author: BOLIN, Justice.

text:
    Ex parte LIBERTY NATIONAL LIFE INSURANCE COMPANY. (In re: Misty Ann Barton, as administratrix of the Estate of Benjamin H. Miller, Jr., deceased v. Liberty National Life Insurance Company).
    1140612.
    Supreme Court of Alabama.
    March 25, 2016.

      Scott Burnett Smith of Bradley Arant Boult Cummings LLP, Huntsville; Michael R. Pennington of Bradley Arant Boult Cummings LLP, Birmingham; and Elizabeth W. McElroy of Baxley, Dillard, McKnight, James & McElroy, Birmingham, for petitioner.
    Stan Brobston of Brobston & Brobston P.C., Bessemer, for respondent.
    Matthew C. McDonald of Jones Walker LLP, Mobile, for amicus curiae Alfa Life Insurance Corporation, in support of the petitioner.
    Drayton Nabers, Jr., Katharine A. Weber, and Kasdin E. Miller of Maynard, Cooper and Gale P.C., Birmingham, for amici curiae Business Council of Alabama, Association of Alabama Life Insurance Companies, and American Council of Life Insurers, in support of the petitioner.
   BOLIN, Justice.

Liberty National Life Insurance Company (“Liberty National”) petitioned this Court for a writ of certiorari to review the Court of Civil Appeals’ decision (1) holding, as a matter of first impression, that § 27 — 14—3(f), Ala.Code 1975, a part of the Alabama Insurance Code, § 27-1-1 et seq., Ala.Code 1975 (“the Insurance Code”), requires an insurable interest in a life-insurance policy to exist at a point other than the time at which the policy becomes effective; and (2) reversing the trial court’s dismissal of the complaint filed by Misty Ann Barton, as administratrix of the estate of Benjamin H. Miller, Jr. (“Benjamin Jr.”), in which Barton alleged that Liberty National was negligent in allowing Leanne Jean Miller (“Leanne”), Benjamin Jr.’s stepmother, to substitute herself as beneficiary of an insurance policy insuring the life of Benjamin Jr. See Barton v. Liberty Nat’l Life Ins. Co., 209 So.3d 479 (Ala.2014). We granted Liberty National’s petition, and, for the reasons discussed below, we affirm in part and reverse in part the judgment of the Court of Civil Appeals.

I. Facts and Procedural History

Liberty National issued a life-insurance policy (“the policy”) to Benjamin H. Miller, Sr. (“Benjamin Sr.”), on the life of his son, Benjamin Jr. The named beneficiary on the policy was Nona June Miller, the mother of Benjamin Sr. and grandmother of Benjamin Jr. Benjamin Sr. subsequently modified the policy to name himself as the beneficiary. On January 15, 2011, Benjamin Sr. died. On or about February 23, 2011, Leanne, Benjamin Sr.’s widow, was issued letters of administration for Benjamin Sr.’s estate. During the administration of Benjamin Sr.’s estate, Leanne contacted Liberty National and had herself substituted as the named beneficiary of the policy insuring Benjamin Jr.’s life.

On July 20, 2011, Benjamin Jr. died. Leanne, thereafter, made a claim for the life-insurance proceeds under the policy, which Liberty National paid. Barton, as administratrix of Benjamin Jr.’s estate, sued both Liberty National and Leanne. In the complaint, Barton alleged (1) that the policy was void because Leanne had no insurable interest in Benjamin Jr., her stepson; (2) that Liberty National was negligent in failing to determine at the time of the requested beneficiary change that Leanne had no insurable interest in Benjamin Jr.; and (3) that Liberty National’s negligence caused Benjamin Jr.’s estate to be deprived of the policy benefits that were payable, under the terms of the policy, to Benjamin Jr.’s estate. Barton further alleged that Leanne had been unjustly enriched in an amount equal to the proceeds paid to her that were rightfully payable to Benjamin Jr.’s estate. Barton sought a judgment from Liberty National and Leanne in the amount of $25,000, plus interest and costs.

On October 15, 2013, Liberty National filed a motion, pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss Barton’s complaint, in which it argued that, pursuant to § 27-14-3 of the Insurance Code, there was no requirement that Leanne have an insurable interest in the life of Benjamin Jr. at the time of the beneficiary change. Barton filed a motion in response, in which she argued that because Leanne never had an insurable interest in Benjamin Jr.’s life, Liberty National’s actions in allowing Leanne to substitute herself as beneficiary was tantamount to the creation of a “wagering” policy, which, under Alabama law, is void.

On December 15, 2013, the trial court entered an order granting Liberty National’s motion to dismiss Barton’s complaint; it subsequently entered an order denying Barton’s motion for reconsideration. On April 4, 2014, the trial court certified its December 15, 2013, order as final, pursuant to Rule 54(b), Ala. R. Civ. P. Barton appealed.

On December 12, 2014, the Court of Civil Appeals issued an opinion holding that, when “[vjiewing the Insurance Code as a whole, we agree with Barton that § 27-14-3(f) does not allow for the change of a beneficiary on the life-insurance policy of another when the proposed new beneficiary does not possess an insurable interest in the insured.” Barton v. Liberty Nat’l Life Ins. Co., 209 So.3d at 484. Based on its interpretation of § 27—24—3(f), the Court of Civil Appeals concluded that Leanne, Benjamin Jr.’s stepmother, did not have an insurable interest in Benjamin Jr. either when the policy was issued or at any time thereafter. The Court of Civil Appeals further concluded that the trial court had erred in dismissing Barton’s complaint in light of the fact that it appeared that she could, under certain circumstances, maintain a cause of action against Liberty National for negligence. For these reasons, the Court of Civil Appeals reversed the trial court’s judgment of dismissal of Barton’s negligence claim against Liberty National and remanded the cause to the trial court for further proceedings. On March 13, 2015, Liberty National filed its petition for writ of certio-rari; this Court granted the writ and has heard oral arguments from the parties.

II. Standard of Review

“On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review [for a Rule 12(b)(6), Ala. R. Civ. P., dismissal] that was applicable in the Court of Civil Appeals.”

Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996).

The Court of Civil Appeals stated the following standard of review:

“‘The applicable standard of review for a Rule 12(b)(6), Ala. R. Civ. P., dismissal is set forth in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):
“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] 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 her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). 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. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”
“ ‘(Emphasis added.)’
“Smith v. Smith, 865 So.2d 1221, 1223-24 (Ala.Civ.App.2003) (footnote omitted).”

209 So.3d at 481-82. Further, this Court also reviews de novo questions of law concerning statutory construction. Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033 (Ala.2005).

III. Analysis

A. Insurable Interest

Section 27-14-3(a) of the Insurance Code, regarding “personal insurance,” defines “insurable interest” as

“an interest based upon a reasonable expectation of pecuniary advantage through the continued life, health, or bodily safety of another person and consequent loss by reason of his or her death or disability or a substantial interest engendered by love and affection in the case of individuals closely related by blood or by law.”

It has long been established under Alabama’s common law and statutory law that a life-insurance policy issued to a person not having an insurable interest in the life of the insured is considered a “wager” on the life of another and is therefore void as against public policy. Helmetag’s Adm’x v. Miller, 76 Ala. 183 (1884); see also Commonwealth Life Ins. Co. v. George, 248 Ala. 649, 28 So.2d 910 (1947). In Mutual Savings Life Insurance Co. v. Noah, 291 Ala. 444, 448-49, 282 So.2d 271, 273-74 (1973), this Court expounded on the long-established rule requiring an insurable interest in the life of the insured:

“[T]he long-established rule that [a policy of life insurance procured or taken out by a beneficiary on the life of another] is invalid unless the beneficiary has an ‘insurable interest’ in the life of the insured applies. This rule is to the effect that a person has an unlimited insurable interest in his own life and may designate any person as his beneficiary so long as the insurance was procured or taken out by the insured and the premiums paid by him, but one taking out a policy of insurance for his own benefit, on the life of another person, must have an insurable interest in the continuance of the life of such insured. National Life & Accident Ins. Co. v. Alexander, 226 Ala. 325, 147 So. 173 [ (1933) ]; Tit. 28A, § 316, Code of Alabama, 1940 (Recomp. 1958).
“Several reasons have been assigned as the basis for the insurable interest requirement, both of which are grounded upon public policy considerations: a policy taken out by one for his own benefit on the life of another, in whom he has no insurable interest is, in substance, a wagering contract; and such a policy may hold out a temptation to the beneficiary to hasten by improper means the death of the insured. Commonwealth Life Insurance Co. v. George, 248 Ala. 649, 28 So.2d 910 [ (1947) ]; Helmetag’s Adm’x v. Miller, 76 Ala. 183 [ (1884) ].”

