text:
    Adam HEISINGER, Appellant/Cross-Appellee v. Priscilla RILEY, Appellee/Cross-Appellant
    NO. 2016-CA-01718-COA
    Court of Appeals of Mississippi.
    April 3, 2018
    ATTORNEY FOR APPELLANT: J. DOUGLAS FORD, COLUMBUS
    ATTORNEYS FOR APPELLEE: LESLIE C. GATES, MERIDIAN, WILLIAM STACY KELLUM III, JACKSON
    BEFORE IRVING, P.J., CARLTON AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Adam Heisinger and Priscilla Riley have a daughter, B.H., who was born in Iowa in 2012. In September 2013, the Iowa District Court for Muscatine County awarded Priscilla and Adam joint legal custody of B.H., awarded Priscilla physical custody, granted Adam visitation, and ordered Adam to pay child support. Priscilla later moved to Mississippi, and in 2015 she petitioned the Lauderdale County Chancery Court to enroll the Iowa judgment, to suspend and/or modify Adam's visitation, and to increase Adam's child support. Adam answered and filed a counterclaim to enforce the Iowa judgment, to modify custody, and for contempt. A guardian ad litem was appointed based on Priscilla's allegations that Adam had abused or neglected B.H. during his visitation.

¶ 2. After a trial, the chancellor found that Adam had proven a material change in circumstances, but he denied Adam's petition to modify custody because he found that granting Adam physical custody would not be in B.H.'s best interest. The chancellor also denied Priscilla's petition to modify visitation and increase child support. Finally, the chancellor found Priscilla in contempt for violating prior court orders regarding Adam's visitation, and he awarded Adam attorney's fees.

¶ 3. On appeal, Adam argues that the chancellor erred by denying his petition to modify custody. Adam also argues that the chancellor's award of attorney's fees was insufficient, and he requests additional attorney's fees for the appeal. On cross-appeal, Priscilla argues that the chancellor erred by finding her in contempt, by denying her request to increase child support, and by finding that she "did not meet her burden of proof with respect to [her allegations of] neglect and abuse."

¶ 4. In Adam's appeal, we affirm the chancellor's the award of attorney's fees, we award additional attorney's fees for the appeal, and we reverse and remand as to custody for further proceedings consistent with this opinion, including a new Albright analysis. On cross-appeal, we affirm the chancellor's findings that Priscilla was in contempt and that she had not proven her allegations of neglect and abuse. However, we reverse and remand on the issue of child support because the chancellor should have applied Mississippi law, rather than Iowa law, to Priscilla's petition to increase the amount of support.

FACTS AND PROCEDURAL HISTORY

¶ 5. Adam and Priscilla met while both were in the military and stationed in Virginia. Adam was an Air Force flight surgeon, and Priscilla was in the Navy. In 2011, Priscilla discovered she was pregnant and believed that Adam might be the father. Priscilla later moved to Iowa, and B.H. was born on January 17, 2012. Adam was deployed overseas at the time of B.H.'s birth. He returned to the United States in May 2012 and petitioned the Iowa District Court for Muscatine County for DNA testing and a determination of paternity and custody. Adam was deployed again after he filed the Iowa action, which resulted in some delay in completing the DNA testing. In May 2013, DNA testing confirmed that Adam was B.H.'s father, and he met B.H. for the first time the following month.

¶ 6. In September 2013, the Iowa court entered a decree establishing custody and visitation. The court awarded Adam and Priscilla joint legal custody, awarded physical custody to Priscilla, and awarded visitation to Adam. At the time of the decree, Adam's contact with B.H. had been limited, and he was still completing his medical residency in Ohio. Therefore, the Iowa court set a visitation schedule that would slowly increase B.H.'s time with Adam and accommodate his unpredictable work schedule. The court also ordered Adam to pay child support.

¶ 7. In November 2014, the Iowa court found Priscilla in contempt for denying Adam visitation with B.H. The court sentenced Priscilla to thirty days in jail, which the court suspended on the conditions that Priscilla pay Adam $1,000 in attorney's fees and comply with a new visitation schedule. Adam was granted additional visitation to make up for the time he had lost because of Priscilla's actions. The court also modified Adam's visitation schedule to afford him two weeks of visitation during each eight-week period. The court's order required Adam to give Priscilla notice of the two weeks during which he would exercise visitation in advance of each eight-week period. The order provided that Priscilla could reject Adam's first choice for visitation dates; however, she was not permitted to reject Adam's second choice. The order also established a holiday visitation schedule.

¶ 8. In August 2015, B.H., who was then three-and-a-half years old, visited Adam at his home in Massillon, Ohio. Adam had to work during at least part of B.H.'s visit, and he left her in the care of a babysitter, Mandy. During B.H.'s visit, Adam noticed a small burn mark on her finger. A few days later, he noticed another mark on her forearm, and when he asked Mandy about the marks, she said that there was another one on B.H.'s buttock. When Adam asked B.H. about the marks, she told him that she had been burned at Priscilla's house on the stove or oven when Priscilla's husband, Shawn, was cooking. Adam decided to take B.H. to the emergency room in order to document the burns, and the doctor who saw B.H. said that the burns were in the later stages of healing. Hospital records reflect that B.H. also told hospital staff that she had been burned at Priscilla's house.

¶ 9. Priscilla and Shawn came to Ohio on August 29, 2015, to pick up B.H. Shawn retrieved B.H. from Adam while Priscilla waited in the car. Shawn testified that within moments of picking up B.H., he discovered the burn on her finger, then the marks on her arm and buttock. Priscilla and Shawn asked B.H. about the burns, and she told them that she had been burned at their home in Meridian. Priscilla decided to take B.H. to the local police department to file a report about the burns. B.H. also told the police that she had been burned in Mississippi. Priscilla also took B.H. to the hospital for treatment, and the records from this visit to the hospital are similar to those from her prior visit with Adam. When Priscilla returned home to Mississippi, she reported her suspicions of neglect or abuse to the Mississippi Department of Child Protective Services (MDCPS).

¶ 10. Several weeks later, Adam sent Priscilla a text message to request his next visitation with B.H. Priscilla rejected the request, supposedly because it would have required B.H. to travel on Halloween. Adam then re-noticed his visitation for a different date. In response, Priscilla told Adam that she would not allow him to have any additional visitation until MDCPS completed its investigation of her report. MDCPS, in coordination with Ohio's child protection agency, investigated Priscilla's report in July 2015 and found that any allegation of abuse was "unsubstantiated." Nonetheless, on September 25, Priscilla filed a petition in the Lauderdale County Chancery Court to enroll the Iowa judgment and to suspend and/or modify Adam's visitation with B.H. Priscilla later amended her petition to request an increase in child support. Priscilla denied all of Adam's subsequent requests for visitation with B.H.

¶ 11. Adam filed an answer and a counterclaim to enforce the Iowa judgment, to modify custody, and for contempt. On June 2, 2016, because Priscilla's petition alleged that Adam had abused or neglected B.H., the chancellor appointed attorney Frances Stephenson to serve as guardian ad litem (GAL). Because Adam had not seen B.H. since August 2015, the GAL met with B.H. and Adam in her office to observe how B.H. reacted to Adam. The GAL reported that B.H. was uncomfortable around her father, so she recommended that B.H. receive counseling from a child psychologist. The chancellor accepted the GAL's recommendation and ordered B.H. to receive counseling from Dr. Jennifer Whitcomb. The court also ordered the GAL to continue working with B.H., Priscilla, and Adam to determine if and how Adam's visitation with B.H. should proceed.

¶ 12. Dr. Whitcomb and the GAL determined that B.H. should have visitation with Adam and planned for them to visit briefly in Meridian on Friday, August 5, 2016, followed by an all-day visit on Saturday, August 6. If all went well, B.H. would then go with Adam for a week-long visit in Ohio.

¶ 13. The visit on August 5 did not start out well. When Priscilla and Shawn brought B.H. to the meeting place, they did not leave immediately, and B.H. became upset. However, Dr. Whitcomb eventually calmed B.H. and persuaded her to go with Adam, and Adam returned B.H. to Priscilla later that evening without further incident.

¶ 14. The following day, Dr. Whitcomb and the GAL planned to pick up B.H. and then take her to a nail salon to meet Adam. B.H. willingly went with Dr. Whitcomb and the GAL, and "she was excited about ... getting her nails done, and that she would be seeing Adam." However, on the way to the nail salon, Dr. Whitcomb and the GAL noticed that Priscilla and Shawn were following their car. Shawn parked across the street from the nail salon at a gas station, and Priscilla later admitted that she hid in a friend's car in a nearby parking lot. The GAL and Dr. Whitcomb left B.H. at the nail salon with Adam after they were convinced that she was comfortable with him.

¶ 15. Priscilla later sent the GAL a text message accusing her of not saying "goodbye" to B.H. and having only Adam's interests at heart. Priscilla sent another text message to the GAL asserting that B.H. was "bawling her eyes out" in the nail salon. The GAL realized that Priscilla must have a "spy" inside the salon, which Priscilla later admitted. The GAL knew the salon owner and called him to check on B.H. The owner said that B.H. cried briefly after the GAL departed but was fine. The GAL then called Adam and suggested that he take B.H. to a water park in Choctaw once she finished her manicure. He did so, and he returned B.H. to Priscilla that evening without further incident.

