author: THOMPSON, Presiding Judge.

text:
    DeWayne WOODS v. FEDERATED MUTUAL INSURANCE CO. DeWayne Woods v. Plumbing Contractors, LLC, and Timothy M. Sims.
    2070867 and 2070872.
    Court of Civil Appeals of Alabama.
    Feb. 27, 2009.
    Rehearing Denied July 2, 2009.
    Certiorari Denied Sept. 11, 2009
    Alabama Supreme Court 1081364.

      Robert D. Bryant of Law Offices of Robert H. Turner, Marion, for appellant.
    Jay S. Tuley of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellees.
   THOMPSON, Presiding Judge.

DeWayne Woods appeals from the judgment of the Dallas Circuit Court dismissing his appeal from the Dallas District Court’s judgment in his action against Federated Mutual Insurance Co. (“Federated”) (appeal number 2070867) and from the judgment of the Dallas Circuit Court dismissing his action against Plumbing Contractors, LLC (“Plumbing Contractors”), and Timothy M. Sims (appeal number 2070872). This court consolidated Woods’s appeals. For the reasons stated herein, we dismiss the former appeal, and we affirm the circuit court’s judgment challenged in the latter appeal.

On March 10, 2006, Federated, as subro-gee of Plumbing Contractors, sued Woods in the Dallas District Court. It alleged that Woods had damaged a truck owned by Plumbing Contractors, Federated’s insured, in an automobile accident on September 2, 2005. Federated claimed that it had paid $5,932.67 for the damage caused by Woods, and it claimed that amount from Woods as damages. After Woods did not answer the complaint, the district court entered a default judgment against Woods on July 14, 2006.

On May 31, 2007, Woods filed a motion to set aside the district court’s default judgment. He argued that, at the time of the application for default, Federated knew that he was represented by counsel and that he disputed Federated’s claim. He argued that the default judgment was due to be set aside on the basis of “mistake, inadvertence, surprise or excusable neglect,” and he asserted that he had a meritorious defense to Federated’s action. He also filed a claim of exemption from garnishment.

Also on May 31, 2007, Woods filed a complaint in the Dallas Circuit Court against Plumbing Contractors and Timothy Sims (“the circuit-court action”). He alleged that Sims, in the line and scope of his duties as an employee of Plumbing Contractors, had negligently and wantonly caused the automobile accident that was the basis of Federated’s district-court action and that Plumbing Contractors had negligently hired, trained, and supervised Sims. Woods sought a judgment in the amount of $50,000 for his alleged pain and suffering, mental anguish, emotional distress, and medical expenses, as well as punitive damages. Woods’s action was assigned case number CV-07-132.

The district court held a hearing on July 24, 2007, on Woods’s motion to set aside the default judgment and on his claim of exemption from garnishment. On August 3, 2007, the district court wrote on the case-action summary that Rule 60(b), Ala. R. Civ. P., requires that the grounds set out in Woods’s motion be raised within four months of the entry of the judgment. Because they were not, the court wrote, Woods’s motion was denied. A stamp on the case-action summary indicated that the district court’s order was filed in the clerk’s office on August 9, 2007. The State Judicial Information System (“SJIS”) report from the district-court action reflected that an order was entered on August 13, 2007, denying Woods’s claim for an exemption from garnishment. The SJIS report did not reflect the district court’s denial of Woods’s motion to set aside the default judgment.

On August 15, 2007, Plumbing Contractors filed a motion to dismiss the circuit-court action. It argued that the district court’s judgment in Federated’s district-court action barred the circuit-court action under the doctrine of res judicata. It argued in the alternative that the circuit-court action was barred because the claims Woods asserted therein were required to have been brought as compulsory counterclaims in Federated’s district-court action.

On August 23, 2007, Woods filed a notice of appeal to the Dallas Circuit Court from the district court’s denial of his motion to set aside the default judgment. That case was assigned case number CV-07-181. (Woods’s appeal of the district-court judgment to the circuit court is hereinafter referred to as “the district-court appeal.”)

On September 24, 2007, Federated filed a motion to dismiss the district-court appeal. It asserted, among other things, that Woods had failed to timely file his notice of appeal of the district court’s denial of his motion to set aside the default judgment. See § 12-12-70, Ala.Code 1975. As a result, it argued, the notice of appeal was untimely and the circuit court lacked jurisdiction over. Woods’s appeal. On October 9, 2007, Woods filed a motion to consolidate the circuit-court action with the district-court appeal. The circuit court denied that motion on October 22, 2007.

On November 13, 2007, the circuit court dismissed the district-court appeal on the basis that Woods had not timely filed his appeal of the district court’s order denying his motion to set aside the default judgment.

On November 26, 2007, Sims and Plumbing Contractors filed a supplement in support of the pending motion to dismiss the circuit-court action. They argued that the circuit court’s dismissal of the district-court appeal meant that the district court’s judgment remained a valid judgment and continued to bar the circuit-court action under the doctrine of res judi-cata.

Also on November 26, 2007, Woods filed a motion to vacate the dismissal of the district-court appeal and to set aside the district court’s default judgment. He argued that he was not served with the summons and/or the complaint in the district-court action. Thus, he contended, the district court never obtained .jurisdiction over him and, as a result, its default judgment in favor of Federated was void. On December 6, 2007, Woods filed a response to Sims and Plumbing Contractors’ motion to dismiss the circuit-court action in which he argued that the judgment in the district-court action was void for lack of jurisdiction and that, because it was a default judgment, it could not serve as a basis for barring the circuit-court action under the doctrine of res judicata.

On January 16, 2008, the circuit court granted the motion to dismiss the circuit-court action and denied Woods’s motion to vacate its order dismissing the district-court appeal. On February 12, 2008, Woods filed a document that he styled a “renewed motion to vacate order of dismissal and to set aside default judgment.” The document bore the case numbers of both actions. In that motion, Woods argued that the district court’s order denying his motion to set aside the default judgment was not entered, under Rule 58, Ala. R. Civ. P., until August 13, 2007, which, according to him, was the date on which the order was entered into the SJIS. Because there is a 14-day deadline by which to file an appeal to the circuit court following the entry of an adverse judgment by the district court, see § 12-12-70, Ala.Code 1975, he argued that his August 23, 2007, appeal of that order to the circuit court was timely filed. Woods’s February 12, 2008, motion, to the extent that it was a properly filed postjudgment motion under Rule 59(e), Ala. R. Civ. P., was denied by operation of law on May 12, 2008. See Rule 59.1, Ala. R. Civ. P. (If a trial court fails to dispose of a post-judgment motion filed pursuant to Rule 59(e) within 90 days of the date on which it is filed, the motion is denied by operation of law.). On June 19, 2008, Woods appealed the dismissals of both the circuit-court action and the district-court appeal to this court.

Woods contends that the circuit court erred when it dismissed both of the actions. He argues that his notice of appeal from the district court’s denial of his motion to set aside the default judgment was filed in a timely manner. Before reaching the merits of this contention, however, we turn first to the question whether this court has jurisdiction to entertain Woods’s appeals. Our review of the record indicates that, although we have jurisdiction to consider the appeal from the circuit-court action, we do not have jurisdiction to consider the appeal from the district-court appeal.

As previously noted, the circuit court dismissed the district-court appeal on November 13, 2007. That dismissal constituted a final judgment in that case because it was “ ‘a terminative decision by a court of competent jurisdiction which demonstrate^!] there ha[d] been complete adjudication of all matters in controversy between the litigants within the cognizance of that court.’ ” Coosa Valley Health Care v. Johnson, 961 So.2d 903, 905 (Ala.Civ.App.2007) (quoting Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976)). Woods filed a postjudgment motion to vacate the judgment in that case on November 26, 2007. That motion, filed pursuant to Rule 59(e), Ala. R. Civ. P., tolled the time for taking an appeal from the circuit court’s judgment of dismissal. See Rule 4(a)(3), Ala. R.App. P. The circuit court denied Woods’s postjudgment motion on January 16, 2008. Woods had 42 days from that date, or until February 27, 2008, to file a notice of appeal in that action. He did not file a notice of appeal until June 19, 2008. Because Woods’s notice of appeal of the dismissal of the district-court appeal was filed more than 42 days after the denial of his postjudgment motion in that action, the notice was untimely and this court is left with no alternative but to dismiss his appeal of that action. See Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006) (“[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived.”).

