author: MOORE, Judge.

text:
    Jack GRIESER v. ADVANCED DISPOSAL SERVICES ALABAMA, LLC
    2160290
    Court of Civil Appeals of Alabama.
    August 11, 2017 Rehearing Denied October 13, 2017
    Tracy W. Cary of Morris, Cary, Andrews, Talmadge & DRiggers, LLC, Dothan, for appellant.
    John G. Smith, Kelly F. Pate, and Joseph Seawell Moore of Balch & Bingham LLP, Montgomery, for appellee.
   MOORE, Judge.

Jack Grieser ("the employee") appeals from a judgment entered by the Crenshaw Circuit Court ("the trial court") to the extent that it awarded him permanent-partial-disability benefits under the Alabama Workers' Compensation Act ("the Act"), § 25-5-1 et seq., Ala. Code 1975, based, he says, on the wrong average weekly wage; declined to award him benefits based on his alleged vocational impairment; and denied his request to hold Advanced Disposal Services Alabama, LLC ("the employer"), in contempt of court. We affirm the judgment in part and reverse it in part.

Facts and Procedural History

On February 7, 2011, the employee filed a complaint in the trial court, alleging that he had suffered an on-the-job injury and seeking workers' compensation benefits from the employer. On March 8, 2011, the employer answered the complaint. The employee amended his complaint on March 16, 2011, to correct an error in the employer's name. The employer answered the amended complaint on March 21, 2011.

On November 21, 2011, the employer filed a motion requesting a determination regarding whether it was obligated to pay for pain-management treatment for the employee. That same day, the employee amended his complaint to add a claim alleging retaliatory discharge. The employer filed an answer to the second amended complaint on November 30, 2011. On March 14, 2012, the trial court entered an order requiring the employer to provide pain-management treatment for the employee.

On June 9, 2014, the employer filed a motion for a partial summary judgment on the retaliatory-discharge claim. The employee filed a response to the partial-summary-judgment motion on October 20, 2014. On December 16, 2014, the trial court entered a partial summary judgment in favor of the employer on the retaliatory-discharge claim.

On March 9, 2015, the employer filed a motion in limine requesting "an Order precluding [the employee], [the employee's] witnesses, and [the employee's] counsel from offering any evidence or giving any testimony concerning, or making any argument about or [in] reference to, or asking any questions or soliciting testimony about, any alleged vocational impairment or vocational disability of the [employee]." The employer argued that Ala. Code 1975, § 25-5-57(a)(3) i. ("the return-to-work statute"), a part of the Act, precluded the employee from offering evidence of vocational disability. Specifically, the employer argued that the employee had "return[ed] to work at a wage equal to or greater than the [employee's] pre-injury wage," § 25-5-57(a)(3) i., and that, although the employee's employment had subsequently been terminated, it had been terminated "for actual or threatened misconduct committed in connection with his ... work after previous warning to the employee," § 25-5-57(a)(3) i.(iv). In the alternative, the employer moved for a partial summary judgment on that issue.

On March 15, 2015, the employee filed an objection to and a motion to strike the employer's motion in limine or, in the alternative, for a partial summary judgment. The employee argued, among other things, that the entirety of the return-to-work statute, as well as the portion of the statute regarding whether the employee's employment had been terminated "for actual or threatened misconduct committed in connection with his ... work after previous warning to the employee," were affirmative defenses. He asserted that, because the employer had not raised those defenses in its answer, those defenses were waived. On March 19, 2015, the trial court held a trial at which it heard, among other evidence, testimony regarding the employee's vocational disability.

On January 22, 2016, the employee filed a motion requesting that the trial court hold the employer in contempt for its failure to pay for the employee's pain-management treatment. The employee specifically argued that the employer had failed to pay for an injection of medication that the employee had received in November 2015 to treat the employee's pain and that the employer had requested that the employee be weaned off of oral pain medications that his physician had deemed medically necessary.

On January 26, 2016, the trial court entered an order, stating, in pertinent part:

"2. [On January 21, 2010], [the employee] suffered an accident arising out of and in the course of his employment. The accident occurred when [the employee] stepped down from a flatbed truck onto a concrete loading ramp while performing his job duties for [the employer].
"....
"4. Ultimately, [the employee's] back injury was treated by physicians at Neurosurgery & Spine Associates of Central Alabama. [The employee] also received and continues to receive pain-management treatment from the Pain Center of Montgomery. All of this treatment has been authorized and approved by [the employer] pursuant to the Act. There was no proof submitted at trial that [the employee] had incurred medical treatment or related expenses in connection with his injury that had not been paid for by [the employer] and the Court finds that no such bills and expenses are presently due, owing or known to either party.
"5. Neurosurgery & Spine Associates of Central Alabama determined that [the employee's] back injury resulting from the accident was due to 'multifactorial issues; degenerative disc disease probably exacerbated by injury.' The Court accepts this conclusion in making its determinations in this case. [The employee] is not a candidate for surgery for his back condition according to the evidence.
"6. [The employee] reached maximum medical improvement for his injury on July 23, 2010, and was assigned a 5% medical impairment to his body as a whole.
"7. At the time of his injury, [the employee's] average weekly wage with [the employer] was $491.66.
"8. Since [the employee's] injury is not scheduled under the provisions of the Act, [the employee] may receive permanent-partial-disability benefits for 300 weeks, less the number of weeks [the employee] was paid temporary-total-disability benefits. Ala. Code [1975,] § 25-5-57(a)(3) g. There was no proof offered at trial whether [the employee] received temporary-total-disability benefits or was due to receive temporary-total-disability benefits. Accordingly, the Court does not award such benefits and, therefore, [the employee] is due to receive 300 weeks of permanent-partial-disability benefits.
"9. [The employee] was returned to employment by [the employer] following his injury earning wages at least equal to those he had been earning at the time of the accident. He continued his employment with [the employer] following the date he reached maximum medical improvement, again earning wages at least equal to those he had been earning at the time of his on-the-job injury.
"10. [The employee] claims that the Court should determine his disability and, in turn, calculate the benefits that are due him under the Act based upon vocational impairment instead of medical impairment. He argues that, since his back injury is unscheduled and he lost his employment with [the employer] within 300 weeks from the date of his injury, the Court may award benefits based upon vocational impairment under Ala. Code [1975,] § 25-5-57(a)(3) i., the 'Return to Work' statute. [The employer] argues that [the employee's] disability may not be based on vocational impairment under the provisions of the Return-to-Work statute because it has shown, by clear and convincing evidence, that his loss of employment was due to actual or threatened misconduct in connection with his work after previous warning.
"11. The evidence demonstrated that [the employer] terminated [the employee's] employment in January 2011 after he had been involved in a dispute with a co-employee.... [The co-employee] provided [the employer] with a statement of what she contended occurred between her and [the employee] that led to [the employee's] termination from employment with [the employer]. That statement reflected that [the employee] acted toward [the co-employee] in a way that was racially and sexually harassing.
"12. Although he denied some of the conduct [the co-employee] alleged against him, [the employee] admitted to a dispute with [the co-employee] and that, had he acted in the manner alleged by [the co-employee], the employee would have been in violation of [the employer's] anti-harassment policies, that he was aware of those policies at the time of the acts [the co-employee] alleged against him, and that he had been warned that, under those policies, he could be terminated from employment for acts of racial or sexual harassment.
"13. [The co-employee's] statement to [the employer] was admitted into evidence, as was her deposition in this matter. In her deposition, and while verifying her statement, [the co-employee] attempted to explain away that she was racially and sexually harassed by [the employee]. The Court finds this attempt by [the co-employee], whose employment had been terminated by [the employer] prior to her deposition for reasons unrelated to her dispute with [the employee], unpersuasive. The Court finds that [the employer] has proved by clear and convincing evidence that [the employee's] employment with [the employer] was terminated because [the employee] had committed an act of misconduct in connection with his employment after being warned by [the employer] that such conduct could result in his termination from employment. Accordingly, under Ala. Code [1975,] § 25-5-57(a)(3) i.(iv), [the employee] may not recover for vocational impairment and the Court declines to award him benefits upon any claimed vocational disability.
"14. [The employee] also contends that the Court should not consider [the employer's] argument that the Return-to-Work statute prevents the Court from awarding benefits based upon vocational disability because, he claims, [the employer] ... did not assert the Return-to-Work statute as an affirmative defense.... The Court denies those requests."

On February 26, 2016, the employer filed a response to the employee's motion for contempt. On March 7, 2016, the employee filed a notice of appeal. On June 7, 2016, this court dismissed the appeal as having been taken from a nonfinal judgment. See Grieser v. Advanced Disposal Servs. Alabama, LLC, 228 So. 3d 447 (Ala. Civ. App. 2016) (table). This court issued its certificate of judgment on June 27, 2016.

On June 28, 2016, the employee filed a motion with the trial court, requesting an evidentiary hearing on his motion for contempt. After a hearing, the trial court entered an order on January 23, 2017, denying the employee's motion for contempt. On January 30, 2017, the employee filed his notice of appeal.

