 12, 2017, opinion was withdrawn and another opinion substituted for it on August 11, 2017. The quoted material appears in the substituted opinion.


text:
    Frederick Roosevelt DUNNING, Jr., and Janice Dunning Sandifer v. Lula MAYHEW
    2160248
    Court of Civil Appeals of Alabama.
    June 16, 2017
    Tiffany Jones, Leeds, for appellants.
    James I. York of Gibbs & Sellers, P.C., Demopolis, for appellee.
   DONALDSON, Judge.

Frederick Roosevelt Dunning, Jr., and Janice Dunning Sandifer (hereinafter referred to collectively as "the appellants") appeal from a judgment of the Marengo Circuit Court ("the trial court") determining that Lula Mayhew is the common-law spouse of Frederick Roosevelt Dunning, Sr., the deceased. We affirm the judgment.

Frederick Roosevelt Dunning, Sr. ("Roosevelt"), died intestate on March 8, 2015. On December 2, 2015, Richard Bates, the Sheriff of Marengo County, filed a petition for letters of administration in the Marengo County Probate Court ("the probate court") in which he asserted that Roosevelt's only heirs were Roosevelt's two adult children, Frederick Roosevelt Dunning, Jr. ("Frederick Jr."), and Janice Dunning Sandifer, and that they lived out of state and were not qualified to serve as administrators. See § 43-2-22(a), Ala. Code 1975. Both children filed a consent to the appointment of the sheriff as administrator and a waiver of further service in the probate court.

On January 21, 2016, Sheriff Bates filed a motion seeking assistance from the probate court in gaining access to Roosevelt's home in order to conduct an inventory of the estate. In that motion, Sheriff Bates asserted that Lula, the "alleged significant other" of Roosevelt, lived in the home and would not permit access to the home. It is not clear from the record whether any action was taken by the probate court on that motion; however, on January 22, 2016, the probate court entered an order granting limited letters of administration and appointing Sheriff Bates as the personal representative of Roosevelt's estate.

On May 19, 2016, Lula filed a claim against Roosevelt's estate in which she asserted that she was Roosevelt's surviving spouse and that she and Roosevelt had two children, Sheila Mayhew Ford and Galvin Mayhew. Frederick Jr. and Janice are children from Roosevelt's marriage to Alice, his former spouse.

On June 20, 2016, Lula filed in the trial court a petition to remove the administration of the estate from the probate court to the trial court pursuant to § 12-11-41, Ala. Code 1975, and the administration of the estate was removed to the trial court the same day.

On November 9, 2016, the trial court held a hearing on the pending issues. Lula testified that she met Roosevelt in 1969 in Chicago, Illinois, and that they began a romantic relationship at that time when Roosevelt was still married to Alice. Lula testified that she and Roosevelt had two children: Sheila Mayhew Ford, born in 1971, and Galvin Mayhew, born in 1976. Lula did not list a father on either child's birth certificate. In 1980, Roosevelt moved briefly to California for work, but he then returned to Chicago. In the early 1980s, Roosevelt moved to Alabama for a few years to care for his dying father, and then he returned to Chicago. Lula testified that Roosevelt divorced Alice in 1982 or 1983.

Lula testified that, in February 1990, Roosevelt and Lula moved to Alabama together, where they lived with Roosevelt's cousin until April 2014 when they moved into their mobile home. Lula testified that she and Roosevelt lived there together until his death. Lula testified that, at some point, she had briefly lived with her mother to care for her until her mother's death.

Lula testified that she and Roosevelt had shared a joint bank account since 1990 and that they both deposited money into the account to pay their household expenses. Lula testified that she began receiving Social Security disability benefits in 2000, that the checks were mailed to an Aliceville address where her mother lived until 2013, but that she deposited a portion of each of those checks into her and Roosevelt's joint account each month.

Roosevelt was listed as "divorced" on his death certificate, and Lula testified that she provided the information for the death certificate to the coroner. The testimony regarding those circumstances was not clear. Lula testified that, after Roosevelt's death, she worked with Roosevelt's children, including Janice and Frederick Jr., to write Roosevelt's obituary, which listed Lula as Roosevelt's wife. Lula testified that she paid for Roosevelt's burial plot and other grave expenses.

Lois Young testified that Roosevelt was her brother, that she lived near Roosevelt and Lula when they moved to Alabama, and that she believed that Roosevelt and Lula were husband and wife. Young testified that she never heard Roosevelt specifically call Lula his wife.