¶ 16. B.H. agreed to travel with Adam to his home in Ohio on August 7. B.H. stayed with Adam until August 13, when Priscilla and Shawn came to pick her up. Adam testified at trial that they had a good visit. When Adam had to work, B.H. stayed with a babysitter who had a daughter close to her age. No problems were reported during this visit. B.H. also stayed with Adam for a week in September 2016, and Adam's sister came to Ohio to visit with B.H. and babysit while Adam worked.

¶ 17. Adam requested visitation with B.H. while he was in Mississippi for trial in September 2016, but Priscilla refused. She also refused to allow any post-trial visitation. She told Adam that she would not allow further visitation without a court order.

¶ 18. At trial, Priscilla testified that she did not notice any burns on B.H. before Adam's visitation in August 2015. She claimed that Shawn noticed the burns almost immediately after picking up B.H. in Ohio. Priscilla acknowledged that B.H. told her and Shawn, the police, and doctors at the hospital in Ohio that she had been burned on the oven or stove at their home in Mississippi. However, Priscilla denied that B.H. was burned in Mississippi, and she suggested that B.H. may have been coached. Priscilla also claimed that B.H. told her much later that she had been burned by a cigarette or a lighter. However, no one else heard B.H. make that claim. Priscilla testified that although she filed a police report in Ohio, she did not intend for Adam to be named as a "suspect" or an alleged perpetrator of the abuse. Priscilla suspected that Adam's babysitter, Mandy, had burned B.H. Priscilla faulted Adam for leaving B.H. with Mandy after he discovered the burns. Priscilla also claimed that she denied Adam visitation after August 2015 in order "to protect B.H. from being harmed further." Priscilla thought that Adam should only be allowed supervised visitation with B.H. in Mississippi.

¶ 19. Adam testified that he first noticed the burn on B.H.'s finger, but it did not concern him initially. When he later noticed a burn on her arm and Mandy told him about the burn on her buttock, he decided to ask B.H. about them. B.H. told him that she burned her hand and arm on the stove at home in Mississippi, and she burned her buttock when Shawn was taking something out of the oven. Adam called MDCPS in Mississippi to report what B.H. had told him, and he took B.H. to the hospital to document the burns. Adam said that the burns were healing, so he was not worried about treatment. He denied that B.H. had received the burns while in his or Mandy's care.

¶ 20. Adam testified that in September 2015, he flew to Mississippi, rented a car, drove to Meridian, and waited for Priscilla to bring B.H. to him at their standard meeting place. He told Priscilla that he was coming and that he had a plane ticket for B.H. to fly back to Ohio with him. Priscilla sent him a text that said, "I told you not to come. I'm not giving her to you." Adam flew back to Ohio the next morning, without B.H. Although he was entitled to visitation with B.H. during Christmas in 2015, Priscilla told him that she would not allow it. Adam testified that he initially bought a plane ticket to come to Mississippi again in December, but he ultimately decided not to make the trip. He testified that when he was finally allowed to resume visitation with B.H. in Ohio, they bonded and had a good time together. B.H. is now very affectionate with him and tells him that she loves him.

¶ 21. Adam testified that his income will fluctuate over the next few years as he continues his training as an orthopedic surgeon. He did not think that the chancellor should increase his child support because he had paid all court-ordered child support even while Priscilla continued to violate the same court orders. Adam testified that his work schedule varies, but he generally works from 6 or 7 a.m. to 3 p.m. Adam testified that he would work similar hours until he finished his residency in July 2017. He planned to move to Virginia for a one-year fellowship in July 2017.

¶ 22. Adam acknowledged that B.H. and Priscilla have a close relationship, but he testified that Priscilla was not a good parent because she was trying to force him out of B.H.'s life. Adam maintained that it would be in B.H.'s best interest for him to have physical custody.

¶ 23. Dr. Whitcomb testified as an expert in marriage, family, and child development. She testified that B.H.'s initial hesitation to visit with Adam was normal for a four-year-old child who had not seen her father for an extended period. Dr. Whitcomb testified that B.H. denied that Adam had ever hurt her in any way. Dr. Whitcomb also testified that Priscilla had cancelled or failed to show up for two of B.H.'s court-ordered counseling sessions. Dr. Whitcomb opined that Priscilla's and Shawn's interference with Adam's relationship with B.H. amounted to "emotional abuse." Dr. Whitcomb was also concerned that Priscilla had tried to coach B.H. to accuse Adam of burning her. B.H. told Dr. Whitcomb that she enjoyed her time with Adam in Ohio, and Dr. Whitcomb had no concerns or reservations about B.H.'s safety with Adam in Ohio.

¶ 24. The GAL's testimony about Adam's visitation with B.H. in August 2016 was consistent with Dr. Whitcomb's testimony. The GAL interviewed B.H., Adam, Priscilla, and Shawn, reviewed the police reports and hospital records, and found no evidence that Adam had ever harmed B.H. The GAL found that Priscilla had interfered with Adam's visitation intentionally and repeatedly. However, the GAL did not believe that Priscilla's actions were so "extreme" as to warrant a change in custody, and she did not recommend a modification of custody. The GAL recommended that Adam should continue to have regular visitation with B.H. and that B.H.'s pre-kindergarten schedule should not take precedence over visitation. The GAL also recommended that the chancellor enjoin Priscilla from interfering with Adam's visitation in any way.

¶ 25. On November 14, 2016, the chancellor entered a thirty-eight page memorandum opinion and a separate final judgment. The chancellor found that Priscilla did not prove by a preponderance of the evidence that Adam abused or neglected B.H. Therefore, he denied her petition to suspend visitation or to require supervised visitation. The chancellor also denied her request to modify or clarify Adam's visitation under the Iowa visitation schedule. The chancellor also denied Priscilla's petition to increase child support.

¶ 26. The chancellor found that Priscilla had "unreasonably, irresponsibly and willfully" violated the Iowa decree by refusing multiple visitation requests by Adam. He also noted her "irresponsible" behavior during the August 2016 visitation in Meridian. The chancellor found that Adam had shown by clear and convincing evidence that Priscilla was in contempt, and he ruled that Priscilla's conduct warranted incarceration. However, he suspended her incarceration on the conditions that she comply with the Iowa court's orders, grant Adam specified holiday visitation, pay GAL fees, pay Adam $1,950 in attorney's fees, and continue to take B.H. to Dr. Whitcomb for counseling.

¶ 27. The chancellor also found that Adam had shown by a preponderance of the evidence that a material change in circumstances had occurred relative to B.H.'s custody-namely, Priscilla's persistent interference with Adam's visitation and relationship with B.H. The chancellor also found that this change had been adverse to B.H.'s welfare. He found that Adam and B.H. had a good relationship until August 2015, but Priscilla's subsequent refusal to allow visitation undermined the relationship and B.H.'s affections for her father. However, after applying the Albright factors, the chancellor found that it was in B.H.'s best interest to remain in Priscilla's physical custody.

¶ 28. On appeal, Adam argues that the chancellor erred by not modifying custody after finding there had been a material, adverse change in circumstances. Adam also argues that the chancellor abused his discretion in awarding only $1,950 in attorney's fees, and he requests additional attorney's fees for the appeal. On cross-appeal, Priscilla argues that the chancellor erred by finding her in contempt, by denying her petition to increase child support, and by finding that she failed to prove her allegations of abuse and neglect. We address these issues in turn below.

ANALYSIS

I. Custody

¶ 29. "To modify child custody, 'the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child's welfare; and (3) that the child's best interest mandates a change of custody.' " Strait v. Lorenz , 155 So.3d 197, 203 (¶ 20) (Miss. Ct. App. 2015) (quoting A.M.L. v. J.W.L. , 98 So.3d 1001, 1013 (¶ 24) (Miss. 2012) ). "The chancellor must consider the 'totality of the circumstances.' " Id. (quoting A.M.L. , 98 So.3d at 1013 (¶ 24) ). "If an adverse substantial or material change is found, the chancellor must then perform an Albright analysis to determine whether modification of custody is in the child's best interest." Id.

¶ 30. On appeal, a chancellor's findings of fact will be affirmed "if they are supported by substantial, credible evidence." Id. at (¶ 19) (quoting A.M.L. , 98 So.3d at 1013 (¶ 23) ). "Matters involving child custody are within the sound discretion of the chancellor." Id. We will not reverse the chancellor's custody decision "unless the chancellor abused his discretion, was manifestly wrong, or clearly erroneous, or applied an erroneous legal standard." Id.

¶ 31. In general, one parent's interference with the other's visitation is not, by itself, a reason to modify custody. See id. at (¶ 21). Noncompliance with visitation orders should be dealt with through contempt rather than a change of custody. Id. at 203-04 (¶ 21). However, in "extraordinary circumstances," severe interference with visitation may amount to a material change in circumstances. Id. at 204 (¶ 21).

¶ 32. The chancellor found that Priscilla's willful and extensive interference with Adam's visitation and relationship with B.H. was a material change in circumstance because of the harm it had done to Adam's relationship with B.H. The chancellor's finding of a material change in circumstances is supported by substantial, credible evidence. Moreover, Priscilla does not directly challenge this finding on appeal.