We conclude that this court does, however, have jurisdiction over the appeal from the dismissal of the circuit-court action. The circuit court dismissed that action on January 16, 2008. Woods’s February 12, 2008, motion to vacate the dismissal of that action tolled the time for filing an appeal in that action. See Rule 4(a)(3), Ala. R.App. P. As previously noted, the February 12, 2008, motion to vacate the dismissal was denied by operation of law on May 12, 2008, the circuit court having failed to rule on it. See Rule 59.1, Ala. R. Civ. P. Woods filed his notice of appeal from the circuit court’s dismissal of the circuit-court action on June 19, 2008, within 42 days from the denial of his postjudgment motion in that case. As a result, his appeal from the dismissal of the circuit-court action is timely.

We turn now to the merits of Woods’s appeal from the dismissal of the circuit-court action. The basis for Sims and Plumbing Contractors’ motion to dismiss the circuit-court action was that the district court’s default judgment in favor of Federated and against Woods constituted a bar under the doctrine of res judicata to Woods’s later action against them in the circuit court. In his principal brief, Woods has made no argument with regard to the doctrine of res judicata, the entire basis of Sims and Plumbing Contractors’ motion to dismiss, nor has he cited to any legal authority bearing on the issue.

Rule 28(a)(10), Ala. R.App. P., requires an appellant to present arguments in its brief supported by adequate legal authority. Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). It is not the duty of the appellate court to make arguments for the parties, nor is it the appellate court’s duty to conduct the parties’ legal research. See Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994) (“[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.”). Because Woods does not make an argument that is responsive to the basis of the circuit court’s judgment and because he provides this court with no legal basis for reversing the circuit court’s dismissal of his action against Plumbing Contractors and Sims, that judgment is due to be affirmed.

Based on the foregoing, we dismiss Woods’s appeal from the district-court appeal, appeal number 2070867, and we affirm the circuit court’s dismissal of the circuit-court action, appeal number 2070872.

2070867 — APPEAL DISMISSED.

2070872 — AFFIRMED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . Rule 58(c), Ala. R. Civ. P., provides, in pertinent part, that ''[a]n order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.”

      . Although none of the parties argues that this court is without jurisdiction over Woods's appeals, " jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.' " Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

      . Woods's February 12, 2008, motion did not toll the time for filing a notice of appeal of the dismissal of the district-court appeal. After the first Rule 59(e) postjudgment motion is denied, subsequent motions filed pursuant to that rule do not toll the time for taking an appeal. See Durr v. Durr, 961 So.2d 139, 140 (Ala.Civ.App.2006) ("[I]t long has been held that 'while a Rule 59 motion tolls the time for taking an appeal, a subsequent request, by whatever label, seeking the trial court’s reconsideration of its ruling on the former Rule 59 motion, does not operate to further toll the time for the appeal.' ” (quoting Sunshine Homes, Inc. v. Newton, 443 So.2d 921, 923 (Ala.1983), rev'd on other grounds, Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649 (Ala.1998))). Woods’s “motion cannot be construed as one pursuant to Rule 60(b), Ala. R.App. P., because it did not allege any of the grounds for relief under that rule." Moss v. Mosley, 948 So.2d 560, 565 (Ala.Civ.App.2006).


source: Caselaw Access Project

license: Public Domain

text:
    Alexander J. SAAD et al. v. Gregory B. SAAD and Jamie Saad.
    2080321.
    Court of Civil Appeals of Alabama.
    Aug. 21, 2009.

      Mark B. Binion and Sarah B. Dorger of Briskman & Binion, P.C., Mobile; Richard F. Ogle of Christian & Small, LLP, Birmingham; and James A. Johnson, Mobile, for appellants.
    Jerome E. Speegle, Anthony M. Hoffman, and Jennifer S. Holifield of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellees.
   THOMPSON, Presiding Judge.

Alexander J. Saad, Leland L. Saad, Teresa H. Saad, Jan A. Saad, Elias J. Saad, and SEI-I, LLC, appeal from the Mobile Circuit Court’s partial summary judgment in favor of Gregory B. Saad (“Greg Saad”) ordering certain injunctive relief in the form of specific performance. Jurisdiction over the appeal is appropriate pursuant to Rule 4(a)(1), Ala. R.App. P., which provides for appeals from interlocutory orders granting injunctive relief. For the reasons stated herein, we reverse the summary judgment and remand the cause.

Considered in the light appropriate to our standard of review of a summary judgment, see infra, the record reveals the following facts. Alexander J. Saad, Leland L. Saad, Elias J. Saad, Greg Saad, Barbara S. Fulghum, and Dorothy S. Dunning are siblings. On January 11, 2005, the six siblings, Leland’s, Elias’s, Greg’s, and Barbara’s spouses, and Greg’s two sons, formed SEI-I, LLC (“SEI”), with all the foregoing individuals serving as members of SEI, for the purpose of purchasing six condominium units from Crystal Tower, LLC. Thereafter, SEI purchased the six condominium units from Crystal Tower with the purchase being financed, in part, by a loan from Vision Bank (“the Vision Bank loan”). The members of SEI agreed to serve as guarantors on the Vision Bank loan, with each member of SEI agreeing to guaranty a percentage of the loan equal to 125% of his or her ownership percentage of SEI.

In 2006, the members of SEI agreed to divide the six condominium units among each of the six family groups and to satisfy the loan from Vision Bank by each family group’s obtaining a loan secured by a mortgage in its and SEI’s names on the family group’s assigned condominium unit, with the proceeds of each loan to be applied to the satisfaction of the Vision Bank loan. An essential element of this agreement was that each of the new loans and mortgages was to close contemporaneously. One of the benefits of the agreement was that each family group would be liable individually only for the loan that covered the condominium unit assigned to that family group instead of being liable for the Vision Bank loan, which covered all six condominium units.

Permanent financing for the six condominium units was arranged with Regions Bank. In October 2006, five of the six family groups entered into the arranged financing pursuant to the SEI members’ agreement. Greg Saad and his wife, Jamie (collectively, “Greg and Jamie Saad”), refused to do so. As a result, a portion of the loan from Vision Bank remained outstanding, and all of the members of SEI remained liable as guarantors on that loan.

On April 30, 2008, Alexander Saad, Leland Saad, Teresa Saad (Leland’s wife), Elias Saad, Jan Saad (Elias’s wife) (collectively, “the Saad plaintiffs”), and SEI filed a two-count complaint against, among others, Greg and Jamie Saad, Barbara Fulg-hum, Henry Fulghum (Barbara’s husband), and Dorothy Dunning (collectively, “the Saad Defendants”). In their first count, the Saad plaintiffs and SEI alleged that Greg and Jamie Saad’s failure to obtain financing for the condominium unit assigned to their family group (hereinafter referred to as “Unit 1207”) constituted a breach of the agreement reached by the members of SEI to obtain such individual financing and that their breach caused injury to the Saad plaintiffs as well as to the Saad defendants who had performed their obligations pursuant to the agreement. In their second count, the Saad plaintiffs and SEI alleged that the Saad plaintiffs owned, collectively, a 50% interest in SEI, while the Saad defendants owned, collectively, the other 50% interest in SEI. They alleged that the Saad defendants failed or refused to join with the Saad plaintiffs in calling for a meeting of SEI’s members, such that, under SEI’s bylaws, a meeting of SEI’s membei’s could not be held. As a result, they alleged, SEI was unable to take any action with regal’d to dealing with its indebtedness to Vision Bank, obtaining title to Unit 1207, as it had done with regard to the other five units, and formulating a plan to deal with the ownership and disposition of the condominium units. The Saad plaintiffs and SEI sought an order requiring, among other things, that a deed be obtained to Unit 1207 that vested title in SEI and requiring Greg and Jamie Saad to repay the outstanding balance of SEI’s loan from Vision Bank along with all costs related to the Vision Bank loan.

In early May 2008, Greg Saad, through JCC, L.L.C., a company that he owned, paid off the balance of the Vision Bank loan and title of Unit 1207 was vested in SEI. On May 5, 2008, he proposed to execute a promissory note in favor of JCC, L.L.C., listing himself, his wife Jamie, and SEI as borrowers, for the amount JCC, L.L.C., had paid Vision Bank to satisfy the Vision Bank loan and to execute a mortgage on Unit 1207 in favor of JCC, L.L.C., as security for the promissory note. The Saad defendants consented to this arrangement; the Saad plaintiffs did not. Thus, because each set of parties represented 50% of the membership interest of SEI, no action was taken on Greg Saad’s proposal.