Discussion

I. Return-to-Work Statute

On appeal, the employee argues that the trial court erred by applying the return-to-work statute to deny his claim for permanent-partial-disability benefits based on his alleged vocational disability.

Section 25-5-57(a)(3) i., provides, in pertinent part:

"If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25-5-57(a)(3), [Ala. Code 1975,] an injured worker returns to work at a wage equal to or greater than the worker's pre-injury wage, the worker's permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability. Notwithstanding the foregoing, if the employee has lost his or her employment under circumstances other than any of the following within a period of time not to exceed 300 weeks from the date of injury, an employee may petition a court within two years thereof for reconsideration of his or her permanent partial disability rating:
"....
"(ii) The loss of employment is voluntary, without good cause connected with such work.
"....
"(iv) The loss of employment is for actual or threatened misconduct committed in connection with his or her work after previous warning to the employee.
"....
"The burden of proof is on the employer to prove, by clear and convincing evidence, that an employee's loss of employment was due to one of the causes (i) through (v) above. ..."

We initially point out that the return-to-work statute ordinarily does not apply when an employee has been terminated from his or her employment before receiving an award of workers' compensation benefits. In Pemco Aeroplex, Inc. v. Moore, 775 So.2d 215, 218 (Ala. Civ. App. 1999), overruled on other grounds by Grace v. Standard Furniture Manufacturing Co., 54 So.3d 909 (Ala. Civ. App. 2010), after a worker had suffered an on-the-job injury, he returned to work at a job with Pemco, within his restrictions, earning the same salary he had earned before his injury. 775 So.2d at 217. However, according to the worker, Pemco had required him to perform duties outside his restrictions, and, ultimately, the worker had resigned his employment after Pemco had disallowed him from taking a leave of absence because of his inability to perform those duties. Id. The worker filed a complaint seeking workers' compensation benefits, and the Jefferson Circuit Court considered evidence of the worker's vocational disability and awarded him benefits based on a 35% permanent partial disability.

Pemco appealed, arguing "that the worker [had] left his employment without good cause, and, therefore, the return-to-work provision should apply to preclude the evidence of the worker's vocational disability." 775 So.2d at 217. This court, however, recognized that, "[b]y its terms[, the second sentence of the return-to-work statute] applies only in a case where the worker has already been assigned a disability rating and is petitioning the trial court to reopen the worker's case to reconsider that rating based on the loss of his or her job." Id. at 218. However, because the worker in Pemco had not filed a petition requesting to reopen the case but, instead, had filed a complaint requesting workers' compensation benefits in the first instance, this court held that Pemco's argument was misplaced and that the trial court had properly considered evidence of the worker's vocational disability. 775 So.2d at 218.

Similarly, in the present case, the employee had returned to work, after reaching maximum medical improvement from his on-the-job injury, earning wages equal to or greater than his preinjury wages. However, by the time of the trial, the employee was no longer employed earning those wages. As in Pemco, the employer in this case argues that the employee should not receive permanent-partial-disability benefits based on his alleged vocational disability because, it says, the employee's employment had been terminated for one of the reasons set forth in the return-to-work statute, namely, "for actual or threatened misconduct committed in connection with his ... work after previous warning to the employee." However, because the employee is seeking an initial disability determination, not petitioning for reconsideration of a previous disability determination, the return-to-work statute does not apply to his claim.

Nevertheless, in the proceedings below, the employee did not argue that the return-to-work statute generally did not apply to his claim. Instead, the employee specifically argued only that the employer had waived the "affirmative defense" established in the return-to-work statute. The parties litigated that particular point, and the trial court ruled against the employee. On appeal, this court is limited to considering the case in the context and under the theories upon which it was tried in the proceedings below. See Vulcraft, Inc. v. Wilbanks, 54 Ala.App. 393, 395, 309 So.2d 105, 106 (Civ. App. 1975). Therefore, we address the questions raised in this appeal even though the return-to-work statute ordinarily would not apply in circumstances such as those present in this case.

The question whether the provisions of the return-to-work statute upon which the employer relied- § 25-5-57(a)(3) i. and § 25-5-57(a)(3) i.(iv)-are affirmative defenses that can be waived is a purely legal issue, so we apply a de novo standard of review. See, e.g., Ex parte Morris, 999 So.2d 932, 936 (Ala. 2008).

"This Court has defined an affirmative defense as ' ''[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's ... claim, even if all the allegations in the complaint are true.'' ' Lloyd Noland Found., Inc. v. HealthSouth, Inc., 979 So.2d 784, 791 (Ala. 2007) (quoting Black's Law Dictionary 451 (8th ed. 2004)). 'An affirmative defense is defined as "new matter which, assuming the complaint to be true, constitutes a defense to it.'' ' Bechtel v. Crown Cent. Petroleum Corp., 451 So.2d 793, 795 (Ala. 1984) (quoting Black's Law Dictionary (rev. 5th ed. 1979)). 'A defendant's outright denial of the plaintiff's allegations without additional facts' is often referred to as a 'negative defense.' Black's 452 (8th ed. 2004). In Ex parte Atmore Community Hospital, 719 So.2d 1190 (Ala. 1998), this Court noted the difference between an 'affirmative' defense and a 'negative' defense as follows: An affirmative defense is distinguishable from a negative defense in that an affirmative defense raises new matters that, assuming the allegations in the complaint to be true, constitute a defense to the action and have the effect of defeating the plaintiff's claims on the merits while a negative defense simply seeks to refute an essential allegation of the plaintiff's complaint. 719 So.2d at 1193 n.1."

Ex parte Gadsden Country Club, 14 So.3d 830, 833-34 (Ala. 2009).

The first sentence of the return-to-work statute makes it clear that an injured worker, who at the time of an initial disability determination has returned to work earning the same or greater wages than he or she was earning before the injury, may receive permanent-partial-disability benefits based only on physical impairment and that a trial court may not consider evidence of the worker's vocational disability. § 25-5-57(a)(3) i. That sentence does not create a means of defeating or reducing a worker's claim for compensation but, instead, sets forth the method by which a trial court must compute the worker's compensation in that situation. Therefore, we conclude that the return-to-work statute as a whole is not an affirmative defense.

The employee also argues that the following provision of the return-to-work statute constitutes an affirmative defense:

"Notwithstanding the foregoing, if the employee has lost his or her employment under circumstances other than any of the following within a period of time not to exceed 300 weeks from the date of injury, an employee may petition a court within two years thereof for reconsideration of his or her permanent partial disability rating:
"....
"(iv) The loss of employment is for actual or threatened misconduct committed in connection with his or her work after previous warning to the employee."

§ 25-5-57(a)(3) i. That provision confers upon an injured worker who loses his or her employment "within ... 300 weeks from the date of injury" the right to "petition a court ... for reconsideration of his or her permanent partial disability rating." However, even if a worker proves that he or she lost his or employment within the requisite 300-week period, an employer can defeat the worker's right to "petition ... for reconsideration of his or her permanent partial disability rating" if it proves by clear and convincing evidence that one of five criteria has been met. § 25-5-57(a)(3) i.(i) through (v), Ala. Code 1975. Because, in the present case, the employer's assertion that the employee's "loss of employment [was] for actual or threatened misconduct committed in connection with his ... work after previous warning to the employee," § 25-5-57(a)(3) i.(iv), " ' "will defeat the [employee's] ... claim, even if all the allegations in the complaint are true," ' " Gadsden Country Club, 14 So.3d at 833, we conclude that § 25-5-57(a)(3) i.(i) through (v) create five separate affirmative defenses that are available to an employer in an action for reconsideration of an injured worker's permanent-partial-disability rating.

" ' "[An affirmative defense] is required to be specially pleaded under Rule 8(c)[, Ala. R. Civ. P.]. See Nash v. Vann, 390 So.2d 301, 303 (Ala. Civ. App. 1980). Under the Federal Rules of Civil Procedure, after which our rules are modeled, the consequences of a party's failure to plead an affirmative defense have been explained as follows:
" ' " 'If a n affirmative defense is not pleaded it is waived to the extent that the party who should have pleaded the affirmative defense may not introduce evidence in support thereof, unless the adverse party makes no objection in which case the issues are enlarged, or unless an amendment to set forth the affirmative defense is properly made.'
" ' "2A J. Moore, Federal Practice § 8.27[3] at 8-251 (2d Ed. 1948). See Funding Systems Leasing Corporation v. Pugh, 530 F.2d 91 (5th Cir. 1976)."
" ' Smith v. Combustion Resources Engineering, 431 So.2d 1249 (Ala. 1983). See, also, Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala. 1983).' "

Newman v. Howard, 239 So.3d 1147, 1149-51 (Ala. 2017) (quoting Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793, 796 (Ala. 1984) ).

In the present case, the employer failed to plead as an affirmative defense that the employee's "loss of employment [was] for actual or threatened misconduct committed in connection with his ... work after previous warning." Instead, 10 days before the trial, the employer filed a motion in limine or, in the alternative, for a partial summary judgment, arguing that the employee was precluded from presenting evidence of his vocational impairment because he had lost his employment "for actual or threatened misconduct committed in connection with his ... work after previous warning." The employee objected to the employer's motion, arguing that the employer had waived that affirmative defense.