In other words, the public-policy rule making wager contracts void developed to discourage speculation in human life. Id. At common law, this public-policy principle that prohibits a person from insuring the life of a person in whom he or she has no insurable interest also prohibited a person from assigning a policy to one who had no insurable interest in the insured’s life. See Helmetag’s Adm’x v. Miller, supra (holding that an assignment of a life-insurance policy by the insured to one without an insurable interest in the insured’s life is regarded as void as against public policy). As early as 1886, however, courts began to recognize that there were conditions that could take an insurance policy on the life of one in whom the person purchasing the policy had no insurable interest out of the category of a mere wager. In Connecticut Mutual Life Insurance Co. v. Schaefer, 94 U.S. (4 Otto) 457, 460-62, 24 L.Ed. 251 (1876), the United States Supreme Court held that the owner of a validly issued life-insurance policy could assign the policy to another having no insurable interest in the insured’s life, provided the assignment was not done by way of a cover for a wager policy:

“The essential thing is, that the policy shall be obtained in good faith, and not for the purpose of speculating upon the hazard of a life in which the insured has no interest....
“... We do not hesitate to say, however, that a policy taken out in good faith, and valid at its inception, is not avoided by the cessation of the insurable interest, unless such be the necessary effect of the provisions of the policy itself.
“But supposing a fair and proper insurable interest, of whatever kind, to exist at the time of taking out the policy, and that it be taken out in good faith, the object and purpose of the rule which condemns wager policies is sufficiently attained; and there is then no good reason why the contract should not be carried out according to its terms.... ”

In 1971, the Alabama Legislature recognized as much when it enacted the Insurance Code, the purpose of which was, in part, “[t]o provide a comprehensive revision, consolidation and classification of the laws of the State of Alabama relating to insurance and to the insurance business.” Act No. 407, Ala. Acts 1971. As for assignments, the insurable-interest requirement is now codified at § 27-14-21(b), Ala. Code 1975:

“A policy of life insurance, taken out by the insured himself or by a person having an insurable interest in the life of the insured, in good faith may, unless the policy provides otherwise, be assigned to anyone as any other chose in action without regard to whether the assignee has an insurable interest in the life insured or not.”

(Emphasis added.)

The question presented in this case is whether, akin to an assignment, a validly issued life-insurance policy may, in good faith, if the policy does not provide otherwise, be modified to substitute a beneficiary, regardless of whether that beneficiary has an insurable interest in the life of the insured. The answer to this question, of course, depends on the statutory interpretation of § 27-14-3(f), which states that “[a]n insurable interest shall exist at the time the contract of personal insurance becomes effective, but this requirement need not exist at the time the loss occurs.” The Court of Civil Appeals deemed § 27-14—3(f) to be ambiguous and thus interpreted it as requiring an insurable interest to exist not only at the time the policy becomes effective, but also at any time thereafter. Liberty National, however, contends that § 27-14-3(f) unambiguously requires that an insurable interest exist only at the time the policy becomes effective. Stated differently, Liberty National argues that 27-14-3(f) requires only that the original beneficiary of a policy have an insurable interest in the insured’s life and that a validly issued policy can (unless the policy provides otherwise) be subsequently modified to name another person as beneficiary, irrespective of whether that other person has an insurable interest in the life of the insured.

In Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala.1998), this Court discussed the principles of statutory construction as follows:

‘“[When a court] is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purposes sought to be obtained.’
“Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985). In IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992), this Court further stated with regard to statutory construction:
“ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ”

Additionally, various. subsections of a statute are to be read in pari materia, i.e., they are to be construed together to ascertain the meaning and intent of each. Ex parte Jackson, 614 So.2d 405 (Ala.1993); McCausland v. Tide-Mayflower Moving & Storage, 499 So.2d 1378 (Ala.1986).

In interpreting § 27 — 14—3(f), the “[pjrinciples of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.” Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001). Section 27-14-3(f) specifically states that “[a]n insurable interest shall exist at the time the contract of personal insurance becomes effective, but this requirement need not exist at the time the loss occurs.” (Emphasis added.) We find the meaning of § 27-14-3® clear and unambiguous. Section 27-14-3® defines the moment in time at which the insurable-interest requirement applies as the time the contract “becomes effective.” Section 27-14-3® also states that “this requirement,” i.e., the requirement that the insurable interest shall exist at the time the contract becomes effective, “need not exist at the time the loss occurs.” Accordingly, the insurable-interest requirement does not place any restrictions on a subsequent change of beneficiary for a validly issued life-insurance policy. To interpret § 27-14-3® as requiring an insurable interest to exist beyond the time the policy is procured and/or becomes effective would require this Court to add words to the statute the legislature has chosen not to include.

To be sure there is no ambiguity that §. 27-14-3® requires an insurable interest to exist only at the time the policy becomes effective, this Court points to subsections (b) and (g) of the statute — concerning the same subject matter. Section 27-14-3(b), Ala.Code 1975, concerning procuring insurance on one’s own life, states:

“An individual has an unlimited insurable interest in his or her own life, health, and bodily safety and may lawfully take out a policy of insurance on his or her own life, health, or bodily safety and have the same made payable to whomsoever he or she pleased, regardless of whether the beneficiary so designated has an insurable interest.”

(Emphasis added.) In other words, § 27-14-3(b) provides that a person may procure insurance on his own life for the benefit of anyone. Section § 27-14-3(g), Ala.Code 1975, concerning procuring insurance on the life of another, states:

“Any personal insurance contract procured, or caused to be procured, upon another individual is void unless the benefits under the contract are payable to the individual insured, or his or her personal representative, or to a person having, at the time when the contract was made, an insurable interest in the individual insured.”

(Emphasis added.) By comparison, although § 27-14-3(b) provides that a person may procure insurance on his own life for the. benefit of anyone, § 27-14-3(g) provides that an insurance policy procured on the life of another is void “unless the benefits under the contract are payable to ... a person having, at the time when the contract was made, an insurable interest in the individual insured.” (Emphasis added.) In other words, the plain language of § 27-14-3(g) confirms that a life-insurance policy procured on the life of another is void unless “at the time when the contract was made” the proceeds are payable to someone having an insurable interest in the insured. See, e.g., In re Estate of D'Agosto, 134 Wash.App. 390, 395, 139 P.3d 1125, 1128 (2006), in which the Court of Appeals of Washington was called upon to interpret a Washington statute containing language essentially identical to § 27—14—3(g):

“This common law rule that an insurable interest is required at the making of a policy was codified by the Washington legislature in 1947. ROW 48.18.030(1) provides:
“ ‘Any individual of competent legal capacity may procure or effect an insurance contract upon his own life or body for the benefit of any person. But no person shall procure or cause to be procured any insurance contract upon the life or body of another individual %mless the benefits under such contract are payable to the individual insured or his personal representatives, or to a person having, at the time when such contract was made, an inswrable interest in the individual insured.’
“The plain words of this statute make clear that the relevant time for purposes of determining an insurable interest is ‘at the time when [the insurance] contract [is] made.’ To argue that another time is relevant would require us to add wording to the plain words of the statute .... ”

(Some emphasis omitted; some emphasis added.) Thus, §§ 27-14-3(b), (f), and (g) harmoniously provide that, regarding personal insurance, an insurable interest in the life of the insured need exist only at the time the policy of insurance becomes effective, but that that requirement need not exist at the time the loss occurs. This Court further points to the distinction made by the legislature concerning the time at which an insurable interest must exist with “personal insurance” versus “property insurance.” As previously indicated, in regard to personal insurance, § 27 — 14—3(f) provides that “[a]n insurable interest shall exists at the time of the contract of personal insurance becomes effective, but this requirement need not exist at the time the loss occurs.” (Emphasis added.) The next section of the Insurance Code concerning “property insurance,” § 27-14-4(a), Ala.Code 1975, provides that “[n]o contract of insurance of property ... shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.” (Emphasis added.) See Middleton v. Rush, 764 So.2d 1276, 1278 (Ala.Civ.App.2000)(“No contract of property insurance is enforceable except for the benefit of persons having an insurable interest in the things insured as of the time of the loss.” (emphasis added)). In enacting § 27-14-3(f), the legislature did not include language indicating that an insurable interest in personal insurance must exist at the time of the loss. Rather, it specifically stated that “this requirement,” i.e., the requirement that an insurable interest exist at the time the policy becomes effective, “need not exist at the time of the loss.” Several treatises discussing the subject of when an insurable interest must exist are in agreement with the interpretation that, in regard to property insurance, “most courts adhere to the rule that the insurable interest must only exist at the time of loss,” whereas with personal insurance, i.e., life insurance, “it is commonly said that the insurable interest must exist at the time that the contract is made, and the lack of the interest at- the time of the insured’s death is irrelevant.” Robert H. Jerry II, Understanding Insurance Law § 44, at 316-18 (3d ed.2002). Specifically, regarding life insurance,

“[a]s a contract of life insurance is generally not regarded as a contract of indemnity, it is generally sufficient that an insurable interest existed at the inception of the contract, and it is immaterial that the interest ceased prior to the death of the insured unless the contract provides otherwise.”

