author: THOMAS, Judge.

text:
    FRANCIS POWELL ENTERPRISES, INC. v. Charles ANDREWS.
    2070907.
    Court of Civil Appeals of Alabama.
    April 24, 2009.

      William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for appellant.
    Bryan G. Duhé, Mobile, for appellee.
   THOMAS, Judge.

In 2004, Charles Andrews sued Francis Powell Enterprises, Inc. (“Powell”), seeking workers’ compensation benefits for an injury to his back that, he claimed, arose out of and in the course of his employment on November 3, 2003. Powell answered and denied liability. The case was tried on November 9, 2006. On February 6, 2007, the trial court entered a judgment determining that Andrews was permanently and totally disabled and awarding benefits accordingly.

Powell appealed, and this court reversed the judgment, holding that the judgment failed to comply with § 25-5-88, Ala. Code 1975. See Francis Powell Enters., Inc. v. Andrews, 990 So.2d 914 (Ala.Civ.App.2008). This court remanded the cause to the trial court with instructions to make findings of fact and conclusions of law with respect to Powell’s affirmative defenses— that Andrews had failed to give notice of his injury as required by § 25-5-78, Ala. Code 1975, and that Andrews had failed to disclose a preexisting physical condition in violation of § 25-5-51, Ala. Code 1975.

On remand, the trial court entered a judgment on May 9, 2008, with amended findings of fact and conclusions of law, determining that Andrews had given timely notice of his injury and that Andrews had not misrepresented the fact of his preexisting condition when he was hired in 2003. On June 19, 2008, Powell timely appealed from the amended judgment, raising six issues: (1) that the trial court’s amended judgment fails to comply with § 25-5-88, Ala.Code 1975; (2) that the trial court’s finding of proper notice is not supported by substantial evidence; (3) that the trial court’s finding of medical causation is not supported by substantial evidence; (4) that Andrews’s receipt of Social Security disability benefits estops him from denying that he was disabled before November 3, 2003; (5) that the trial court failed to apply the apportionment provisions of § 25-5-58, Ala.Code 1975; and (6) that, in determining Powell’s liability, the trial court erred in considering Powell’s voluntary payment of compensation benefits to Andrews, in violation of § 25-5-56, Ala.Code 1975. Powell raises no issue with respect to the trial court’s amended finding that Andrews did not fail to disclose a preexisting physical condition in violation of § 25-5-51, nor does it challenge the trial court’s finding that Andrews is permanently and totally disabled.

Factual Background

Andrews is a 40-year-old high-school dropout who had, from 1993 to 2003, worked primarily either as a diesel mechanic or as a long-haul truck driver. On September 22, 1993, Andrews suffered a work-related injury during his employment at ABC Enterprises, Inc., a fast-food restaurant company, when he fell from a ladder and ruptured a cervical disk. During his treatment for the cervical injury, he was also diagnosed as having some problems with his lower back. In December 1994, Andrews had surgery to repair the cervical injury that he suffered in the 1993 work-related accident. In 1995, Andrews applied for disability benefits from the Social Security Administration; his application was approved and he began receiving benefits in 1996. From 1995 through 1998, he continued to work part-time as a self-employed truck driver.

From 1993 to 1999, Andrews complained to several health-care providers of lower-back pain, as well as radiating pain, numbness, and weakness in his left leg. A lumbar MRI test performed in early November 1993 indicated disk space narrowing and degenerative changes at L5-S1. Another lumbar MRI test done in late November 1993 showed hypertrophic changes and a bulging disk at L5-S1. A February 1994 MRI test demonstrated that Andrews had grade I spondylolisthe-sis at L5-S1 and a narrowing of the nerve-root canals. In March 1995, a lumbar MRI test confirmed that Andrews had spondylolisthesis, as well as spondylosis, or a bone spur, at L5-S1, and a bulging disk at L4-5. An MRI test done in April 1999 demonstrated that Andrews had spondylo-listhesis at L5-S1 and disk herniation with nerve-root impingement on the left side at L5-S1. A CT myelogram performed in July 1999 showed spondylolisthesis, a bulging disk at L5-S1 that was impinging on the S2 nerve root on the left side, and a ruptured disk at L5-S1 that was pinching the left SI nerve. A nerve-conduction-velocity (“NCV”) test performed on July 22, 1999, showed that Andrews’s L5, SI, and S2 nerves were not functioning properly.

In April 1999, Andrews consulted Dr. Robert White and Dr. Brent Faircloth, neurosurgeons located in Mobile, about his back and leg pain. Dr. White sent Andrews to Dr. Patricia Boltz, a pain-management specialist, for an epidural steroid block, which, Andrews said, provided him complete but only temporary pain relief. On August 31, 1999, Andrews reported to Dr. Faircloth that he was experiencing severe left-leg pain with numbness in his big toe and an inability to stand or walk for more than five minutes. After reviewing Andrews’s CT scans and concluding that he was suffering from a grade I spon-dylolisthesis at L5-S1, Dr. Faircloth recommended that Andrews undergo surgery to stabilize his lumbar spine. The surgery was scheduled for December 1999, but it was canceled when, Andrews said, his back pain resolved following another epidural steroid block in September 1999.

Andrews experienced no recurrence of his back and leg pain and returned to full-time work without restrictions in late 1999. From late 1999 to late 2003, Andrews was employed at Gene Pritchett Timber Company in Andalusia as log truck driver, at Georgia Pacific Corporation as a diesel truck mechanic, and at Billy Barnes Enterprises as a truck maintenance man; in the summer of 2003, he went to work for Powell as a long-haul truck driver.

Andrews testified that in the course of his employment with Powell on November 3, 2003, he picked up a load of plastic pipes at Crestview Pipe Company in Henderson, Kentucky. In tightening the straps that secured the load, Andrews pulled down on a binding bar and a strap snapped. He testified that he fell backwards, landed on his lower back, and experienced a sharp pain. Andrews said that, at the time, he did not think he had sustained a “major injury”; he thought “it was just probably a hard fall.” Accordingly, he went to Georgia, dropped off his load of pipes, and came back to Alabama where he picked up another load. Andrews said that, two or three days after falling in Kentucky, he bent over to pick up a tarpaulin to cover his load in Lafayette, Alabama, when he felt a “pop” in his lower back, “couldn’t straighten up,” and “felt that pain again.”

Andrews consulted his family physician, Dr. Charles Eddins, who referred him to Dr. White in Mobile. Dr. White and Dr. Faircloth agreed that Andrews needed surgery, and on December 15, 2003, Dr. Faircloth performed the same surgery on Andrews that he had recommended for Andrews four years earlier — a posterior lumbar interbody fusion with pedicle rod stabilization at L5-S1. During the course of the surgery, Dr. Faircloth noted that Andrews’s spondylolisthesis had deteriorated from grade I to grade II. The surgical procedure succeeded in stabilizing Andrews’s lumbar spine. After the surgery, however, Andrews developed foot drop, bladder and bowel incontinence, and loss of sexual function.

The foot-drop condition causes Andrews to trip, and he has fractured his foot twice since the surgery. Andrews also continues to have chronic back pain. He has been treated with narcotic pain relievers and has had two surgically implanted pain pumps, one dispensing morphine and one dispensing Dilaudid. He has been seen by a urologist regarding his bladder and sexual-dysfunction problems.

Dr. Patrick Couch, an anesthesiologist and pain-medication specialist, characterized Andrews’s postoperative condition as “failed back surgery syndrome,” which, he explained, occurs when the patient has been anatomically improved from a stabilization standpoint but continues to have intractable pain. Dr. Couch testified that Andrews’s foot drop, bladder and bowel incontinence, and sexual-dysfunction problems appear to be consistent with the peri-neal nerve damage that was indicated in an NCV study done by his partner, Dr. Xiulu Rúan, a neurologist and physiatrist, in January 2006. Dr. Couch concluded that Andrews had reached maximum medical improvement on April 24, 2006, that he was not malingering, that he was incapable of working, and that he was unemployable.

At trial, Powell presented the testimony of Lindsay Patterson, a vocational consultant, who stated that she had identified 11 jobs in a 60-mile radius of Andrews’s residence that fell within the sedentary-work restrictions given to Andrews in 2004 by Dr. Edward M. Schnitzer, a specialist in physical medicine and rehabilitation located in Mobile. Patterson’s testimony was undercut, however, by her admissions that she had never met Andrews; that she had not talked with Dr. Couch; and that Dr. Schnitzer, who had not seen Andrews for two years, had no opinion about what restrictions would currently apply to him.

Standard of Review

“In reviewing the standard of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” § 25-5-81(e)(1), Ala.Code 1975. “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81(e)(2), Ala.Code 1975. “[Sjubstantial 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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Therefore, this court “will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence.” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala. 1996).

Compliance with § 25-5-88 and Notice of Injury

Powell contends that the trial court’s judgment fails to comply with § 25-5-88, Ala.Code 1975, because, it says, the accident in which Andrews hurt his back occurred on November 5, 2003, and the trial court made findings only with respect an accident that occurred on November 3, 2003. Therefore, Powell asserts, the trial court made no findings with respect to whether Andrews had given notice of his November 5, 2003, accident and injury.

The trial court’s findings on the issue of notice state:

“On November 3, 2003, while employed with Francis Powell, Mr. Andrews was injured securing a load pulling on a strap when he fell on his lower back. Prompt actual notice of the injury was provided to [Powell] as noted in the Employer’s First Report of Injury executed by Terry Carpenter on or about 11/7/03. In the Employer’s First Report of Injury, Terry Carpenter indicated that Andrews was injured on or about 11/03/03 and that the date [Powell] was first notified of the incident was on 11/06/03.”

We conclude that, with regard to the issue of notice, the trial court’s judgment both complies with § 25-5-88 and is supported by substantial evidence.

Andrews testified that, after feeling “[the] pain again” that he had felt after his fall in Kentucky, he notified Terry Carpenter, a secretary at Powell, who instructed him to see his family doctor. The record includes an “Employer’s First Report of Injury,” executed by Carpenter, which states that Andrews notified her, on November 6, 2003, that he had been injured on November 3, 2003.