The employer argues that it sufficiently raised the relevant affirmative defense set forth in § 25-5-57(a)(3) i.(iv) by, in its answer, admitting that it was subject to the Act and pleading the defense of the exclusivity provisions of the Act, which are found in § 25-5-52 and § 25-5-53, Ala. Code 1975. We recognize, however, that "the point of Rule 8(c)[, Ala. R. Civ. P.,] is to give a party notice of affirmative defenses expected to be raised during litigation." Patterson v. Liberty Nat'l Life Ins. Co., 903 So.2d 769, 780 (Ala. 2004). Accordingly, we conclude that the employer's references to the applicability of the entire Act and to the exclusivity provisions of the Act, which are separate and apart from the return-to-work statute, were insufficient to give notice of the affirmative defense provided in § 25-5-57(a)(3) i.(iv).

Based on the foregoing, we conclude that the employer waived the affirmative defense provided in § 25-5-57(a)(3) i.(iv). Therefore, the trial court erred in declining to consider evidence of the employee's vocational impairment based on that defense. Accordingly, we reverse the trial court's judgment to the extent that it declined to consider evidence of the employee's vocational impairment in determining the employee's permanent-partial-disability benefits, and we remand this cause for reconsideration of the employee's permanent-partial-disability benefits in light of this opinion.

Based on our resolution of this matter, we have no cause to discuss the employee's argument regarding the merits of the affirmative defense.

II. Average Weekly Wage

The employee also argues that the trial court used the wrong average weekly wage in determining his benefits; specifically, he argues that the trial court should have included in the average weekly wage the employer's cost of providing certain benefits to the employee. We note, however, that the employee has failed to cite any authority in support of that argument. "Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008). Therefore, we decline to address the employee's argument on this point.

III. Contempt

The employee finally argues that the trial court erred in declining to hold the employer in contempt for its alleged failure to pay for the employee's pain-management treatment. However, the trial court did not make specific findings of fact in its order denying the employee's motion for contempt, and the employee did not file a postjudgment motion or otherwise raise the issue of the sufficiency of the evidence regarding that issue. "[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review." New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala. 2004). Therefore, we decline to address the merits of the employee's argument concerning the contempt issue.

Conclusion

Based on the foregoing, we reverse the trial court's judgment to the extent that it declined to consider evidence of the employee's vocational impairment in determining the employee's permanent-partial-disability benefits, and we remand the cause for reconsideration of the employee's permanent-partial-disability benefits in light of this opinion. The judgment is affirmed in all other respects.

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

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


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    J.B. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES, Ji.B., and D.B.
    2160534
    Court of Civil Appeals of Alabama.
    October 13, 2017
    Melvin Hasting, Cullman, for appellant.
   PITTMAN, Judge.

This appeal stems from an action commenced in April 2016 in the Jefferson Juvenile Court by the Jefferson County Department of Human Resources ("DHR") in which DHR alleged that a child of J.B. ("the mother"), K.B. ("the child"), was dependent because the mother was residing with a paramour, S.P., who was under a court order to have no contact with the child. The juvenile court issued a pickup order for the child and, after a shelter-care hearing, placed the child with the mother's father, Ji.B. ("the maternal grandfather"), and his wife, D.B., subject to the mother's weekly visitation with the child. In June 2016, the juvenile court held a hearing at which the mother, her attorney, DHR's representative and attorney, and the child's guardian ad litem were present. The juvenile court's order entered after the June 2016 hearing, although entered "over the objection of" counsel for the mother and noting the mother's denial of the allegations of DHR's dependency petition, indicated that the parties had stipulated to the mother's need for DHR's services and that "the child is dependent"; custody of the child was vested in the maternal grandfather and his wife subject to the mother's visitation, and the mother was ordered to undergo drug testing, to attend parenting-skills and domestic-violence classes, and to participate in mental-health treatment. No transcript of the hearing leading to the entry of that order appears in the record in this appeal, nor was any appeal taken from that order.

The juvenile court held two "compliance/dispositional" hearings in September 2016 and December 2016 as to the child, noting in each instance that the mother was being given a "last chance" to come into full compliance with the provisions of the June 2016 order. Based upon its underscoring provisions in a form order and its specifying DHR's duty to provide "individual cognitive therapy" for the mother and the mother's duty to participate in that therapy, the juvenile court's particular concern appears to have been with the mother's progress in undergoing mental-health treatment. However, there is no transcript of either hearing in the record in this appeal.

In March 2017, the juvenile court again held a "compliance/dispositional" hearing as to the child; a licensed court reporter's transcript of that hearing appears in the record. Counsel for DHR stated on the record at that hearing that the mother had been diagnosed as having a depressive disorder, had been in a number of relationships in which she had been subjected to domestic violence, but had failed to attend counseling sessions as required; the guardian ad litem for the child also noted the mother's noncompliance. However, no evidence was adduced at that hearing regarding whether the child remained dependent. Nonetheless, the juvenile court entered an order closing the case to further review and vesting the child's custody in the maternal grandfather and his wife. Following the denial of her postjudgment motion, and her retention of new counsel, the mother appealed to this court. We have jurisdiction pursuant to Rule 28(A)(1)(c)(ii), Ala. R. Juv. P.

On appeal, the mother contends that the June 2016 order in which the child's dependency was first adjudicated was improper because, she says, the juvenile court could not find the child dependent without clear and convincing evidence. However, the child's guardian ad litem, who filed a letter brief in response to the mother's brief, asserts that (1) the June 2016 order was expressly based upon the parties' stipulations that the mother needed DHR's services and that the child was dependent and (2) that the mother is barred, under the law-of-the-case doctrine, from attacking the correctness of that order because she failed to appeal from that order in a timely manner, citing M.H. v. Jefferson County Department of Human Resources, 42 So.3d 1291 (Ala. Civ. App. 2010). We agree with the guardian ad litem that "any error the juvenile court may have committed in this case by [concluding that the child was dependent as of June 2016] should have been appealed at that point and cannot now be raised following" the entry of a subsequent judgment closing the case to further review, 42 So.3d at 1293, and that the June 2016 order is beyond our scope of review.

However, the mother also insists that the March 2017 order-which order, the record reveals, was entered based upon the arguments of counsel rather than ore tenus evidence-was erroneous because it amounted to a final dispositional judgment as to the child without the presence of evidence indicating that the child remained dependent. Both DHR and the guardian ad litem, in their letter briefs, have confessed the existence of error as to that order because, they say, the mother was entitled to be heard as to the issue of the child's continued dependency, yet the juvenile court did not conduct a full evidentiary hearing when the child's custody was finally disposed and the case was closed. As to the March 2017 order, therefore, "[t]he posture of the case is in effect a confession of error on the part of the appellee[s] and a joinder therein by the appellant," Payton v. Sexton, 273 Ala. 224, 225, 137 So.2d 747, 748 (1962) ; we therefore reverse that order and remand the cause for an evidentiary hearing regarding the issue whether the child remains dependent under Alabama law and, if so, for an appropriate custodial disposition.

REVERSED AND REMANDED.

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

      Our decision today should not be interpreted as receding from our holding in E.W. v. Jefferson County Department of Human Resources, 84 So.3d 966, 967 (Ala. Civ. App. 2011), to the effect that a party defending a juvenile-court custody disposition incident to a prior determination of dependency may properly rely upon an appellant's failure to preserve in the trial court a claim of entitlement to an evidentiary hearing.


author: THOMAS, Judge.

text:
    EX PARTE Noy KRUKENBERG
    (In re: Gwendolyn Riggs v. Noy Krukenberg)
    2160817
    Court of Civil Appeals of Alabama.
    October 13, 2017
    Eric B. Funderburk of Law Offices of Funderburk & Lane, Phenix City, for petitioner.
    Kimberly Moody Dean of Dean & Barrett, Opelika, for respondent.
   THOMAS, Judge.

Noy Krukenberg ("the mother") is the mother of two children, C.A and G.A. ("the children"). The children were born in Texas to the mother and Michael Aumock ("the father"), who were never married. In June 2012, the mother and the children moved to Alabama. In August 2012, the father's mother, Gwendolyn Riggs ("the paternal grandmother"), sought grandparent visitation in an action she commenced in the District Court of Dallas County, Texas ("the Texas court"); the Texas court awarded the paternal grandmother specific visitation with the children in a November 2013 judgment ("the Texas judgment").

In September 2014, the paternal grandmother commenced an action ("the 2014 enforcement action") in the Lee Circuit Court ("the circuit court") seeking to register and enforce the Texas judgment pursuant to Ala. Code 1975, § 30-3B-305, seeking to hold the mother in contempt of the Texas judgment, or, in the alternative, seeking grandparent visitation under Alabama law if the Texas judgment was not successfully registered. The mother did not request a hearing to contest the validity of the registration of the Texas judgment, and the registration of the Texas judgment was confirmed as a matter of law. See § 30-3B-305(e). In March 2015, the circuit court entered an order indicating that the Texas judgment had been "domesticated," indicating that the parties were to be allowed an opportunity to "perform in good faith under the terms of the Texas [judgment] during spring break and summer 2015," and ordering the parties to provide a status update by September 1, 2015.