3 Couch on Insurance § 41:26 (3d ed.). Further,

“[t]he almost universal rule of law in this country is that if the insurable interest requirement is satisfied when the policy is issued, the proceeds of the policy must be paid upon the death of the life insured without regard to whether the beneficiary has an insurable interest at the time of death. Thus, where the policy is valid at its inception by reason of the existence of an insurable interest at that time, the subsequent diminution or cessation of that interest does not invalidate the policy unless the policy itself, a statute, or an insurance regulation so provides. Statutes requiring an insurable interest have been construed as requiring merely that the insurable interest be present at the inception of the contract.”

44 C.J.S. Insurance § 374 (2007).

Based on the plain and unambiguous language employed by the legislature in § 27-14-3(f), we conclude that an insurable interest in personal insurance need exist only at the time the policy becomes effective and not at the time the loss occurs. Accordingly, insofar as the Court of Civil Appeals’ opinion interpreted § 27-14 — 3(f) to require the existence of an insurable interest after the time a policy becomes effective, its judgment is reversed.

B. Rule 12(b)(6) — Motion to Dismiss

Liberty National also argues that the Court of Civil Appeals erred in reversing the trial court’s order dismissing Barton’s negligence claim. We disagree. In Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993), this Court stated the following well settled standard for reviewing the dismissal of a complaint under Rule 12(b)(6), Ala. R. Civ. P.:

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). 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 her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). 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. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Additionally, “[i]n considering whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), ... a court ‘must accept the allegations of the complaint as true.’ Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (emphasis omitted).” Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1195 (Ala.2008).

In this case, Barton alleges in her complaint:

“4. At the time [Benjamin Sr.] took out the insurance policy ... Nona June Miller [Benjamin, Jr.’s grandmother] was named as beneficiary. During his lifetime, [Benjamin Sr.] changed the beneficiary of said policy to himself, in accordance tuith the terms of said policy of which he was the owner. No other relevant change to the policy was made by him during his lifetime. [Benjamin Sr.] preceded [Benjamin Jr.] in death. Thereafter, [Benjamin Jr.] died. Therefore, pursuant to the terms of said policy, the proceeds of any benefits paid thereunder were payable to the estate of the said named insured, [Benjamin Jr.}.
“11. Further, the acts of [Leanne] resulted in her being unjustly enriched in an amount equal to the insurance proceeds paid to her which were rightfully payable to the Estate of [Benjamin Jr.].”

(Emphasis added.) In essence, Barton alleges that Liberty National was negligent in allowing Leanne to name herself as beneficiary of an insurance policy that was owned by Benjamin Sr. at his death and, pursuant to the terms of the policy, payable to Benjamin Jr.’s estate. At this juncture in the proceedings, however, the policy has not been produced or viewed by the trial court, nor has any discovery ensued concerning ownership of the policy, i.e., concerning who owned the policy at Benjamin Sr.’s death, and who exactly had the right to effect a beneficiary change. Accordingly, in viewing the allegations of Barton’s complaint most strongly in Barton’s favor, as we are required to do, it appears that the Barton could, under certain circumstances, maintain a cause of action against Liberty National alleging negligence on its part in allowing Leanne, either as personal representative of Benjamin Sr.’s estate or individually, to substitute herself as beneficiary on the policy insuring Benjamin Jr.’s life. Accordingly, we affirm that portion of the Court of Civil Appeals’ opinion reversing the trial court’s order dismissing Barton’s complaint.

IV. Conclusion

We reverse the Court of Civil Appeals’ judgment insofar as it interprets § 27-14-3(f) to require an insurable interest in personal insurance to exist at any point beyond the time the policy of insurance becomes effective. We affirm the judgment insofar as it reverses the trial court’s order dismissing Barton’s complaint. Accordingly, the cause is remanded to the Court of Civil Appeals for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

STUART, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., concurs in the result.

      . Cf., however, § 43-8-253(c), Ala.Code 1975, a part of the Probate Code:
      "A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally Mils the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the Mller had predeceased the decedent.”


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Misty Ann BARTON, as administratrix of the estate of Benjamin H. Miller, Jr., deceased v. LIBERTY NATIONAL LIFE INSURANCE COMPANY.
    2130443.
    Court of Civil Appeals of Alabama.
    May 6, 2016.

      Stan Brobston of Brobston & Brobston, Bessemer; and Michael Lipscomb of Lipscomb <& Lipscomb, Bessemer, for appellant.
    Elizabeth W. McElroy of Baxley, Dillard, McKnight, James & McElroy, Birmingham, for appellee.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

On December 12, 2014, this court reversed the judgment of the Bessemer Division of the Jefferson Circuit Court that dismissed a negligence action brought by Misty Ann Barton, as administratrix of the estate of Benjamin H. Miller, Jr., deceased, against Liberty National Life Insurance Company stemming from the payment of proceeds of an insurance policy to the widow of the deceased owner of that policy pursuant to a beneficiary designation made by the widow as administratrix of the owner’s estate. Barton v. Liberty Nat’l Life Ins. Co., 209 So.3d 479 (Ala.Civ.App.2014). In concluding that the trial court had erred in dismissing Barton’s action, we determined that Alabama’s Insurance Code, Ala.Code 1975, § 27-1-1 et seq., “does not allow for a change of beneficiary to a person with no insurable interest in the insured.” 209 So.3d at 485. On certiorari review of this court’s decision, our supreme court, in Ex parte Liberty National Life Insurance Co., 209 So.3d 486 (Ala.2016), although of the view that “an insurable interest in personal insurance need exist only at the time the policy becomes effective and not at the time the loss occurs” and that this court’s decision was due to be reversed “insofar as [this court had] interpreted [Ala.Code 1975,] § 27—14—3(f)[,] to require the existence of an insurable interest after the time a policy becomes effective,” 209 So.3d at 494, nonetheless concluded that the trial court’s dismissal of the action had indeed been erroneous, and our supreme court affirmed this court’s reversal of the trial court’s judgment of dismissal. Id. at 495.

In accordance with the March 25, 2016, opinion of our supreme court, we vacate that portion of our opinion of December 12, 2014, to the extent that it could be read to “require the existence of an insurable interest after the time a policy becomes effective.” 209 So.3d at 494. Our supreme court having, however, affirmed this court’s reversal of the trial court’s judgment of dismissal, the cause is now remanded to the trial court for further proceedings in conformity with our supreme court’s opinion.

OPINION OF DECEMBER 12, 2014, VACATED IN PART; CAUSE REMANDED.

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


author: THOMPSON, Presiding Judge.

text:
    Ex parte LOWE’S HOME CENTERS, LLC. (In re Sarah Brown v. Lowe’s Home Centers, LLC).
    2140885.
    Court of Civil Appeals of Alabama.
    May 6, 2016.

      Anthony N. Fox of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for petitioner.
    Robert B. French, Jr., Fort Payne, for respondent.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of January 22, 2016, is withdrawn, and the following is substituted therefor.

Lowe’s Home Centers, LLC (“Lowe’s”), appeals from an order of the St. Clair Circuit Court (“the trial court”) finding that Sarah Brown, its employee, had sustained an injury to her back arising out of and during the course of her employment with Lowe’s. In the order, the trial court directed Lowe’s to pay for Brown’s medical treatment and an unspecified amount of temporary-total-disability benefits.

The record indicates the following. On August 29, 2014, Brown filed a workers’ compensation action against Lowe’s, seeking medical treatment for her back and an award of workers’ compensation benefits. Lowe’s answered, denying that Brown had a work-related injury, and it filed a motion requesting a hearing to determine what Lowe’s called “medical necessity.” In the motion, -Lowe’s specifically requested “a judicial determination of the medical necessity and causal relationship for any treatment of [Brown’s] back.” The trial court granted Lowe’s request and held an evidentiary hearing on the issue of com-pensability on April 10, 2015.