¶ 33. Having found a material change in circumstances, the chancellor was required to conduct an Albright analysis. See Strait , 155 So.3d at 203 (¶ 20). The chancellor found that the "best parenting skills factor favors Adam." However, the chancellor found that the employment and employment responsibilities factor favors Priscilla because she is a stay-at-home mother for B.H. (and her two other children), whereas Adam is a busy orthopedic surgery resident and lives alone. The chancellor also found that the continuity of care, emotional ties, and stability of home environment factors favor Priscilla. The chancellor found all other factors to be neutral or inapplicable. Having "considered the evidence relevant to the Albright factors," the chancellor found that it was "in the best interest of [B.H. to] remain within the custody of Priscilla."

¶ 34. On appeal, Adam argues, inter alia , that the chancellor erred by finding that continuity of care and emotional ties favored Priscilla. He argues that by weighing these factors in Priscilla's favor, the chancellor permitted Priscilla to benefit from her own misconduct. Adam argues that the chancellor's decision was inconsistent with this Court's decisions in Strait , supra , and Story v. Allen , 7 So.3d 295 (Miss. Ct. App. 2008).

¶ 35. In Story , the chancellor found that the child had "been with her mother most of her life" and that her separation from her father was "due to [the mother's] conduct"-i.e., she had "repeatedly interfered" with the father's relationship and visitation with the child. Id. at 298 (¶ 21). The chancellor then found that the "continuity of care factor" favored the mother. Id. On appeal, this Court reversed, stating:

It is neither logical nor proper to favor one of the parents, under an Albright factor, because of that parent's malfeasance.... Equity dictates that the chancellor should have at least found this factor to be neutral. Therefore, we find that the chancellor committed manifest error with regard to the analysis of the continuity of care.

Id. at 298-99 (¶ 21) (emphasis added).

¶ 36. The chancellor in Story similarly found that the emotional ties factor "slightly favor[ed]" the mother, but this was in part because the mother had undermined the child's relationship with the father. This Court reversed on this issue as well, stating:

Again, we find that [it] is not logical or proper to reward [the mother's] interference with [the father's] relationship with [the child]. Again, equity dictates that the chancellor should have at least found this factor to be neutral. Therefore, we find that the chancellor committed manifest error with regard to the analysis of the emotional ties of the parent and child.

Id. at 299 (¶ 22) (emphasis added); accord Strait , 155 So.3d at 207-08 (¶¶ 39-40, 44).

¶ 37. In the present case, when the chancellor found that the continuity of care factor favored Priscilla, he reasoned as follows:

Priscilla has had the care of B.H. since the child was born and she has had the primary care of B.H. since September 2013. Of course, she has had more care for B.H. than anticipated [since] September 2013 because she has denied Adam visitation. This Court finds that the continuity of care factor favors Priscilla as the custodial parent.

¶ 38. As to the emotional ties factor, the chancellor's reasoning was similar:

Related to the continuity of care factor is the emotional ties of the parent and child factor. B.H. has stronger emotional ties with Priscilla than she has with Adam. However, Priscilla interfered with Adam's development [of] emotional ties with B.H. when she refused and interrupted his visitation with B.H. This Court finds that the emotional ties of the parent and child factor favor Priscilla as the custodial parent, but Priscilla's refusal and interruption with Adam's visitation diminishes the significance of this factor.

¶ 39. The chancellor's analysis in this case is similar to the analysis that was the basis for reversal in Story . Although the chancellor in this case did acknowledge that these factors favored Priscilla because of her own misconduct, the same can be said of the chancellor in Story . See Story , 7 So.3d at 298-99 (¶¶ 21-22). In addition, the chancellor did state that Priscilla's misconduct "diminishes the significance" of the emotional ties factor to some unstated extent. However, in Story , this Court held that "equity dictates that the chancellor should have at least found this factor to be neutral." Id. at 299 (¶ 22). As to both the continuity of care and emotional ties factors, the chancellor's ruling is inconsistent with this Court's holding in Story . These factors may not be weighed in favor of Priscilla to any degree because "equity dictates" that she not benefit from her own misconduct.

¶ 40. Moreover, we cannot say that this error was harmless. The error relates to two important Albright factors in a case in which the evidence could have supported a different ruling and a modification of custody. Accordingly, as in Story , we find that the chancery court manifestly erred and that the issue of custody must be reversed and remanded for further proceedings and a new Albright analysis. See id. at 298-99 (¶¶ 20-23).

¶ 41. Adam also argues that the chancellor should have modified custody because "Priscilla's behavior poses a clear danger to the mental or emotional health of B.H." Adam argues the chancellor did not give sufficient consideration to Priscilla's unproven allegations of abuse or neglect. Finally, Adam argues that the chancellor erred by finding that the stability of home environment and employment responsibilities factors favored Priscilla and by finding the mental health factor to be neutral. He argues that for all these reasons, we should reverse and render a decision awarding him physical custody of B.H.

¶ 42. We disagree with these broader arguments. Despite Priscilla's misconduct, the evidence does not compel a finding that she is a "clear danger" to her daughter. In addition, while the chancellor found that Priscilla's allegations of abuse were not proven, the evidence as to the cause of B.H.'s burns was conflicting and indeterminate, as was the evidence of Priscilla's motivations and good faith, or lack thereof, in alleging that the burns occurred while B.H. was in Adam's care. Finally, we do not find any manifest error in the chancellor's application of the remaining Albright factors.

¶ 43. In a custody case, "the chancellor has the ultimate discretion to weigh the evidence the way he sees fit." Johnson v. Gray , 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003). We review the chancellor's decision for manifest error, giving deference to the weight that he assigned each factor. Smith v. Smith , 206 So.3d 502, 513 (¶ 24) (Miss. 2016). We do not "second guess" the chancellor's ultimate decision in the absence of some legal or manifest error. Irle v. Foster , 176 So.3d 25, 31 (¶ 26) (Miss. Ct. App. 2013), aff'd , 175 So.3d 1232 (Miss. 2015). Therefore, although we must reverse and remand the case for further proceedings and a new Albright analysis, we will not substitute our judgment for the chancellor's by rendering a final custody decision.

II. Attorney's Fees

¶ 44. The chancellor awarded Adam $1,950 in attorney's fees for Priscilla's contempt. Adam argues that this award was insufficient because he actually incurred at least $35,000 in attorney's fees. At trial, Adam's attorney attempted to "call [him]self" as a witness "[t]o testify about attorney's fees." Priscilla objected on the ground that Adam had not listed his attorney as a witness in the pretrial order, and the chancellor sustained the objection. Adam then testified about his attorney's fees and attempted to offer his attorney's invoices into evidence. Priscilla objected on the ground that Adam had not listed the invoices as a trial exhibit in the pretrial order, and the chancellor sustained the objection. Adam's attorney then simply asked him, "[D]o you know how much you have incurred in attorney's fees and expenses?" Adam stated, "I know it's more than $35,000." In the final judgment, the chancellor awarded Adam fees of $1,950, payable in monthly installments of $100.

¶ 45. "The matter of awarding attorney's fees is largely entrusted to the sound discretion of the chancellor." Evans v. Evans , 75 So.3d 1083, 1089 (¶ 22) (Miss. Ct. App. 2011) (citing McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982) ). "When a party is held in contempt for violating a valid judgment of the court, attorney's fees should be awarded to the party that has been forced to seek the court's enforcement of its own judgment." Gregory v. Gregory , 881 So.2d 840, 846 (¶ 28) (Miss. Ct. App. 2003). "Fees awarded on this basis, though, should not exceed the expense incurred as a result of the contemptuous conduct." Roberts v. Roberts , 110 So.3d 820, 828 (¶ 23) (Miss. Ct. App. 2013) (quoting Evans v. Evans , 75 So.3d 1083, 1089 n.8 (Miss. Ct. App. 2011) ). That is, fees incurred litigating other matters-such as custody modification or child support-are not recoverable based on the contempt.

¶ 46. In addition, "[o]ur well-established standard for reviewing the trial court's admission or suppression of evidence is abuse of discretion, and the discretion possessed by a trial court in such matters is no doubt great."

Beverly Enterprises, Inc. v. Reed , 961 So.2d 40, 44 (¶ 18) (Miss. 2007). We also hold, as federal courts have held repeatedly, that a trial judge "has broad discretion in deciding whether to admit into evidence exhibits not listed in the pre-trial order." Gilbert v. Tulane Univ. , 909 F.2d 124, 127 (5th Cir. 1990) (citing Robert v. Conti Carriers & Terminals Inc. , 692 F.2d 22, 24 (5th Cir. 1982) ); see M.R.C.P. 16 (discussing pretrial conferences and pretrial orders); Lirette v. Popich Bros. Water Transp. Inc. , 660 F.2d 142, 144 (5th Cir. 1981) (holding that the trial judge has "broad discretion" to exclude witnesses not listed on the pretrial order); U.S. v. First Nat'l Bank of Circle , 652 F.2d 882, 886 n.5 (9th Cir. 1981) ("Exclusion by the trial court of ... evidence not listed in ... the pretrial order has been repeatedly upheld." (collecting cases) ).