On May 18, 2008, Saad Enterprises, Inc., filed a motion to intervene in the action; that motion was subsequently granted. In its complaint in intervention, it asserted a claim against SEI alleging breach of contract and money loaned. It alleged that SEI had established a line of credit with it and that, pursuant to that line of credit, SEI was now indebted to it in the amount of $878,144. It alleged that the debt had matured on January 17, 2008.

On June 2, 2008, the Saad defendants filed an answer to the Saad plaintiffs’ complaint and filed a six-count counterclaim against the Saad plaintiffs. In their counterclaim the Saad defendants alleged that Greg Saad had chosen not to obtain a loan from Regions Bank as had the other Saad siblings because he was dissatisfied with the proposed loan agreement with Regions Bank. They alleged that Greg Saad had arranged for and had caused the remaining balance of the Vision Bank loan to be paid in full and that he had arranged for a deed to be executed that vested SEI with title to Unit 1207. In the first count of their counterclaim, titled “Declaratory Judgment, Injunctive Relief and Specific Performance,” the Saad defendants alleged that SEI had refused to execute a mortgage to JCC, L.L.C., as Greg Saad had requested, and that the effect of this refusal was to leave Unit 1207 unencumbered and available to be seized by Saad Enterprises to satisfy any judgment that Saad Enterprises might obtain through its complaint in intervention. The Saad defendants alleged that, by refusing to consent to SEI’s execution of a mortgage to JCC, L.L.C., the Saad plaintiffs had violated their agreement with regard to the refinancing of the six condominium units. The Saad defendants sought an order requiring SEI to execute a mortgage covering Unit 1207 to JCC, L.L.C., and to execute a promissory note in favor of JCC, L.L.C., in the amount of $367,000. In the remaining counts of their counterclaim, the Saad defendants asserted, among other things, that the Saad plaintiffs had committed fraud and misrepresentation with regard to the refinancing agreement and that Alexander Saad had caused SEI improperly to distribute funds to SEI’s members.

In September 2008, Greg Saad obtained a mortgage proposal from Bancorpsouth Bank, which he presented to the members of SEI, under which SEI would become obligated on a $350,000 loan from Bancorp-south Bank, with the proceeds of that loan being paid to Greg Saad to reimburse him for having arranged to have JCC, L.L.C., pay off the remaining obligation on the Vision Bank loan, and with Bancorpsouth Bank obtaining a mortgage on Unit 1207 to secure payment of the loan. The SEI plaintiffs did not consent to this loan arrangement.

On October 13, 2008, the Saad plaintiffs and SEI amended their complaint by adding Regions Bank as a defendant. They also supplemented their complaint by alleging that the payment of the outstanding balance of the Vision Bank loan in May 2008 had caused Greg Saad, as the owner of JCC, L.L.C., to become an unsecured creditor of SEI and that, if they consented to the mortgage to JCC, L.L.C., which Greg Saad owned and controlled, Greg Saad would have taken a secured interest in Unit 1207 to the detriment of Regions, SEI, and the other unsecured creditors of SEI. They alleged that, “having been vested with an unencumbered interest in Unit 1207, neither SEI nor its individual members [were] at liberty to show preference to the claims of one unsecured creditor over the claims of another unsecured creditor and that to do so may subject them to double, multiple or inconsistent obligations to Regions [Bank] or to any of the other unsecured creditors.” In their ad dam-num clause, the Saad plaintiffs and SEI withdrew their prior claims for relief and indicated that they sought an order declaring the rights of all the parties.

On October 14, 2008, the Saad defendants supplemented their counterclaim to include allegations relative to the Bancorp-south Bank mortgage proposal. They also amended their counterclaim to assert two additional counts. In a new count titled “Equitable Mortgage,” the Saad defendants alleged that the payment of the balance of the Vision Bank loan, among other things, caused Greg and Jamie Saad to have an equitable mortgage on Unit 1207, and they requested that the trial court enter an order declaring that Greg and Jamie Saad held an equitable mortgage on Unit 1207 should the trial court determine not to require SEI to execute a mortgage relative to Unit 1207 with the proceeds of the loan being paid to Greg and Jamie Saad. In a new count titled “Constructive Trust,” the Saad defendants alleged that SEI and the Saad plaintiffs had been unjustly enriched by SEI’s holding title to Unit 1207 despite the fact that Greg Saad, through JCC, L.L.C., had paid the balance of the Vision Bank loan, and they requested that, should the trial court not require SEI to execute a mortgage with the proceeds thereof being paid to Greg and Jamie Saad, the trial court enter an order declaring that SEI holds Unit 1207 in a constructive trust for the benefit of Greg and Jamie Saad.

Also on October 14, 2008, the same day the Saad defendants supplemented and amended them counterclaim, Greg and Jamie Saad filed a motion for a partial summary judgment as to the portion of the first count in the Saad defendants’ counterclaim seeking declaratory relief and specific performance of the refinancing agreement alleged therein. In their motion, Greg and Jamie Saad asserted that the refinancing agreement required each of the family groups to obtain financing for the condominium unit for which it was responsible, that five of the six family groups had done so, but that SEI had refused to consent to the execution of a note and mortgage with regard to Unit 1207. Based on these facts, Greg and Jamie Saad argued that they were entitled to an order from the trial court requiring SEI to execute the Bancorpsouth Bank mortgage, note, and other related documents, authorizing Greg Saad to execute those documents on behalf of SEI, and ordering that the proceeds of the loan be paid to Greg and Jamie Saad.

In their response to the partial-summary-judgment motion, the Saad plaintiffs and SEI argued, among other things, that the refinancing agreement into which the members of SEI had entered called for the family groups to enter into financing agreements covering their respective condominium units contemporaneously. They argued that there was no agreement among the parties that any of the members were entitled to delay entering into a financing agreement for his or her family group’s assigned condominium unit until well after the other five family groups had entered into their respective financing agreements. The Saad plaintiffs and SEI attached to their response the affidavit of Elias Saad, one of the Saad plaintiffs. His affidavit includes the following testimony:

“4. In 2006, the Members of SEI agreed that SEI would satisfy the Vision Bank debt by obtaining six mortgages with one mortgage each on the six Units. SEI Members agreed to serve as co-makers on the six mortgages provided that, as an essential element of this agreement, the six mortgages were to close contemporaneously or a closing so nearly contemporaneously as to amount to the same. This process assured that all of the SEI Members would be treated equally and would have substantially the same obligations and benefits.
“5. Greg and Jamie Saad were to close on a mortgage as co-makers with SEI for Unit 1207.
“6. All SEI Members fulfilled their agreement except Greg and Jamie Saad. Because of their breach of the agreement, SEI’s debt with Vision Bank remained unpaid and each of the other SEI Members remained obligated under the guaranty agreement with Vision. This was to the detriment of SEI and each of its other Members. However, Greg and Jamie Saad enjoyed the unjust enrichment of having their contingent liability for five condominium units satisfied while not increasing their contingent liability for the sixth Unit.
“7. Neither I nor the other Members of SEI consented or agreed that Greg and Jamie Saad could delay closing of a sixth mortgage on Unit 1207 until a time that suited them or that the consent for such a mortgage would be open ended.”

On November 3, 2008, the trial court entered an order granting the October 14, 2008, motion for a partial summary judgment as to Greg Saad. It entered a judgment in his favor as to the first count of the Saad defendants’ counterclaim, as well as to the counts added by amendment pertaining to the alleged equitable mortgage and constructive trust. The trial court ordered SEI to execute the Bancorp-south Bank mortgage, note, and other related documents; it authorized Greg Saad to execute those documents on behalf of SEI; and it ordered that the proceeds of the Bancorpsouth Bank loan be paid to Greg Saad. The trial court purported to certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

On the same day the trial court entered the partial summary judgment, the Saad plaintiffs and SEI filed a notice of appeal to the supreme court in which they named Greg and Jamie Saad as appellees. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The standard by which we review a summary judgment is well settled:

“We review [a summary judgment] de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary-judgment motion:
“ We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “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.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’ ”

American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000)).

We ton first to the question whether Jamie Saad is a proper appellee in this proceeding. As previously noted (see note 3, supra), although both Greg and Jamie Saad moved the trial court to enter a partial summary judgment in their favor, the trial court’s judgment references only Greg Saad and appears to enter a judgment only in his favor. The trial court did not resolve the motion as that motion applied to Jamie Saad. Because there was no judgment entered resolving the motion as to her, the motion, as it relates to her, remains pending in the trial court. As such, there is no judgment pertaining to her over which this court is able to exercise jurisdiction, and, as a result, to the extent that the Saad plaintiffs and SEI purport to appeal as to a judgment they believe to have been entered in her favor, them appeal is due to be dismissed.