The evidence presented at the April 10, 2015, hearing indicated the following. Brown had worked at Lowe’s for three years before the events at issue in this action. On May 19, 2014 — a Sunday— Brown reported to work in the outdoor-power-equipment department of the Lowe’s store in Leeds. She testified that she had been off work the day before and had come in to work at 4 a.m. Amber Gargus, an assistant manager at the Lowe’s store in Leeds, worked overnight on May 18 into May 19, 2014, to prepare the store for inventory. She testified that she was Brown’s supervisor. Gargus said that, when Brown came in at 4 a.m., Gar-gus asked her to assist in moving some six-foot stacks of plastic Adirondack chairs from the back of the store to the front. Gargus said that Brown told her she would help with the chairs “but that she may not be able to do much that day because she had hurt herself over the weekend.” Gar-gus then added that Brown told her she had hurt her back. Gargus said she left the store for the day at 5 a.m.

Brown denied that the discussion Gar-gus described had taken place. She said that she saw Gargus and another Lowe’s employee in the lawn and garden department when she “clocked in” on the morning of May 19, Brown testified that she acknowledged Gargus and the other employee and that Gargus gave her “brief orders on what they were doing.” Brown then went and “started on the truck,” which, she said, meant that she helped to unload lawn mowers and “stuff’ from the truck and put the merchandise out in the store. Gargus testified that “unload associates” were paid to unload the trucks and that the only reason associates like Brown were asked to come in at 4 a.m. was to put away larger items before customers arrived. Gargus said that she was not aware that Brown had unloaded the truck on the morning of May 19, 2014. Brown said that the unload associates were understaffed that morning and so she had helped to unload the truck. She described the task as strenuous, physical work and said that her back was not hurt before she unloaded the truck.

Brown testified that, by about 7:00 or 7:30 a.m., she had put away all the small freight but that she had had to wait for another associate from her department to arrive so that she could put away air-conditioning units. That job entailed using an “order picker,” which was described as being like an elevator or fork lift that was used to raise heavy merchandise.

Brown testified that Heather Lauder-dale, another Lowe’s employee, arrived at work and that she asked Lauderdale to help with stacking the air-conditioning units. Because Lauderdale was pregnant, Brown said, she was to “delegate” Brown as Brown used the order picker to raise the air-conditioning units about ten feet up and then push them onto the rack. Brown said that the units weighed about 150 pounds each. After the units were raised, Brown said, she had to “bend, pivot, and stoop” to slide or push one unit on top of another. Brown said that, as she was trying to place one unit on the rack, she “felt an immediate pop in [her] back exactly four times, and [her] legs went completely numb and [she] had shooting pain down both sides.” Brown said that she was able to lower the order picker because it was operated by foot. Brown also said that, at that time, Lauderdale was at a desk talking on the telephone to someone at her son’s day-care facility because the child had been ill that morning.

Lauderdale testified that she did not spot for Brown the morning of May 19, 2014, and that Brown did not use the order picker that morning. Lauderdale said that, when she arrived at work between 7:00 and 7:30 a.m., Brown told her that her lower back was hurting and that Brown believed it was her sciatic nerve that was bothering her. Lauderdale also said that Brown had told her she had used the order picker about four days the week before.

Brown testified that the accident occurred at 8:30 a.m. She said that she talked to Jerry Crossley, Lowe’s human-resources manager, and that, then, she made a 10 a.m. appointment that same day to see a chiropractor, Dr. Alan Walch. Brown said that she had not seen Dr. Walch previously. Dr. Walch’s notes indicate that Brown was being seen on May 19, 2014, “due to injuries sustained while at work.” The “Onset” portion of Dr. Walch’s notes reiterates that Brown’s condition was the result of an accident at work, but it also says that the symptoms had been present for a few days. The notes also state that Brown “advises fitting [sic] heavy bag and feeling a pop in her back. She did not have immediate pain symptoms.” After examining Brown, Dr. Walch diagnosed her with a herniated disc and a sprain or strain and referred Brown to her primary-care physician. The notes also indicate that Brown should not return to work at that time.

The next day, May 20, 2014, Brown saw her personal doctor, Lea Clayton. Dr. Clayton’s notes indicate that Brown had a disc bulge at the L-4/L-5 level of her spine. Nothing in Dr. Clayton’s notes indicate the cause of the disc bulge, but the diagnosis is shown as a chronic- condition. The physician’s notes dated June 24, 2014, indicate for the first time that Brown told Dr. Clayton that her back pain was caused by an injury at work.. Dr. Clayton’s notes of November 4, 2014, state for the first time what Brown was doing when the injury occurred, that is, that Brown was injured while picking up a window-unit air conditioner at work.

An MRI performed on Brown’s spine indicated “degenerative desiccation and loss of disc height at L3-4 and L5-S1.” The MRI report stated:

“At L3-4, there is a small broad-based central disc herniation, which is causing indentation , of the anterior thecal sac and mild narrowing of the lateral recess bilaterally. The neural foramina are widely patent.
“At L5-S1, there is a very small broad-based central disc herniation, which resides completely within the epidural fat space and does not significantly impinge upon the thecal sac. It is causing mild narrowing of the lateral recesses bilaterally. The neural foramina are widely patent at this level as well.”

Dr. Clayton prescribed pain medication and muscle relaxers for Brown. Brown, who said that she was trained as a physical therapist, testified that she continued to have back pain, and so she continued treatment with. Dr. Clayton, Dr. Clayton’s notes dated June 8, 2014, indicate that she referred Brown to Dr. Matthew Bennett for treatment,, including possible injections “as [Brown] declines surgery at this time.” The notes from July 15, 2014, state that Brown’s pain was increasing and that she had back surgery scheduled for August 2014,

During her testimony, Brown acknowledged that Dr. Clayton had said that the “issues” with Brown’s back were degenerative and that they had occurred over time; Brown further conceded that there was no way to tell how long the condition had been present. However, Brown said, she had not hurt her back before the morning of May 19, 2014, nor had she suffered from any lower back pain before that morning.

Dr. Clayton did not testify at the eviden-tiary hearing. At the conclusion of that hearing, Brown’s attorney said that he wanted to give the trial court a brief and the testimony “adjacent” to the brief, which the attorney represented was Dr. Clayton’s deposition testimony. However, Dr. Clayton’s deposition was not marked as an exhibit, was not admitted into evidence, and the entire deposition is not included in the record on appeal. Excerpts of Dr. Clayton’s deposition were attached as' an exhibit to Lowe’s brief in support of its motion to determine medical necessity.

On May 21, 2015, the trial court entered an order approving Brown’s claim for workers’ compensation benefits and ordering Lowe’s “to immediately provide and pay for [Brown’s] medical treatment related to her back and to pay such other workers’ compensation benefits to which [Brown] is entitled pursuant to the Workers’ Compensation Act including, without limitation, temporary total disability benefits.” In the order, the trial court stated that the evidence presented was conflicting, that it could not reconcile the evidence, and that, as the trier of fact, it had weighed the evidence, taking into account the interest or bias of the witnesses— noting that some of the witnesses did not appear to be on good terms with each other, the demeanor of the witnesses, and other factors in determining the truthfulness of the evidence presented. In doing so, the trial court said, it found that Brown had met her burden of proving both legal and medical causation. The trial court specifically found that Brown had suffered an accident on May 19,2014, that arose out of and in the course of her employment with Lowe’s and, further, that that accident had caused the injury for which Brown sought treatment. The trial court also found that the medical treatment Brown sought for her back was related to the accident.

Lowe’s filed a motion to alter, amend, or vacate the order, which was denied on July 9, 2015. On July 22, 2015, Lowe’s filed a notice of appeal in the trial court and a motion seeking a stay of further proceedings in the workers’ compensation case pending the outcome of the appeal. The trial court granted the motion to stay on July 23, 2015, and placed the case on its administrative docket.

In our opinion on original submission, this court held that, because the trial court did not determine the extent, if any, of Brown’s disability, there was no final judgment capable of supporting an appeal and that the time for filing a timely petition for a writ of mandamus had passed. Accordingly, we declined to review the matter and dismissed what we considered to be an untimely mandamus petition.