¶ 47. Applying these principles, we cannot say that the chancellor committed any abuse of discretion in connection with the issue of attorney's fees. The chancellor could have allowed Adam's attorney to testify or admitted the invoices, but he was within his discretion to sustain Priscilla's objections to evidence not listed on the pretrial order. Therefore, the only evidence to support Adam's request for attorney's fees was his own testimony that he had incurred more than $35,000 in fees. It is unclear whether this amount includes litigation in Iowa or is limited to fees incurred in Mississippi. More important, Adam's testimony was not limited to fees incurred as a result of Priscilla's contempt. As noted above, Adam was not entitled to recover all of his attorney's fees. Specifically, he was not entitled to recover any fees in excess of those that he "incurred as a result of the contemptuous conduct." Roberts , 110 So.3d at 828 (¶ 23) (quoting Evans , 75 So.3d at 1089 n.8 ). Thus, Adam was not entitled to fees that he would have incurred anyway litigating issues of custody, which was the primary issue in this case, or child support. With no specific evidence as to the amount of fees that Adam incurred because of Priscilla's contempt, the chancellor did not abuse his discretion by awarding attorney's fees of $1,950. See Miss. Code Ann. § 9-1-41 (Rev. 2014) ("In any action in which a court is authorized to award reasonable attorneys' fees, the court [may] make the award based on the information already before it and the court's own opinion based on experience and observation ....").

¶ 48. In his brief on appeal, Adam also requests an "appropriate" award of appellate attorney's fees. Such an award is appropriate in this case because Priscilla cross-appealed the chancellor's finding of contempt, and for the reasons discussed below, we affirm on that issue. See Riley v. Riley , 196 So.3d 1159, 1164-66 (¶¶ 23-32) (Miss. Ct. App. 2016) (holding that an award of appellate attorney's fees is appropriate when the chancellor awarded fees based on a finding of contempt and the recipient must defend the finding on appeal). Therefore, we award appellate attorney's fees of $975, or one half of the attorney's fees awarded by the trial court. See id. at 1164 (¶ 23) ("Generally, on appeal this Court awards attorney's fees of one-half of what was awarded in the trial court."); accord Grant v. Grant , 765 So.2d 1263, 1268 (¶ 19) (Miss. 2000).

III. Contempt

¶ 49. The chancellor found Priscilla in contempt for denying Adam visitation on multiple occasions in 2015. The chancellor found that Priscilla's actions intentionally violated the Iowa court's visitation order, which had been enrolled in the chancery court. On appeal, Priscilla argues that the chancellor erred. However, Priscilla's argument is based on frivolous interpretations of the Iowa order. For example, that order required Adam to notify Priscilla of visitation dates "two (2) weeks before the beginning of each (8) week period." Priscilla now argues that this required Adam to give notice exactly two weeks prior to the eight-week period so that when Adam provided notice fifteen days in advance, his notice was too early and invalid. Priscilla argues that she was free to ignore such notice because it was premature. Priscilla never disclosed her novel interpretations of the Iowa order until her brief on cross-appeal. She did not raise these issues when she denied Adam visitation, nor did she offer this defense at trial. Indeed, Priscilla admitted at trial that she had violated the Iowa order. There was ample evidence to support the chancellor's finding that Priscilla willfully violated the Iowa order by denying Adam visitation on multiple occasions.

IV. Child Support

¶ 50. In September 2013, the Iowa court found that Adam's "gross" "salary" was $45,000 per year and ordered him to pay child support of $596.35 per month until B.H. reaches the age of eighteen or is emancipated. Priscilla petitioned the chancery court to increase child support, alleging that Adam's income and B.H.'s expenses had increased. The chancellor denied Priscilla's petition because he found that she failed to "develop the factors relevant to the modification of child support under the law of the issuing Court"-i.e., under Iowa law. We conclude that the chancellor erred because the issue should have been decided under Mississippi law.

¶ 51. The chancellor's opinion correctly quoted the relevant provisions of the Uniform Interstate Family Support Act, as adopted by the Mississippi Legislature:

(b) Modification of a registered child-support order is subject to the same requirements, procedures and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
(c) A tribunal of this state may not modify any aspect of a child-support order that may not be modified under the law of the issuing state, including the duration of the obligation of support....

Miss. Code Ann. § 93-25-611(b) - (c) (Supp. 2017).

¶ 52. In Nelson v. Halley , 827 So.2d 42 (Miss. Ct. App. 2002), we interpreted the language that is now found in subsection (c), above. See id. at 51 (¶¶ 33-35). In Nelson , the chancellor modified a California support order to extend the duration of the father's duty of support until his children reached the age twenty-one. See id. at (¶ 33). On appeal, this Court held that what is now subsection (c), above, prohibited the modification because the California order terminated the father's support obligations when his children reached the age of eighteen or nineteen, and that aspect of the California order was not modifiable under California law. See id. at (¶¶ 33-35). Therefore, we reversed the modification. Id. at (¶ 35).

¶ 53. The issue in this case is different. Priscilla did not seek to modify any aspect of the Iowa court's order that was non-modifiable under Iowa law. Her request to modify the amount of support based on alleged increases in Adam's income and B.H.'s expenses is governed by subsection 93-25-611(b), which provides that "[m]odification of a registered child-support order is subject to the same requirements, procedures and defenses that apply to the modification of an order issued by a tribunal of this state ." Under subsection (b), a Mississippi chancery court should apply Mississippi law and child support guidelines to a request to modify the amount of child support payable. Deborah H. Bell, Mississippi Family Law § 18.08[4][b], at 573 (2d ed. 2011); see , e.g. , C.K. v. J.M.S. , 931 So.2d 724, 728-31 (Ala. Ct. Civ. App. 2005) (holding that under the parallel choice-of-law provisions of Alabama's uniform act, the duration of the support obligation could not be modified because it was non-modifiable under the law of the "issuing state," Mississippi, but Alabama law and guidelines controlled any request to modify the amount of support payable); Groseth v. Groseth , 257 Neb. 525, 600 N.W.2d 159, 164-69, 171 (Neb. 1999) (reaching the same conclusions under Nebraska law); In re Marriage of Cooney , 150 Or.App. 323, 946 P.2d 305, 307 (1997) (reaching the same conclusions under Oregon law).

¶ 54. The chancellor denied Priscilla's request to modify child support because she failed to prove that an increase in support was warranted under Iowa law. This was error, as the issue is governed by Mississippi law. Therefore, we reverse and remand for the chancellor to consider Priscilla's petition to modify child support under Mississippi law.

V. Priscilla's Allegations of Abuse and Neglect

¶ 55. On cross-appeal, Priscilla also argues that the chancellor "erred in finding that [she] did not meet her burden of proof with respect to neglect and abuse." Her brief addresses the issue in only two sentences and simply notes that the burns were discovered while B.H. was in Ohio. The issue is waived due to Priscilla's failure to brief it. See M.R.A.P. 28(a)(7) ; In re Estate of Smith v. Boolos , 204 So.3d 291, 313 (¶ 49) (Miss. 2016).

¶ 56. The issue is also without merit. B.H. consistently told Adam, Priscilla, Shawn, the police, doctors, and others that she was burned in Mississippi, not in Ohio. Adam adamantly denied that he had ever neglected or abused B.H. MDCPS found that any allegation of abuse or neglect was "unsubstantiated." And the GAL and Dr. Whitcomb also found no evidence of abuse. Suffice it to say, there was substantial, credible evidence to support the chancellor's finding that Adam did not abuse or neglect B.H.

CONCLUSION

¶ 57. We affirm the chancellor's finding of contempt, his finding that Adam did not abuse or neglect B.H., and his award of attorney's fees to Adam. We also order Priscilla to pay Adam additional attorney's fees of $975 because Adam had to defend the chancellor's finding of contempt on appeal.

¶ 58. For the reasons discussed above, we reverse and remand as to Priscilla's petition to modify child support for the chancellor to apply Mississippi law. The issue of child support should be determined based on "current circumstances" on remand. Wheat v. Wheat , 37 So.3d 632, 643 (¶ 42) (Miss. 2010).

¶ 59. We also reverse on the issue of custody and remand for further proceedings consistent with this opinion, including a new Albright analysis. It has been more than a year and a half since the prior hearing. Therefore, as with the issue of child support, the chancellor should base his decision on the best interest of the child and the circumstances as they exist "at the time of the remand hearing." Vaughn v. Davis , 36 So.3d 1261, 1267 (¶ 18) (Miss. 2010).

¶ 60. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. BARNES AND FAIR, JJ., NOT PARTICIPATING.

      Priscilla also cross-appealed the chancellor's denial of her request to clarify visitation. However, while this appeal was pending, the chancery court entered an agreed order addressing several issues, including Adam's visitation schedule. This Court directed the parties to address whether the agreed order had rendered moot any issues in this appeal or cross-appeal, and Priscilla responded that the visitation issue is now moot.

      Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983).

      Priscilla later called the salon owner and asked him for video of Adam's and B.H.'s visit to the salon, which the owner declined to provide without a subpoena.

      After the final judgment, Adam filed an amended petition for contempt, alleging that Priscilla continued to deny him court-ordered visitation. The chancery court's subsequent agreed order, discussed in footnote 1, supra , provided that "Adam's claims and allegations of contempt against Priscilla [would be] held in abeyance indefinitely subject to being later asserted and/or heard." The agreed order also required Priscilla to pay Adam "the total sum of [$3,000] to reimburse [him] for fees and expenses incurred related to this matter."

      Priscilla makes a separate argument that the chancellor erred by "sanctioning [her] for violating the [GAL's] visitation orders." However, the chancellor found her in contempt because she violated prior court orders, not any "orders" of the GAL. Nor did the chancellor impose "sanctions" on Priscilla for her failure to cooperate with the GAL. The chancellor simply discussed her behavior as further evidence of her ongoing efforts to interfere with Adam's visitation. The chancellor did not err by doing so.