We turn now to the merits of the trial court’s judgment entered in favor of Greg Saad. The Saad plaintiffs and SEI contend, among other things, that the trial court’s entry of a partial summary judgment in favor of Greg Saad was in error because the basis of the claim at issue in this appeal is an agreement, the terms of which are in dispute. We agree.

In the first count of their counterclaim, on which the trial court granted a summary judgment, the Saad defendants alleged that the members of SEI had entered into an agreement whereby each family group would obtain an individual mortgage in the names of SEI and the member or members of SEI representing that family group and that, although five of the six family groups had been able to comply with that agreement, SEI and the Saad plaintiffs had breached that agreement by preventing Greg and Jamie Saad from being able to do so. The relief that Greg Saad sought in his motion as to that count, and which the trial court granted, was an order requiring specific performance of the agreement by having SEI execute a mortgage and related documents financing Unit 1207.

At a trial, the Saad defendants would have borne the burden of proof as to their claim for specific performance. See Luker v. Hyde, 260 Ala. 248, 253, 69 So.2d 421, 425 (1954) (“In this case the burden of proof is upon appellant to prove the contract of which she seeks specific performance by clear and satisfactory evidence.”). Cf. Penny A. Davis, Tilley’s Alabama Equity § 3:10 (4th ed. 2002) (“In suits for specific performance the law requires great accuracy of allegations of facts and strict correspondence of proof. The plaintiff must establish his case by such evidence as to produce clear conviction in the judicial mind.” (footnote omitted)). As a result, in seeking a partial summary judgment on that count, Greg Saad bore the burden of demonstrating that the evidence, considered in the light most favorable to SEI and the Saad plaintiffs, established without material dispute that he was entitled to a judgment of specific performance. See Ex parte Ramsay, 829 So.2d 146, 152-53 (Ala.2002); Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999).

“The equitable remedy of specific performance rests largely in the discretion of the trial judge, and whether relief shall be granted depends upon a consideration of the particular circumstances of each case.” Allen v. Stone, 579 So.2d 1316, 1318-19 (Ala.1991). However,

“a party who has not shown such a performance of, or willingness upon his part to comply with, the terms of a contract within a reasonable time may not compel performance by the other party to the contract....
“Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party.”

Durden v. Furniture Fair of Dothan, Inc., 348 So.2d 1375, 1376 (Ala.1977). See also Tilley’s Alabama Equity § 3:6 (“A party who has not shown such a performance of the contract or willingness upon his part to comply with the terms of a contract within a reasonable time may not compel performance by the other party to the contract”). Moreover, “the courts, under guise of specific performance, cannot do violence to the contract itself, and make a contract for the parties.” City of Andalusia v. Alabama Utils. Co., 222 Ala. 689, 693, 133 So. 899, 902 (1931).

The evidence that the parties submitted in support of and in opposition to Greg and Jamie Saad’s motion for a partial summary judgment demonstrates a dispute as to a material issue affecting Greg Saad’s entitlement to the judgment he sought. Particularly, in an affidavit attached to SEI and the Saad plaintiffs’ brief opposing summary judgment, Elias Saad testified that the agreement into which the members of SEI had entered required that each family group obtain individual financing for their respectively assigned condominium units contemporaneously or nearly contemporaneously and that this part of the agreement was essential. The purpose of contemporaneous closings, he testified, was to ensure that all the members of SEI would be treated equally and would enjoy the same obligations and benefits. Instead of obtaining financing like the other five family groups, however, Greg and Jamie Saad failed to do so, the effect of which, according to Elias Saad, was to leave in place a debt of SEI’s that otherwise would have been paid off, as well as to force the members of SEI to continue as guarantors of that debt.

Because the record reflects that there is a genuine issue of material fact with regard to whether Greg Saad complied with the agreement of which he sought specific performance, he was not entitled to a summary judgment as to that claim. See Dur den, 348 So.2d at 1376. As a result, the trial court erred when it entered a partial summary judgment ordering specific performance of the agreement, and its judgment is due to be reversed.

We recognize that the trial court purported to enter a partial summary judgment in favor of Greg Saad on the counts of the Saad defendants’ counterclaim seeking a declaration that Greg and Jamie Saad had an equitable mortgage covering Unit 1207 and a declaration that SEI held Unit 1207 in a constructive trust for Greg and Jamie Saad. However, by the explicit terms of those counts, the Saad defendants sought such declarations only to the extent that the trial court determined not to require SEI to execute a mortgage relative to Unit 1207 with the proceeds of the loan being paid to Greg and Jamie Saad. Because the trial court, in fact, required SEI to execute such a mortgage, the contingency under which the Saad defendants sought relief in those counts did not occur, and there was no basis for the entry of a judgment as to those counts. Moreover, although it purported to enter a judgment as to those counts in Greg Saad’s favor, the trial court did not actually grant the relief sought in those counts. Specifically, the trial court failed to declare that Greg and Jamie Saad had an equitable mortgage covering Unit 1207 and that SEI held Unit 1207 in trust for them. Indeed, we note that any such declaration simply would not be compatible with the specific performance ordered by the court. Thus, as to that portion of the partial summary judgment purporting to enter a judgment as to those two counts, we regard the trial court’s judgment as determining merely that, in resolving the count seeking specific performance of the parties’ agreement, the trial court recognized that it had resolved those other counts.

Based on the foregoing, we dismiss that portion of the appeal that seeks reversal of a judgment that was never entered regarding Jamie Saad, we reverse the trial court’s partial summary judgment entered in favor of Greg Saad, and we remand the cause to the trial court for further proceedings.

APPEAL DISMISSED IN PART; JUDGMENT REVERSED IN PART; AND REMANDED.

BRYAN and THOMAS, JJ„ concur.

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

PITTMAN, J., recuses himself.

      . The trial court purported to certify its partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. As discussed herein (see note 4, infra), this certification was inappropriate and did not render the judgment final. Thus, this court’s jurisdiction is founded on Rule 4(a)(1), Ala. R. Civ. P., which provides for an appeal from, among other things, an interlocutory order granting an injunction.

      . Greg Saad assumed the obligations of his sons relating to their membership in SEI.

      . The trial court did not reference Jamie Saad; presumably, to the extent that the relief granted by the trial court would have been enlarged were the motion granted as to both Greg Saad and Jamie Saad, that portion of the motion pertaining to Jamie Saad remains pending in the trial court.

      . The trial court’s certification of finality was not effective because the Saad plaintiffs and SEI's claim seeking a declaration as to the rights of all the parties is too closely intertwined with those portions of the counterclaim resolved by the trial court’s partial summary judgment. See BB & S Gen. Contractors, Inc. v. Thornton & Assocs., Inc., 979 So.2d 121, 123 (Ala.Civ.App.2007) ("When pending claims ' "are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,” ’ our courts may determine a Rule 54(b) certifica-lion to be invalid.” (quoting Gray v. Central Bank of Tuscaloosa, N.A., 519 So.2d 477, 479 (Ala.1987), quoting in turn Branch v. South-Trust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987))). However, the partial summary judgment granted injunctive relief in favor of Greg Saad in the form of specific performance, and an interlocutory order granting injunctive relief is appealable within 14 days from the date of its entry. See Rule 4(a)(1), Ala. R.App. P.; Dawkins v. Walker, 794 So.2d 333, 335 (Ala.2001). The Saad plaintiffs and SEI appealed from the trial court’s partial summary judgment to the supreme court on the day the judgment was entered. This court’s exercise of jurisdiction over the appeal following its transfer from the supreme court is therefore appropriate pursuant to Rule 4(a)(1), Ala. R.App. P.

      . Although the Saad defendants titled their first count "Declaratory Judgment, Injunctive Relief and Specific Performance," they did not, in that count, seek an order from the trial court declaring the parties' rights and obligations.