On rehearing, Lowe’s suggested that our original opinion was in conflict with Belcher-Robinson Foundry, LLC v. Narr, 42 So.3d 774 (Ala.Civ.App.2010), and its progeny. In Belcher-Robinson, this court wrote:

“In various contexts, this court has considered whether a particular trial-court decision adjudicating liability under the [Workers’ Compensation] Act is or is not a ‘final judgment’ within the scope of Ala.Code 1975, § 12-22-2. To be sure, a mere compensability determination that awards no relief, other than directing an employer to allow medical treatment, is not a ‘final judgment’ that is subject to appellate review, but is instead reviewable by an appellate court only by a petition for a writ of mandamus. See SouthernCare, Inc. v. Cowart, 48 So.3d 632 (Ala.Civ.App.2009). However, as Fluor Enterprises [Inc. v. Lawshe, 16 So.3d 96 (Ala.Civ.App.2009),] indicates, the rule is now emerging that when a trial court goes further, and awards medical benefits and temporary-total-disability benefits in addition to determining compensability, the trial court has rendered a final judgment that is susceptible to appellate review. See Fluor Enterprises, 16 So.3d at 99; BE & K, Inc. v. Weaver, 743 So.2d 476, 480 (Ala.Civ.App.1999); and Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162, 1164-65 (Ala.Civ.App.1990). Although Fluor Enterprises is in tension with certain other decisions of this court cited by the employee, such as SCI Alabama Funeral Services, Inc. v. Hester, 984 So.2d 1207, 1209-10 (Ala.Civ.App.2007) (main opinion in which one judge concurred and four judges concurred in the result), we are persuaded to follow the reasoning of Fluor Enterprises, a more recent (and, we might add, unanimous) opinion of this court.
“The trial court’s June 24, 2009, ruling determined, albeit summarily, that the employee’s accident arose out of and in the course of his employment, that the employer was responsible for the employee’s medical treatment, and that the employer was responsible for payment of temporary-total-disability benefits. Moreover, it is undisputed that the employee has not reached maximum medical improvement so as to render ripe for decision the issue of the employee’s entitlement, if any, to permanent-disability benefits under the Act. Under Fluor Enterprises, a ‘judgment determining compensability and awarding both medical benefits and temporary-total-disability benefits [is] final for purposes of appeal,’ 16 So.3d at 99, and we therefore reject the employee’s contention that the ruling under review is not a final judgment.”

42 So.3d at 775-76. We note that, in Belcher-Robinson, the trial court did not specify the amount of temporary-total-disability benefits to be paid to the employee.

In this case, as in Belcher-Robinson, the trial court found that Brown’s injury arose out of and in the course of her employment, ordered Lowe’s to pay for medical treatment related to that injury, and ordered Lowe’s to pay Brown an unspecified amount of temporary-total-disability benefits, among other things. We are unable to distinguish Belcher-Robinson from this case. Accordingly, on the authority of Belcher-Robinson, we now expressly hold that if a trial court enters a judgment finding that an injury is compen-sable, ordering payment for medical treatment, and awarding temporary-total-disability benefits, regardless of whether the amount of those benefits is specified in the judgment, this court will treat such a judgment as final for purposes of appeal. To the extent previous opinions have suggested that such a judgment is nonfinal and that review of such a judgment should be by a petition for a writ of mandamus, those opinions are overruled.

Accordingly, the trial court’s order of May 21, 2015, was a final judgment for purposes of appeal. Lowe’s filed a timely postjudgment motion from the May 21, 2015, judgment, which was denied on July 9, 2015. Lowe’s then filed a timely notice of appeal. Therefore, we now address the merits of Lowe’s appeal.

On appeal, Lowe’s contends that the trial court erred in finding that Brown had had a work-related accident on May 19, 2014, or that Brown’s back injury was related to any such accident. Specifically, Lowe’s argues that Brown failed to meet her burden of proving either legal or medical causation for the back injury for which she seeks treatment and benefits.

“The standard of appellate review in workers’ compensation cases is governed by § 25 — 5—81(e), Ala.Code 1975, which provides:
“ ‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘ “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Additionally, a trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995). ‘This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.’ Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).”

Denmark v. Industrial Mfg. Specialists, Inc., 98 So.3d 541, 543-44 (Ala.Civ.App.2012). Furthermore,

“[w]hen evidence is presented ore ten-us, it is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented. Blackman v. Gray Rider Truck Lines, Inc., 716 So.2d 698, 700 (Ala.Civ.App.1998).... The ‘appellate court must view the facts in the light most favorable to the findings of the trial court.’ Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003). ‘The legal conclusions of the trial court in a workers’ compensation case are reviewed de novo on appeal.’ Ex parte Morris, 999 So.2d 932, 936 (Ala.2008); see also Ex parte American Color Graphics, Inc., 838 So.2d 385, 387-88 (Ala.2002).”

Ex parte Hayes, 70 So.3d 1211, 1215 (Ala.2011).

As Lowe’s points out,

“ ‘[f]or an injury to be compensable under the Workers’ Compensation Act, the employee must establish both legal and medical causation.’ Ex parte Moncrief, 627 So.2d 385, 388 (Ala.1993). ‘Once legal causation has been established, i.e., that an accident arose out of, and in the course of employment, medical causation must be established, i.e., that the accident caused the injury for which recovery is sought.’ Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989).”

Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1121 (Ala.2003).

Lowe’s argues that, for Brown to have established compensability in this case, the trial court had to have determined that every witness, other than Brown, who testified and the documentary evidence presented had to have been wrong. For example, regarding legal causation, Lowe’s asserts that Gargus, Brown’s supervisor, would had to have been “wrong” about Brown telling her that she had injured her back before Brown’s shift began on May 19, 2014; that Lauderdale, Brown’s coworker, would had to have been “wrong” regarding whether Brown had worked on the order picker the morning of May 19, 2014; and that Dr. Walch’s records would had to have been “wrong” regarding Brown’s report that symptoms of back pain had been present for a few days before Brown was seen on May 19, 2014.

On the other hand, Brown’s testimony was that she began her shift by helping to unload a truck and that her back did not hurt at that time. Later in the morning, Brown said, she was using the order picker to place a 150-pound air-conditioning unit on a storage rack and, as she was moving the air conditioner into place, she felt four pops in her back. Brown said that her legs immediately went numb and that she felt “shooting pains” down both sides. According to Brown’s testimony, Lauderdale was away from the order picker when the incident occurred. In its judgment, the trial court found it noteworthy that Gargus characterized Brown as a good employee and that Brown had been “Employee of the Month.” The trial court also found that Gargus had left the store before the accident was said to have occurred.

The trial court recognized the conflicts in the testimony and, in its judgment, acknowledged that, as the trier of fact, it could not reconcile those conflicts. Therefore, the trial court stated: “[Tjhis Court has weighed the evidence taking into account the interest or bias of the witnesses, their demeanor, and various other factors in determining the truthfulness of evidence presented.” See Ex parte Hayes, 70 So.3d at 1215.

The Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975, provides that the word “accident,”

“as used in the phrases ‘personal injuries due to accident’ or ‘injuries or death caused by accident’ shall be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body or damage to an artificial member of the body by accidental means.”

§ 25-5-1(7). See also Ex parte Fairhope Health & Rehab, LLC, 175 So.3d 622, 627 (Ala.Civ.App.2015)(discussing the nature of an “accident” for purposes of the Act).

Brown’s testimony regarding the events of the morning of May 19, 2014, and her testimony regarding how she injured her back while moving an air-conditioning unit into place constitute sufficient evidence to support the trial court’s conclusion that Brown had been involved in a work-related accident that morning. Although other evidence presented could have led the trial court to reach a different conclusion, this court’s role is not to reweigh the evidence before the trial court or to make the credibility determination the trial court apparently did in deciding whether Brown had proved legal causation. Ex parte Hayes, 70 So.3d at 1215. In other words, it is not the function of an appellate court to decide which party’s evidence is better or more credible; instead, we are called upon only to review whether the trial court’s judgment is supported by sufficient evidence. As this court wrote in J.C. v. State Department of Human Resources, 986 So.2d 1172, 1184 (Ala.Civ.App.2007).

“The Alabama Supreme Court has stated that ‘the law is settled that weighing evidence is not the usual function of an appellate court. This is especially true where ... the assessment of the credibility of witnesses is involved.’ Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So.2d 92, 102 (Ala.2001) (citation omitted). Accordingly, appellate courts in this state generally do not review evidence in order to make factual conclusions; instead, they review judgments in order to determine whether the trial court committed reversible error. Because our appellate courts do not act as fact-finders, they do not utilize standards of proof but, instead, apply standards of appellate review.”

Our standard of review in this case requires us to view the facts in the light most favorable to the findings of the trial court and to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom. Denmark, 98 So.3d at 543-44.

Based on our standard of review and the record before us, we cannot say that the trial court’s determination that Brown proved legal causation is not supported by the evidence or is plainly and palpably wrong.