      When Nelson was decided, subsection (c) did not include the clause, "including the duration of the obligation of support." See Nelson , 827 So.2d at 51 (¶ 34). That language, which effectively codifies Nelson 's holding, was added in 2004. See 2004 Miss. Laws ch. 406, § 33.

      Of course, if there is a change of custody, reconsideration of Priscilla's petition will be unnecessary.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    ALFA MUTUAL INSURANCE COMPANY v. UNIVERSITY OF SOUTH ALABAMA d/b/a University of South Alabama Medical Center Hospital
    2140366
    Court of Civil Appeals of Alabama.
    July 17, 2015 Rehearing Denied September 4, 2015
    Dennis R. Bailey and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    Thomas R. Boller, Mobile; and Paul D. Brown, Mobile, for appellee.
   MOORE, Judge.

Alfa Mutual Insurance Company ("Alfa") appeals from a judgment of the Mobile Circuit Court ("the trial court") in favor of the University of South Alabama d/b/a University of South Alabama Medical Center Hospital ("South"). We affirm in part, reverse in part, and remand the case with instructions.

Procedural History

On May 27, 2014, South filed a complaint against Alfa and a number of fictitiously named defendants, asserting that Alfa had impaired South's hospital lien, which it attached as an exhibit to the complaint. Alfa filed an answer to the complaint. On August 11, 2014, the parties filed a stipulation of facts, which stated, in pertinent part, that Abaney T. Wright had been admitted to a hospital operated by South in Mobile County on May 21, 2013, for hospital care, treatment, and maintenance for injuries she had received in an automobile accident less than one week before her admission; that Wright died on account of her injuries on May 21, 2013, at South's hospital; that Wright incurred reasonable medical charges for her necessary care, treatment, and maintenance totaling $36,438.50; that, at the time of her injury, treatment, and death, Wright was covered under a contract of insurance issued by Alfa to Wright's father and that that policy provided that Alfa would provide a medical-payment benefit of $2,000, the policy limit, for necessary medical and funeral services because of bodily injury caused by an automobile accident for covered persons, which included Wright; that South had perfected a hospital lien in the amount of $30,900.50 by filing a notice thereof on May 30, 2013, pursuant to Ala. Code 1975, § 35-11-370 et seq., with the Mobile Probate Court; that Alfa had issued a draft in the amount of $2,000 to Wright's parents for the payment of funeral expenses on July 23, 2013; that, on August 22, 2013, South had filed an amended hospital lien in the amount of $36,438.50 with the Mobile Probate Court; and that, on August 27, 2013, Alfa had issued a draft to South's counsel in the amount of $2,000, that South had not negotiated the draft, and that the draft was voided by its terms on August 27, 2014.

On August 12, 2014, South filed a motion for a summary judgment on its claims against Alfa. Alfa filed a cross-motion for a summary judgment on August 13, 2014. Following a hearing, the trial court entered a judgment on December 29, 2014, which stated:

"Upon consideration of the pleadings, Stipulation of Facts, and arguments of counsel, the Court finds it is controlled by Progressive Specialty Ins. Co. v. University of Alabama Hosp., 953 So.2d 413 (Ala. Civ. App. 2006), and therefore enters Judgment in favor of [South] for the reasonable medical charges in the amount of $36,438.50 (stipulation number four). The Court additionally enters Judgment in the amount of $5,166.69 representing costs and attorney's fees based upon the conditional stipulation of [Alfa] that, should Judgment be entered in favor of [South], this is a reasonable sum for costs and attorney's fees."

Alfa timely filed its notice of appeal to this court on February 3, 2015.

Discussion

Section 35-11-370, Ala. Code 1975 ("the hospital-lien statute"), states:

"Any person, firm, hospital authority, or corporation operating a hospital in this state shall have a lien for all reasonable charges for hospital care, treatment, and maintenance of an injured person who entered such hospital within one week after receiving such injuries, upon any and all actions, claims, counterclaims, and demands accruing to the person to whom such care, treatment, or maintenance was furnished, or accruing to the legal representatives of such person, and upon all judgments, settlements, and settlement agreements entered into by virtue thereof on account of injuries giving rise to such actions, claims, counterclaims, demands, judgments, settlements, or settlement agreements and which necessitated such hospital care, subject, however, to any attorney's lien."

Alfa first argues on appeal that this court should overrule its opinion in Progressive Specialty Insurance Co. v. University of Alabama Hospital, 953 So.2d 413 (Ala. Civ. App. 2006), on which the trial court relied in its judgment. Specifically, Alfa asserts that the lien "should attach only to actions, claims, or counterclaims that a patient has against a tortfeasor-the person that caused the patient/insured to require hospital treatment." This court determined in Progressive, however, that the language of the hospital-lien statute "does not confine itself solely to tort claims and does not limit the right of a hospital to assert a lien on moneys realized only from tort settlements or actions." 953 So.2d at 415. Specifically, this court affirmed "that the hospital-lien statute does apply to moneys due a patient by virtue of a contractual undertaking such as an insurance policy." 953 So.2d at 416.

Alfa argues that, in Progressive, the appellant argued only that the hospital-lien statute should be construed in light of another statute that is part of the Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975, and that the appellant did not argue that the principles of statutory construction should apply to the hospital-lien statute itself. Although this court noted in Progressive that the appellant had limited its argument to a comparison of the workers' compensation statute, this court proceeded to consider the rules of statutory construction, as well as additional authority, requiring that the hospital-lien statute was to be construed broadly by this court in reaching its decision. 953 So. 2d at 414-16. Alfa argues that this court's construction in Progressive"ignores the wording of the statute as a whole" and, instead, "hinges completely on the definitions of 'claim' and 'demand' in isolation." This court noted in Progressive, however, that, " ' " '[w]hen ascertaining legislative intent, statutes which are in pari materia ... must be interpreted as a whole in light of the general purpose of the statute.' " ' " 953 So. 2d at 414-15 (quoting Blackmon v. Brazil, 895 So.2d 900, 907 (Ala. 2004), quoting in turn Ex parte Berryhill, 801 So.2d 7, 10 (Ala. 2001), quoting in turn Kirkland v. State, 529 So.2d 1036, 1038 (Ala. Crim. App. 1988) ). Alfa's arguments that a reading of the statutes speaking to perfection of a hospital lien, § 35-11-371, Ala. Code 1975; release or satisfaction thereof, § 35-11-372, Ala. Code 1975; and the limitation of a hospital's right to bring an independent action to determine liability for injuries sustained by a person or firm, § 35-11-375, Ala. Code 1975, attempt to circumvent the specificity of the language used in the hospital-lien statute, which this court determined in Progressive was not confined to tort claims. Although § 35-11-371(a) requires a hospital, in order to perfect its lien, to file a verified statement identifying, among other things, the names and addresses of all persons claimed to be "liable for damages arising from" the injured person's injuries, Alfa does not explain how that requirement is mutually exclusive of payments by an insurer held by this court in Progressive to be subject to § 35-11-370. Section 35-11-371(a) goes on to state that "[t]he filing of such claim or lien shall be notice thereof to all persons, firms, or corporations liable for such damages whether or not they are named in such claim or lien." "Liable" is defined as "[r]esponsible or answerable in law; legally obligated." Black's Law Dictionary 1055 (10th ed. 2014). We cannot say that an insurance company is not legally obligated to make payments for damages resulting from the bodily harm of its insured. The remaining statutes cited by Alfa use language similar to that in § 35-11-370, which this court has already interpreted in Progressive.

Alfa also attacks Mitchell v. Huntsville Hospital, 598 So.2d 1358 (Ala. 1992), and Guin v. Carraway Methodist Medical Center, 583 So.2d 1317 (Ala. 1991), two Alabama Supreme Court cases cited as support for this court's decision in Progressive, because, it says, those cases were not directly on point. This court already noted in Progressive, however, that those cases indicated that our supreme court had "at least implicitly held that hospital liens can attach to moneys owed a patient by virtue of a contractual obligation." 953 So.2d at 415. Alfa's arguments that any reference to the hospital-lien statute in those cases was merely dicta or that the argument as to whether the hospital-lien statute was applicable to payments made by insurers was never made before our supreme court in those cases does not cast doubt on whether we appropriately cited those cases as support for our decision in Progressive. Those cases were merely instructive in reaching our decision in Progressive, and our notation regarding their implicit support properly indicated that we did not consider those decisions binding. Thus, any attack on this court's reliance on those cases does not mandate overruling our decision in Progressive.

Alfa next argues that this court should adopt the Tennessee Supreme Court's interpretation of a "nearly identical hospital lien statute" in Shelby County Health Care Corp. v. Nationwide Mutual Insurance Co., 325 S.W.3d 88, 91 (Tenn. 2010). In that case, the Supreme Court of Tennessee determined that Tennessee's statutory hospital lien does not extend to payments made pursuant to the medical-payment-benefits provision of an insurance policy. 325 S.W.3d at 98. We note, however, that, in that case, the Supreme Court of Tennessee itself noted that this court's ruling in Progressive was distinguishable because, unlike Alabama's hospital-lien statute, Tennessee's hospital-lien statute contains an additional provision referring to "damages," which is not included in Alabama's statute. 325 S.W.3d at 95. Because that court distinguished its interpretation of Tennessee's hospital-lien statute from our interpretation of Alabama's hospital-lien statute in reaching its conclusion, we need not further consider that case as instructive.