Andy Etheridge testified that he sold various insurance policies to Roosevelt and Lula. Etheridge testified that Lula was the beneficiary of a life-insurance policy on Roosevelt and that Lula was listed as Roosevelt's common-law wife on the policy. Etheridge testified that, likewise, Roosevelt was listed as Lula's common-law husband and as beneficiary of Lula's life-insurance policy. Etheridge testified that both Roosevelt and Lula had identified the other as a common-law spouse when he sold the policies.

Sheriff Bates testified that he knew Roosevelt and Lula from the community and from their church and that he believed that they were married and had a child together. Sheriff Bates testified that it was not until after Roosevelt's death, when he was appointed as administrator, that he learned that Roosevelt and Lula had not been ceremoniously married.

Joseph Moore testified that he had known Roosevelt and Lula for a long time and that he called them "mama" and "daddy." Moore testified that Roosevelt referred to Lula as his wife on multiple occasions and that Roosevelt referred to Galvin as his son. Moore testified that he did not know that Roosevelt and Lula had not been ceremoniously married until after Roosevelt's death. Moore also testified that Roosevelt never talked about his children from his marriage to Alice-Frederick Jr. and Janice-and that Roosevelt had "cleaned the slate" when he moved to Alabama.

Galvin Mayhew testified that he is Roosevelt's and Lula's son. Galvin testified that Roosevelt had introduced Lula as his wife and Galvin as his son on occasions. Galvin also testified that Lula had received mail addressed to "Lula Dunning."

Janice Sandifer testified that she is Roosevelt's 57-year-old daughter. Janice remained in Chicago when Roosevelt moved to Alabama. Janice testified that Roosevelt had never referred to Lula as his wife, that Roosevelt told her that he did not want to marry Lula, and that Roosevelt had stated that he was not going to get married to appease members of their church that thought he and Lula should be married.

Janice testified that, on the day of the funeral she read the obituary that Lula had prepared and that the portion listing Lula as Roosevelt's wife was not true. Janice testified that she wrote another obituary and that she listed Roosevelt as being married to her mother, Alice, and listed Lula as an extended family member. Janice also testified that she suffers from short-term memory problems as a result of epilepsy.

Frederick Jr. testified that he is Roosevelt's son and that he lived with Roosevelt and Lula in the mid 1990s. Frederick Jr. testified that Roosevelt never referred to Lula as his wife and that Roosevelt never discussed marriage. Frederick testified that his father intended to stay single and be a "playboy" and that he had had other girlfriends that Frederick Jr. had met. Frederick Jr. testified that, in 2014, he heard Lula tell Roosevelt that she did not understand why he would not marry her, but, Frederick Jr. stated, Roosevelt did not answer.

On December 5, 2016, the trial court entered the following order:

"This cause came to he heard by this Court on November 9, 2016, Present in Court were Petitioner, Lula Mayhew, and her attorney, Jamee I. York, as well Frederick Roosevelt Dunning, [Jr.,] Respondent, and [his] attorney Woodford W. Dinning, Jr. This Court took testimony, received evidence and heard argument from both counsel. After doing so, this Court hereby finds the following:
"The Petitioner, Lula Mayhew, presented evidence that clearly and convincing[ly] establishes [Lula] and Frederick Roosevelt Dunning, deceased, entered into a common law marriage.
"It is therefore ORDERED, ADJUDGED and DECREED that the petition of Lula Mayhew is hereby granted, and Lula Mayhew is recognized as the surviving common law spouse of Frederick Roosevelt Dunning, deceased."

On January 17, 2017, the appellants timely filed a notice of appeal to this court. We transferred the appeal to the supreme court based on our lack of subject-matter jurisdiction. See § 12-22-22, Ala. Code 1975 (providing that the supreme court has jurisdiction over appeals from the circuit court in probate matters). The supreme court deflected the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The appellants challenge the trial court's judgment finding that Lula is the common-law spouse of Roosevelt.