After a hearing in the 2014 enforcement action, the circuit court entered a judgment on December 23, 2015 ("the December 2015 judgment"), holding the mother in contempt for her failure to allow the paternal grandmother to exercise visitation. The circuit court specifically recognized in the December 2015 judgment that it lacked the power to modify the Texas judgment and that it was merely enforcing it under Ala. Code 1975, § 30-3B-306. We note that the enforcement of the Texas judgment did not change the Texas judgment into an Alabama child-custody determination. See Official Comment to § 30-3B-306 (stating that, even when registered and enforced by a sister state, a child-custody determination "remains a custody determination of the state that issued it"). No appeal was taken from the December 2015 judgment.

In September 2014, while the 2014 enforcement action was pending in the circuit court, the mother's husband, Shane Krukenberg ("the stepfather"), filed in the Lee Probate Court ("the probate court") a complaint seeking to adopt the children ("the adoption action") pursuant to Ala. Code 1975, § 26-10A-27, which governs stepparent adoptions. The adoption action was later transferred to the Lee Juvenile Court ("the juvenile court") and remained pending until a final hearing, which was held on July 20, 2017. The juvenile court denied the adoption.

The mother, the stepfather, and the children moved to Kentucky in July 2015. In June 2017, the paternal grandmother filed an action in the circuit court seeking to again hold the mother in contempt of the Texas judgment ("the 2017 enforcement action"). The paternal grandmother had the mother served in the 2017 enforcement action at the mother's residence in Kentucky.

The mother filed in the circuit court a motion to dismiss the 2017 enforcement action. She attached to that motion an affidavit averring that she and the children had lived in Kentucky since July 2015. On July 20, 2017, the circuit court entered an order denying the mother's motion, stating that "this court has continuing jurisdiction to enforce its orders. Further, it is this court's intention to retain jurisdiction until further orders to the contrary." In the same order, the circuit court set the contempt issue for a trial on August 16, 2017, and ordered that the paternal grandmother be permitted to take the children with her for a period of visitation to end by August 12, 2017. The July 20, 2017, order was personally served on the mother while she was at the trial of the adoption action.

The mother filed this petition for the writ of mandamus on July 25, 2017. On the same date, she also sought a stay of that portion of the July 20, 2017, order setting a trial on the contempt issues for August 16, 2017, and of that portion of the order permitting the paternal grandmother to exercise visitation with the children. We granted the stay of the August 16, 2017, trial, denied the stay insofar as it sought relief from the order mandating visitation with the paternal grandmother, and called for an answer to the petition, which has been filed. The mother amended her petition on July 26, 2017, to add an additional argument relating to the validity of the December 2015 judgment.

"The denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ; Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 57 (Ala. 2006). With regard to an appellate court's consideration of a petition for a writ of mandamus, our supreme court has stated:
" 'This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987).' "

Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala. Civ. App. 2010) (quoting Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ).

The mother raises three arguments in her petition and amended petition. She first contends that the circuit court lacks subject-matter jurisdiction over the 2017 enforcement action because she and the children no longer live in Alabama. She then argues that the circuit court lacks personal jurisdiction over her. Finally, the mother argues that, because the paternal grandmother did not strictly comply with the requirements of § 30-3B-305 when she filed her complaint seeking registration of the Texas judgment in the 2014 enforcement action, the December 2015 judgment is void and the circuit court necessarily lacks subject-matter jurisdiction over the 2017 enforcement action because the Texas judgment has never been properly registered in Alabama.

We will first consider the mother's argument that the circuit court lacks personal jurisdiction over her. She contends that, although she lived in Alabama in the past, she no longer has minimum contacts with the state sufficient to permit the circuit court to exercise either general or specific in personam jurisdiction over her. We agree.

As the mother contends, the fact that she is no longer an Alabama resident requires us to determine whether an Alabama court may exercise jurisdiction over her.

" Rule 4.2(b), Ala. R. Civ. P., permits Alabama courts to exercise personal jurisdiction over an out-of-state defendant. It provides, in pertinent part, as follows:
" '(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States ....'
"Regarding Rule 4.2(b), [the Alabama Supreme] Court has said:
" 'In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama's long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. Duke v. Young, 496 So.2d 37 (Ala. 1986) ; DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447 (Ala. 1977). As this Court reiterated in Ex parte McInnis, 820 So.2d 795, 802 (Ala. 2001) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala. 1994) ), and even more recently in Hiller Investments Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala. 2006) : " Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the Alabama courts to the limit of due process under the federal and state constitutions." (Emphasis added.)'
" Ex parte DBI, Inc., 23 So.3d 635, 643 (Ala. 2009)."

Ex parte Alamo Title Co., 128 So.3d 700, 709 (Ala. 2013).

The Alabama Supreme Court has explained the limits of due process in regard to service of process on a nonresident defendant as follows:

"The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient 'minimum contacts' with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant's contacts is whether the contacts are such that the nonresident defendant ' "should reasonably anticipate being haled into court" ' in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)."

Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002).

There are two bases for in personam jurisdiction over a nonresident defendant: general and specific. Ex parte J.R.W., 667 So.2d 74 (Ala. 1994) (quoting Murray v. Alfab, Inc., 601 So.2d 878 (Ala. 1992) ). As our supreme court explained in Ex parte J.R.W. :

" 'General jurisdiction applies where a defendant's activities in the state are "substantial" and "continuous and systematic," even if the cause of action is unrelated to those activities. Data Disc, Inc. v. Systems Tech. Assoc., 557 F.2d 1280, 1287 (9th Cir. 1977). Where general jurisdiction does not exist, a court may still exercise specific jurisdiction if the defendant has sufficient contacts with the forum state in relation to the cause of action.
" 'In a particular case, the kind of jurisdiction obtained depends upon the nature and the quality of the contacts, but in any case it is essential that there be some act by which the defendant purposely avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958).' "

Ex parte J.R.W., 667 So.2d at 83 (quoting Murray, 601 So.2d at 883-84 ) (emphasis added in Ex parte J.R.W. ).

The mother convincingly argues that she does not have sufficient contacts with Alabama to establish general jurisdiction. The mother and the children lived in Alabama until July 2015, but she and the children no longer live in the state. See Hinrichs v. General Motors of Canada, Ltd., 222 So.3d 1114, 1123 (Ala. 2016) (quoting Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S.Ct. 746, 760, 187 L.Ed.2d 624 (2014), quoting in turn Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ) (" ' "For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home." ' "). The materials before us contain nothing establishing that the mother was domiciled in Alabama or engaged in "substantial" or "continuous and systematic" activities in Alabama after July 2015. Thus, we will next consider whether the mother had contact with Alabama sufficient to give rise to specific jurisdiction.

Our supreme court has explained that "[t]he focal point of the analysis [of specific jurisdiction] is the alleged 'contacts' which a defendant has with the forum state. Courts look to 'the relationship among the defendant, the forum, and the litigation.' " Duke v. Young, 496 So.2d 37, 39 (Ala. 1986) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) ). In the examination of these contacts, "[c]rucial to the analysis is the element of foreseeability of the consequences of the defendant's activities." Duke, 496 So.2d at 39. As the Duke Court stated, "[t]here must be a clear, firm [nexus] between the acts of the defendant and the consequences complained of in order to establish the necessary contacts." Id.

The paternal grandmother focuses on the fact that the adoption action remained pending in Alabama. She contends that the "mother invoked the benefits and protections of the law of Alabama as recently as July 20, 2017, when she sought a stepparent adoption order on behalf of [the stepfather] in [the juvenile court]." Indeed, the materials reflect that a trial in the stepfather's adoption action was held on July 20, 2017; however, the adoption action had been pending in Alabama since 2014. The fact that the stepfather maintained the adoption action and prosecuted it to its conclusion does not compel the conclusion that the mother, who was not a party to that action, "invoked" any benefits or protections of Alabama law. Jurisdiction over the adoption action attached at the time the adoption petition was filed in September 2014, when the stepfather, the mother, and the children resided in Alabama; that jurisdiction continued despite the relocation of those persons. See Steensland v. Alabama Judicial Inquiry Comm'n, 87 So.3d 535, 542 (Ala. 2012) (quoting In re Peoples, 296 N.C. 109, 146, 250 S.E.2d 890, 911 (1978) ) (explaining that jurisdiction of a court is not typically " 'ousted by subsequent events' " and continues until the judicial process is completed). Thus, we conclude that the stepfather's continuation of the adoption action does not provide a basis upon which to rest in personam jurisdiction over the mother.

Furthermore, the adoption action is not related to the actions that form the basis of the paternal grandmother's enforcement action, which were that the mother had refused to allow the paternal grandmother to exercise her spring break 2017 and her summer 2017 visitation pursuant to the Texas judgment. The paternal grandmother does not explain how the adoption action relates to the mother's allegedly contemptuous denial of visitation. Nothing in the materials before this court indicates that the actions of the mother in allegedly denying visitation occurred in Alabama. Instead, it appears that those actions necessarily occurred in Kentucky, where the mother and the children reside. Thus, we have before us no indication that the mother has had any contacts with Alabama related to the 2017 enforcement action instituted by the paternal grandmother.