Lowe’s also challenges the trial court’s determination that Brown proved medical causation. Specifically, Lowe’s contends that Brown failed to present substantial evidence to support the finding that her back condition was caused by a work-related injury. In support of its argument, Lowe’s cites Dr. Walch’s notes of May 19, 2014, which stated that Brown’s symptoms had been “present for a few days” and that she “did not have immediate pain symptoms.” Lowe’s also cites the medical records from Dr. Clayton that indicate that Brown’s lower back pain was caused by a chronic condition involving a disc bulge in her lower back. Dr. Clayton indicated that Brown’s back condition had been present more than a day or so when she examined Brown on May 20, 2014. In the deposition excerpt Lowe’s submitted in support of its brief regarding the determination of medical necessity, Dr. Clayton testified that Brown had a degenerative disc and that “degeneration usually means a process over time.” Therefore, Lowe’s argues, Brown’s back condition could not have been caused by the accident on May 19, 2014.

As previous opinions of this state’s appellate courts have explained, the finder of fact can consider lay testimony as well as the testimony of medical experts when considering the issue of medical causation.

“In Ex parte Price, 555 So.2d 1060 (Ala.1989), our supreme court stated: ‘As the finder of facts, ... the trial court is authorized to draw any reasonable inference from the evidence, including conclusions of medical facts that are not within the peculiar knowledge of medical experts.’ Price, 555 So.2d at 1062. Accordingly,
“‘lay testimony may combine with medical testimony to supply th[e] requisite proof; and ... the medical testimony, when viewed in light of lay evidence, may amply support the medical causation element without the expert witness’s employing any particular requisite language. It is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test finds its application.’
555 So.2d at 1063.
“Based on Price, a trial court may make a finding of medical causation without the benefit of any direct expert medical testimony, so long as the other evidence is sufficient to sustain its finding. The question whether a worker has satisfactorily proven the causal relationship between a work-related accident and a particular injury ‘in the absence of medical testimony, or by lay testimony coupled with medical evidence, must be determined on a case-by-case basis.’ Price, 555 So.2d at 1062. That question is one of fact to be decided in the first instance by the trial court. See Stewart v. ATEC Assocs., Inc., 652 So.2d 270, 274 (Ala.Civ.App.1994); and Statewide Painting Co. v. Sharron, 693 So.2d 518 (Ala.Civ.App.1997). On appellate review, ‘“[w]e will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” ’ Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1121 (Ala.2003) (quoting Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996), quoting in turn West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).”

Hokes Bluff Welding & Fabrication v. Cox, 33 So.3d 592, 595-96 (Ala.Civ.App.2008).

Brown testified that she had never had back trouble before the May 19, 2014, incident. She also said that she had not been a patient of Dr. Walch before May 19, 2014, and that the morning of May 19, 2014, was the first time she sought treatment for pain in her lower back. In response to questioning about the statement in Dr. Walch’s notes that Brown’s back had been hurting for a few days before she sought treatment, Brown testified that she “had been on the order picker for five consecutive days prior to this injury and it could have happened at any time. But just like anything else, it has a popping point.” She denied that her back had been hurting for a few days, adding that her back “popped” the morning of May 19, 2014. At that time, Brown said, she felt “immediate pain” shoot down her legs. Brown testified that she has continued to have pain since the incident.

We agree with Lowe’s that, from the evidence presented, a logical inference would be that Brown already had a degenerative back condition at the time of the May 19, 2014, incident. However, there is no evidence to indicate that Brown was unable to do her job before the incident. We also note that there is no medical evidence in the record indicating that Brown had a history of back pain or that she had sought medical treatment for a back condition before May 19, 2014. There is no question that Brown suffers from two herniated discs. However, Dr. Clayton was unable to provide a time as to when the herniations occurred, based on the MRI and her examinations of Brown.

It is well settled that an employee who suffers from a preexisting condition

“is not precluded from recovering workers’ compensation benefits merely because his or her condition existed before the work-related incident giving rise to a workers’ compensation claim. See McAbee Constr., Inc., v. Allday, 135 So.3d 968, 974 (Ala.Civ.App.2013). As we have explained:
“ ‘A worker who has a preexisting condition is not precluded from collecting workers’ compensation benefits if the employment aggravates, accelerates, or combines with, a latent disease or infirmity to produce disability. Ex parte Lewis, 469 So.2d 599 (Ala.1985). A preexisting condition that did not affect the [worker’s] work performance before the disabling injury is not considered, pursuant to the Act, to be a pre-existing condition. Associated Forest Materials v. Keller, 537 So.2d 957 (Ala.Civ.App.1988).’
“Waters v. Alabama Farmers Coop., Inc., 681 So.2d 622, 623-24 (Ala.Civ.App.1996).”

SouthernCare, Inc. v. Cowart, 146 So.3d 1051, 1063 (Ala.Civ.App.2013).

From the evidence in the record, the trial court reasonably could have found that Brown had a preexisting degenerative back condition but that that condition did not become symptomatic or prevent Brown from doing her job until she attempted to move the 150-pound air-conditioning unit onto a shelf. In other words, the trial court could have found that Brown’s back condition was latent or asymptomatic before the May 19, 2014, accident but that, in moving the air-conditioning unit, Brown sustained an injury that has left her unable to perform her job.

Based on the record before us, we conclude that the trial court’s finding that Brown presented substantial evidence of medical causation is not plainly or palpably wrong. Again, to disregard Brown’s testimony regarding the pain she felt when her back popped while moving the air-conditioning unit and the subsequent continuing pain she has experienced since that incident would require this court to improperly reweigh the evidence. Ex parte Hayes, 70 So.3d at 1215.

For the reasons set forth above, we affirm the trial court’s judgment finding that Brown suffered a compensable injury on May 19, 2014, and ordering Lowe’s to pay for the medical treatment related to her back injury, as well as to pay Brown temporary-total-disability benefits.

APPLICATION GRANTED; OPINION OF JANUARY 22, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

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

      . The date the MRI was performed cannot be read on the copy of Brown’s records provided to this court; however, the physician's notes regarding the MRI were transcribed on May 27, 2014. The MRI report was electronically signed on May 28, 2014.


author: DONALDSON, Judge. THOMAS, Judge,

text:
    Sharon CHANCELLOR v. Siran STACY.
    2150010.
    Court of Civil Appeals of Alabama.
    May 6, 2016.
    Kenneth James Lay of Hood & Lay, LLC, Birmingham, for appellant.
    Submitted on appellant’s brief only.
   DONALDSON, Judge.

Generally, a party is entitled to notice and an opportunity to be heard before a motion to dismiss the party’s complaint is granted. See Rule 78, Ala. R. Civ. P.; see also Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002); and Grant v. Grant, 57 Ala.App. 196, 326 So.2d 758, 759 (1976). In this case, we reverse the dismissal of a complaint because the party who filed the complaint was not provided with the opportunity to be heard.

Sharon Chancellor (“the mother”) appeals from the Geneva Circuit Court’s (“the trial court”) dismissal of her complaint seeking to enforce and to modify a child-support judgment against Siran Stacy (“the father”). On April 22, 2015, the mother filed a complaint for contempt and modification in the trial court. The trial-court clerk docketed the case as case no. DR-03-70.05. In the complaint, the mother alleged that on September 27, 2007, the trial court had entered a judgment ordering the father to pay $701 per month in child support for the benefit of the parties’ five minor children. The mother alleged that the father had failed to pay the court-ordered child support and that the father owed an arrearage of $65,482. The mother further alleged that there had been a material change in circumstances because the children’s needs had increased and that the father had an increase in his ability to pay an additional amount of support.

On July 19, 2015, the father was served with a copy of the summons and complaint. On August 18, 2015, the father, without counsel, filed an answer in the trial court, which the mother and the trial court have characterized as a motion to dismiss, in which he denied owing any child-support arrearage. The father asserted that in January 2015 he had appeared in the trial court for a hearing in case no. DR-03-70.04, another child-support matter filed by the mother, that the mother had not appeared at that hearing, and that the trial court had ruled that he did not owe any child-support arrearage. The father attached to his answer two court orders entered in trial-court case no. DR-03-70.04. The first order, entered by the trial court on November 6, 2014, set the father’s child-support obligation at $701 per month, which is the same amount that the mother claimed in her complaint the father was initially ordered to pay in September 2007. The November 6, 2014, order further stated that the father owed no arrearage on his child-support obligation. The second order, entered on January 28, 2015, directed the father to make child-support payments directly to the mother instead of to the Department of Human Resources and allowed the Department of Human Resources to withdraw from case no. DR-03-70.04. The father did not include a certificate of service indicating that he had served a copy of his answer on counsel for the mother.