Powell maintains that Andrews’s own testimony indicates that he did not believe he had sustained a major injury on November 3, that any injury that did occur happened on November 5, and that the trial court made no findings concerning notice of the November 5 injury. We conclude that the trial court’s finding that the date of injury was November 3 is supported by substantial evidence. The trial court was authorized to find that, after his fall in Kentucky, Andrews was unaware of the seriousness of his injury because its full effects had not yet manifested themselves. See Cook Transps., Inc. v. Beavers, 528 So.2d 875 (Ala.Civ.App.1988), a case with substantially similar facts.

In Beavers, a truck driver hurt his back on June 7 while picking up a load of steel coils in California. Thinking that he had merely “pulled a muscle,” the trucker drove to Illinois, delivered the load, and picked up another load. Upon his return to Alabama on June 17, the trucker, hoping that bed rest would improve his condition, informed his dispatcher that he was going to take a few days off. When his condition failed to improve, he informed the employer’s safety director of his accident on June 26. Stating that the trucker’s failure to have notified the employer of the injury on June 7 stemmed from the fact that the seriousness of the injury had not yet manifested itself on June 7, this court affirmed an award of benefits accruing from June 7 rather than from June 26. Beavers, 528 So.2d at 876-77. But see Mead Paper Co. v. Brizendine, 575 So.2d 571, 572 (Ala.Civ.App.1990) (recognizing abrogation of Beavers, on other grounds, by Ex parte Patterson, 561 So.2d 236 (Ala. 1990)). See also Honda Mfg. of Alabama, LLCv. Alford, 6 So.3d 22, 25 (Ala.Civ.App. 2007) (employee fell and “turned his knee” in late April but did not immediately report the injury because he thought the stiffness and swelling were “going to go away”); and Steele v. General Motors Coyp., 705 So.2d 402, 404-06 (Ala.Civ.App. 1997) (reversing a judgment denying benefits and holding that worker gave oral notice of back injury, which did not manifest itself until more than five days after accident).

Medical Causation

Powell maintains that the trial court’s findings regarding medical causation are not supported by substantial evidence. It asserts that the condition for which Andrews received treatment and underwent surgery in 2003 (spondylolisthesis-grade II, at L5-S1) represented a progressive deterioration of the condition for which he had previously been treated in 1999 (spon-dylolisthesis-grade I, at L5-S1) and in 1993 (degenerative changes at L5-S1, including disk-space narrowing and a bulging disk). Accordingly, Powell says, the evidence established that the medical problems Andrews was having in 2003 were caused by a degenerative condition in his lumbar spine and not by his November 3, 2003, work-related accident.

Whether the employment caused an injury is a question of fact to be resolved by the trial court. See Ex parte Valdez, 636 So.2d 401, 404 (Ala.1994); and Statewide Painting Co. v. Sharron, 693 So.2d 518 (Ala.Civ.App.1997). The trial court made the following findings of fact with respect to medical causation:

“Drs. Faircloth, Couch and Schnitzer each have testified that Mr. Andrews’s condition was caused or exacerbated by his fall on November 3, 2003. Specifically Dr. Faircloth testified as follows:
“ ‘Q. Okay. Now the first of 1999, he denied any sphincteric difficulty. Am I — sphincteric difficulty?
“ ‘A. That’s correct.
“ ‘Q. He didn’t have any drop foot. He had a grade one spondylolisthesis and left leg pain. And I’m going to give you an assumption. Assume that that was the original — those were the original findings in 1999. Surgery is scheduled. But he decides for whatever reason not to go to surgery, believes he’s had a miraculous healing of sorts, goes back to work, works at Georgia-Pacific uninterrupted, then gets a job paying more money driving a truck, a Mack truck, a big eighteen-wheeler truck. And on November 3rd of ’03 is pulling a strap on that truck and falls off the bed of the truck onto the ground onto his buttocks. And then after that, he has a spondylolis-thesis grade two, he has bilateral pain, he has — and has developed since the fall a foot drop, incontinence mixed, bladder and bowel, impotence, and chronic pain. He’s been treated — and you know, Doctor, he’s been treated with pain medication and pain therapy and every other thing you can imagine. He’s been to [the University of Alabama at Birmingham hospital] and he’s had neurologic testing done. Assume for me those facts, Doctor. Would you agree with me that this fall exacerbated what was possibly going on in 1999?
“ A. I would.’ (Def. Ex. 40, pp. 51, 52)

“Dr. Schnitzer also related Mr. Andrews’s problems to his fall in 2003. Specifically, Dr. Schnitzer testified as follows in response to the Employer’s question:

“ ‘Q. Okay. But do you have an opinion as to whether or not what you were treating him for is — he told you about an accident that you described for us when he was pulling on that strap and it broke and he said he fell backwards.
“A. Yes.
“ ‘Q. Do you have an opinion about whether or not what you were treating him for is caused or contributed to by that accident where the strap broke?
“A. Yes.
“ ‘Q. Okay. What is that opinion?
“ A. Yes, that I do think it’s related.’ (Def. Ex. 39, p. 72).”

The trial court’s findings with respect to the testimony of Dr. Couch and Dr. Schnitzer are not supported by substantial evidence. Dr. Couch did not render an opinion on the medical causation of Andrews’s current condition. Although Dr. Schnitzer, on direct examination, rendered the opinion recited in the trial court’s findings, Dr. Schnitzer, on cross-examination, acknowledged that Andrews had a significant history of previous back and leg problems about which Andrews had not informed him. The following then occurred:

“Q. [By Mr. Pipkin, Powell’s attorney:] ... [T]he presence or absence of problems between 1999 and the time [Andrews] reported] having fallen [in 2003] is something you don’t know about, correct?
“A. [By Dr. Schnitzer:] No, I really don’t.
“Q. All you have to base [your opinion as to causation] on is what [Andrews had] told you, if anything
“A. Correct.
“Q. Okay. So any opinions that you might render about whether or not what we’re dealing with today is related to a condition that’s progressed over time or whether it came from a specific event are based upon accurate history?
“A. At this point, I — it’s just kind of a muddy; it would be a muddy answer. I can’t give you an accurate answer, I don’t believe, no.”

Dr. Faircloth reviewed Andrews’s “long history of back and left leg pain” between 1993 and 1999 and stated that Andrews had a “progression of [the] slippage” at L5-S1 over a six-year period. Dr. Fair-cloth testified that he would have expected the progression to continue, and he said that it did “not make sense” to him that Andrews’s condition “just all of a sudden [got] better” in late 1999 when Andrews canceled the surgery that Dr. Faircloth had recommended. Dr. Faircloth said that when he saw Andrews again in 2008 after the work-related accident, Andrews’s complaints and symptoms were similar to the ones he had had in 1999. When he was asked whether it was possible that Andrews’s back pain simply disappeared between 1999 and 2003, Dr. Faircloth answered, “I have seen patients get better for a period of time and go back to full activity [but] it’s pretty uncommon.” When questioned about whether it was unusual for spondylolisthesis to progress from grade I to grade II in three or four years, Dr. Faircloth responded: “I don’t think it would be unusual at all. You know, I think we saw the same thing from 1993 to 1999. It just got worse and worse.” The following then occurred on direct examination:

“Q. [By Mr. Pipkin:] Okay. And would that kind of progression occur with or without intervening traumatic events?
“A. [By Dr. Faircloth:] It could occur without events or it could occur with events. I mean, either way.”

On cross-examination, Mr. Duhé, Andrews’s attorney, posed to Dr. Faircloth the lengthy hypothetical question quoted in the trial court’s findings, which ended with the inquiry, “Would you agree with me that this fall [in 2003] exacerbated what was possibly going on in 1999?” Dr. Faircloth answered, “I would.” On redirect examination, the following occurred:

“Q. [By Mr. Pipkin:] You do know that when you went in to do surgery that what you found there you diagnosed as a grade two spondylo-listhesis, correct?
“A. That’s correct.
“Q. As to whether that grade two spondylolisthesis occurred before, during, or after this November [3], 2003 incident that Mr. Andrews has told us about, are you able to tell us one way or the other, given the fact that you didn’t see him for three or four years?
“A. I am not able to differentiate if absolutely the fall caused that or not.
“Q. It’s quite possible that the grade two spondylolisthesis existed due to progression prior to this incident that he told you about?
“A. That’s correct.”

On recross-examination, the following occurred:

“Q. [By Mr. Duhé:] Doctor, assume his history is accurate, assume that the history that you have there is accurate. He’s had no pain or livable pain, and then after he pulls this strap and lands on his buttocks several feet to the ground off of a flatbed truck, and based on the history which he told you, T hurt it falling off of this truck,’ would you say that that fall exacerbated this spondylolisthesis?
“A. I would.”

Based on the foregoing exchanges, one might consider that Dr. Faircloth’s testimony was inconclusive or indecisive, that he vacillated between the opinion that Andrews’s fall was, and was not, a contributing cause of the injuries for which Andrews was seeking benefits. Discussing proof of medical causation, the Alabama Supreme Court stated, in Ex parte Bryant, 644 So.2d 951 (Ala.1994):

“ ‘To appraise the true degree of indispensability which should be accorded medical testimony, it is first necessary to dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis. True, in many instances it may be impossible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is. But this is not invariably so. In appropriate circumstances, awards may be made when medical evidence on these matters is inconclusive, indecisive, fragmentary, inconsistent, or even nonexistent.’ ”

Bryant, 644 So.2d at 952 (quoting Ex parte Price, 555 So.2d 1060, 1061-62 (Ala.1989), quoting in turn 3 A. Larson, The Law of Workmen’s Compensation § 79.51(a) at p. 15-426.128 (1988)) (emphasis added). See also 1 Terry A. Moore, Alabama Workers’ Compensation § 7:19 at 218 (1998).