Because the materials before us demonstrate that the mother has had no contacts with Alabama since 2015 sufficient to give rise to general in personam jurisdiction and no contacts relating to the allegations giving rise to the 2017 enforcement action sufficient to create specific in personam jurisdiction, the mother has established that she is entitled to the relief that she requests. We therefore grant the mother's petition and order the circuit court to dismiss the 2017 enforcement action. In light of our determination that the circuit court lacks in personam jurisdiction over the mother, we pretermit consideration of her other arguments.

PETITION GRANTED; WRIT ISSUED.

Thompson, P.J., and Pittman, J., concur.

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

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

MOORE, Judge, concurring in the result.

In 2015, the Lee Circuit Court ("the trial court") registered an order entered by the District Court of Dallas County, Texas, which granted Gwendolyn Riggs ("the paternal grandmother") grandparent visitation with the children of Noy Krukenberg ("the mother"). On June 14, 2017, the paternal grandmother filed in the trial court a civil action alleging that the mother had contemptuously violated the Texas grandparent-visitation order that had previously been registered by the trial court. The mother moved to dismiss the contempt action on the grounds of lack of subject-matter jurisdiction and lack of personal jurisdiction. In her motion, the mother asserted that she and the children had moved to Kentucky in 2015 and had resided there since, facts the paternal grandmother does not contest. The trial court denied the motion to dismiss, prompting the mother to file with this court a petition for a writ of mandamus directing the trial court to dismiss the contempt action.

When an Alabama court registers a foreign child-custody determination, like the Texas grandparent-visitation order in this case, see Ala. Code 1975, § 30-3B-102(3) (defining "child custody determination" to include visitation orders), the order remains a custody determination of the foreign state. See Official Comment to Ala. Code 1975, § 30-3B-306. Nevertheless, an Alabama court that has registered a foreign child-custody determination "may grant any relief normally available under the law of this state to enforce a registered child custody determination made by a court of another state." Ala. Code 1975, § 30-3B-306(a). Under § 30-3B-306(a), the trial court has jurisdiction to grant the paternal grandmother any relief "normally available" under Alabama law to enforce the Texas grandparent-visitation order.

In Ex parte Stouffer, 214 So.3d 1192 (Ala. Civ. App. 2016), a majority of this court held that a court of this state may enforce its own child-custody determination even though the children and the parents no longer reside in Alabama. I dissented to that holding because I believe the drafters of Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), Ala. Code 1975, § 30-3B-101 et seq., intended that a court would lose all subject-matter jurisdiction over a child-custody determination once the children and the parents no longer have any connection to the State of Alabama. In Ex parte Gallant, 221 So.3d 1120 (Ala. Civ. App. 2016), I authored the opinion of the court, in which all the judges of this court concurred, which perpetuated the holding in Ex parte Stouffer, although I remained convinced that the UCCJEA does not bestow jurisdiction on an Alabama court to enforce child-custody determinations when the parties and the children involved have long departed from Alabama to reside in another state and they no longer maintain any connection to this state. This case differs from Ex parte Stouffer and Ex parte Gallant in that the trial court is being asked to enforce a foreign child-custody determination. However, the same principle of jurisdiction applies because § 30-3B-306 does not confer greater jurisdiction on an Alabama court to enforce a foreign child-custody determination than the same court would have to enforce its own child-custody determination.

For the same reasons I dissented in Ex parte Stouffer, I would hold that the trial court in this case lacks subject-matter jurisdiction to enforce the Texas grandparent-visitation order. When the paternal grandmother commenced the contempt action, which is a separate action from the original registration action, see Decker v. Decker, 984 So.2d 1216 (Ala. Civ. App. 2007), the mother and the children had been residing in Kentucky for approximately two years. The paternal grandmother has at all material times resided in Texas. The parties and the children have no substantial connection to this state. Accordingly, in my opinion, the trial court lacks subject-matter jurisdiction to enforce the Texas grandparent-visitation order through a contempt finding or otherwise because such relief would not be "normally available" had the trial court entered the grandparent-visitation order itself.

Because I conclude that the trial court lacks subject-matter jurisdiction over the contempt action, I concur in the decision to grant the petition for a writ of mandamus, but I find no need to discuss the issue of personal jurisdiction.

      When considering a motion to stay a trial court's judgment pending appeal, this court considers the following factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). In cases involving the custody of children, this court also considers the best interest of the children involved.
      In this particular instance, we considered that the mother had some likelihood of success on the merits, but the stay motion and the accompanying materials did not indicate that the allowance of visitation pursuant to the Texas judgment would irreparably injure the mother or the children. We noted that the children were 15 years old and that, although the materials indicated that the father was incarcerated in Texas at some point, the basis for his incarceration or its length were not revealed in the petition or the stay motion. Thus, we concluded that the stay motion lacked support for any conclusion that a stay should be granted to protect the mother or the children from the visitation awarded in the July 20, 2017, order. However, in light of the possibility of the mother's success on the merits and the probable injury that would result from the mother's being required to defend the contempt charges if we were to later decide that the circuit court lacked jurisdiction, we decided to stay the trial set for August 16, 2017, pending resolution of the mother's mandamus petition.


author: MOORE, Judge. THOMPSON, Presiding Judge, concurring in part and dissenting in part.

text:
    EX PARTE AMPRO PRODUCTS, INC.
    (In re: Toni Colvin v. Ampro Products, Inc.)
    2160818
    Court of Civil Appeals of Alabama.
    October 13, 2017
    Apsilah O. Millsaps of Owens & Millsaps, LLP, Tuscaloosa, for petitioner.
    Bernard D. Nomberg and David P. Nomberg of the Nomberg Law Firm, Birmingham, for respondent.
   MOORE, Judge.

Ampro Products, Inc. ("the employer"), has petitioned this court for a writ of mandamus directed to the Pickens Circuit Court ("the trial court") in a workers' compensation case filed by Toni Colvin ("the employee"). We grant the petition in part and deny it in part.

Procedural History

On September 18, 2015, the employee filed a complaint seeking workers' compensation benefits from the employer. On April 28, 2017, the trial court held a hearing on the issue of compensability. At the close of the hearing, the employee submitted a list of expenses that he had incurred in proving that his injury was compensable and requested reimbursement for those expenses. On May 30, 2017, the employer filed a motion requesting, among other things, that the trial court dismiss the employee's complaint, pursuant to Rule 41(b), Ala. R. Civ. P., as a sanction for his having allegedly perjured himself.

On June 9, 2017, the trial court entered an order finding that the employee had suffered a compensable injury and taxing the expenses requested by the employee as costs against the employer. On June 22, 2017, the employer filed a motion to reconsider the taxing of costs; the employee filed a response to that motion on June 29, 2017. The trial court denied the motion to reconsider the taxing of costs on June 29, 2017. On July 21, 2017, the employer filed its petition for a writ of mandamus with this court.

Discussion

I.

In its petition, the employer first argues that the trial court erred in declining to dismiss the employee's complaint as a sanction for the employee's alleged perjury.

"As this Court has consistently held, the writ of mandamus is a
" ' "drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." '
" Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) )."

Ex parte Alabama Dep't of Transp., 978 So.2d 17, 20-21 (Ala. 2007).

" 'It is well settled that the decision whether to enter a Rule 41(b) [, Ala. R. Civ. P.,] dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala. 1990) ; Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala. 1987) ; State ex rel. S.M. v. A.H., 832 So.2d 79, 80 (Ala. Civ. App. 2002) ; and Coulter v. Stewart, 726 So.2d 726, 728 (Ala. Civ. App. 1999). However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala. 1978). Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. Id. In reviewing the trial court's dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record. Nash v. Cosby, 597 So.2d 209, 210 (Ala. 1992) ; Atkins v. Shirley, 561 So.2d at 1077 ; and Riddlesprigger v. Ervin, 519 So.2d at 487."

Smith v. Davidson, 58 So.3d 177, 180-81 (Ala. Civ. App. 2010).

In the present case, during the compensability hearing, the employee admitted that, in his depositions and interrogatories, he had given inaccurate and/or incomplete answers regarding his prior medical and employment histories. We note, however, that the employee stated at the hearing that he had been confused concerning some of the questions and that he had not remembered portions of his history when asked about that history during his deposition. Furthermore, through the process of discovery, the employer had been able to obtain records concerning the employee's medical and employment histories and had had the opportunity to cross-examine the employee concerning the discrepancies between those records and the employee's discovery responses. Indeed, the trial court concluded in its June 9, 2017, order that, "[w]hile the [employer] presented significant and substantial evidence challenging the credibility of the [employee], it was outweighed by the undisputed evidence regarding legal and medical causation, specifically the consistency of the medical records regarding the injury of the [employee's] left shoulder."

Based on the foregoing, we conclude that the trial court could have determined that some, if not all, of the employee's inaccurate testimony had been unintentional and that any disadvantage to the employer had been ameliorated by further discovery and the cross-examination of the employee at the compensability hearing. Therefore, we cannot conclude that the trial court exceeded its discretion in declining to impose the "drastic sanction" of dismissal of the employee's case. Smith, 58 So.3d at 180.