      . We note Greg Saad's argument that his brothers had told him that he should obtain a mortgage on Unit 1207 and that, based on that direction, he had arranged to pay off the Vision Bank loan and had presented two mortgage options to the members of SEI. Even if this argument presented a basis on which to affirm the trial court’s judgment, a question we do not address, the evidence Greg and Jamie Saad submitted in support of their motion provides no support for this contention. Although Greg Saad testified in his affidavit that his brothers had requested that he obtain a mortgage on Unit 1207, he did not indicate when they did so, and he did not indicate that he had arranged to pay off the Vision Bank loan based on their request that he do so. Although he attached copies of certain e-mails to his brief in support of summary judgment in which it appears, among other things, that one of his brothers had requested that he obtain a mortgage on Unit 1207, the trial court was precluded from considering those e-mails because, as SEI and the Saad plaintiffs argued to the trial court and as they argue in this appeal, Greg and Jamie Saad failed to offer evidence that those e-mails were authentic. See Rule 901(a), Ala. R. Evid. ("The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”); Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1053 (Ala.2007) ("Documents submitted in support of or in opposition to a summary-judgment motion are generally required to be certified or otherwise authenticated; if they are not, they constitute inadmissible hearsay and are not considered on summary judgment.”).

      . By resolving the appeal in this manner, we do not address SEI and the Saad plaintiffs' other contentions asserting error in the entry of the partial summary judgment.


author: THOMAS, Judge.

text:
    GOODYEAR TIRE AND RUBBER COMPANY, INC. v. Bobby LONG.
    2071208.
    Court of Civil Appeals of Alabama.
    Sept. 4, 2009.

      Donald B. Kirkpatrick II and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.

      Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.
   THOMAS, Judge.

Bobby Long had been employed by Goodyear Tire & Rubber Company, Inc. (“Goodyear”), since 1993; he began working at Goodyear’s Gadsden plant in October 2002. On July 31, 2006, while performing his assigned work as a second-stage tire builder, Long suffered a strain to his left knee. Long was seen at the plant infirmary by Dr. Sabrina Morgan, who diagnosed the strain and who suggested that Long ice his knee at certain intervals. Long followed Dr. Morgan’s treatment suggestions and continued to work.

On September 3, 2006, Long worked the night shift performing a task he referred to as “booking tread.” Long described this job as requiring him to stand, twist, and bend; he also explained that the job required him to move quickly in order to complete the required amount of tread. While twisting and lifting tread, Long experienced a sharp pain in his knee. He testified that he found his supervisor, Greg Johnson, and that he told Johnson that “his knee was bothering him again” and requested that he be allowed to go to the emergency room because the plant infirmary was not staffed on Sunday night. Long testified that he had difficulty walking and that Johnson took him to the time clock to clock out that evening.

Long went to the Gadsden Regional Medical Center, where he reported having injured his knee at work. The following day, September 4, 2006, was Labor Day and the plant was closed. Long did not report to the plant infirmary until September 6, 2006, at which time he again saw Dr. Morgan. On a document entitled “Acute Knee Injury Assessment,” Dr. Morgan noted that Long’s date of injury was July 31, 2006, the date of his earlier knee injury. On the form, Morgan indicated that Long stated: “My knee has been hurting the whole time. It just got worse on Sunday.” Dr. Morgan also indicated on the form that Long should continue the medications prescribed for him by the emergency-room physician and indicated that an MRI should be scheduled. On the same date, September 6, 2006, Long completed a form entitled “Medical Information Release,” in which he authorized Gadsden Regional Medical Center to release the records pertaining to his emergency-room visit and treatment on September 3, 2006, to Goodyear; in the blank indicating the purpose of the release of medical information the words “W/C Review” are written. On September 8, 2006, Dr. Morgan completed a “work restriction permit” restricting Long from kneeling, stair climbing, or being on his feet standing or walking for seven days. On that document, Dr. Morgan noted that Long had a “meniscal tear” of the left knee and included a notation, “ortho consulted,” indicating that an orthopedic consultation either had taken place or would take place. Long stated that he was informed that he was being placed on light duty until the “insurance company” determined whether his injury was work related.

Sometime after September 8, 2006, and perhaps on October 5, 2006, the employees of Goodyear went on strike; the strike ended in January 2007. During that period, Long sought no medical care for his knee injury because, he said, he had not yet received permission to see a doctor. Long returned to work at the conclusion of the strike in early January 2007. An “Associate Report of Incident” appears in the record; although the document is dated September 3, 2006, and indicates that Long signed the document on that date and that he reported the incident to Johnson at 10:35 p.m. on that date, written on the bottom of the report is the notation “Report received on 1/11/07.”

The records from Goodyear’s plant infirmary reveal that Long reported to Mike Burns, a nurse at the infirmary, that he had increased pain in his knee but that Long did not report that he had suffered a new injury. Burns’s September 6, 2006, notes indicate that Dr. Morgan ordered an MRI of the left knee and that the workers’ compensation insurance carrier had approved the MRI, although the claim regarding Long’s July 31, 2006, knee injury had been closed since August. Burns’s September 27, 2006, note indicates that the MRI revealed a tear in the medial meniscus and that “[tjhis appears to be new harm and damage since original injury on 7/31/06 which was ruled a strain by [Dr. Morgan].” The note also indicates that Long intended to file an injury report and that the workers’ compensation insurance carrier was awaiting the filing of a report to authorize further treatment.

Upon his return to work in January 2007, Long sought and received medical treatment, including surgery, to address his knee injury. Goodyear denied the compensability of Long’s injury and refused to pay for Long’s medical treatment or to pay Long any workers’ compensation benefits. Long sued, seeking workers’ compensation benefits and medical benefits under the Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq.

The trial court held two separate trials in this matter. The first trial, held in February 2008, concerned the issues of notice and compensability; the trial court entered an order on March 3, 2008, determining only that Goodyear had adequate notice of the injury and that Long had established both legal and medical causation of his injury. The second trial, which concerned the degree of Long’s disability and the amount of compensation due Long, was held on June 16, 2008. The trial court entered a judgment awarding Long benefits on August 13, 2008; in that judgment, the trial court specifically referenced the findings and conclusions relevant to its earlier decision on the issues of notice and compensability. Goodyear appeals, arguing only that the trial court’s conclusion that Long gave the requisite notice under Ala.Code 1975, § 25-5-78, is not supported by the evidence.

Our review of this case is governed by the Workers’ Compensation Act, which states in pertinent part: “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25-5-81(e)(2). Therefore, this court “will view the facts in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). Further, the trial court’s finding of fact is supported by substantial evidence if it is “supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing Ala.Code 1975, § 12 — 21—12(d)). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25-5-81(e)(l); see also Ex parte Trinity Indus., 680 So.2d at 268.

As noted above, the only issue on appeal is whether the trial court correctly determined that Long gave the appropriate notice to Goodyear of his September 3, 2006, knee injury. Section 25-5-78 reads:

“For purposes of this article only, an injured employee or the employee’s representative, within five days after the occurrence of an accident, shall give or cause to be given to the employer written notice of the accident. If the notice is not given, the employee or the employee’s dependent shall not be entitled to physician’s or medical fees nor any compensation which may have accrued under the terms of this article, unless it can be shown that the party required to give the notice had been prevented from doing so by reason of physical or mental incapacity, other than minority, fraud or deceit, or equal good reason. Notwithstanding any other provision of this section, no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident or, if death results, within 90 days after the death.”

In Jones v. ARD Contracting, Inc., 910 So.2d 132 (Ala.Civ.App.2004), this court explained the requirement of notice under § 25-5-78 and how that requirement may be satisfied by oral notice instead of the written notice contemplated by the statute.

“‘Section 25-5-78, Ala.Code 1975, provides, in pertinent part, that “no compensation shall be payable [to an injured employee] unless written notice is given within 90 days after the occurrence of the accident....” “An employee is not entitled to workers’ compensation benefits if [he] fails to provide notice.” ’
“Premdor Corp. v. Jones, 880 So.2d 1148, 1153 (Ala.Civ.App.2003) (quoting Bethea v. Bruno’s, Inc., 741 So.2d 1090, 1092 (Ala.Civ.App.1999)). ‘The purpose of this section is to enable an employer to make a speedy examination, afford proper treatment and protect himself against simulated or exaggerated claims.’ Gold Kist, Inc. v. Dumas, 442 So.2d 115, 116 (Ala.Civ.App.1983) (citing Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756 (1925)).
“.... As our Supreme Court held in Ex parte Harris, 590 So.2d 285 (Ala.1991), however, while § 25-5-78, Ala. Code 1975, does generally require written notice, ‘written notice is not required if it is shown that an employer had actual notice of the injury. Oral notice is sufficient to constitute actual notice.’ 590 So.2d at 287. In Alfa Life Insurance Corp. v. Culverhouse, 729 So.2d 325, 328 (Ala.1999), our Supreme Court explained that written notice is not required because
“ ‘after reading the language now codified at § 25-5-78 in pari materia with that codified at §§ 25-5-59 and 25-5-88[, Ala.Code 1975,] ... the Court concluded the employer’s actual knowledge should be considered the equivalent of the statutory notice, “in keeping with the humane spirit of compensation laws.” [Ex parte Stith Coal Co.,] 213 Ala. [399,] 400, 104 So. [756,] 757 [ (1925) ].’ ”

Jones, 910 So.2d at 134.