A close reading of Dr. Faircloth’s deposition indicates that his testimony was not inconclusive, indecisive, or inconsistent; that, on the contrary, Dr. Faircloth rendered an opinion that Andrews’s November 3, 2003, accident was the medical cause of Andrews’s injuries; but that, being a scientifically trained professional, Dr. Fair-cloth understood that a different opinion would also be tenable because, under the circumstances, it was impossible to discern the truth with absolute certainty. For example, Dr. Faircloth stated that the deterioration in Andrews’s lumbar spine between 1999 and 2003 could have occurred with or without an intervening traumatic event, and he acknowledged that he was unable to “differentiate if absolutely [Andrews’s] fall caused” the deterioration. Absolute certainty with respect to medical causation, however, is not required. In Ex parte Price, the Alabama Supreme Court held that

“[i]t 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 [for medical causation] finds its application.”

555 So.2d at 1063 (citing Odell v. Myers, 52 Ala.App. 558, 295 So.2d 413 (1974)). See also Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1121-22 (Ala.2003).

Dr. Faircloth was asked twice whether — assuming a set of facts approximating the “overall substance and effect of the whole of the evidence,” Ex parte Price, 555 So.2d at 1063, when viewed in the context of Andrews’s reported history — he would agree that Andrews’s fall exacerbated his spondylolisthesis, and each time Dr. Fair-cloth answered without equivocation, “I would.”

We have carefully reviewed Dr. Faircloth’s testimony, and we conclude that it constitutes substantial evidence from which the trial court could have found that Andrews’s November 3, 2003, work-related accident was a contributing cause of the injuries for which he was seeking relief under the Workers’ Compensation Act.

“[0]ur task, as an appellate court reviewing a judgment entered in a workers’ compensation case, is to determine ‘only whether the evidence supporting the trial court’s findings of fact constitutes “substantial evidence,” ie., “ ‘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 Staggs, 825 So.2d 820, 821-22 (Ala.2001) (quoting Ex parte Trinity Indus., Inc., 680 So.2d [262] at 268 [ (Ala.1996) ], quoting in turn West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). In contrast, an appellate court ‘is prohibited from reweighing the evidence, i.e., it is not to consider whether in its opinion the “substantial evidence” before the trial court might have caused the appellate court— if it had been the fact-finder- — to find the facts to be different from what the trial court found them to be.’ Ex paHe Staggs, 825 So.2d at 822.”

Muhammad v. Laidlaw Transit, Inc., 917 So.2d 842, 846 (Ala.Civ.App.2005).

Apportionment of Benefits/Judicial Estoppel

Powell argues that because Andrews had a preexisting back injury with spondylolisthesis, his right to recover workers’ compensation benefits for the November 3, 2003, on-the-job injury is limited by § 25-5-58, Aa.Code 1975. That statute provides:

“If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.”

In a long line of cases beginning with Ingalls Shipbuilding Corp. v. Cahela, 251 Aa. 163, 36 So.2d 513 (1948) (superseded on other grounds by statute, see Tit. 26, § 262(a), Aa.Code 1940), Aabama appellate courts have held that “ ‘the term ... infirmity in [§ 25-5-58] refer[s] to a condition which affects [the plaintiffs] ability to work as a normal man at the time of the accident or which would probably so affect him within the compensable period.’ ” Ex parte Lewis, 469 So.2d 599, 601 (Aa.1985) (quoting Cahela, 251 Aa. at 173, 36 So.2d at 521). Pursuant to Cahela,

“the law presumes that there is no preexisting injury or infirmity when the employee is able to fully perform his or her job duties in a normal manner prior to the subject injury. [Section 25-5-58] only applies when the previous injury or infirmity has demonstrated itself as disabling and prevented the employee from earning wages in a normal manner.”

1 Terry A. Moore, Alabama Workers’ Compensation § 16.25 at 708-09 (1998) (emphasis added; footnote omitted).

The evidence in the present case indicates that, during the three years preceding his November 3, 2003, accident, Andrews had worked at Gene Pritchett Timber Company in Andalusia as log truck driver, at Georgia Pacific Corporation as a diesel truck mechanic, at Billy Barnes Enterprises as a truck maintenance man, and at Powell as a long-haul truck driver — all without complaints of back pain.

Citing Consolidated Stores, Inc. v. Gargis, 686 So.2d 268 (Aa.Civ.App.1996), overruled on other grounds by Bleier v. Wellington Sears Co., 757 So.2d 1163 (Aa. 2000), Powell argues that the doctrine of judicial estoppel prevents Andrews from denying that he was disabled before his November 3, 2003, accident because, it says, Andrews received Social Security disability benefits from 2000 through 2003, based upon his representation to the Social Security Administration that he was totally disabled.

Powell submitted federal income-tax records that, it says, indicate that Andrews had received Social Security disability benefits in the amount of $10,344 for the 2000 tax year; $10,716 for the 2001 tax year; $13,408 for the 2002 tax year; and $14,488 for the 2003 tax year. We have examined the records and we note that the above-enumerated sums are unexplained other than by the designations “PENS/ANN” or “GR PEN/IRA.” There was no testimony at trial regarding the meaning of the designations on the tax records Powell submitted.

“It is well settled that an appellant has the burden of presenting a record containing sufficient evidence to show error by the trial court. Leeth v. Jim Walter Homes, Inc., 789 So.2d 248, 246 (Ala.Civ.App.2000). It is not the duty of this court to search an appellate record for evidence to support an appellant’s contention of error. Jenkins v. Landmark Chevrolet, Inc., 575 So.2d 1157, 1161 (Ala.Civ.App.1991). ‘ “This court cannot assume error, nor can it presume the existence of facts to which the record is silent.” ’ Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938, 942 (Ala.1997) (quoting Newman v. State, 623 So.2d 1171,1172 (Ala.Civ.App.1993)).”

Dolgencorp, Inc. v. Hudson, 924 So.2d 727, 736 (Ala.Civ.App.2005).

With respect to Andrews’s receipt of Social Security disability benefits, the trial court made the following factual findings:

“Andrews applied for [Social Security disability benefits] in 1994 and was awarded benefits in 1996. The benefits award was provided to [Andrews’s wife] as guardian in [light] of the fact that Andrews was unable to mentally handle financial tasks competently. The [Social Security disability] benefits ended in 2001.”

The trial court’s findings are based upon Andrews’s trial testimony. Because the tax records submitted by Powell are unclear and unexplained, we conclude that the trial court’s finding is supported by substantial evidence.

We hold that Andrews’s receipt of disability benefits from the Social Security Administration until 2001 neither es-tops him from claiming that he was fully performing his job duties until November 3, 2003, nor mandates the application of § 25-5-58. Our opinion in Gargis, supra, is not binding precedent with respect to the estoppel issue because a majority of the judges on this court did not concur in the disposition of the judicial-estoppel issue. Moreover, the Alabama Supreme Court has held that the apportionment provision of § 25-5-58 does not apply to one who, despite a prior adjudication of permanent total disability by the Social Security Administration, has returned to work and fully performed his job duties in a normal manner. See Ex parte Bratton, 678 So.2d 1079,1083 (Ala.1996).

In Wal-Mart Stores, Inc. v. Bratton, 678 So.2d 1071 (Ala.Civ.App.1995), reversed, Ex parte Bratton, supra, Bratton suffered a heart attack in 1976 and retired from his former employment with a disability pension. Two years later, the Social Security Administration determined that he was eligible for Social Security disability benefits. In 1985, Bratton suffered a stroke that weakened one side of his body. In 1988, he went to work as a “greeter” at a Wal-Mart store. In 1992, Bratton was injured when he fell over a hose in the Wal-Mart garden department. The trial court awarded Bratton permanent-total-disability benefits, and Wal-Mart appealed to this court, arguing that the trial court had erred in determining that Bratton was permanently and totally disabled as a consequence of his work-related injury, because, it said, “an employee who has been previously declared totally and permanently disabled, who has been compensated as a result of his disability, and who subsequently returns to work and is injured, cannot recover total and permanent disability benefits for the subsequent injury under [workers’] compensation statutes.” 678 So.2d at 1074.

With respect to the apportionment-of-benefits issue, this court remanded the cause to the trial court with instructions to make findings “with reference to whether Bratton performed his job duties without any limitations or restrictions or was hired subject to a preexisting disability. The trial court should then determine whether ... [§ ]25-5-58 [is] applicable to Bratton’s disability award, and, if so, it should recalculate the award of benefits accordingly.” 678 So.2d at 1077.

The supreme court granted Bratton’s petition for writ of certiorari and reversed this court’s judgment in Ex parte Bratton, supra. The court held that, although Bratton had previously been determined to be permanently and totally disabled by the Social Security Administration, he had no “preexisting injury or infirmity” within the meaning of § 25-5-58 because he had been fully performing his job duties in a normal manner for five years before the accident. 678 So.2d at 1082-83.

In the present case, the trial court’s judgment states:

“With reference to his preexisting condition I find that [Andrews] suffered a preexisting condition which began in approximately 1993 or earlier. [Andrews] was able to return to work in 1999 without limitation, full duty, earning substantial sums up to November 3, 2003 when he fell from a truck while working for [Powell]. [Andrews] is entitled to permanent total disability benefits notwithstanding the preexisting injury given the fact that he was at the time of his injury fully employed, without restriction, at premium pay. At the time of his injury, [Andrews] was not receiving [Social Security] disability benefits.”

The factual components of the trial court’s determination are supported by substantial evidence, and the trial court’s application of the law to the facts is correct. The trial court determined that Andrews’s preexisting back injury “did not disable him from doing the job that he had been employed to do and, therefore, it did not apportion disability benefits in accordance with ... [§ ] 25-5-58.” Ex parte Bratton, 678 So.2d at 1083.

Voluntary Payment of Benefits

The trial court made the following factual finding in its judgment:

“Since August of 2005, [Powell] has maintained worker’s compensation benefits at $881.88 bi-monthly even though Dr. Couch released Mr. Andrews in April of 2006.”