II.

The employer also argues that there was not substantial evidence of legal and medical causation to support a finding of compensability.

Because the trial court found that the employee had suffered a compensable injury and ordered the employer to provide medical treatment but did not award any temporary-total-disability benefits, review of the order by a petition for the writ of mandamus is appropriate. See Belcher-Robinson Foundry, LLC v. Narr, 42 So.3d 774, 775-76 (Ala. Civ. App. 2010) ("[A] mere compensability determination that awards no relief, other than directing an employer to allow medical treatment, is not a 'final judgment' that is subject to appellate review, but is instead reviewable by an appellate court only by a petition for a writ of mandamus."); see also Ex parte Fairhope Health & Rehab, LLC, 175 So.3d 622, 625-26 (Ala. Civ. App. 2015) ; compare with Ex parte Lowe's Home Centers, LLC, 209 So.3d 496, 501-02 (Ala. Civ. App. 2016).

" 'Section 25-5-81(e), Ala. Code 1975, provides the standard of review in workers' compensation cases:
" ' "(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
" ' "(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence."
" 'Substantial evidence is " 'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' " Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989) ).'
" White Tiger Graphics, Inc. v. Clemons, 88 So.3d 908, 910 (Ala. Civ. App. 2012)."

Ex parte Fairhope Health & Rehab, LLC, 175 So.3d at 626.

In the present case, the trial court expressly relied extensively on the testimony of Dr. Stephen Ikard, one of the employee's treating physicians, in determining that the employee had proven medical causation. It further expressly relied on "undisputed evidence regarding legal and medical causation, specifically[,] the consistency of the medical records regarding the injury of the [employee's] left shoulder." The employer, however, has failed to submit the entire deposition testimony of Dr. Ikard or the complete medical records as appendices to the mandamus petition. "The petitioner has the responsibility of supplying the [appellate] Court with those parts of the record that are essential to an understanding of the issues set forth in the mandamus petition." Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 814 n.6 (Ala. 2003). Without the benefit of the complete evidentiary materials upon which the trial court expressly relied, we cannot determine that there was not substantial evidence of legal and medical causation to support the determination of compensability. Therefore, we decline to grant the employer's petition on this point.

III.

Finally, the employer argues that the trial court erred in taxing certain costs against it, specifically, the cost of the deposition of the employee's vocational expert, mediation costs, the cost to employ a private investigator to serve a subpoena, and the cost to pay a third-party service to order and receive medical records.

"According to §§ 25-5-89 and 12-21-144, [Ala.] Code 1975, the taxing of costs in a case is within the discretion of the trial court, subject to the guideline of Rule 54(d), A[la]. R. Civ. P." Littleton v. Gold Kist, Inc., 480 So.2d 1236, 1238 (Ala. Civ. App. 1985). With regard to the deposition of Dr. Donald Blanton, the employee's vocational expert, we note that "a trial court may, in its discretion, tax all of the costs of any deposition taken in a case, regardless of whether the deposition was used at trial, if the deposition was reasonably necessary." Bundrick v. McAllister, 882 So.2d 864, 866 (Ala. Civ. App. 2003). In the present case, the employee stated that Dr. Blanton had been hired as a vocational expert to determine the employee's degree of vocational disability. However, the sole issue decided thus far is compensability. Therefore, we conclude that the deposition of the employee's vocational expert was not "reasonably necessary" to the issues that have been decided at this point in the litigation and, therefore, was not properly taxed as costs.

The employer also argues that mediation fees are not recoverable as costs and that allowing those fees to be taxed as costs would discourage parties from submitting to mediation. Section 6-6-20(b)(2), Ala. Code 1975, provides that "[t]he party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed." The employer asserts that, in this case, the parties agreed to split equally the cost of mediation. We agree with the employer that allowing the mediation costs to be taxed as costs in favor of a prevailing party "would potentially act as a disincentive to mediating claims generally." Kayser v. McClary, 875 F.Supp.2d 1167, 1183 (D. Idaho 2012). Therefore, we conclude that the trial court exceeded its discretion in taxing the mediation costs to the employer.

With regard to the private-investigator fees for serving a subpoena, the employer points out that, in Bundrick v. McAllister, 882 So.2d 864 (Ala. Civ. App. 2003), this court held that costs to employ a private investigator to serve a subpoena were not properly taxable under Rule 54(d). Therefore, we conclude that the trial court erred in taxing that cost against the employer.

Finally, with regard to the cost to pay a third-party service to order and receive medical records, the employer argues that that cost is akin to an attorney's fee, which is not recoverable under Rule 54(d). In Eberhart v. Novartis Pharmaceuticals Corp., 282 F.R.D. 697, 701 (N.D. Ga. 2012), the United States District Court for the Northern District of Georgia, Atlanta Division, held that allowing the recovery of costs "for outsourced personnel to perform services to locate and pursue medical records" "would allow [the party outsourcing the services] to circumvent clear restrictions [against an award of attorney's fees]." In workers' compensation cases, attorney's fees are not recoverable in the absence of bad faith on the part of the employer. See, e.g., Ex parte Cowgill, 587 So.2d 1002, 1003-04 (Ala. 1991). There was no allegation of bad faith in the present case. Therefore, like in Eberhart, we conclude that the trial court in the present case exceeded its discretion in awarding costs for the outsourcing of services for ordering and receiving medical records, costs that are akin to an award of attorney's fees against the employer.

Conclusion

Based on the foregoing, we grant the petition with regard to the issue of costs and issue a writ of mandamus directing the trial court to vacate its order taxing the costs discussed in this opinion. The petition is denied in all other respects.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Pittman and Donaldson, JJ., concur.

Thompson, P.J., concurs in part and dissents in part, with writing, which Thomas, J., joins.

THOMPSON, Presiding Judge, concurring in part and dissenting in part.

I do not believe this court can, at this stage of the litigation, reach the issue of whether the trial court erred in taxing certain costs against Ampro Products, Inc., the employer. The authority for taxing costs in a workers' compensation case is derived from § 25-5-89, Ala. Code 1975, which provides, in pertinent part, that "[c]osts may be awarded by [the trial] court in its discretion, and, when so awarded, the same costs shall be allowed, taxed and collected as for like services and proceedings in civil cases."

Rule 54(d), Ala. R. Civ. P., which authorizes the taxing of costs to the prevailing party, is a subsection of Rule 54, Ala. R. Civ. P., subsection (a) of which defines a "judgment" as an order "from which an appeal lies."

Our review in this case is by means of a petition for a writ of mandamus, not by an appeal, because there is not yet a final judgment in the underlying matter. The main opinion recognizes this in determining that the issue of the taxing of costs for the deposition of Dr. Donald Blanton, the vocational expert for Toni Colvin, the employee, "was not 'reasonably necessary' to the issues that have been decided at this point in the litigation and, therefore, was not properly taxed as costs." 252 So.3d at 688-89. It has become axiomatic that "[a]ppellate review in a piecemeal fashion is not favored." Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala. Civ. App. 1996). The trial court will have to revisit the taxing of costs when a final judgment is entered in this matter. Accordingly, I do not believe the propriety of the trial court's decision to tax any costs against the employer is properly before this court. For that reason, I respectfully dissent to that portion of the main opinion that considers the taxing of costs. I concur with the remainder of the opinion.

Thomas, J., concurs.

      Although the materials before this court do not include an order denying the employer's motion to dismiss, the materials do indicate that the trial court denied oral motions to dismiss made by the employer at the conclusion of the compensability hearing.


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: J.L.S.
    CASE NO.: SC18-1356
    Supreme Court of Florida.
    AUGUST 24, 2018
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and J.L.S. shall be admitted to The Florida Bar subject to the following conditions:
    1. The Applicant's license to practice law shall be placed on probation for a period of two years.
    2. During the period of probation, the Applicant shall:
    (a) abstain from the consumption of alcoholic beverages;
    (b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
    (c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on November 28, 2017, and by extending the contract to cover the entire period of probation if necessary;
    (d) submit to and pay for a minimum of eight (8) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.;
    (e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.; and
    (f) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to compliance with the conditions set forth in 2 (a), (b), (c), (d), and (e) above.
    3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the Applicant to The Florida Bar or its designated monitoring agency.
    4. To monitor effectively the provisions in this agreement, the Applicant shall reside within Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the Applicant relocates outside Florida during the probationary period for any reason, the Applicant shall surrender his license to practice law in Florida and if the Applicant fails to do so, the Supreme Court of Florida shall terminate his license.
    5. The Applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the Applicant's practice of law.
    6. If the Applicant's license is surrendered or terminated during the probationary period, the Applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.
    7. A failure to observe the conditions of the probation or a finding of probable cause by The Florida Bar as to conduct of the Applicant committed during the period of probation may terminate the probation and subject the Applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The Applicant shall have ten days to file a response. If no response is timely filed by the Applicant, then the Court shall issue an order suspending the Applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the Applicant.
    8. If circumstances so warrant it, the Applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.
    9. The Applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the Applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.
    10. The Applicant specifically consents to and authorizes the release of any and all materials in the Applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.
    A True Copy
    Test:
    John A. Tomasino
    Clerk, Supreme Court