Alfa further argues in a footnote that, although the Alabama Supreme Court has said that the hospital-lien statute is to be interpreted broadly, see Guin v. Carraway Methodist Med. Ctr., 583 So.2d 1317, 1319 (Ala. 1991), and Ex parte University of S. Alabama, 761 So.2d 240, 244 (Ala. 1999), the American Law Reports article relied on in that line of cases has been superseded by a more current American Law Reports article, see Carol A. Crocca, Construction, Operation, and Effect of Statute Giving Hospital Lien Against Recovery From Tortfeasor Causing Patient's Injuries, 16 A.L.R. 5th 262, § 2(a) (1993), which, Alfa argues, indicates that there is a split of authority as to whether hospital-lien statutes should be broadly or narrowly construed "and calls in to question the continued reliance on the former, superseded notation for suggesting a broad interpretation." This court is not bound by treatises such as the American Law Reports; however, we are bound to follow the mandates of the Alabama Supreme Court, see First Alabama Bank v. Burgess, 681 So.2d 134, 136 (Ala. Civ. App. 1994), which, as Alfa has recognized, has previously concluded that the hospital-lien statute is to be interpreted broadly. Thus, this argument by Alfa is without merit.

Alfa has failed to raise any arguments on appeal that require us to reconsider our holding in Progressive. The Alabama Supreme Court noted in Ex parte Jackson, 614 So.2d 405, 408 (Ala. 1993), that, if the legislature disagrees with this court's interpretation of certain statutes, "it will enact appropriate legislation to modify the statute and yield a different result in subsequent cases." Progressive was decided in 2006. The language of § 35-11-370 has remained unchanged since that time, further bolstering this court's interpretation in Progressive. We decline, therefore, to overrule Progressive at Alfa's urging in the present case.

Alfa next asks this court to rule that the Alabama Supreme Court's decision in University of South Alabama v. Progressive Insurance Co., 904 So.2d 1242 (Ala. 2004), "is based on a faulty reading of the hospital lien statute's permissive language with respect to damages." In that case, our supreme court determined that the hospital-lien statute requires that a party that is found to have impaired a hospital lien, the creation of which is automatic under § 35-11-370, is responsible for the entirety of the reasonable charges as outlined by the hospital-lien statute. 904 So.2d at 1248. Alfa seeks a reversal of the trial court's ruling in the present case requiring Alfa to pay the full amount of the lien to South. As stated previously, however, this court is bound by the decisions of the Alabama Supreme Court, and we may not overrule that court's decisions. See First Alabama Bank v. Burgess, supra. Thus, this argument by Alfa is without merit because we are bound to follow University of South Alabama v. Progressive, which requires affirmance of the trial court's judgment in this case requiring Alfa to pay the full amount of the hospital lien to South.

Alfa next argues that the trial court erred in failing to conclude that South failed to mitigate damages following Alfa's offer of payment of its funeral-benefit-policy limits to South before South commenced the present action. Alfa cites Avco Financial Services, Inc. v. Ramsey, 631 So.2d 940, 942-43 (Ala. 1994), which states, in pertinent part:

"We begin our analysis by recognizing the long-standing rule that the law imposes upon all parties who seek recompense from another a duty to mitigate their losses or damages. Aetna Life Insurance Co. v. Lavoie, 470 So.2d 1060 (Ala. 1984). It is equally well established that a plaintiff can recover only for that damage or loss that would have been sustained if the plaintiff had exercised such care as a reasonably prudent person would have exercised under like circumstances to mitigate the damage or loss ( Equilease Corp. v. McKinney, 52 Ala. App. 109, 289 So.2d 809 (1974) ); and whether the plaintiff has sufficiently mitigated the damages, generally speaking, is a question of fact. Carnival Cruise Lines, Inc. v. Goodin, 535 So.2d 98 (Ala. 1988).
"Stated otherwise, the injured or damaged party is legally bound to lessen the recoverable damages so far as is practicable by the use of ordinary care and diligence. Thus, the rule of mitigation requires a party suffering injury, damage, or loss to take reasonable steps to reduce it.
"The rule of mitigation finds its application only in the context of evidence from which the factfinder may reasonably infer that the claimant rejected a reasonable course of action that an ordinarily prudent person would have taken under similar circumstances to minimize the injury, damage, or loss. In other words, the party seeking to invoke the rule must meet a threshold 'sufficiency of the evidence' test, lest the issue be resolved against the movant as a matter of law. The rule does not apply where the injured party, in an effort to minimize the loss, would be required to incur considerable personal risk or expense with but a slight chance of an alternative recovery. Id."

South argues on appeal that acceptance of the offer of payment in the amount of $2,000 by Alfa would have created waiver and estoppel arguments to any action by South against Alfa, which, South argues, would have created an unnecessary risk of extra expenses in responding to those arguments. We agree that those considerations could require additional risk and expense by South; therefore we hold, as a matter of law, that requiring South to have accepted Alfa's offer of $2,000 as mitigation would constitute an unreasonable prerequisite to South's right to proceed against Alfa. See Ramsey, 631 So.2d at 943.

We note further that Alfa fails, in contravention of Rule 28(a)(10), Ala. R. App. P., to cite any authority indicating that South was required to mitigate its statutorily defined damages. See § 35-11-372 and University of S. Alabama v. Progressive, supra. Moreover, § 35-11-372 provides, in pertinent part, that, following the perfection of a hospital lien, "no release or satisfaction of any action, claim, counterclaim, demand, judgment, settlement, or settlement agreement, or of any of them, shall be valid or effectual as against such lien unless such lienholder shall join therein or execute a release of such lien." In the present case, South declined to execute a release of its lien in order to accept Alfa's offer of $2,000 toward the purported mitigation of South's damages for Alfa's impairment of its lien. In accordance with § 35-11-372, we decline to hold that South was required to accept that amount in order to mitigate its damages because the statute allows for South to exercise discretion as to whether to accept a release of its lien for any reason. Thus, Alfa's assertion that South was required to mitigate its damages is without merit.

Alfa last argues that the trial court erred in entering a judgment based upon the amount of South's amended lien, rather than the amount of the lien that had been perfected at the time of Alfa's alleged impairment of the lien. South attached to its complaint copies of a hospital lien filed on May 30, 2013, in the amount of $30,900.50, and of an amended hospital lien filed on August 22, 2013, in the amount of $36,438.50; the parties stipulated to those dates and amounts in their stipulation of facts. The parties also stipulated that Alfa had issued a draft in the amount of $2,000 to Wright's parents on July 23, 2013.

Section 35-11-372 provides, in pertinent part, that, "[d]uring the period of time allowed by Section 35-11-371 for perfecting the lien ... and also after the lien ... has been perfected," any impairment of such lien entitles the lienholder to recover "the reasonable cost of such hospital care, treatment and maintenance." Section 35-11-371(a) provides that, in order to perfect the hospital lien, it shall be filed "before or within 10 days after such person shall have been discharged" and the filing of the lien "shall be notice thereof to all persons, firms, or corporations liable for such damages whether or not they are named in such claim or lien." The parties stipulated that Wright died on May 21, 2013. Thus, in accordance with § 35-11-371(a), in order for the hospital lien to be perfected, it was required to have been filed by May 31, 2013.

In Ex parte Infinity Southern Insurance Co., 737 So.2d 463, 466 (Ala. 1999), cited by Alfa, our supreme court noted the importance of the time of filing with regard to the applicability of § 35-11-372. Specifically, the supreme court stated:

"[T]he hospital has an automatic lien for its reasonable charges, against the patient's actions and claims. § 35-11-370. Upon perfection of the lien in the manner provided in § 35-11-371, the hospital's lien is protected, pursuant to § 35-11-372, from impairment by one settling an action or claim without obtaining a release or satisfaction of the lien. If the patient settles with the tortfeasor and the hospital has failed to perfect its lien, the hospital's only remedy is against the patient. If the patient settles with the tortfeasor after the lien has been perfected, the hospital has a remedy against both the tortfeasor and the tortfeasor's insurer for impairing the lien, pursuant to § 35-11-372."

737 So.2d at 466.

South cites Board of Trustees of University of Alabama ex rel. University of Alabama Hospital v. American Resources Insurance Co., 5 So.3d 521, 531 (Ala. 2008), for the proposition that, "where there is actual knowledge or where actual notice is given, constructive notice is not required" to enforce a hospital lien. There is no indication in the record on appeal, however, that Alfa had actual knowledge of the amended hospital lien or its amount when it tendered the check for $2,000 to Wright's parents on July 23, 2013. Although, in accordance with the hospital-lien statute, South had an automatic lien for its reasonable charges, South did not perfect its amended lien, providing notice to third parties, until after Alfa's impairment of the lien. Because § 35-11-372 allows for recovery only following the perfection of the lien or during the time that perfection is allowed by § 35-11-371(a), and because South's amended lien was untimely filed, Alfa could not be considered to have been on notice of the amount filed in the amended lien and South was not entitled to recovery of the amount of the amended lien, pursuant to § 35-11-372.