Citing § 25-5-56, Ala.Code 1975, Powell asserts that the finding “serves no purpose other than to raise the inference that Powell admits liability based on its continued payment of benefits.” Section 25-5-56 provides, in pertinent part:

“All moneys voluntarily paid by the employer or insurance carrier to an injured employee in advance of agreement or award shall be treated as advance payments on account of the compensation. In order to encourage advance payments, it is expressly provided that the payments shall not be construed as an admission of liability but shall be without prejudice.”

(Emphasis added.)

We do not know why the trial judge included the finding regarding Powell’s voluntary payments of compensation in its judgment, but we will not presume that the finding implies that the court deemed the payments to be an admission of liability by Powell. We presume that trial judges know and follow the law. Ex parte Atchley, 936 So.2d 513, 516 (Ala. 2006); and Ex parte Slaton, 680 So.2d 909, 924 (Ala.1996). ‘“A trial judge’s actions are presumptively correct in the absence of a showing to the contrary.’ ” Ex parte Atchley, 936 So.2d at 516 (quoting Carter v. State, 627 So.2d 1027, 1028 (Ala.Crim. App.1992)). Because the trial court’s finding does not, on its face, indicate that the court drew any improper inference from Powell’s voluntary payments to Andrews, and because Powell has not made a showing that the trial court did draw such an inference, we cannot presume error.

The judgment of the Clarke Circuit Court is affirmed.

AFFIRMED.

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

MOORE, J., recuses himself.

      . Dr. Brent Faircloth, a neurosurgeon, explained that spondylolisthesis is disk slippage. There are four grades of slippage, each corresponding to one quarter of a vertebral body.

      . Dr. Brent Faircloth, a neurosurgeon, explained that the SI nerve controls the foot and the calf; that the S2 nerve controls the perineum; and that the perineum plays a role in bladder, bowel, and sexual function.


source: Caselaw Access Project

license: Public Domain

text:
    ABERNANT FIRE DEPARTMENT v. James L. RHODES, Jr., and Pamela Rhodes.
    2070516.
    Court of Civil Appeals of Alabama.
    April 24, 2009.

      William K Bradford, Birmingham, for appellant.
    G. Stephen Wiggins and Randal Kevin Davis of Wiggins, Jones & Davis, P.C., Tuscaloosa, for appellees.
   THOMAS, Judge.

In March 2000, James L. Rhodes, Jr., leased a 1.5-acre tract of real property (“the leased property”) and a building to the Abernant Fire Department (“the AFD”). Rhodes owns the adjoining property, and he lives on and operates a business on that property. The AFD operates in the building it leased from Rhodes; the building serves as office space and houses fire engines and other AFD vehicles. The building has one or more drains in its floor; the liquid that collects on the floor drains out one of three PVC pipes that are exposed on the outside of the building. Over a span of years, the AFD or its members have parked nonoperable AFD vehicles on the lot surrounding the building. In addition, an older model automobile in disrepair that was used for training purposes was also parked on the leased property. Over the years, the leased property became littered with refuse, including an old engine block and rubber hoses.

In January and March 2006, Rhodes wrote to Gaile Foster, the president of the AFD. In his letters he complained of the refuse that littered the leased property and requested that the area be cleaned. The letters specifically referenced the nonworking and unused fire trucks on the leased property, old tires and signs that had been left on the leased property, and garbage that littered the leased property.

On March 1, 2007, Rhodes wrote to the AFD to complain that it had violated the lease provision regarding insurance. In his letter, Rhodes warned that a failure to bring the insurance policy in effect in compliance with the requirements of the lease would be considered an event of default under the lease. The AFD contacted its insurance agent, who made the necessary changes in the insurance policy.

When the AFD installed a septic tank in or about February 2007, the field lines for the septic system were installed on Rhodes’s adjoining property, which lies outside the leased property. Rhodes contacted the AFD about this problem, and the AFD agreed that the lines had been improperly located. Rhodes had the field lines dug up and removed and requested that the AFD pay the $600 cost for that task. Although the AFD agreed to do so, it attempted to pay the backhoe operator who had performed the work. Because Rhodes had paid the backhoe operator, he requested that the AFD make a check out to him. The AFD requested proof that Rhodes, had paid the backhoe operator, which Rhodes did not supply.

On April 1, 2007, Rhodes sent a notice to the AFD regarding his complaint that the AFD “has had considerable changes made both to the exterior and interior including damage.” According to Rhodes, the “changes” and damage were violations of section 7 of the lease, which required the AFD, as lessee, “to maintain, at its own cost and expense, the Improvements in the same condition as the Improvements existed on the completion date [of the building], normal wear and tear excepted.” The notice specifically listed as “changes” and damage: the construction of an awning-above a door to the building, the construction of offices inside the building, and damage to the northernmost bay doorframe. Rhodes warned in the notice that the AFD had 20 days to come into compliance with the lease agreement or he would consider the failure to comply an event of default.

On April 13, 2007, Rhodes sent another notice to the AFD. The April 13, 2007, notice referred to the dumping of refuse on the leased property. Rhodes referred the AFD to two provisions in the lease, section 9, titled “Requirements of Public Authorities,” and section 32, titled “Environmental Matters.” In pertinent part, those sections read as follows:

“(9) Requirements of Public Authorities. During the term of this Lease, [the AFD] shall, at its own cost and expense, promptly observe and comply with all present and future laws, ordinances, requirements, orders, directives, rules and regulations of the federal, state, county and municipal governments and all other governmental authorities affecting the [leased property] .... ”
“(32) Environmental Matters. [The AFD] covenants and agrees that [it] and all other persons who manage, use, operate or occupy the leased premises and all improvements situated thereon shall comply with all federal, state and local laws, regulations and orders regulating health, safety and environmental matters, including without limitation air pollution, soil and water pollution and the use, generation, storage, handling or disposal of Hazardous Materials (defined below in this section).
“[The AFD] shall not generate, handle, use, store, treat, discharge, release or dispose of any Hazardous Material at the leased premises unless [the AFD] shall be in full compliance with all environmental laws.
“For purposes of this Section, the term ‘Hazardous Materials’ shall mean any hazardous, toxic or dangerous waste, substance or material defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act of the United States Congress, or in any other law, regulation or order, now or hereafter in effect, of any governmental authority regulating, or imposing liability or standards of conduct relating to, any hazardous, toxic or dangerous waste, substance or material.”

The April 13, 2007, notice also included quotations from two statutes, Ala.Code 1975, § 13A-7-29(a)(l), which describes one of the acts that constitutes “criminal littering,” and Ala.Code 1975, § 22-27-4(b), which defines “unauthorized dumps.” According to Rhodes, the AFD’s continuing practice of leaving refuse on the leased property amounted to violations of the quoted statutes and violated the specified lease provisions.

On or about April 24, 2007, Rhodes sent a “Notice of Termination of Lease” to the AFD. In the notice, Rhodes notified the AFD that he had elected to terminate the lease because, he asserted, the AFD had failed to comply with section 7 of the lease agreement regarding maintenance of the improvements to the leased property. According to the notice, the AFD had 10 days to quit the premises. The date for the removal of the AFD’s personal property from the leased property was specified as May 5, 2007. Subsequent notices from Rhodes to the AFD were dated May 1 and May 2, 2007; both notices indicated that the original quit date of May 5, 2007, would be enforced.

On May 3, 2007, the AFD filed in the circuit court a complaint seeking an emergency temporary restraining order (“TRO”) to prevent what it termed as an unlawful eviction by Rhodes. Apparently, the circuit court took no action and did not grant a TRO. On July 31, 2007, the AFD filed a “renewed” complaint for a TRO because Rhodes had locked a gate on the road that provided access to the leased property. The circuit court held a hearing on August 3, 2007, after which it treated the AFD’s complaint as an application for a preliminary injunction; the court entered a preliminary injunction on August 8. The injunction restrained Rhodes from blocking access to the leased premises and ordered the AFD to maintain the improvements on the leased property, to refrain from committing waste on the leased property, to prevent spillage of any hazardous waste on the leased property, and to comply with the insurance-related provisions of the lease.

Rhodes answered the complaint on September 26, 2007. He also filed a counterclaim in which he alleged that the AFD had breached the lease, that he had properly given notice of termination of the lease, and that the AFD had refused to vacate the leased property. Rhodes sought a judgment declaring that the lease had been breached by the AFD, terminated by Rhodes, and was no longer in effect; evicting the AFD from the leased property; and awarding attorney fees he had incurred as a result of the AFD’s failure to abide by the terms, conditions, and covenants of the lease. The AFD moved to dismiss the counterclaim insofar as it requested an eviction of the AFD from the leased property because, it asserted, jurisdiction over that claim lies in the district court. The AFD answered Rhodes’s remaining counterclaims.

The circuit court held a trial on November 20, 2007. At the commencement of the proceedings, the parties agreed that Rhodes’s wife, Pamela Rhodes, was a necessary party, and she was added as a defendant/counterclaimant by agreement of the parties. The parties also agreed that the circuit court could not evict the AFD but could only consider whether a breach of the lease agreement had occurred and whether the lease was properly terminated; we deem the admission by the Rhodeses that they would be required to pursue an unlawful-detainer action in district court as a withdrawal of their claim seeking an eviction of the AFD from the leased property.

During the trial, the testimony reflected that the AFD had made attempts to cure the problems that Rhodes had complained of in his notices and letters. The AFD had removed several of the nonworking trucks from the leased property and had picked up some of the litter and refuse on the leased property. Although Rhodes complained that the AFD had not cleaned up everything, including the old engine block, James Lewis, the chief of the AFD, testified that, after the hearing on the TRO, he and the other volunteer fireman had cleaned up the leased property. Lewis said that they had not had available anything they could use to pull up the old engine block, so he admitted that it remained on the leased property. Lewis further explained that the AFD had planned to purchase “poly tanks” to catch the drainage from the floor of the building so that any oil or other substances would separate from the water and could be disposed of properly. At the close of the testimony, the circuit court told the parties that the problems that had occurred were not sufficient to warrant a termination of the lease, noted that further problems with the spillage of hazardous waste would likely lead to a termination of the lease, and indicated approval of the use of the “poly tanks” to prevent further spillage of hazardous materials on the leased property. Athough the circuit court declined to terminate the lease, it stated that it felt an attorney fee was appropriate because Rhodes had had to take legal action to force compliance with certain provisions of the lease.