text:
    Vinodh M. RAGHUBIR, Petitioner(s) v. STATE of Florida, Respondent(s)
    CASE NO.: SC18-825
    Supreme Court of Florida.
    JUNE 11, 2018
    The petition for writ of mandamus is hereby dismissed because petitioner raises the same issues as in Raghubir v. State, No. SC18-714, 2018 WL 2230720 (Fla. May 16, 2018), in which the petition was transferred to the district court.
    This Court hereby expressly retains jurisdiction to pursue any possible sanctions against petitioner. See generally Fla. R. App. P. 9.410(a).
    Since 2017, petitioner has filed twenty-one other petitions or notices with the Court. To date, the Court has transferred, dismissed, or denied thirteen of petitioner's filings. See Raghubir v. State, No. SC18-712, 2018 WL 2427620 (Fla. May 30, 2018) (denying quo warranto petition); Raghubir v. State, No. SC18-713, 2018 WL 2427621 (Fla. May 30, 2018) (dismissing mandamus petition); Raghubir v. State, No. SC18-716, 2018 WL 2427623 (Fla. May 30, 2018) (denying quo warranto petition); Raghubir v. State, No. SC18-526, 2018 WL 2318094 (Fla. May 22, 2018) (denying mandamus petition in part, and dismissing petition in part for lack of jurisdiction); Raghubir v. State, No. SC18-704, 2018 WL 2324303 (Fla. May 22, 2018) (denying prohibition petition); Raghubir v. State, No. SC18-711, 2018 WL 2230478 (Fla. May 16, 2018) (transferring quo warranto petition to the circuit court); Raghubir v. State, No. SC18-714, 2018 WL 2230720 (Fla. May 16, 2018) (transferring mandamus petition to the Fifth DCA for consideration as a notice of appeal); Raghubir v. State, No. SC18-705, 2018 WL 2192456 (Fla. May 14, 2018) (transferring mandamus petition to the Fifth DCA for consideration in the context of pending case number 5D17-912); Raghubir v. State, No. SC18-599, 2018 WL 1877778 (Fla. April 19, 2018) (dismissing notice to invoke discretionary jurisdiction for lack of jurisdiction); Raghubir v. State, No. SC18-252, 2018 WL 1151801 (Fla. Mar. 5, 2018) (transferring prohibition petition to the Fifth DCA for consideration in the context of pending case number 5D17-912); Raghubir v. State, No. SC18-228, 2018 WL 818074 (Fla. Feb. 12, 2018) (dismissing notice to invoke discretionary jurisdiction for lack of jurisdiction); Raghubir v. State, No. SC18-234, 2018 WL 824220 (Fla. Feb. 12, 2018) (dismissing notice to invoke discretionary jurisdiction for lack of jurisdiction); Raghubir v. Jones, No. SC17-893, 2017 WL 2481489 (Fla. June 8, 2017) (transferring habeas corpus petition to the Fifth DCA for consideration in the context of case numbers 5D16-3298 and 5D17-912).
    This Court has chosen to sanction pro se petitioners who have abused the judicial process and otherwise misused this Court's limited judicial resources by filing frivolous, non-meritorious, or otherwise inappropriate filings. Such petitioners have been barred from initiating further proceedings in this Court unless their pleadings, motions, or other requests for relief were filed under the signature of a member of The Florida Bar in good standing. See, e.g., Desue v. Jones, 213 So.3d 801 (Fla. 2017); Steele v. State, 14 So.3d 221 (Fla. 2009); Pettway v. McNeil, 987 So.2d 20 (Fla. 2008).
    It appearing that petitioner has abused the judicial process by filing numerous pro se filings in this Court that are either meritless or not appropriate for this Court's review, the Court now takes action. Therefore, Vinodh M. Raghubir is hereby directed to show cause on or before June 28, 2018, why he should not be barred from filing any pleadings, motions, or other requests for relief in this Court related to circuit and district court case numbers 482016CF001833000AOX, 482016CF005231000AOX, 5D17-3644, and 5D17-912, unless such filings are signed by a member of The Florida Bar in good standing.
    PARIENTE, LEWIS, QUINCE, POLSTON, and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Billy Leon KEARSE, Appellant, v. STATE of Florida, Appellee.
    No. SC18-458
    Supreme Court of Florida.
    August 30, 2018
    Neal Andre Dupree, Capital Collateral Regional Counsel, and Paul Kalil, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

We have for review Billy Leon Kearse's appeal of the circuit court's order denying Kearse's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Kearse's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Kearse responded to this Court's order to show cause arguing why Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Kearse's response to the order to show cause, as well as the State's arguments in reply, we conclude that Kearse is not entitled to relief. Kearse was sentenced to death following a jury's unanimous recommendation for death. Kearse v. State , 770 So.2d 1119, 1123 (Fla. 2000). His sentence of death became final in 2001. Kearse v. Florida , 532 U.S. 945, 121 S.Ct. 1411, 149 L.Ed.2d 352 (2001). Thus, Hurst does not apply retroactively to Kearse's sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Kearse's motion.

The Court having carefully considered all arguments raised by Kearse, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

CANADY, C.J., concurs in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock that Hurst should apply retroactively to cases like Kearse's. Id. at 220-23 (Pariente, J., dissenting). Of course, if Hurst applied to Kearse's case, he would likely not be entitled to relief based on the jury's unanimous recommendation for death, coupled with the absence of any stricken aggravating factors. Kearse v. State , 770 So.2d 1119, 1123 (Fla. 2000) ; see Davis v. State , 207 So.3d 142, 174-75 (Fla. 2016).

Notwithstanding, I emphasize Justice Anstead's dissenting opinion on direct appeal that Justice Shaw and I joined, which argued that "this case is clearly not one of the most aggravated, least mitigated of first-degree murders." Kearse , 770 So.2d at 1136 (Anstead, J., dissenting). Regardless of whether Hurst applies retroactively to Kearse's case, Justice Anstead's conclusion "that this is clearly not a death case" is significant. Id. at 1138.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).


text:
    IN RE: AMENDMENTS TO the FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS-FORM 12.961.
    No. SC17-1947
    Supreme Court of Florida.
    August 30, 2018
    Thomas J. Sasser, Jorge M. Cestero, Peter J. Trombadore, Trisha P. Armstrong, and Cash A. Eaton of Sasser, Cestero & Sasser, P.A., West Palm Beach, Florida; and Maria Liliana Obradovich, Chair, Tampa, Florida, Robert J. Merlin, Past Chair, Family Law Rules Committee, Coral Gables, Florida, Joshua E. Doyle, Executive Director, and Mikalla Andies Davis, Staff Liaison, The Florida Bar, Tallahassee, Florida, Responding with Comments
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Supreme Court Approved Family Law Forms. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Under Amendments to the Florida Family Law Rules of Procedure & Family Law Forms , 810 So.2d 1, 13-14 (Fla. 2000), the Court internally reviews and maintains the Florida Supreme Court Approved Family Law Forms. Previously in this case, we adopted amendments to Florida Supreme Court Approved Family Law Form 12.961 (Notice of Hearing on Motion for Contempt/Enforcement in Support Matters). The amendments added language to the form in order to clearly notify an alleged contemnor that his or her present ability to pay is a critical issue in the proceeding and that he or she will be provided an opportunity during the contempt hearing to respond to allegations and questions about his or her financial status, in accordance with Turner v. Rogers , 564 U.S. 431, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011). In re Amends. to Fla. Supreme Ct. Approved Fam. L. Forms-Form 12.961 , 232 So.3d 285, 285 (Fla. 2017). Additionally, the language of the form also advises the alleged contemnor whether the proceedings will be recorded electronically or by a court reporter, pursuant to Florida Family Law Rule of Procedure 12.615 (Civil Contempt in Support Matters). Id. After adoption of the amendments to form 12.961, interested parties were permitted to file comments with the Court; two comments were filed proposing additional revisions to form 12.961-one from Sasser, Cestero & Sasser, P.A., and the other from the Family Law Rules Committee.

Upon consideration of the comments, and having received input from the Advisory Workgroup on the Florida Supreme Court Approved Family Law Forms (Workgroup), we adopt additional amendments suggested by Sasser, Cestero & Sasser, P.A. to form 12.961 to add an additional option to the recording notification that we previously adopted in this case. In addition to the options notifying the alleged contemnor whether the proceedings will be recorded electronically or by a court reporter, we add a third option advising an alleged contemnor, option "c" which states: "No electronic recording is provided by the court and the court does not provide a court reporter. A party may provide a court reporter at that party's expense."

As to whether to amend form 12.961 to convert it to a universal form, we have considered the comments of the Family Law Rules Committee that the form should be made a universal form. However, after considering the recommendations of the Workgroup, we decline to make that change. Several members of the Workgroup felt that inclusion of the language for both General Magistrates and Child Support Hearing officers in one form would be confusing for self-represented litigants.