On August 25,2015, seven days after the father’s answer was filed, the trial court entered an order dismissing the mother’s complaint. As noted earlier, the trial court construed the father’s answer as a motion to dismiss predicated on the doctrine of res judicata; the trial court’s order specifically stated “The Motion to Dismiss filed by [the father] is hereby granted based upon the theory of res judicata. Court costs are hereby taxed against the [mother].”

On September 23, 2015, the mother filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P. In her motion, the mother asserted that the trial court had erroneously dismissed the case with prejudice before the mother had had an opportunity to respond to the father’s answer, which, as noted, the mother and the trial court have characterized as a motion to dismiss, and without having held a hearing. The mother further asserted that “the claims contained in the petition for a modification and an increase in child support has [sic] never been heard by this Court.” She also argued that child-support claims and related issues cannot be disposed of on the basis of res judicata. She also asserted:

“The court has never allowed any testimony or evidence regarding the issues raised in the petition for modification. In addition, the [father] did not even address the issue of [the mother’s] seeking an increase in child support in his response- filed with the court. The [mother] is in need of additional child support in order to properly care for the children.”

On September 24, 2015, the trial court entered an order denying the mother’s postjudgment motion and stated as follows: “The motion to vacate or modify filed by [the mother] is hereby denied. Please refer to Judge Smith’s Final Order issued on these issues of modification and contempt dated November 6, 2014, filed in [case no. DR-03-70.04].” On September 25, 2015, the mother filed her notice of appeal.

A trial court’s dismissal of a complaint is not entitled to a presumption of correctness. See Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)(citing Jones v. Lee Cty. Comm’n, 394 So.2d 928, 930 (Ala.1981)).

On appeal, the mother argues that the trial court erred in dismissing her complaint without affording her an opportunity to be heard, in dismissing her complaint on the basis of res judicata, and in failing to conduct a hearing on her postjudgment motion. The father did not file an appellate brief.

We first address the mother’s argument that the trial court should not have dismissed her complaint without providing the mother with an opportunity for a hearing. The mother frames her argument by referring to the father’s answer raising the doctrine of res judicata as a motion to dismiss her complaint for failing to state a claim upon which relief can be granted under Rule 12(b)(6), Ala. R. Civ. P. We note that a motion to dismiss raising the doctrine of res judicata is appropriately treated as motion to dismiss pursuant to Rule 12(b)(6) only if the basis for the motion is apparent from the face of the complaint. Ex parte Scannelly, 74 So.3d 432, 438-39 (Ala.2011). If matters outside the pleadings are considered, then a request to dismiss a complaint on res judica-ta grounds should be addressed in summary judgment proceedings under Rule 56, Ala. R. Civ. P. Id.; CAG MLG, L.L.C. v. Smelley, 163 So.3d 346 (Ala.2014). The mother did not, however, argue to the trial court that the doctrine of res judicata could not be raised in the father’s answer, which she asserts was a Rule 12(b)(6) motion, because matters outside the complaint formed the basis of the motion, and she does not raise this issue in her brief to this court. Further, the mother claims on appeal that the judgment of dismissal should be reversed because the father failed to serve a copy, of his answer on her attorney and because she was not aware of the answer until the entry of the judgment of dismissal. See, e.g., Morris v. Glenn, 154 So.3d 1055, 1058 (Ala.Civ.App.2014) (holding that the failure to comply with the service requirements Rule 5, Ala. R. Civ. P., when filing a motion to dismiss, may result in the vacation of an order entered in response to the motion). Because the mother did not present this argument to the trial court, we cannot revérse the judgment on this basis. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992)(“[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.”). Therefore, we consider only the mother’s argument regarding the propriety of the trial court’s having granted a “motion to dismiss” under Rule 12(b)(6) without having conducted a hearing.

“Under the plain language of [Rule 78, Ala. R. Civ. P.,] and the comments to the rule, a trial court may not grant a motion to dismiss without a hearing, although, in some circumstances, it may deny such a motion.” Burgoon v. State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002). In this case, the mother asserted in her postjudgment motion to alter, amend, or vacate the judgment dismissing her complaint, among other things, that the issues she raised had never been considered by the trial court and that she had never been afforded the opportunity to present evidence on the issue of modification of child support. We observe that “a determination of child support is never res judicata and may be modified at any point in the future due to changed circumstances.” Abril v. Mobley, 166 So.3d 697, 700 (Ala.Civ.App.2014)(citing Conradi v. Conradi, 567 So.2d 364 (Ala.Civ.App.1990)).

We express no opinion on the merits of the mother’s substantive claims. However, the prior orders of the trial court entered in case no. DR03-70.04 may well affect the ability of the mother to obtain the relief she now seeks, particularly her claim seeking to hold the father in contempt. We also recognize that the father asserted in his answer that he had previously attended a hearing on a complaint for relief filed by the mother at which she did not appear and that the mother’s assertions against him concerning his child-support obligation had caused him to incur unnecessary expenses. Those are matters that the trial court may be called upon to address upon our reversal of its judgment of dismissal and our remand of the case, but we are unwilling to hold that the mother’s entire complaint could be dismissed based solely on the father’s answer, which the mother and the trial court have characterized as a motion to dismiss, without affording the mother an opportunity for a hearing.

Accordingly, we reverse the judgment dismissing the mother’s complaint and remand the case for further proceedings consistent with this opinion. We pretermit a discussion of the mother’s argument regarding the lack of a hearing on her post-judgment motion. The mother’s request for attorney’s fees on appeal is denied.

REVERSED AND REMANDED.

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

THOMAS, J., concurs in the result, with writing.

THOMAS, Judge,

concurring in the result.

Although I agree that the judgment in this case should be reversed, I believe that we must consider that judgment to be a summary judgment in favor of Siran Stacy (“the father”). The father presented, and, from all that appears in the record, the trial court considered, matters outside the pleadings in ruling on what the majority characterizes as a motion to dismiss the complaint filed by Sharon Chancellor (“the mother”). The inclusion and consideration of matters outside the pleadings converts a motion to dismiss into a motion for a summary judgment regardless of how the parties or the trial court characterize the motion. See Rule 12(b), Ala. R. Civ. P.; Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784 (Ala.2007). In Lloyd Noland Foundation, our supreme court recognized a judgment entered on a motion to dismiss on the ground of res judica-ta as a summary judgment:

“HealthSouth filed a ‘motion to dismiss,’ and, in a supplemental brief in support of its motion to dismiss, it addressed the doctrines [of] res judicata and collateral estoppel. Additionally, HealthSouth attached filings from the federal court proceeding. Although HealthSouth’s motion addressing its defenses of res ju-dicata and collateral estoppel was actually framed as a ‘motion to dismiss,’ the motion should have been treated as one seeking a summary judgment because the face of the complaint did not reference the prior litigation and Health-South properly pleaded res judicata and collateral estoppel in its answer. The substance of a motion, not what a party calls it, determines the nature of the motion. Ex parte Lewter, 726 So.2d 603 (Ala.1998). Furthermore, the trial court clearly considered matters outside the pleadings in making its determination, thus converting the Rule 12(b)(6) motion to dismiss into a Rule 56, Ala. R. Civ. P., summary-judgment motion.”

Lloyd Noland Found., 979 So.2d at 792 (emphasis added); see also Singleton v. Alabama Dep’t of Corr., 819 So.2d 596, 598 (Ala.2001) (recognizing an order as one granting a motion for a summary judgment despite the trial court’s characterization of the order as one granting a motion to dismiss); Hendrix v. Hunt, 607 So.2d 1254, 1256 (Ala.1992) (concluding that, when the parties treated the trial court’s order as a dismissal under Rule 12(b)(6) but the record revealed that the trial court had considered undisputed evidence outside the pleadings, the trial court’s order was a summary judgment).

I do not believe that the parties’ failure to recognize on appeal the conversion of the motion to dismiss prevents us from recognizing the judgment as a summary judgment. Because the motion to dismiss was automatically converted into a motion for a summary judgment, the mother “was entitled to notice that the motion had been converted to a motion for a summary judgment, to the opportunity to be heard, and to such other procedural relief as contemplated by Rule 56, Ala. R. Civ. P.,” Singleton, 819 So.2d at 600, none of which was afforded to her. Accordingly, I agree that the judgment in favor of the father is due to be reversed, see id., and I concur in the result.


author: MOORE, Judge.

text:
    A.F. v. S.R.
    2150214.
    Court of Civil Appeals of Alabama.
    May 6, 2016.