"In Lofton v. Estate of Weaver, 611 So.2d 335 (Ala. 1992), our supreme court set forth the standard of review appropriate to this case:
" ' "Courts of this state closely scrutinize claims of common law marriage and require clear and convincing proof thereof." Baker v. Townsend, 484 So.2d 1097, 1098 (Ala. Civ. App. 1986), citing Walton v. Walton, 409 So.2d 858 (Ala. Civ. App. 1982). A trial judge's findings of facts based on ore tenus evidence are presumed correct, and a judgment based on those findings will not be reversed unless they are found to be plainly and palpably wrong. Copeland v. Richardson, 551 So.2d 353, 354 (Ala. 1989). The trial court's judgment must be viewed in light of all the evidence and all logical inferences therefrom, and it "will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment." Adams v. Boan, 559 So.2d 1084, 1086 (Ala. 1990) (citation omitted).'
" 611 So.2d at 336. 'Clear and convincing evidence' is defined as
" '[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.'
"§ 6-11-20(b)(4), Ala. Code 1975. Discussing the elements of a common-law marriage, this court has written:
" 'In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer [v. Stringer], 689 So.2d [194,] 195 [ (Ala. Civ. App. 1997) ], quoting Crosson v. Crosson, 668 So.2d 868, 870 (Ala. Civ. App. 1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala. 1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala. Civ. App. 1987). Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).'
" Gray v. Bush, 835 So.2d 192, 194 (Ala. Civ. App. 2001)."

Cochran v. Chapman, 81 So.3d 344, 345-46 (Ala. Civ. App. 2011).

The appellants assert that Lula did not introduce evidence related to Roosevelt's and Lula's capacity to enter into a marriage. Capacity was not at issue, however, and the appellants did not raise any argument related to capacity at the trial. "[An appellate court] cannot consider arguments raised for the first time on appeal; rather, [its] review is restricted to the evidence and arguments considered by the trial court." Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992).

The appellants further argue that clear and convincing evidence does not support a determination that Roosevelt and Lula had the " 'present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships' " or that there existed any " 'public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation.' " Stringer v. Stringer, 689 So.2d 194, 195 (Ala. Civ. App. 1997) (quoting Boswell v. Boswell, 497 So.2d 479, 480 (Ala. 1986) ).

Lula testified that she and Roosevelt were common-law married when they moved to Alabama in 1990 and began living together. Lula testified that she and Roosevelt lived together, considered themselves married, held themselves out to the public as husband and wife, and shared a bank account and household expenses.

Galvin, Sheriff Bates, Young, and Moore all testified that they believed that Roosevelt and Lula were married. Moore and Galvin testified that they had heard Roosevelt introduce Lula as his wife. Etheridge, the insurance salesman, testified that both Lula and Roosevelt identified the other as a common-law spouse when obtaining insurance policies.

Janice and Frederick Jr., Roosevelt's children from his marriage to his former spouse, were the only witnesses that testified that Roosevelt and Lula were not common-law married, that Roosevelt had never held Lula out as his wife, and that the community knew that they were not married.

The trial judge was tasked with making credibility determinations and resolving conflicting evidence. Reid v. Flournoy, 600 So.2d 1024, 1026 (Ala. Civ. App. 1992) (the trial court is "the sole judge of the credibility of a witness"). "When the evidence is conflicting, [this] court presumes that the finding supporting the [trial] court's judgment is correct." R.T.B. v. Calhoun Cty. Dep't of Human Res., 19 So.3d 198, 205 (Ala. Civ. App. 2009) (citing Ex Parte P.G.B., 600 So.2d 259, 261 (Ala. 1992) ).

Based on the evidence in the record and the presumptions afforded to the trial court's judgment, we conclude that the trial court could have been clearly convinced that Lula was Roosevelt's common-law spouse. Accordingly, the judgment is affirmed.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      The common-law marriage at issue in this case was entered into before January 1, 2017, the effective date of § 30-1-20, Ala. Code 1975, which provides that "[n]o common-law marriage may be entered into in this state on or after January 1, 2017," but that "[a]n otherwise valid common-law marriage entered into before January 1, 2017, shall continue to be valid in this state."

      Although 42 days from December 5, 2016, the date the judgment was entered, was January 16, 2017, that day fell on the birthday of Martin Luther King, Jr., which is recognized as a state holiday; Therefore, the appellants' notice of appeal was timely filed on January 17, 2017. See Rule 4(a)(1), Ala. R. App. P.

      We note that our appellate courts have treated a judgment in a probate proceeding determining that a common-law marriage existed as final for purposes of appeal. See, e.g., Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala. 1992) ; Aaberg v. Aaberg, 512 So.2d 1375, 1376 (Ala. 1987) ; Butler v. Coonrod, 671 So.2d 750, 751 (Ala. Civ. App. 1995) ; and Watkins v. Watkins, 190 So.3d 925, 933 (Ala. Civ. App. 2015).