South argues that the trial court entered its judgment based on the parties' stipulation that South had incurred reasonable charges for necessary care, treatment, and maintenance totaling $36,438.50. Indeed, the trial court's judgment cites that stipulation in its judgment. That stipulation does not indicate, however, that, at the time of Alfa's payment of $2,000 to Wright's family, Alfa was on notice as to that amount for reasonable medical charges. Because South was not entitled to the amount stated in its amended lien but, rather, was entitled only to the amount in its May 30, 2013, lien, which was properly perfected, we reverse the trial court's judgment awarding the amount stated in the amended lien and remand the case with instructions to the trial court to enter a judgment modifying its award for reasonable medical charges to the amount stated in South's perfected lien.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

Thompson, P.J., concurs specially.

THOMPSON, Presiding Judge, concurring specially.

Under the circumstances of this case, I believe that requiring Alfa Mutual Insurance Company ("Alfa") to pay the entire amount of the medical bill Abaney T. Wright incurred at the University of South Alabama d/b/a University of South Alabama Medical Center Hospital ("USA") is unduly harsh. Without prompting from USA, Alfa attempted to rectify its error of directly paying Wright's parents $2,000-an amount equaling the limits of the "medical and funeral expenses" coverage provided under the Wrights' automobile-insurance policy covering Abaney-by tendering to USA a draft in the amount of $2,000 approximately one month after making the payment to the Wrights. Nonetheless, because Alfa had already "impaired" USA's hospital lien, USA did not negotiate the draft, and Alfa became liable for the entire bill of $30,900.50.

I do not believe that the legislature intended such an inequitable result when it enacted §§ 35-11-370 and -372, Ala. Code 1975. However, based on the arguments Alfa advanced in the trial court and on appeal, as well as the current caselaw, especially the opinions from our supreme court, the holdings of which this court cannot alter, I am compelled to agree with the disposition of this case.


author: MURDOCK, Justice.

text:
    EX PARTE ALFA MUTUAL INSURANCE COMPANY
    (In re: Alfa Mutual Insurance Company v. University of South Alabama d/b/a University of South Alabama Medical Center Hospital)
    1141343
    Supreme Court of Alabama.
    April 28, 2017
    William P. Gray, Jr., and Douglas N. Robertson of Gray & Associates, LLC, Birmingham; and Dennis R. Bailey and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner.
    Thomas R. Boller, Mobile; and Paul D. Brown, Mobile, for respondent.
   MURDOCK, Justice.

Alfa Mutual Insurance Company ("Alfa") appealed to the Alabama Court of Civil Appeals from a summary judgment in favor of University of South Alabama d/b/a/ University of South Alabama Medical Center Hospital ("USA"). The Court of Civil Appeals affirmed in part, reversed in part, and remanded with instructions. Alfa Mut. Ins. Co. v. University of S. Alabama, 243 So.3d 264 (Ala. Civ. App. 2015) (" Alfa"). We granted Alfa's petition for a writ of certiorari with respect to the issue whether USA's hospital lien was impaired and the amount of damages recoverable by USA from Alfa for that impairment. For the reasons set forth below, we reverse the judgment of the Court of Civil Appeals insofar as it affirmed the circuit court's ruling that the amount of damages recoverable from Alfa was an amount equal to the entirety of USA's reasonable charges, irrespective of the amount that was otherwise owed by Alfa under the terms of its policy, and we remand the case for further proceedings.

I. Facts and Procedural History

USA filed a complaint against Alfa alleging impairment of its hospital lien imposed pursuant to Ala. Code 1975, §§ 35-11-370 through -372, with respect to expenses incurred by USA in its treatment of Abaney T. Wright, who was injured in an automobile accident less than one week before her admission to USA's hospital and later died as a result of her injuries. USA alleged that Alfa impaired its lien by making a $2,000 payment to Wright's parents for funeral expenses under a medical-payment-benefit provision in the parents'

automobile-insurance policy. Approximately one month later, Alfa issued a draft to USA's counsel in the amount of $2,000; USA did not negotiate the draft.

The case was tried on stipulated facts, briefs, and arguments of counsel. The circuit court entered a summary judgment in favor of USA in the amount of its amended lien, $36,438.50, plus attorney fees in the amount of $5,166.69. That is, the circuit court awarded damages based on the entirety of the hospital's charges, without respect to the amount otherwise owed by Alfa under its policy. Alfa appealed to the Court of Civil Appeals.

On appeal, Alfa argued (1) that the hospital lien attached only to tort claims and not to the contract claim at issue here, (2) that USA's lien was not impaired because there had been no release, satisfaction, or settlement of any covered claim, and (3) that the damages awarded against Alfa are not owed by it under a proper reading of the lien-impairment statute. Alfa did not challenge the perfection of the lien, the reasonableness of USA's charges, or the amount of the attorney-fee award (assuming that attorney fees were payable at all).

The Court of Civil Appeals issued an opinion affirming the judgment in part, specifically concluding that, under the rationale of University of South Alabama v. Progressive Insurance Co., 904 So.2d 1242 (Ala. 2004), the circuit court correctly ruled that the amount of damages awarded against Alfa should be based on the entirety of USA's reasonable charges secured by its perfected lien. Presiding Judge Thompson concurred specially, noting that the result was inequitable and not intended by the legislature when it enacted §§ 35-11-370 through -372 but concluding that he was "compelled" by caselaw to agree with the disposition of the case. Alfa, 243 So.3d at 271 (Thompson, P.J., concurring specially).

Alfa petitioned this Court for a writ of certiorari. We granted the petition for a writ of certiorari with respect to the issue whether USA's lien was impaired and the proper measure of damages.

II. Standard of Review

Our standard of review on an appeal of a summary judgment is well settled.

" ' "We review a summary judgment de novo. We apply the same standard of review as the trial court in determining whether the evidence presented to the trial court demonstrated the existence of a genuine issue of material fact. A summary judgment is proper where 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " ' "

Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058, 1063 (Ala. 2003) (quoting Slay v. Keller Indus., Inc., 823 So.2d 623, 624-25 (Ala. 2001) (citations omitted), quoting in turn Northwest Florida Truss, Inc. v. Baldwin Cty. Comm'n, 782 So.2d 274, 276 (Ala. 2000) ).

III. Analysis

The pertinent statutes are Ala. Code 1975, §§ 35-11-370 through -372. Section 35-11-370 governs the creation of a hospital lien and provides:

"Any person, firm, hospital authority, or corporation operating a hospital in this state shall have a lien for all reasonable charges for hospital care, treatment, and maintenance of an injured person who entered such hospital within one week after receiving such injuries, upon any and all actions, claims, counterclaims, and demands accruing to the person to whom such care, treatment, or maintenance was furnished, or accruing to the legal representatives of such person, and upon all judgments, settlements, and settlement agreements entered into by virtue thereof on account of injuries giving rise to such actions, claims, counterclaims, demands, judgments, settlements, or settlement agreements and which necessitated such hospital care, subject, however, to any attorney's lien."

(Emphasis added.)

Section 35-11-372 addresses the impairment of a hospital lien and provides:

"During the period of time allowed by Section 35-11-371 for perfecting the lien provided for by this division and also after the lien provided for by this division has been perfected, as provided in this division, by any lienholder entitled thereto, no release or satisfaction of any action, claim, counterclaim, demand, judgment, settlement, or settlement agreement, or of any of them, shall be valid or effectual as against such lien unless such lienholder shall join therein or execute a release of such lien.
"Any acceptance of a release or satisfaction of any such action, claim, counterclaim, demand or judgment and any settlement of any of the foregoing in the absence of a release or satisfaction of the lien referred to in this division shall prima facie constitute an impairment of such lien, and the lienholder shall be entitled to a civil action for damages on account of such impairment, and in such action may recover from the one accepting such release or satisfaction or making such settlement the reasonable cost of such hospital care, treatment and maintenance. Satisfaction of any judgment rendered in favor of the lienholder in any such action shall operate as a satisfaction of the lien. Any action by the lienholder shall be brought in any court having jurisdiction thereof and may be brought and maintained in the county wherein the lienholder has his, its, or their residence or place of business. If the lienholder shall prevail in such action, the lienholder shall be entitled to recover from the defendant, costs and reasonable attorney's fees. Such action shall be commenced against the person liable for such damages within one year after the date such liability shall be finally determined by a settlement release covenant not to sue or by the judgment of a court of competent jurisdiction."

(Emphasis added.)

Section 35-11-370 grants hospitals a lien on certain actions, claims, counterclaims, demands, judgments, and settlements for the reasonable expenses of treating certain patients injured in accidents. Section 35-11-372 entitles a hospital lienholder "to a civil action for damages on account of" an impairment of a lien.

Like the circuit court, the Court of Civil Appeals considered itself bound by Progressive, and it held that USA was entitled to damages in the amount of its lien, plus attorney fees. We take this opportunity to revisit the holding of Progressive.