“ ‘The employee has the burden of proving that the employer had notice or knowledge of the injury.’ ” United Auto Workers Local 1155 v. Fortenberry, 926 So.2d 356, 359 (Ala.Civ.App.2005) (quoting Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 908 (Ala.Civ.App.1994)). Whether an employee has proven “[a]ctual knowledge sufficient to remove the written notice requirement is a question of fact to be determined by the trial court.” Davis v. Paragon Builders, 652 So.2d 762, 764 (Ala.Civ.App.1994). Thus, we must examine the evidence presented by Long and determine whether it is substantial evidence supporting the trial court’s conclusion that Goodyear had actual notice of Long’s September 3, 2006, knee injury.

Goodyear focuses on the oral notice Long claims he provided to his supervisor, Greg Johnson.

“Like written notice, oral notice imparts to the employer the opportunity to investigate and to protect itself against simulated and exaggerated claims. International Paper Co. v. Murray, 490 So.2d 1228 (Ala.Civ.App.), remanded on other grounds, 490 So.2d 1230 (Ala.1984). Even with oral notification, the employer must be notified that the employee was injured while in the scope of his employment. James[ v. Hornady Truck Line, Inc., 601 So.2d 1059 (Ala.Civ.App.1992) ]. The fact that an employer is aware that the employee suffers from a malady or has medical problems is not, by itself, sufficient to charge the employer with actual notice. Russell Coal Co. v. Williams, 550 So.2d 1007 (Ala.Civ.App.1989). ‘If, however, the employer has some information connecting work activity with an injury, it may be put on reasonable notice to investigate further.’ Russell Coal Co. Knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer. Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (Ala.Civ.App.1975).”

Davis, 652 So.2d at 764.

Goodyear argues that Long’s testimony at trial was that Long told Johnson that “my knee was bothering me again” and that Long wished to seek medical attention. Goodyear contends that those statements only provided to it knowledge that Long was suffering from an injury or medical condition and that those statements were insufficient to put it on notice that Long was claiming that his knee condition was related to his work activities. Goodyear relies in large part on Premdor Corp. v. Jones, 880 So.2d 1148, 1155 (Ala.Civ.App.2003), in which this court reversed a trial court’s judgment concluding that an employee had given adequate notice when she informed her supervisors that her back was hurting but not that her back pain was related to any work activity.

The employee in Premdor Corp. testified that she had informed one supervisor that she “ ‘ “did something to her back” ’ ” and that she had informed another supervisor that “ ‘ “I have hurt my back.” ’ ” Premdor Corp., 880 So.2d at 1154. On appeal, however, this court noted that nothing in the employee’s statements to either supervisor indicated that the employee had injured her back while performing any work activity. We reiterated that “ ‘[t]he fact that an employer is aware that an employee has pain or [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge.’ ” Id. at 1155 (quoting Russell Coal Co. v. Williams, 550 So.2d 1007, 1012 (Ala.Civ.App.1989)). Instead, we explained, an employee must notify the employer that he or she was injured while performing his or her work duties. Id.

Although we agree with Goodyear that the statements made at trial by Long do not indicate that he had informed his supervisor that he had injured his knee while pei-forming his work duties, we cannot agree with Goodyear that the trial court’s conclusion that Goodyear had adequate notice is not supported by other substantial evidence in the record. See Russell Coal Co. v. Williams, 550 So.2d at 1012-13 (considering other evidence of record besides the employee’s assertion that he had provided oral notice to the employer to determine whether the employer had adequate notice). Long reported to the plant infirmary on September 6, 2006, at which time he indicated that his knee, which had been hurting since his July 31, 2006, injury, had worsened on Sunday. Although Dr. Morgan indicated that the onset of Long’s complained-of knee injury was July 31, 2006, and although Long himself at first considered the increased pain in his knee to be related to his earlier knee injury, Dr. Morgan ordered an MRI, which revealed a medial meniscus tear — a far different, and more serious, injury than the strain diagnosed on July 31, 2006. Long was required to complete a medical-release form so that the infirmary could obtain his emergency-room treatment records for a “W/C review.” Goodyear received those records, which are included in the medical records from the plant infirmary; the records indicate that Long injured himself at work. During the month of September 2006, infirmary records indicate that Nurse Burns discussed with the workers’ compensation insurance carrier whether the MRI would be authorized and that the MRI revealed a “new” injury, for which the workers’ compensation insurance carrier awaited a formal report before authorizing further treatment.

Notice to a company doctor of a work-related injury has been held sufficient notice to the employer. Sloss-Sheffield Steel & Iron Co. v. Foote, 231 Ala. 275, 277, 164 So. 379, 380 (1935); see also Champion Int’l Corp. v. Williams, 686 So.2d 1204, 1206 (Ala.Civ.App.1996) (indicating that notification provided to a company nurse might be sufficient). The documentary evidence in the record supports a conclusion that the staff of the infirmary, and specifically Nurse Burns and Dr. Morgan, were made aware that Long had injured his knee at work on September 3, 2006. In addition, the documentary evidence indicates that Goodyear requested Long’s emergency-room treatment records in order to conduct a workers’ compensation review of Long’s knee injuiy. The emergency-room records indicate that Long had reported that he had injured his knee at work. The documentary evidence indicates that Goodyear had sufficient information to put it on inquiry notice; that is, some information indicated to Dr. Morgan or Nurse Burns that Long’s knee injury was related to his employment, which, in turn, placed on Goodyear the burden of investigating the reported incident further. Ex parte Singleton, 6 So.3d 515, 519-20 (Ala.2008); Russell Coal Co. v. Williams, 550 So.2d at 1012 (citing Greene v. W & W Generator Rebuilders, 302 Minn. 542, 224 N.W.2d 157 (1974)). In fact, the documentary evidence indicates that Goodyear did investigate further — by conducting a workers’ compensation review of Long’s knee injury.

The requirement of notice is aimed to permit an employer to have ample opportunity to investigate the claimed accident in order to respond quickly and appropriately to proper claims and in order to protect itself against manufactured claims. See Gold Kist, Inc. v. Dumas, 442 So.2d 115, 116 (Ala.Civ.App.1983). In addition, actual notice serves “ ‘ “to advise the employer that a certain employee, by name, received a specified injury in the course of his employment on or about a specified time, at or near a certain place specified.” ’ ” Baggett v. Builders Transp., Inc., 457 So.2d 413, 415 (Ala.Civ.App.1984) (quoting Ex parte Stith Coal Co., 213 Ala. 399, 400, 104 So. 756, 757 (1925)). Although Long at first reported, and Dr. Morgan first concluded, that Long’s September 3, 2006, knee injury was only a flare-up of his initial July 31, 2006, knee injury and not a new injury, we note that an employee is not required to properly diagnose his or her injury before notice of an injury can be deemed sufficient under the Workers’ Compensation Act. See Robbins Tire & Rubber Co. v. Jackson, 551 So.2d 1079, 1080 (Ala.Civ.App.1989). The post-MRI knowledge on the part of Nurse Burns and Dr. Morgan that Long’s knee injury was, in fact, a new and different injury than his earlier sprain, the fact that Long furnished Goodyear a medical-release form for his emergency-room treatment records for the purposes of a workers’ compensation review, Long’s testimony that he had informed Johnson that he required medical assistance for his knee injury, and the fact that Johnson had to assist Long in leaving the plant because Long was having trouble walking combine to amount to substantial evidence supporting the trial court’s conclusion that Goodyear had adequate notice that Long had injured his knee at work on Sunday, September 3, 2006. We therefore affirm the trial court’s judgment insofar as it concluded that Long gave adequate notice of his injury to Goodyear.

AFFIRMED.

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


author: BRYAN, Judge.

text:
    Philip OWENS v. Gloria Ann OWENS and Betty Thomas.
    2080674.
    Court of Civil Appeals of Alabama.
    Sept. 11, 2009.
    Nicholas S. Hare, Jr., Monroeville, for appellant.
    J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for appellees.
   BRYAN, Judge.

Philip Owens (“Philip”), the plaintiff below, appeals from a summary judgment in favor of Gloria Ann Owens (“Gloria”) and Betty Thomas (“Betty”), the defendants below. We affirm.