      Sam P. Dixon III, Birmingham, for appellant.
   On Rehearing Ex Mero Motu

MOORE, Judge.

This court’s February 17, 2016, order of dismissal is withdrawn, and the following is substituted therefor.

A.F. (“the father”) appeals from a judgment of the Lee Juvenile Court (“the juvenile court”). We dismiss the appeal.

On January 15, 2015, the father filed, in the juvenile court, a petition for a rule nisi, which was assigned case no. CS-14-900178.01, asserting that S.R. (“the mother”) had continuously violated every order that had been entered pursuant to his divorce from the mother; he attached to his petition a number of motions for sanctions and other relief regarding custody and visitation of the parties’ minor child, L.R.F. (“the child”). On February 17, 2015, the father filed a motion for a default judgment in case no. CS-14-900-178.01.

The father filed an objection to the relocation of the child on May 23, 2015; that objection indicates on its face that it was being filed in case no. CS-14-900178, in case no. CS-14-900178.01, and in case no. DR-14-900197 (hereinafter referred to collectively as “all three cases”). On May 27, 2015, the mother filed a motion to dismiss the father’s petition for a rule nisi and his objection to the relocation of the child; specifically, she argued that the subject of the father’s petition for a rule nisi had already been litigated and that, with regard to his objection to the child’s relocation, she had no intention of permanently moving with the child at the time of the filing of her motion to dismiss. The mother also filed a “motion to order [the] father to submit to a psychological evaluation” on May 27, 2015. Both the mother’s motion to dismiss and her motion for an order directing the father to submit to a psychological evaluation indicate that they also were being filed in all three cases. On May 28, 2015, the juvenile court entered an order, in case no. CS-14-900178.01, denying the father’s objection to the relocation of the child, which sought injunctive relief preventing the mother from relocating with the child, as “not being ripe.” The mother filed a “renewed motion to order [the] father to submit to a psychological evaluation” on May 29, 2015; that motion indicated on its face that it was being filed in all three cases. The father filed a response to that motion, among other things, on June 1, 2015, which included, among other things, a “motion to dismiss” the mother’s motion.

On June 2, 2015, the father filed a response to the mother’s May 27, 2015, motion to dismiss the father’s petition for a rule nisi and objection to the relocation of the child, along with additional requests for relief; again, the response indicates on its face that it was being filed in all three cases. The father filed a motion for a preliminary injunction on June 23, 2015, again seeking, among other things, an order preventing the mother from relocating with the child; that motion indicated on its face that it was being filed in all three cases. On July 6, 2015, the mother filed, in all three cases, a response to the father’s June 23, 2015, motion; that response included, among other things, a request for ex parte relief. The mother sought, among other things, an order allowing her to relocate to Virginia with the child, awarding her sole legal and physical custody of the child, suspending the father’s visitation with the child or requiring that his visits be supervised, and requiring .the father to submit to a psychological evaluation. The father filed, in all three cases, a reply to the mother’s response on July 8, 2015, including, among other things, a motion to dismiss the mother’s motion to order the father to submit to a psychological evaluation or, in the alternative, require the mother and the spouses of both the mother and the father to also submit to psychological evaluations; that the juvenile court enter an order granting the father’s previous request for a preliminary injunction; and that the juvenile court enter an order directing the mother to show cause why , she should not be held in- contempt for violations of the trial court’s orders, among other things.

On August 7, 2015, the juvenile court entered an order, in case no. CS-14-900178.01, denying the father’s motion to dismiss the mother’s motions; reserving entering a judgment on the father’s objection to the mother’s relocation of the child, which would be set for a hearing; granting the mother’s motion for a psychological evaluation but requiring each party to obtain a psychological evaluation and to provide that report to the other parent; and denying the mother’s motion for ex parte relief, “at [that] time.” The father filed a motion on September 1, 2015, in case no. CS-14-900178.01, requesting the trial court to “relinquish jurisdiction to Virginia.” The mother filed a response to that motion oh September 8, 2015; that response indicates that it was filed in case no. CS-14-900178.01 and in case no. DR-14-900197. In her response, the mother also sought a finding of contempt against the father and a suspension of the father’s visitation with the child.

On September 11, 2015, the juvenile court entered, in case no. CS-14-900178.01, a judgment ordering, among other things, that the father reimburse the mother for her attorney’s fees in the amount of $4,000; that the father was prohibited from harassing the mother or coming within 100 yards of the mother, except for the exchange of the child; and that visitation between the father and the child take place within 20 miles of the mother’s residence. The juvenile court then stated that, “[h]aving ordered the same, the Court now relinquishes jurisdiction of this case and these matters are to be deemed FINALLY DISPOSED with this Court.” (Capitalization in original.) On September 25, 2015, the father filed, in case no. CS-14-900178.01, a postjudgment motion; the juvenile court entered an order on October 14, 2015, purporting to grant that motion in part. The father filed, in case no. CS-14-900178.01, his notice of appeal to this court on November 18, 2015. On February 17, 2016, this court dismissed the father’s appeal as having been untimely filed. The father has filed a motion to reconsider that dismissal, which this court has elected to treat as an application for a rehearing.

“It is well settled that jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997); Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). ‘The timely filing of [a] notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006) (‘an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived’).”

Kennedy v. Merriman, 963 So.2d 86, 87-88 (Ala.Civ.App.2007).

The present case presents circumstances similar to those that existed in R.P.M. v. P.D.A., 112 So.3d 49 (Ala.Civ.App.2012). Like in R.P.M., although the father’s notice of appeal in the present case indicates that he is appealing from a judgment entered by the Lee Circuit Court, we note that the father’s petition for a rule nisi was filed in the juvenile court and was assigned case no. CS-14-900178.01. See R.P.M., 112 So.3d at 50-51; Ala.Code 1975, § 12-15-115(a)(9). “[A] case designated with a ‘CS’ case number is considered a juvenile-court action, whether it is filed in a juvenile court or in a circuit court. See H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278-79 (Ala.Civ.App.2009).” C.W.S. v. C.M.P., 99 So.3d 864, 865 n. 1 (Ala.Civ.App.2012). Like in R.P.M., we conclude that the Alabama Rules of Juvenile Procedure govern this action. 112 So.3d at 51. Pursuant to those rules, the father’s postjudgment motion, which was timely filed on September 25, 2015, was denied by operation of law on October 9, 2015. See Rule 1(B), Ala. R. Juv. P.; and T.P. v. T.J.H., 10 So.3d 613, 614 (Ala.Civ.App.2008). Although the juvenile court purported to grant the father’s motion in part on October 14, 2015, there is no indication that the period during which the father’s postjudgment motion remained pending had been extended, see Rule 1(B), Ala. R. Juv. P.; thus, the juvenile court’s October 14, 2015, order was a nullity. See, e.g., B.L.T. v. V.T., 12 So.3d 123, 124 (Ala.Civ.App.2008). Following the denial of his postjudgment motion by operation of law, the father had 14 days to file his notice of appeal from the judgment entered in case no. CS-14-900178.01. See Rule 28(C), Ala. R. Juv. P.; and R.P.M., 112 So.3d at 51. Thus, the father’s notice of appeal had to have been filed no later than October 23, 2015, to be timely. Because the father did not file his notice of appeal until November 18, 2015, well after the 14-day period had expired, this court lacks jurisdiction to consider the father’s appeal and the appeal must be dismissed. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”); and R.P.M., 112 So.3d at 51.

In his application for a rehearing, the father asserts, among other things, that the underlying case originated with the filing of a “DR” motion by the mother to domesticate a foreign judgment and seeking emergency relief and that that “DR” case had been consolidated with case no. CS-14-900178.01, which was commenced by the father. We note, however, that there is no indication in the record on appeal, either on the State Judicial Information System’s case-action-summary sheet in case no. CS-14-900178.01 or elsewhere, that case no. CS-14-900178.01 was consolidated with a “DR” case. Although many of the filings in the present case indicate that they were also filed in case no. CS-14-900178 and in case no. DR-14-900197, the September 11, 2015, judgment was entered only in case no. CS-14-900178.01. Thus, there is no indication of what action the father is referring to when he references the “DR” case, and the record on appeal does not support the father’s assertion that case no. CS-14-900178.01 and case no. DR-14-900197 were consolidated. As such, this court does not express any opinion as to whether the dismissal of the present appeal affects the rights of the father to appeal or otherwise proceed with regard to any judgments or orders entered in the “DR” case.

ON REHEARING EX MERO MOTU: ORDER OF DISMISSAL OF FEBRUARY 17, 2016, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

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