After the conclusion of the trial, the circuit court rendered a judgment stating:

“1. The Court finds that there has not occurred a sufficiently material breach of the subject lease to warrant termination. The Court therefore at this time declines to terminate the lease.
“2. The Court finds that the [AFD] should pay for sewer field line work in the amount of $600 and [the Rhodeses’] legal costs in the amount of $6,454.55, which total amount of $7,054.55 is taxed as court costs.
“3. Costs of Court are taxed to [the AFD].”

The judgment was entered in the State Judicial Information System by the circuit clerk on December 3, 2007.

The AFD filed a postjudgment motion on January 2, 2008, requesting the court to reconsider the award of an attorney fee to the Rhodeses. The Rhodeses filed a post-judgment motion on January 3, 2008; the circuit court granted the AFD’s motion to strike this motion because it had not been filed within 30 days after the entry of the judgment, in violation of Rule 59(b), Ala. R. Civ. P. After the AFD’s postjudgment motion was denied on January 14, 2008, the AFD timely appealed.

On appeal, the AFD argues that the circuit court erred by awarding the Rhodeses an attorney fee. According to the AFD, because the Rhodeses did not prevail on their claims, the circuit court could not have awarded an attorney fee to them. The AFD relies on Stockton v. CKPD Development Co., 936 So.2d 1065, 1083 (Ala.Civ.App.2005), in which this court affirmed a trial court’s summary-judgment order insofar as it denied the Stocktons’ claim for an award of an attorney fee. The Stocktons had relied on a provision in their lease with CKPD that provided that “ ‘[CKPD] expressly agrees to pay all expenses that [the Stocktons] may incur for reasonable attorneys’ fees ... for enforcing the terms and provisions of this Lease....’” Stockton, 936 So.2d at 1083. The trial court had not awarded an attorney fee that the Stocktons had requested. Id. We affirmed the trial court’s summary judgment denying an attorney fee because the Stocktons had not prevailed on their claims to enforce the lease, and, we said, even if they had prevailed on those claims, the Stocktons had failed to present evidence in conjunction with the summary-judgment motion regarding the reasonableness of the fees that they sought. Id. at 1083. The AFD argues that, like the Stocktons, the Rhodeses failed to prevail on their claims against it and failed to present evidence of the reasonableness of the attorney fees they claimed; as a result, the AFD claims, the Rhodeses are not entitled to an attorney fee.

Contrary to the AFD’s assertion, Stockton does not compel a reversal of the attorney-fee award. The Rhodeses did not prevail on their claim seeking a declaration that the lease had been properly terminated; the circuit court specifically declined to terminate the lease, concluding in its judgment that the breaches committed were not sufficiently material to warrant such an action. However, the Rhodeses resorted to legal action to force the AFD to comply with various provisions of the lease, and the circuit court ordered the AFD to comply with certain provisions of the lease in the order granting a preliminary injunction and ordered the AFD to be responsible for the $600 cost of the removal of the improperly installed field lines in its final judgment. The circuit court itself noted that the AFD had failed to comply with certain lease provisions when it explained at the close of the trial that the Rhodeses were entitled to an attorney fee.

The AFD makes much of the circuit court’s use of the phrase “material breach” in the judgment. To succeed in a breach-of-contract action, a claimant must prove a material breach of the contract. Stockton, 936 So.2d at 1078 (citing Sokol v. Bruno’s, Inc., 527 So.2d 1245, 1247-48 (Ala.1988)). The circuit court found the breaches of the lease claimed by the Rhodeses to be not sufficiently material to warrant a termination of the lease; however, the circuit court awarded the Rhodeses $600 and ordered, in its order granting the preliminary injunction, that the AFD take action to come into compliance with the lease. The pertinent lease provision authorizing recovery of an attorney fee permits recovery “in the event [Rhodes] employs an attorney to collect any rental or other obligations due hereunder by [the AFD], or in the event [the AFD] violates any terms[,] conditions or covenants on the part of [the AFD].... ” Recovery of an attorney fee is permitted in the event that' the AFD “violates” a term, condition, or covenant in the lease; the provision does not limit an attorney-fee award to a situation in which a material breach of the lease occurs. See Ex parte Awtrey Realty Co., 827 So.2d 104, 107-08 (Ala.2001) (quoting Smith v. Citicorp Person-To-Person Fin. Ctrs., Inc., 477 So.2d 308, 310 (Ala.1985)) (“ ‘The words of a contract are to be given their ordinary meaning, and the intention of the parties is to be derived from the provisions of the contract.’ ”); and Smith v. Ledbetter, 961 So.2d 141, 145 (Ala.Civ. App.2006) (quoting Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala. 2000)) (“ ‘Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning.’ ”). Thus, we cannot agree with the AFD that the circuit court’s failure to find a sufficiently material breach to warrant termination of the lease is equivalent to finding that the AFD’s failures to comply with the lease did not amount to violations of the lease agreement. The circuit court implicitly found, and it indicated in its statements at trial, that the AFD had violated the lease agreement and that the AFD needed to take action to come into compliance with the agreement. The AFD has not provided any authority compelling a conclusion that a “material breach” of the lease was required in order to entitle the Rhodeses to an attorney fee under the lease.

We also do not agree with the AFD that Stockton compels reversal of the attorney-fee award on the ground that the Rhodeses failed to establish the value of the services provided or the reasonableness of the attorney fees they claimed. The Rhodeses presented itemized statements of the attorney fees they had incurred, Rhodes testified regarding those fees, and the trial judge himself stated at the close of the trial that he would review the requested fees for reasonableness based upon his own experience as a lawyer and a trial judge. Dent v. Foy, 214 Ala. 243, 249, 107 So. 210, 216 (1925) (noting that the trial court may “call to [its] aid [its] own judgment of [the] value [of the legal services rendered], and may fix the fee accordingly”). The AFD did not object to the amount of or reasonableness of the attorney fees sought by the Rhodeses at any point during the testimony relating to those fees or in its postjudgment motion, although counsel for the AFD did question Rhodes about the amount of fees he had incurred before he filed his counterclaims. Because the AFD did not challenge the reasonableness of the attorney fees at any time in the circuit court or object to the circuit court’s stated intention to determine the reasonableness of the attorney fees based on the trial judge’s own experience, we will not reverse the circuit court’s award of an attorney fee on the basis that the Rhodeses failed to prove the reasonableness of those fees. Crest Constr. Corp. v. Shelby County Bd. of Educ., 612 So.2d 425, 430 (Ala.1992) (noting that an appellate court will not consider issues not raised in the trial court).

AFFIRMED.

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

      . Although the AFD relies on the holding in Stockton, 936 So.2d at 1083, affirming a denial of an attorney fee in a summary-judgment context, it does not develop its argument into an attack on the reasonableness of the attorney fee in this case; thus, we decline to determine whether the attorney fee awarded in this case is reasonable under the criteria applicable to that question.


author: McMILLAN, Presiding Judge.

text:
    Roy BURGESS, Jr. v. STATE of Alabama.
    CR-05-0421.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.
    Cathleen I. Price and Aaryn M. Urell, Montgomery, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Roy Burgess, Jr., appeals from the trial court’s order summarily dismissing his Rule 32, Ala. R.Crim. P., petition for postconviction relief.

Burgess was convicted of murder, made capital because it was committed during a robbery in the first degree, § 13A-5-40(a)(2), Ala.Code 1975. He was sentenced to life imprisonment without parole.

In his Rule 32 petition, Burgess alleges that juror misconduct, in the form of a juror’s failure to respond to voir dire, deprived him of a fair trial. More particularly, he claims that a juror failed to disclose that the juror knew one of the State’s witnesses and had a family member in law enforcement; that another juror failed to disclose an acquaintanceship with a police officer; and that another juror had a close friend who worked for a police department during the time of trial. Burgess also alleged that several jurors failed to disclose that they or close family members had been victims of crime. Lastly, Burgess alleged that one of the jurors was a personal acquaintance of the district attorney’s and that the district attorney had assisted the juror in some matter before trial, and that this was not disclosed. Burgess argues that he “only recently” discovered these items of nondisclosure.

The State requests this Court to remand this case to the trial court to determine the factual basis of Burgess’s allegations that several jurors failed to fully respond to voir dire questions and to determine when and how Burgess discovered the basis of these claims, and if the claims could have been raised by newly appointed appellate counsel in Burgess’s motion for a new trial. The trial court is not required to conduct an evidentiary hearing but may obtain the information in any manner necessary, in-eluding either pleadings or affidavits, to make specific findings of fact.

We pretermit discussion of any remaining claims raised by Burgess until the trial court files a return to our remand. The return to remand should be filed with this Court with 42 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: LYONS, Justice.

text:
    Ex parte Roy BURGESS, Jr. (In re Roy Burgess, Jr. v. State of Alabama).
    1070635.
    Supreme Court of Alabama.
    Sept. 5, 2008.
    Rehearing Denied Nov. 21, 2008.

      Aaryn M. Urell, Equal Justice Initiative of Alabama, Montgomery, for petitioner.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for respondent.
   LYONS, Justice.

Roy Burgess, Jr., petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the Morgan Circuit Court’s denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. We issued the writ of certiorari to review only whether Burgess’s claims of juror misconduct, arising from the alleged failure of several jurors to accurately answer questions during the voir dire examination, are precluded under Rule 32.2(a)(3) and (5), Ala. R.Crim. P. For the reasons discussed below, we hold that the claims are not precluded, and we reverse the judgment of the Court of Criminal Appeals and remand the case.