While we thank the Family Law Rules Committee and the hardworking Workgroup for their additional proposals to form 12.921 and form 12.920(c), we determine that any further proposed amendments should be handled in a separate case. Specifically, as to form 12.920(c), any proposal must be filed by the Florida Family Law Rules Committee since this form is a Florida Family Law Rules of Procedure form.

The amended form is adopted as set forth in the appendix to this opinion, fully engrossed and ready for use. The form shall become effective immediately upon release of this opinion. The form may be accessed and downloaded from the Florida State Courts' website at http://www.flcourts.org/resources-andservices/court-improvement/family-courts/family-law-forms.stml. By adoption of the form, we express no opinion as to its correctness or applicability.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.961 NOTICE OF HEARING ON MOTION FOR CONTEMPT/ENFORCEMENT IN SUPPORT MATTERS (RULE 12.615) (08/18)

When should this form be used?

Use this form anytime you have set ahearing on aMotion for Contempt/Enforcement, Florida Supreme Court Approved Family Law Form 12.960, for a support matter under rule 12.615, Florida Family Law Rules of Procedure. Before you fill out this form, you must coordinate a hearing time and date with the judge or hearing officer and the other party. If the Department of Revenue is a party to the case, you may need to schedule your hearing time with the attorney for the Department of Revenue.

If your case is to be heard by a child support enforcement hearing officer, the following information applies: A child support enforcement hearing officer is an attorney who has been appointed by administrative order of the court to take testimony and recommend decisions in cases involving the establishment, enforcement, and/or modification of child support , and the enforcement of alimony in conjunction with an ongoing child support arrearage order. If your case only involves issues pertaining to child support, you cannot object to the referral of your case to a hearing officer. If your case is going to be heard by ageneral magistrate, you should useNotice of Hearing Before General Magistrate, Florida Family Law Rules of Procedure Form 12.920(c).

This form should be typed or printed in black ink. After completing this form, you shouldfile the original with the clerk of the circuit court in the county where your case was filed and keep a copy for your records.

IMPORTANT INFORMATION REGARDING E-FILING

The Florida Rules of Judicial Administration now require that all petitions, pleadings, and documents be filed electronically except in certain circumstances.Self-represented litigants may file petitions or other pleadings or documents electronically; however, they are not required to do so. If you choose to file your pleadings or other documents electronically, you must do so in accordance with Florida Rule of Judicial Administration 2.525, and you must follow the procedures of the judicial circuit in which you file.The rules and procedures should be carefully read and followed.

What should I do next?

A copy of this form must be personally served by a sheriff or private process server, mailed*, e-mailed*, or hand delivered to any other party(ies) in your case. *Please note that if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. This is a technical area of the law;

if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions forSummons: Personal Service on an Individual, Florida Family Law Rules of Procedure Form 12.910(a).

IMPORTANT INFORMATION REGARDING E-SERVICE ELECTION

After the initial service of process of the petition or supplemental petition by the Sheriff or certified process server, the Florida Rules of Judicial Administration now require that all documents required or permitted to be served on the other party must be served by electronic mail (e-mail) except in certain circumstances.You must strictly comply with the format requirements set forth in the Rules of Judicial Administration. If you elect to participate in electronic service, which means serving or receiving pleadings by electronic mail (e-mail), or through the Florida Courts E-Filing Portal, youmust review Florida Rule of Judicial Administration 2.516. You may find this rule at www.flcourts.org or through the link to the Rules of Judicial Administration provided under either Family Law Forms: Getting Started, or Rules of Court in the A-Z Topical Index.

SELF-REPRESENTED LITIGANTS MAY SERVE DOCUMENTS BY E-MAIL; HOWEVER, THEY ARE NOT REQUIRED TO DO SO. If a self-represented litigant elects to serve and receive documents by e-mail, the procedures must always be followed once the initial election is made.

To serve and receive documents by e-mail, you must designate your e-mail addresses by using theDesignation of Current Mailing and E-mail Address, Florida Supreme Court Approved Family Law Form 12.915, and you must provide your e-mail address on each form on which your signature appears. PleaseCAREFULLY read the rules and instructions for:Certificate of Service (General), Florida Supreme Court Approved Family Law Form 12.914;Designation of Current Mailing and E-mail Address, Florida Supreme Court Approved Family Law Form 12.915; and Florida Rule of Judicial Administration 2.516.

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. For further information, see rules 12.615 and 12.941, Florida Family Law Rules of Procedure.

Special notes

An attorney who has been appointed by the court to serve as a child support enforcement hearing officer can also be appointed to serve as a general magistrate. If your case involves only child support issues, your case properly may be referred to a general magistrate acting as a child support enforcement hearing officer.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy ofDisclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete. IN THE CIRCUIT COURT OF THE ____________________ JUDICIAL CIRCUIT, IN AND FOR __________________________ COUNTY, FLORIDA

Case No.: _____________________________ Division: _____________________________ ________________________________________, Petitioner, and ________________________________________, Respondent.

NOTICE OF HEARING ON MOTION FOR CONTEMPT/ENFORCEMENT IN SUPPORT MATTERS (RULE 12.615)

TO:{name of other party} _____________________________________________

There will be a hearing before ___________________________{name of judge or hearing officer}, on{date } _______________, at{time} _____ m., in room _____ of the _________________ Courthouse, on the _____ Petitioner's _____ Respondent's Motion for Contempt/Enforcement in Support Matters. _____ hour(s)/____ minutes have been reserved for this hearing.

FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.

You are strongly urged to prepare and file a Florida Family Law Rules of Procedure Financial Affidavit, prior to the hearing, as your ability to pay is a critical issue in this contempt proceeding.

You will be provided an opportunity at the hearing to respond to allegations and questions about your present financial status.

This part is to be filled out by the court or to be filled in with information obtained from the court:

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact:

_____________________________________________________________________________________

{identify applicable court personnel by name, address, and telephone number} at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.

YOU ARE ADVISED THAT FOR THIS HEARING

a. ____ Electronic recording is provided by the court. A party may provide a court reporter at that party's expense.
b. ____ A court reporter is provided by the court.
c. ___ No electronic recording is provided by the court and the court does not provide a court reporter. A party may provide a court reporter at that party's expense.

If you are represented by an attorney or plan to retain an attorney for this matter, you should notify the attorney of this hearing.

If this matter is resolved, the moving party shall contact the judge or hearing officer's office to cancel this hearing.

I certify that a copy of this document was ____ mailed ____ faxed and mailed ____ e-mailed ____hand delivered to the person(s) listed below on{date} _________.

Other party or his/her attorney: Name: __________________________________ Address: _______________________________ City, State, Zip: ______________________ Fax Number: ____________________________ Designated E-mail Address(es): _________ ________________________________________ _______________________________________ Signature of Party Printed Name: _________________________ Address: ______________________________ City, State, Zip: _____________________ _______________________________________ Telephone Number: _____________________ Fax Number: ___________________________ Designated E-mail Address(es);_________ _______________________________________

IF A NONLAWYER HELPED YOU FILL OUT THIS FORM, HE/SHE MUST FILL IN THE BLANKS BELOW:

[fill inall blanks] This form was prepared for the:{choose only one} ___ Petitioner ___ Respondent.

This form was completed with the assistance of:

{name of individual} _______________________________________________________________, {name of business}__________________________________________________________________, {address}___________________________________________________________________________, {city} __________, {state} _____, {zip code}_________, {telephone number} _________.


text:
    Ian Deco LIGHTBOURNE, Appellant, v. STATE of Florida, Appellee.
    No. SC18-677
    Supreme Court of Florida.
    August 30, 2018
    Neal Andre Dupree, Capital Collateral Regional Counsel, Suzanne Keffer, Chief Assistant Capital Collateral Regional Counsel, and Nicole M. Noël, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Patrick A. Bobek, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

We have for review Ian Deco Lightbourne's appeal of the circuit court's order denying Lightbourne's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Lightbourne's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Lightbourne responded to this Court's order to show cause arguing why this Court's decisions in Lightbourne v. State , 235 So.3d 285 (Fla. 2018), petition for cert. filed , No. 18-5012 (U.S. June 28, 2018), and Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Lightbourne's response to the order to show cause, as well as the State's arguments in reply, we conclude that our prior denial of Lightbourne's appeal from the circuit court's denial of his successive motion for postconviction relief raising similar claims is a procedural bar to the claims at issue in this appeal. All of Lightbourne's claims depend upon the retroactive application of Hurst , to which we have held he is not entitled. See Lightbourne , 235 So.3d at 286 ; Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Lightbourne's motion.

The Court having carefully considered all arguments raised by Lightbourne, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J., concurring in result.

I agree with the per curiam opinion that we have formerly denied Lightbourne's claims to Hurst relief pursuant to Hitchcock , which, of course, is now final. Nevertheless, as I have expressed several times, I would apply Hurst retroactively to Lightbourne's case. See Hitchcock , 226 So.3d at 221-23 (Pariente, J., dissenting). Applying Hurst to Lightbourne's case, in which the jury's vote is unclear, I would grant a new penalty phase because the State cannot prove that the Hurst error is harmless beyond a reasonable doubt.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017).