Philip, Gloria, and Betty are siblings. In 1987, their father, Claude Jackson Owens, Jr. (“the father”), executed a deed (“the 1987 deed”) conveying five parcels of land (“the five parcels”) to Philip. Philip did not record the 1987 deed until October 19, 2001.

In 1994, the father executed a deed (“the 1994 deed”) purporting to convey to Philip the five parcels plus several other parcels of land that are not at issue in this action. Philip recorded the 1994 deed shortly after it was executed. Thereafter, the father died, and Gloria and Betty, in 2000, instituted, in the Monroe Circuit Court (“the circuit court”), an action (“the 2000 action”) challenging the validity of the 1994 deed.

The record before us contains a statement of the issues the parties had filed in the 2000 action. It states that the issues in the 2000 action were (1) whether the father lacked capacity to execute the 1994 deed and (2) whether Philip procured the execution of the 1994 deed by exercising undue influence over the father. The 2000 action proceeded to trial before a jury, and the jury returned a verdict finding that the 1994 deed was invalid. On July 22, 2002, the circuit court entered a judgment on the jury’s verdict. In pertinent part, the judgment states:

“This matter came on to be heard and was submitted to the jury for verdicts on the evidence and the Court’s oral charge. The jury returned [a] verdict[ ] ... setting aside the deed to [Philip] made in 1994 .... It is therefore
“ORDERED, ADJUDGED AND DECREED by the Court as follows:
“2. That the certain conveyance executed by [the father] to [Philip], bearing date of January 24, 1994, purportedly conveying certain lands in Monroe and Butler Counties, Alabama, and filed for record in Deed Book 494, at page 254, in the Probate Office of Monroe County, Alabama, be and the same is hereby set aside, vacated and held ineffective and for nought as a conveyance of any lands, or interests in lands, by [the father].”

On October 13, 2004, Philip instituted the action underlying the appeal now before us (“Philip’s action”) in the circuit court. Philip’s action sought a determination that Philip owns the five parcels by virtue of the 1987 deed. Gloria and Betty filed a motion to dismiss or, in the alternative, a motion for a summary judgment. As the ground of their motion, Gloria and Betty asserted that Philip’s action was barred because, they said, Philip’s action constituted a compulsory counterclaim that should have been pleaded in the 2000 action. Later, Gloria and Betty amended their motion to assert, as additional grounds, that Philip’s action was barred by the doctrines of res judicata and collateral estoppel. In support of their motion, Gloria and Betty submitted, among other things, the judgment entered on the jury’s verdict in the 2000 action. Opposing Gloria and Betty’s motion, Philip asserted that his action was not barred by the compulsory-counterclaim rule, the doctrine of res judicata, or the doctrine of collateral estop-pel because, he said, his action was based on a different transaction or occurrence from the 2000 action because it was based on the 1987 deed rather than the 1994 deed. In opposition to Gloria and Betty’s motion, Philip submitted, among other things, the statement of the issues the parties had filed in the 2000 action and an affidavit he had executed.

The circuit court heard the motion, considered the evidence submitted by the parties, and entered an order. In pertinent part, the order states:

“This matter comes on to be considered by the Court on [Gloria and Betty’s] motion for summary judgment, which was treated by the Court as a motion for summary judgment because the Court considered evidentiary materials outside the pleadings in the case. ...
“Factual Background
“The evidence submitted by [Gloria and Betty] in support of their motion establishes without dispute that in a pri- or civil action in the Circuit Court of Monroe County, viz: ... ‘Gloria Ann Owens and Betty Thomas, Plaintiffs vs. Claude Philip Owens, Defendant,’ Case No. CV-00-191, the same parties to this action were involved in ... an action to set aside a deed made from [the father] to [Philip], the Plaintiff in the case at bar, in 1994, on grounds of undue influence and lack of capacity.
“This Court’s record of proceedings in the 2000 action noted above establishes that the deed made in 1994 was declared invalid and inoperative .... The 1994 deed which was the subject of the prior 2000 civil action describes all of the lands which are described in the 1987 deed, together with some additional lands. The 1987 deed was recorded in October, 2001, during the pendency of the 2000 civil action.
“There is no dispute that the parties to this action were the same parties involved in the prior 2000 action, and that the 2000 action resulted in the final judgment described above.
“[Gloria and Betty] contend that the ownership of the lands which are described in the 1987 deed was in issue before the Court in the prior 2000 civil action, and that [Philip] was required to assert his claim under the 1987 deed as a compulsory counterclaim in the 2000 action. The evidence is undisputed that [Philip] did not assert a claim under the 1987 deed in the 2000 civil action, and [Gloria and Betty] contend that [Philip] is now barred from asserting such a claim on theories of res judicata and collateral estoppel, in addition to failing to assert a compulsory counterclaim. [Philip] argues that the factual circumstances surrounding the execution of the 1987 deed were totally different from the circumstances surrounding execution of the 1994 deed, and that the validity of the 1994 [deed] was the only deed in question in the prior action. [Philip] further argues that he would have been unduly prejudiced to have been inquired to litigate the validity of the 1987 deed in the prior action involving the 1994 deed.
“Legal Analysis
“The fine distinctions between res ju-dicata (claim preclusion), collateral es-toppel (issue preclusion), and the compulsory counterclaim rule are not always clear, but all three doctrines support the underlying concept that a litigant should not be allowed to re-litigate issues that were, or could have been raised in prior litigation that ended in a valid adjudication by a court of competent jurisdiction. McCorkle v. McElwey, 576 So.2d 202 (Ala.1991). The doctrines are all founded upon an interest in judicial economy by avoiding multiple suits between the same parties over the same matters, and the compulsory counterclaim rule must receive a broad realistic interpretation in light of the interest of avoiding a multiplicity of suits. J.J.'s Hea[t]ing & Air v. Gobble-Fite Lumber, 572 So.2d 1243 (Ala.1990).
“The ownership of the subject lands was obviously at issue and was litigated in the prior 2000 action, which resulted in the entry of a final judgment declaring the 1994 deed invalid. [Philip] could have asserted his claim of ownership under the 1987 deed in the former 2000 action, but did not do so. Further, the compulsory counterclaim rule required that [Philip] assert his claim of ownership under the 1987 deed in the former action, but he did not do so. The Court therefore concludes that he is now barred from asserting ownership of the same lands under the 1987 deed in the present action.
“Final Judgment
“It is therefore ORDERED, ADJUDGED AND DECREED by the Court as follows:
“1. That [Gloria and Betty’s] motion for summary judgment be and the same is hereby granted.
“2. That [Philip’s] complaint in the case at bar is hereby dismissed on its merits.
“3. That the purported conveyance from [the father] to [Philip], dated September 28, 1987, and recorded in Deed Book 695, at page 156 in Monroe County and in Deed Book 0274, at page Oil in Butler County be, and the same is hereby declared ineffective and invalid as a conveyance of lands, or interest in lands, and a copy of this Judgment shall be placed of record in the Probate Court of both said Counties.”

Philip timely filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment. Following a hearing, the circuit court entered an order denying the Rule 59(e) motion. In pertinent part, the order states:

“[Philip] contends that he was not obligated to assert his rights under the 1987 deed in the trial in the former action, which only raised the validity of a later deed made in 1994. The evidence is undisputed that [Philip] recorded the 1987 deed in October, 2001, while the prior action was pending, but did not file any counterclaim or other pleading to assert any rights of ownership under the 1987 deed. [Philip] argues that the circumstances surrounding the execution of the 1987 deed were factually dissimilar from the circumstances surrounding the execution of the 1994 deed, and that [Philip] was not required to litigate these different circumstances in the pri- or action.
“[Gloria and Betty] contend that prior ... suit to cancel the 1994 deed involved the underlying issue of the ownership of the lands of [the father], and that [Philip] was therefore required to assert all of his claims of ownership in the prior action. [Gloria and Betty] further argue that the rules allowing severance of claims for separate trial would have allowed the Court to litigate the validity of both the 1987 and 1994 deeds in the prior action.
“In the mind of the Court, the principles underlying the compulsory counterclaim rule and the doctrines of collateral estoppel and res judicata generally require that all issues and claims which are related to a common subject matter are to be litigated in a single proceeding, in order to promote judicial economy, and to avoid multiplicity of suits and the possibility of inconsistent results. The Court finds and concludes that if [Philip] were somehow, allowed to litigate the validity of the 1994 deed in the prior action, and to reserve the prior 1987 deed as a potential ‘safety net’ if he was not successful under the 1994 deed, the underlying principles of the compulsory counterclaim rule, res judicata and collateral estoppel would be thwai'ted. The Court finds and concludes that these rules require a litigant to ‘put all of his cards on the table.’
“For aught that appears, [Philip] made a decision not to assert the 1987 deed in the prior action, and having failed to do so, he is now precluded from asserting any rights thereunder, after a final judgment was rendered in the prior action. It is therefore
“ORDERED, ADJUDGED AND DECREED that [Philip’s] post-judgment motion be and the same is hereby OVERRULED and DENIED.”