I. Facts and Procedural History

Burgess was convicted of capital murder and was sentenced to death in 1994. See § 13A-5-40(a)(2), Ala.Code 1975. On direct appeal, the Court of Criminal Appeals affirmed Burgess’s conviction and sentence. Burgess v. State, 811 So.2d 557 (Ala.Crim.App.1998). This Court affirmed Burgess’s conviction, reversed his death sentence, and remanded the cause to the Court of Criminal Appeals with instructions for that court to remand the cause to the trial court for resentencing. Ex parte Burgess, 811 So.2d 617 (Ala.2000).

In accordance with this Court’s instructions, the Court of Criminal Appeals remanded the cause to the trial court for that court to reevaluate Burgess’s sentence. Burgess v. State, 811 So.2d 633 (Ala.Crim.App.2000). On remand, the trial court resentenced Burgess to life imprisonment without the possibility of parole; the Court of Criminal Appeals affirmed that sentence. Burgess v. State, 811 So.2d 633 (Ala.Crim.App.2001) (opinion on return to remand).

Burgess first filed a Rule 32 petition for postconviction relief in July 2002. He then amended the petition in January 2003 and again in November 2004. Claim 13 of the petition, as last amended, asserted that “[Burgess’s] right to [an] impartial jury was violated by jurors’ consideration of extraneous evidence and failure to accurately answer voir dire questions.” Burgess supported this claim as follows:

“110. ... Juror T.B. failed to disclose that he knew one of the State’s witnesses, Angela Casey, and that he had a family member who worked in law enforcement, as a military policeman and later in a sheriff’s department in North Carolina. Juror L.T. failed to disclose that she knew a number of police officers. A very close friend whom L.T. refers to as her ‘granddaughter’ worked for the police department at the time of trial, yet L.T. did not reveal this information during voir dire.
“111. Juror D.C. failed to reveal that he had been the victim of a crime in 1985. He further failed to tell the court that he testified for his Lieutenant in court martial proceedings while he was in the Army. Juror L.T. failed to disclose that she had been a victim of crime when her business was burglarized. Juror B.W. failed to disclose that she was the victim of a burglary. Juror R.W. also failed to reveal that she was the victim of a crime. Juror T.W. did not reveal that his aunt had been raped and severely beaten.
“112. Juror F.D. failed to tell the court that she had children who had attended Austin High School.[] Of the two veniremembers who disclosed that they had a child or grandchild who attended Austin High School, one was removed for cause on a defense motion and one was peremptorily struck by the defense.
“113. Juror C.H. failed to disclose that she had a personal relationship with the district attorney and that he had assisted her in a personal matter before the trial. Although [Burgess’s] Motion to require the district attorney to disclose past or present associations or relationships with prospective jurors was granted, the district attorney did not reveal that he had met privately with C.H. and helped her to resolve a personal matter. Veniremembers who disclosed even remote associations with the district attorney or members of his family were not seated on the jury.”

(Citations to the record omitted.)

The trial court summarily dismissed Burgess’s Rule 32 petition. In its order, the trial court found that the claims of juror misconduct were precluded from review under Rule 32.2(a)(3) and (5), Ala. R.Crim. P., because the claims were not raised on appeal or in Burgess’s motion for a new trial. Rule 32.2, Ala. R.Crim. P., “Preclusion of Remedy,” provides:

“(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:
“(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
“(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”

The trial court further found that “Burgess has presented no evidence to support the allegations contained in his petition for relief pursuant to Rule 32, A[la]. R.Crim. P.” Burgess appealed the order dismissing his Rule 32 petition to the Court of Criminal Appeals.

The Court of Criminal Appeals remanded the cause to the trial court for a determination of “the factual basis of Burgess’s allegations that several jurors failed to fully respond to voir dire questions and to determine when and how Burgess discovered the basis of these claims, and if the claims could have been raised by newly appointed counsel in Burgess’s motion for a new trial.” Burgess v. State, 21 So.3d 745 (Ala.Crim.App.2006).

The State sent the trial court a copy of its brief on direct appeal and a letter explaining its position on remand. The trial court then ordered Burgess to file the following:

“1. Copy of [Burgess’s] brief on appeal of his original conviction specifically including all issues raised on appeal;
“2. Statement(s) setting forth with specificity the factual basis of [Burgess’s] allegations that several jurors failed to fully respond to voir dire questions; and
“3. Statement(s) setting forth with specificity when and how [Burgess] and/or his counsel discovered the basis. of [Burgess’s] allegations that several jurors failed to fully respond to voir dire questions.”

In response to the trial court’s order for statements “setting forth with specificity the factual basis of [Burgess’s] allegations” of juror misconduct, Burgess proffered the following as facts:

“1. Juror D.C. was a victim of a crime. His car was vandalized and the top was cut off in Decatur. He once testified for his Lieutenant who was charged in a court martial.
“2. Juror R.W. was a victim of crime when her car was vandalized while she was at work.
“3. Juror L.T. was a victim of crime when someone broke into her dry cleaning store before trial. The police came and said that the thief must have had a key. She got up on a ladder and saw that the burglar got in through the top of the building. She suspected the husband of one of her customers.
“4. Juror L.T. knew a lot of people in law enforcement because as a dry cleaner she did some Decatur Police Department officers’ clothes and uniforms. She has a very close friend — whom she calls her granddaughter — who was in the police department for a long time and was working in law enforcement at the time of trial.
“5. Juror L.T.’s grandson attended Austin High School before 1994.
“6. Juror T.B. had a cousin who was a military policeman in the Army and then in the sheriff’s department in North Carolina. He knew Angela Casey [one of the State’s witnesses] at the time of the trial because her younger brother and his son played baseball together.
“7. Juror C.H. knew district attorney Bob Burrell. She had been to his office to talk to him about a personal matter. After the trial, she received a letter from Bob Burrell, thanking her for being on the jury.”

Burgess supported this proffer with affidavits from John Mays, an attorney who had represented Burgess during the trial, and three jurors. In his affidavit, Mays stated that before the trial

“the defense filed a motion to require the district attorney [Bob Burrell] to disclose past or present associations or relationships with prospective jurors, and our motion was granted. Had prospective juror C.H. disclosed during voir dire that she had a personal relationship with the district attorney and that he had assisted her in a personal matter before the trial, I would have challenged her for cause or exercised a peremptory strike to excuse her from the jury.”

In response to the trial court’s order for statements “setting forth with specificity when and how [Burgess] and/or his counsel discovered the basis of [Burgess’s] allegations that several jurors failed to fully respond to voir dire questions,” Burgess’s attorney in his Rule 32 proceeding stated that the “failure-to-disclose claims were discovered by undersigned counsel in a postconviction investigation.” Burgess’s attorney then asserted that Burgess’s “claims were not raised at trial or on direct appeal because counsel had no information that such misconduct had occurred and therefore was under no obligation to raise the claims.”

The trial court did not hold an evidentia-ry hearing. Based upon the submissions from Burgess and the State, the trial court entered an order on remand from the Court of Criminal Appeals summarily denying Burgess’s Rule 32 petition. That order states, in pertinent part:

“In response [to the Court of Criminal Appeals’ remand order], [Burgess] details the assertions of juror misconduct claims in Grounds 13 and 14[] of his Rule 32 petition as twice amended. [Burgess] claims the information of alleged juror misconduct was discovered as a result of [a] postconviction relief investigation.
“The Court finds that the information obtained from the jurors was available to newly appointed appellate counsel and could have been raised in [Burgess’s] Motion for New Trial. All counsel had to do was to interview the jurors in post-trial interviews just as was done by [Burgess’s] counsel herein. Notwithstanding [Burgess’s] claims of misconduct, none of the jurors state the outcome of deliberations would have been different or that they were wrongly influenced in their decisions and deliberations.”

On return to remand, the Court of Criminal Appeals, in an unpublished memorandum, affirmed the trial court’s order denying Burgess’s Rule 32 petition. Burgess v. State (No. CR-05-0421, Dec. 14, 2007). As to the claims of juror misconduct, that court held:

“With regard to [Burgess’s] ‘juror misconduct’ claims, the trial court was correct in finding that the aforestated claims [arising from the jurors’ alleged failure to answer questions accurately during voir dire] were procedurally barred from review, because they could have been presented in [Burgess’s] motion for new trial. Rule 32.2(a)(3), Ala. R.Crim. P. Additionally, the remaining claims of juror misconduct are bare allegations unsupported by facts; this includes [Burgess’s] assertion that certain jury members engaged in improper deliberations when they positioned chairs to approximate where the parties were seated in the car when [Burgess] shot the victim, and his assertion that the jury wrongly considered religious material in the victim’s car, as well as praying and considering Bible passages. Therefore, the trial court was correct in finding that [Burgess] had failed to meet the necessary burden of pleading. Rule 32.2, Ala. R.Crim. P.”

Burgess then petitioned this Court for certiorari review of the decision of the Court of Criminal Appeals. We granted the petition to determine whether the decision of the Court of Criminal Appeals in this case conflicts with Ex parte Pierce, 851 So.2d 606 (Ala.2000), Ex parte Dobyne, 805 So.2d 763 (Ala.2001), and DeBruce v. State, 890 So.2d 1068 (Ala.Crim.App.2003).

II. Standard of Review

“ ‘This Court reviews pure questions of law in criminal cases de novo.’ ” Ex paite Morrow, 915 So.2d 539, 541 (Ala. 2004) (quoting Ex parte Key, 890 So.2d 1056,1059 (Ala.2003)).