In Progressive, a hospital claimed that its lien was impaired by a settlement between the patient and a tortfeasor, in which the patient was paid $6,000 in exchange for a full release of the claims against the tortfeasor. After concluding that the tortfeasor's liability insurer did not adequately present its argument that the hospital lien had not been impaired, this Court rejected the argument that the amount of damages for impairment of a hospital lien is limited to the payment made by the insurer to obtain the release of the tortfeasor. This Court stated:

"To answer this question [as to the amount of damages], we need look no farther than the plain language of § 35-11-372. There, the Legislature plainly and unambiguously stated that a lienholder, such as [the hospital], in a case such as this, 'may recover from the one accepting [the] release [i.e., the insurer] ... the reasonable cost of [the] hospital care, treatment and maintenance [of the injured person].' The statute clearly does not limit the damages to the amount of the consideration paid for the release. Indeed, such a limitation would be contrary to the purpose of the hospital-lien statute, that is, 'to give hospitals ... an automatic lien for the reasonable value of their services.' Ex parte Infinity Southern Ins. Co., 737 So.2d 463, 464 (Ala. 1999). Thus, we agree with [the hospital] that the trial court erred in interpreting the hospital-lien statute as limiting [its] damages to the amount of the settlement between Progressive and [the patient]. Having determined that Progressive had impaired [the hospital's] lien, the trial court was required to enter a judgment for [the hospital] against Progressive 'for all reasonable charges,' which, in this case, the trial court found totaled $57,097.
"Although § 35-11-372 deals specifically with the damages recoverable in an action for the impairment of a hospital lien, Progressive argues that '[t]he plain language of § 35-11-370, [which gives the hospital the lien,] dictates that ... Progressive is only liable to [the hospital] for the amount of its settlement agreement.' Progressive's brief, at 17. However, § 35-11-370 contains no such 'plain language.' Instead, it gives the hospital an automatic lien 'for all reasonable charges for hospital care, treatment and maintenance of an injured person,' which, in this case, totaled $57,097. By its plain language, which this Court cannot ignore, § 35-11-372 provides that a party, such as Progressive, that is found to have impaired a lien, is responsible for those reasonable charges, not for some lesser amount. Any other interpretation would be contrary to 'this Court's recognition that the statute is to be construed broadly to accomplish its purpose.' Ex parte University of South Alabama, 761 So.2d [240] at 245 [ (Ala. 1999) ] (emphasis added)."

904 So.2d at 1248-49.

Chief Justice Nabers dissented as to the amount of damages, concluding that the hospital was entitled to be made whole and to seek the fair value of the claim against the wrongly released tortfeasor, but was not automatically entitled to the full amount of its lien. Chief Justice Nabers stated:

"I dissent ... from the main opinion's conclusion that [the hospital] is entitled to recover from Progressive the reasonable value of all services rendered by the hospital to Clarence Bell as a result of the May 14, 2002, accident-$57,097-without any regard to the amount of Progressive's obligation to indemnify its insured.
" Section 35-11-372, Ala. Code 1975, provides that, in a case such as this, a hospital 'may' recover from the one accepting such [a] release ... the reasonable cost of [the] hospital care, treatment and maintenance the hospital provided the injured party. (Emphasis added.) Importantly, the Legislature did not state that a hospital 'shall be entitled to recover' such damages. The Legislature did say, however, in that same statute, that '[i]f the lienholder shall prevail in [a civil] action [for damages], the lienholder shall be entitled to recover from the defendant, costs and reasonable attorney's fees.' (Emphasis added.) I think it only reasonable to conclude that the Legislature intended a difference when it used 'may recover' with respect to the recovery by the lienholder-hospital of costs for services and 'shall be entitled to recover' with respect to litigation costs and attorney fees. The majority opinion, in effect, concludes that the Legislature intended no such difference.
"However, while I think this difference is clear, I acknowledge that the Legislature did not clarify under what circumstances a hospital 'may recover' all reasonable costs. When interpreting a statute that is ambiguous on its face, this Court seeks a result that is 'workable and fair' and one that considers 'the intent of the legislature,' 'the results that flow from assigning one meaning over another,' and 'related statutory provisions.' John Deere Co. v. Gamble, 523 So.2d 95, 100 (Ala. 1988). My consideration of all of these factors leads me to conclude that a hospital 'may recover' the reasonable cost of all services only if the lien that was impaired had a value equal to or greater than such reasonable cost."

Progressive, 904 So.2d at 1249-50 (Nabers, C.J., concurring in part and dissenting in part).

We agree with Chief Justice Nabers that a hospital is not entitled to recover automatically the full amount of its lien whenever there has been an impairment of any magnitude. As Chief Justice Nabers noted in Progressive: "[I]t is appropriate that [the hospital] be restored to the position it would have been in had its lien not been impaired." 904 So.2d at 1250. That conclusion is consistent with § 35-11-372, which provides for "a civil action for damages on account of such impairment." Damages on account of an impairment means damages caused by or resulting from the impairment. See Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Florida, 97 So.3d 204, 213 (Fla. 2012) (noting that "damages on account of such impairment" means damages "by reason of" or "because of" an impairment). That is to say that damages on account of an impairment are measured by the difference between the amount the hospital actually recovered and the amount it could have recovered absent the impairment. That result is equitable and comports with the purpose of the lien statute. Awarding a hospital a windfall for a minor impairment is not equitable and does not comport with the purpose of the statute.

In the present case, the value of the claim to which the lien attached was the policy limit of the medical-payment benefit at issue, or $2,000. Logically, in a case such as this, the value of the lien could not be more than the value of the claim to which it attaches. In contrast, Progressive involved a release of a tortfeasor, which, unlike an insurer whose potential liability is limited pursuant to a pre-injury contract, could potentially be liable for an amount that equals or exceeds the full amount of the hospital's lien (assuming that liability for at least that amount can be shown). Compare Shands Teaching Hosp. & Clinics, Inc., 97 So.3d at 213 (holding that hospital's damages for impairment of its lien were limited to the policy limits of the applicable liability insurance). See also 41 C.J.S. Hospitals § 25 (2015) (damages for impairment of hospital lien are limited to the policy limits of liability-insurance coverage). Accordingly, we conclude that the amount of damages recoverable in this case (assuming there was an impairment), is the amount of the claim against Alfa-$2,000.

The purpose of the lien statute is to induce hospitals to "receive a patient injured in an accident, without first considering whether the patient will be able to pay the medical bills incurred." Ex parte University of South Alabama, 761 So.2d 240, 244 (Ala. 1999). The purpose of the statute is not to precipitate additional litigation, provide a windfall for hospitals, or saddle insurers with uncontracted-for liability in the event they pay a policy benefit that happens to be subject to a hospital lien.

IV. Conclusion

Based on the foregoing, we reverse the judgment of the Court of Civil Appeals insofar as it affirmed an award of damages against Alfa based on the full amount of USA's lien. We remand the case for further proceedings consistent with this opinion. In light of our holding that the measure of impairment of a hospital's lien under circumstances such as those presented here does not exceed the amount that would be recoverable against an insurer under the terms of its policy, we pretermit discussion of the issue whether Alfa's actions (including its making a payment to Wright's parents of its policy limits and its subsequent tender of the same amount to USA) amounted to an impairment of USA's lien within the meaning of the statute (an issue that was not considered by the circuit court, given its understanding of the measure of damages for which Alfa was responsible).

REVERSED AND REMANDED.

Parker, Main, and Wise, JJ., concur.

Bolin and Shaw, JJ., concur in the result.

Stuart, C.J., recuses herself.

      The insurance policy provided for a medical-payment benefit of $2,000 for necessary medical and/or funeral expenses because of bodily injury to a covered person caused by an automobile accident.

      We did not grant certiorari review as to this first issue. See Progressive Specialty Ins. Co. v. University of Alabama Hosp., 953 So.2d 413 (Ala. Civ. App. 2006).

      The Court of Civil Appeals reversed the judgment insofar as it increased those damages to include additional amounts charged by USA in a subsequent lien perfected before the alleged impairment. The Court of Civil Appeals held that USA was entitled to recover only the amount of its original lien ($30,900.50), which was the only lien perfected at the time Alfa made the payment to Wright's parents. USA did not seek certiorari review as to the amount of the lien; the difference between the two lien amounts is not material to the analysis in this opinion.


text:
    ALFA MUTUAL INSURANCE COMPANY v. UNIVERSITY OF SOUTH ALABAMA d/b/a University of South Alabama Medical Center Hospital
    2140366
    Court of Civil Appeals of Alabama.
    June 23, 2017
    Dennis R. Bailey and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant
    Thomas R. Boller, Mobile; and Paul D. Brown, Mobile, for appellee.
    After Remand from the Alabama Supreme Court
   MOORE, Judge.

A portion of this court's prior judgment-specifically, this court's holding affirming the Mobile Circuit Court's judgment, in part stating: "[W]e are bound to follow University of South Alabama v. Progressive [, 904 So.2d 1242 (Ala. 2004) ], which requires affirmance of the trial court's judgment in this case requiring Alfa [Mutual Insurance Company] to pay the full amount of the hospital lien," Alfa Mut. Ins. Co. v. University of S. Alabama, 243 So.3d 264, 268 (Ala. Civ. App. 2015) -has been reversed, and the cause has been remanded by the Alabama Supreme Court. See Ex parte AlfaMut. Ins. Co., 243 So.3d 271 (Ala. 2017). On remand to this court, and in compliance with the supreme court's opinion, that portion of the judgment entered by the Mobile Circuit Court against Alfa Mutual Insurance Company awarding the University of South Alabama d/b/a University of South Alabama Medical Center Hospital ("South") damages based on the full amount of South's lien is reversed, and the cause is remanded for further proceedings consisted with the supreme court's opinion.

REVERSED AND REMANDED.

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