III. Analysis

The dispositive issue before us is whether the Court of Criminal Appeals correctly held that Burgess’s claims that several jurors failed to answer accurately questions during the voir dire examination are precluded by Rule 32.2(a)(3) and (5), Ala. R.Crim. P., because Burgess raised these claims for the first time in a Rule 32 petition for postconviction relief. In Ex parte Pierce, this Court held that a claim of juror misconduct raised in a postconviction petition shall not be treated as a claim of newly discovered evidence under Rule 32.1(e), Ala. R.Crim. P. Rule 32.1(e) requires that the newly discovered evidence prove that the defendant is innocent of the crime for which he or she was convicted or that the defendant should not have received the sentence he or she received. This Court recognized that requiring a petitioner to satisfy all the elements of the first prong, and the one with which we are concerned here, “create[s] a nearly impossible standard” that resulted in juror-misconduct claims rarely being raised in Rule 32 petitions. Ex parte Pierce, 851 So.2d at 614. This Court held that a claim of juror misconduct shall be treated as a “constitutional violation that would require a new trial” under Rule 32.1(a). Ex parte Pierce, 851 So.2d at 612. “To be entitled to that relief, however, [the petitioner] must avoid the preclusive effect of Rule 32.2(a)(3) and (5); those provisions bar a defendant from presenting in a Rule 32 postconviction petition a claim that could have been raised at trial or on direct appeal.” Ex parte Pierce, 851 So.2d at 612.

Burgess contends that the Court of Criminal Appeals erred in affirming the trial court’s judgment holding that his juror-misconduct claims are precluded because he raised these claims for the first time in a Rule 32 petition. Burgess argues that, under Alabama law, a claim of juror misconduct is cognizable in a Rule 32 petition when the juror misconduct was not known to trial or appellate counsel and was not apparent from the record. Burgess asserts that he properly raised his claims of juror misconduct in a Rule 32 petition because, he says, neither he nor his counsel was aware of the alleged juror misconduct until postconviction proceedings, and nothing occurred during the trial or appears in the record that could have alerted him or his counsel to the jurors’ nondisclosure of information. Burgess also contends that nothing in the law requires a defendant to investigate jurors and that he was not afforded any funds or resources to conduct such an investigation.

Burgess cites Ex parte Pierce and De-Bruce to support his contention that this Court and the Court of Criminal Appeals have long held that a juror-misconduct claim is cognizable in a Rule 32 petition when evidence of juror misconduct is not apparent from the record and the evidence was discovered during postconviction interviews. In Ex parte Pierce, this Court held that “[bjased on the Court of Criminal Appeals’ opinion in [State v.J Freeman, [605 So.2d 1258 (Ala.Crim.App.1992) ], Pierce’s claim [of juror misconduct] was cognizable [in a Rule 32 petition] as long as he established that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.” 851 So.2d at 616. This Court remanded the case “for the Court of Criminal Appeals to remand to the trial court for an evidentiary hearing on the question whether Pierce’s claim could have been raised at trial or on appeal and is thus barred pursuant to Rule 32.2(a)(3) and (a)(5).” 851 So.2d at 617. On remand, the trial court found that Pierce’s counsel knew or should have known about the juror misconduct during the trial. 851 So.2d at 620. On return to remand, this Court then held that Pierce’s juror-misconduct claim was procedurally barred by Rule 32.2(a)(3) or (a)(5) because the claim could have been raised at trial or on appeal. 851 So.2d at 620.

In State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992), the Court of Criminal Appeals held that a claim of juror misconduct was cognizable in a Rule 32 petition although the petitioner, Darryl Eugene Freeman, had not raised the claim during the trial or on direct appeal. 605 So.2d at 1259. In his Rule 32 petition Freeman claimed that his right to a fair trial was violated because the foreman of the jury that convicted him failed to disclose, during the voir dire examination, that he had been a police officer at one time. 605 So.2d at 1259. Freeman added this claim to his Rule 32 petition approximately one week before the trial court was scheduled to hold an evidentiary hearing on the petition. At the evidentiary hearing Freeman’s counsel stated: “‘In doing routine juror interviews we uncovered this information and filed the amended petition immediately after that information was made available to us.’ ” 605 So.2d at 1259.

The trial court “granted Freeman’s petition, set aside his conviction and death sentence, and ordered that Freeman be retried.” 605 So.2d at 1259. The State appealed to the Court of Criminal Appeals, contending that Freeman’s claim of juror misconduct was precluded by Rule 32.2(a)(3) and (5). 605 So.2d at 1259. The Court of Criminal Appeals held that Freeman’s claim of juror misconduct “was not procedurally barred under Rule 32.2(a)(4) [sic] and (5), A[la.] R.Crim. P., because the fact that the juror had been a policeman was not known at the time of trial or at the time of direct appeal.” Freeman, 605 So.2d at 1259.

In DeBruce, the Court of Criminal Appeals also held that a claim of juror misconduct was cognizable in a Rule 32 petition although the petitioner, Derrick Anthony DeBruce, had not raised the claim during the trial or on direct appeal. 890 So.2d at 1077. In his Rule 32 petition, DeBruce claimed that he had been denied a fair trial because several jurors failed to answer questions truthfully during the voir dire examination. 890 So.2d at 1076. DeBruce specifically claimed that when the venire was asked whether anyone had family members who worked in law enforcement, one juror failed to disclose that his father was then employed by the Alabama Department of Corrections and that he had been a police officer. 890 So.2d at 1076.

The trial court treated DeBruce’s juror-misconduct claims as claims of newly discovered evidence under Rule 32.1(e) and found that the claims were procedurally barred because DeBruce failed to prove that the evidence supporting his claims was newly discovered. 890 So.2d at 1077. The trial court also examined the merits of DeBruce’s claims and found that he had not been prejudiced by the juror misconduct. DeBruce then appealed the trial court’s order denying his Rule 32 petition to the Court of Criminal Appeals. 890 So.2d at 1074.

The Court of Criminal Appeals first recognized that under Ex parte Pierce, the trial court had improperly treated De-Bruce’s juror-misconduct claims as claims of newly discovered evidence under Rule 32.1(e). The Court of Criminal Appeals then held that a petitioner may assert a claim of juror misconduct in a Rule 32 petition, but that “the petitioner must show that the claim is not subject to the procedural default grounds contained in Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P.” 890 So.2d at 1077. That court noted that the record indicated that “DeBruce’s counsel did not learn of [the juror’s] father’s law enforcement background until approximately five years after DeBruce was tried” and held that “[g]iven the Supreme Court’s holdings in Pierce and Dobyne,[] the circuit court incorrectly determined that this issue was procedurally barred.” 890 So.2d at 1077.

Burgess contends that the instant case is indistinguishable from Freeman and DeBruce because, he argues, his counsel first discovered the factual basis of his claims of juror misconduct during postcon-viction interviews with jurors. Applying this Court’s holding in Ex parte Pierce, which relied on Freeman, Burgess states that the basis for his claims of juror misconduct “was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.” 851 So.2d at 616. Accordingly, Burgess asserts that he properly raised his juror-misconduct claims in his Rule 32 petition and that these claims are not procedurally barred by Rule 32.2(a)(3) or (5).

The State contends that the writ of cer-tiorari should be quashed as improvidently granted. First, the State contends that Burgess failed to present a ground authorizing certiorari review under Rule 39, Ala. R.App. P., because, it says, the Court of Criminal Appeals’ decision complies, and does not conflict, with DeBruce, Ex parte Pierce, and Ex parte Dobyne in that that court properly treated Burgess’s claims of juror misconduct as constitutional claims under Rule 32.1(a). Second, the State contends that the Court of Criminal Appeals properly affirmed the trial court’s order finding that Burgess’s juror-misconduct claims were precluded because, it says, Burgess failed to show that his claims could not have been discovered in time to raise them in his motion for a new trial. Thus, the State contends that the trial court appropriately exercised its discretion to find that Burgess had failed to meet his burden of disproving that his juror-misconduct claims were precluded under Rule 32.2(a)(3) and (a)(5). Notably, the State omits the word “reasonably” when applying this Court’s holding in Ex parte Pierce that a claim of juror misconduct is cognizable in a Rule 32 petition when the alleged misconduct “could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.” 851 So.2d at 616.

The Court of Criminal Appeals improperly concluded that Burgess’s juror-misconduct claims are precluded by Rule 32.2(a)(3) and (a)(5); Burgess showed, in the trial court, that he could not have reasonably discovered the alleged juror misconduct in time to raise the claims in a motion or a new trial or on appeal. See Ex parte Pierce, 851 So.2d at 616. In opposition to the State’s motion to dismiss his Rule 32 petition, Burgess asserted that he had “discovered only recently that during voir dire at his trial, many of the jurors failed to accurately answer questions.” Additionally, after the Court of Criminal Appeals remanded the cause to the trial court for a determination of whether the claims of juror misconduct could have been raised in Burgess’s motion for a new trial, Burgess informed the trial court that his “failure-to-disclose claims were discovered by undersigned counsel in [a] postconviction investigation.” Burgess’s statement in response to the trial court’s order on remand at 7. Burgess further informed the trial court that the “claims were not raised at trial or on direct appeal because counsel had no information that such misconduct had occurred and therefore was under no obligation to raise the claims.” Id. Thus, as was the case with the petitioner in DeBruce, who first learned of the juror misconduct five years after his trial and properly raised claims of juror misconduct in a Rule 32 petition, Burgess first learned of the juror misconduct years after his trial. See DeBruce, 890 So.2d at 1077.

Burgess reasonably expected that potential jurors answered accurately the questions posed to them during the voir dire examination. It is unreasonable to hold that a defendant must uncover any and all juror misconduct in the form of inaccurate responses to voir dire examination in time to raise such claims in a motion for a new trial or on appeal. Requiring a defendant to raise such claims of juror misconduct during the interval between the voir dire examination and the filing of posttrial motions places an impracticable burden on defendants. In this case, there is no evidence before us indicating that Burgess suspected or should have suspected that any jurors did not accurately answer a question during the voir dire examination. Burgess particularly did not have any reason to suspect that a juror allegedly had a personal relationship with the district attorney because before trial his counsel had moved for the district attorney to disclose any relationships he had with potential jurors.

The trial court, in finding that Burgess’s claims were procedurally barred by Rule 32.2(a)(3) and (a)(5), found “that the information obtained from the jurors was available to newly appointed appellate counsel and could have been raised in [Burgess’s] Motion for New Trial. All counsel had to do was to interview the jurors in post-trial interviews just as was done by petitioner’s counsel herein.” However, it is unreasonable to require that a defendant, unaware of any failure to answer correctly questions posed during the voir dire examination, must contact each juror and ask whether he or she accurately and truthfully answered such questions. Jury service is sufficiently disruptive of a citizen’s regular activities without this Court announcing a rule that would routinely subject jurors to potentially insulting postverdict interrogation concerning their veracity. Absent any evidence that a telephone call to some or all the jurors would have been nothing more than a mere fishing expedition, we cannot hold on this record that Burgess’s claims are precluded.

IV. Conclusion

Because we conclude that Burgess’s claims that certain jurors failed to answer accurately questions that were posed to them during the voir dire examination are not precluded, we reverse the judgment of the Court of Criminal Appeals and remand the case for that court, in turn, to remand it to the trial court for an evidentiary hearing on the merits of Burgess’s juror-misconduct claims and a determination as to whether Burgess is entitled to a new trial.

REVERSED AND REMANDED.

SEE, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., recuses herself.

      . Both the victim and the defendant had attended Austin High School.

      . Ground 14 asserted that "the State withheld favorable evidence from the defensef] thus violating [Burgess's] federal and state rights."

      . As previously noted, this Court reversed Burgess’s death sentence on original appeal. See Burgess, 811 So.2d at 617. On remand, the trial court resentenced Burgess to life imprisonment without the possibility of parole, and the Court of Criminal Appeals affirmed that sentence. See Burgess, 811 So.2d at 633.

      . Freeman was overruled in part by Brown v. State, 807 So.2d 1 (Ala.Crim.App. 1999). In Brown, the Court of Criminal Appeals noted that "the Freeman court did not address the other prerequisites for newly discovered evidence contained in Rule 32.1(e).” 807 So.2d at 7. That court went on to hold: "Before a claim of juror misconduct may be addressed on the merits in a postconviction petition the petitioner must meet the requirements for newly discovered evidence contained in Rule 32.1(e), Ala. R.Crim. P. To the extent that this holding conflicts with Freeman, that case is hereby overruled.” 807 So.2d at 8. However, as noted above, this Court in Ex parte Pierce later held that claims of juror misconduct should not be treated as claims of newly discovered evidence under Rule 32.1(e).

      . In Ex parte Dobyne, this Court recognized that its prior decision in Ex parte Pierce had held a claim of juror misconduct may be raised in a Rule 32 petition as a constitutional violation under Rule 32.1(a). 805 So.2d at 767-68. However, unlike Ex parte Pierce, in which the trial court never addressed the merits of Pierce's juror-misconduct claims, in Ex parte Dobyne “both the trial court and the Court of Criminal Appeals directly addressed [the merits ofj Dobyne’s juror-misconduct claim." 805 So.2d at 770. Thus, this Court concluded that “the situation presented in Pierce is not the situation presented in this case, and our holding in Pierce does not affect our determination that Dobyne’s claim of juror misconduct was correctly addressed.” Ex parte Dobyne, 805 So.2d at 770.

      . DeBruce was overruled in part by Ex parte Jenkins, 972 So.2d 159 (Ala.2005). In Ex parte Jenkins, this Court overruled DeBruce to the extent that it "applied the relation-back doctrine to proceedings governed by Rule 32.” 972 So.2d at 165. This Court reversed the Court of Criminal Appeals’ holding that Jenkins's “juror-misconduct claim presented in the amended petition would be considered timely only if it related back to a claim raised in the timely original petition.” Ex parte Jenkins, 972 So.2d at 161.

      .Burgess also contends that the present case is indistinguishable from McGahee v. State, 885 So.2d 191, 203 (Ala.Crim.App.2003); however, we did not grant the writ of certio-rari as to his argument concerning McGahee because Burgess did not properly allege a conflict with it in his petition for certiorari review.


author: McMILLAN, Retired Appellate Judge.

text:
    Roy BURGESS, Jr. v. STATE of Alabama.
    CR-05-0421.
    Court of Criminal Appeals of Alabama.
    March 20, 2009.
    Cathleen I. Price and Aaryn M. Urell, Montgomery, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

McMILLAN, Retired Appellate Judge.

Pursuant to the Alabama Supreme Court’s decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008), the circuit court’s judgment is reversed and the cause remanded to the circuit court for proceedings consistent with that opinion specifically to hold an evidentiary hearing concerning Burgess’s claims of juror misconduct and to determine whether he is entitled to a new trial.

The foregoing opinion was prepared by Retired Appellate Judge H.W. “Bucky” McMillan while serving on active-duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.


author: BASCHAB, Presiding Judge. WELCH, Judge,

text:
    Christopher McCULLOUGH v. STATE of Alabama.
    CR-06-1311.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2007.
    Rehearing Denied Dec. 14, 2007.

      T. Robin McIntyre, Dadeville, for appellant.
    Troy King, atty. gen., and Marc S. Bass, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, SHAW, and WISE, JJ., concur.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

Christopher McCullough appealed from his conviction for second-degree burglary, a violation of § 13A-7-6(b), Ala.Code 1975. He argued on appeal, as he did at trial, that there was absolutely no evidence presented to corroborate the testimony of his accomplice, Billy Norris. McCullough presented this argument at trial in a motion to strike the testimony of Billy Norris, his accomplice, because it was not corroborated and in his motion for a judgment of acquittal. These motions were denied by the trial court. Specifically, McCullough contends that he cannot be convicted based solely upon the uncorroborated testimony of his accomplice, Norris. The majority affirms McCullough’s conviction, holding that Norris’s testimony was corroborated by the testimony of Myrtle Bur-dell, the victim, and the testimony of Deputy Sheriff Angela Spates. I respectfully dissent.

Eighty-three-year-old Burdell testified that she was awakened at approximately 11:00 p.m. the night of March 8, 2002, when her doorbell rang. Without turning on a lamp, she went into her living room, where she was standing when she heard her back door being kicked open. She screamed, and the two intruders who had entered her house left her house running through the broken doorway. She testified that on the morning of March 8, 2002, she had gone to the “Chicken Stop” fast-food restaurant and “I held the door open for a young man. That could easily have been [McCullough].” (R. 24.) Burdell’s opinion was that the intruders must have followed her home from the Chicken Stop. However, her unequivocal testimony was that she was unable to identify McCullough as one of the men who had broken into her home. She stated that the men wore jackets and “[t]hey could have had a ski mask on,” but she testified that there was, “[n]o way [she] could identify them.” (R. 26.)

Deputy Spates testified that she was dispatched to Burdell’s house in response to the burglary. She testified that Bur-dell’s house was on the edge of a golf course and that the back door of Burdell’s house had been kicked in.

Billy Norris, the accomplice, testified that he was currently in prison following his conviction based on the incident at Burdell’s house on the night of March 8, 2002. He testified as follows. He and McCullough decided to burglarize Bur-dell’s house. Norris said that he was wearing Timberland brand boots, a black shirt, black pants with yellow stitching, and a blue bandana. McCullough was wearing a ski mask. They went to the back door and rang the door bell to see if anyone was home. Believing that no one was home, Norris kicked open the back door, and they both entered the house. Norris said someone said, “get out of my house,” and they both ran out of the house and across the golf course to their parked car. Norris further testified that he did not know Burdell and had never seen her before his court appearance on the charge stemming from the incident.

In response to McCullough’s motion to strike Norris’s testimony, the trial court ruled “that there is such testimony from the victim to corroborate the testimony of the accomplice.” (R. 44.) In response to McCullough’s motion for a judgment of acquittal, the trial court ruled that “based on the testimony of the victim in this case, specifically her testimony as to the fact that she identified that she could have possibly seen the alleged perpetrator of the crime that day and that he possibly followed her home and then perpetrated the crime” Norris’s testimony was sufficiently corroborated. (R. 46.)

Unlike the majority, I do not believe that Norris’s testimony was sufficiently corroborated to sustain a conviction for second-degree burglary.

“A conviction for a felony cannot be had on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. Code of Alabama 1975, § 12-21-222. The test for determining the sufficiency of the corroboration is a subtraction process. First, the testimony of the accomplice must be eliminated, and then if, upon examination of all the other evidence, there is sufficient evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration.”

Carden v. State, 612 So.2d 509, 513 (Ala. Crim.App.1992) (citations omitted).

To prove a prima facie case of second-degree burglary, the State had to present evidence showing that McCullough “unlawfully enter[ed] a lawfully occupied dwelling-house with intent to commit a theft or a felony therein.” § 13A-7-6(b), Ala.Code 1975. I do not believe that the State presented any nonaccomplice evidence that connected McCullough to the crime or that corroborated Norris’s testimony. In my opinion, the testimony of both Burdell and Deputy Spates merely showed that the offense occurred and the circumstances of the offense. See § 12-21-222, Ala.Code 1975. Moreover, I do not agree with the trial court’s finding that Burdell’s testimony that McCullough “could have” been the man she held a door open for at the Chicken Stop restaurant and that the man could have followed her home corroborated Norris’s testimony. (R. 24.)

“Q. [The prosecutor:] Do you know that young man [referring to McCullough]?
“A. [Burdell:] You know, the day that that happened, I went to the Chicken Stop that morning, and I held the door open for a young man. That could have easily been him.
“Q. Okay.
“A. And they followed me home.
“Q. But you don’t know his name?
“A. That morning I think they knew where I lived. No, I can’t identify him really.”

(R. 24.)

It is clear from the context of Burdell’s entire testimony that the above was not meant as an assertion that McCullough was the man at the Chicken Stop nor an assertion that a man from the Chicken Stop did follow her home; it was merely Burdell’s hypothesis that the man from the Chicken Stop was responsible for the burglary. Thus, I do not believe this testimony — which is merely conjecture — can serve as corroboration of accomplice testimony.

Because I do not believe that there was testimony, other than from the accomplice, that connected McCullough to the commission of the offense, I believe the trial court erred by denying McCullough’s objection to the lack of corroborating evidence to support Norris’s testimony. Therefore, I would reverse McCullough’s conviction and render a judgment of acquittal in his favor.