Philip then timely appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).
“ ‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

Philip argues that his action is not barred by the compulsory-counterclaim rule, the doctrine of res judicata, or the doctrine of collateral estoppel. In JJ’s Heating & Air Conditioning, Inc. v. Gobble-Fite Lumber Co., 572 So.2d 1243 (Ala.1990), the supreme court stated:

“Rule 13(a), [Ala.] R. Civ. P., provides, in pertinent part, as follows:
“ ‘(a) Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.... ’
“The following are pertinent Committee Comments to that subsection:
“ ‘The purpose of this provision is to avoid circuity of actions, and to require assertion as counterclaims of those claims which are likely to turn on the same facts as the original claim. A counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.... ’
“(Citations omitted.) (Emphasis added.) We have consistently applied the ‘logical relationship’ test suggested in the aforementioned Committee Comments to determine what is and what is not a compulsory counterclaim. See Ex parte Canal Insurance Co., 534 So.2d 582 (Ala.1988), and Brooks v. Peoples National Bank of Huntsville, 414 So.2d 917 (Ala.1982); see, also, O’Donohue v. Citizens Bank, 350 So.2d 1049 (Ala.Civ.App.1977).
“ ‘ “[Claims are logically related] to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counter-claimant be permitted to maintain his cause of action. Indeed the doctrine of res judicata compels the counter-claimant to assert his claim in the same suit for it would be barred if asserted separately, subsequently.” ’
“Mississippi Valley Title Ins. Co. v. Hardy, 541 So.2d 1057, 1059-60 (Ala.1989) (citations omitted) (quoting Desroches v. Ryder Truck Rental, Inc., 429 So.2d 1010, 1012 (Ala.1983), quoting an earlier case).
“While we have not defined the terms ‘transaction’ or ‘occurrence’ in Rule 13(a), the Missouri Supreme Court has defined ‘transaction’ in its Rule 55.32(a), V.A.M.R., which is identical to Rule 13(a), in Myers v. Clayco State Bank, 687 S.W.2d 256, 260-61 (Mo.App.1985), quoting Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471 (1949), as follows:
‘Transaction imports a pliable meaning and may encompass a series of occurrences, and depends in application, not so much upon the immediacy of connection, as upon logical relationship. Claim [of either the original pleader or of the counterpleader] refers not to the form of the action, but “to the underlying facts combined with the law giving a party a right to a remedy of one form or another based on the claim.” Subject matter of the claim does not equate merely with the cause of action, nor the object of the action, but rather ... describes the composite of “physical facts, the things real or personal, the money, lands, chattels, and the like, in relation to tuhich the suit is prosecuted.” ... Thus, the term transaction extends to include ... “all of the facts and circumstances which constitute the foundation of a claim ... ‘all the facts and circumstances out of which the injury complained of arose.’ ” ’
“(Citations omitted.) (Emphasis in Myers.) This definition is consistent with our logical relationship test and the purpose of Rule 13(a) (‘[t]he rule on compulsory counterclaims should receive a “broad realistic interpretation in light of the interest of avoiding a multiplicity of suits,” ’ Mississippi Valley Title Ins. Co. v. Hardy, 541 So.2d at 1060).”

572 So.2d at 1244-45 (bold typeface omitted).

For purposes of Rule 13(a), Ala. R. Civ. P., the subject matter of Gloria and Betty’s claim in the 2000 action included the five parcels. See JJ’s Heating & Air Conditioning, Inc., 572 So.2d at 1245 (“ ‘Subject matter of the claim does not equate merely with the cause of action, nor the object of the action, but rather ... describes the composite of “physical facts, the things real or personal, the money, lands, chattels, and the like, in relation to which the suit is prosecuted.” ’ ”). Gloria and Betty’s claim in the 2000 action sought to establish that Philip did not own the five parcels and the other parcels described in the 1994 deed because the 1994 deed was invalid and that, therefore, the father still owned all the parcels described in the 1994 deed when he died. Because Philip’s claim to ownership of the five parcels by virtue of the 1987 deed would also affect the determination whether Philip or the father owned the five parcels when the father died, Philip’s claim to ownership of the five parcels by virtue of the 1987 deed bore a logical relationship to Gloria and Betty’s claim in the 2000 action. See JJ’s Heating & Air Conditioning, Inc., 572 So.2d at 1244 (stating that claims are logically related “ ‘ “where they are offshoots of the same basic controversy between the parties ....’” ”). Because the claim in Philip’s action is logically related to Gloria and Betty’s claim in the 2000 action, it arises from the same transaction as Gloria and Betty’s claim in the 2000 action for purposes of Rule 13(a). See JJ’s Heating & Air Conditioning, Inc., 572 So.2d at 1244 (“ ‘Transaction imports a pliable meaning and may encompass a series of occurrences, and depends in application, not so much upon the immediacy of connection, as upon logical relationship.’ ”). Accordingly, we conclude that Philip’s claim to ownership of the five parcels by virtue of the 1987 deed was a compulsory counterclaim that he was required to plead in the 2000 action. See Rule 13(a) (“A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”). Therefore, the circuit court did not err in holding that Philip’s claim to ownership of the five parcels by virtue of the 1987 deed was barred. See Rule 13(a) and JJ’s Heating & Air Conditioning, Inc.

Because the summary judgment is due to be affirmed by virtue of the compulsory-counterclaim rule, we do not reach the issues whether it is due to be affirmed under the doctrine of res judicata or under the doctrine of collateral estoppel.

AFFIRMED.

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

      . When Philip instituted the underlying action, he was represented by the same attorney who had represented him in the 2000 action; however, that attorney died while the underlying action was pending in the circuit court, and Philip then employed another attorney.


author: WISE, Presiding Judge. WELCH, Judge,

text:
    C.R.F., Jr. v. STATE of Alabama.
    CR-07-1135.
    Court of Criminal Appeals of Alabama.
    March 20, 2009.
    Rehearing Denied April 24, 2009.
    Certiorari Denied Sept. 11, 2009
    Alabama Supreme Court 1080980.

      James Robert Engelthaler, Florence, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM and KELLUM, JJ., concur.

WELCH, J., concurs in part and dissents in part, with opinion.

WELCH, Judge,

concurring in part and dissenting in part.

After being found in possession of two pornographic videotapes that depicted his then teenaged daughter, L.A.F.J., the appellant, C.R.F., was convicted of two counts of production of obscene matter, a violation of § 13A-12-197(a), Ala.Code 1975, and one count of allowing a child to engage in the production of obscene matter, a violation of § 13A-12-196, Ala.Code 1975. On appeal, C.R.F. argued that the trial judge erred when he denied C.R.F.’s motion to recuse himself; that the trial judge erred when he denied his motion to suppress the evidence seized from his residence; and that the two convictions for producing obscene matter and allowing a child to engage in the production of obscene matter violate double-jeopardy principles. I agree with the majority’s resolution of the recusal and double-jeopardy issues, and I concur with those portions of its unpublished memorandum. I disagree with the majority’s analysis and the result it reached as to the suppression issue. As to that portion of the memorandum, I dissent.

C.R.F. argues that search warrant that resulted in the evidence he sought to suppress was based on hearsay allegations made 19 years earlier by his ex-wife, some of which were made while the ex-wife was under hypnosis and some of which were made to a psychologist. C.R.F. also argues that nothing on the face of the affidavit submitted in support of the search warrant indicated that anyone had seen anything illegal in C.R.F.’s house for over 19 years, and that the trial court erred when it denied C.R.F.’s motion to suppress. I agree.

“The proceeding by search warrant is a drastic one. Its abuse led to the adoption of the Fourth Amendment, and this, together with legislation regulating the process, should be liberally construed in favor of the individual.” Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932).

“The Fourth Amendment to the United States Constitution provides, in pertinent part, that ‘[tjhe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.’ Thus, ‘[a] search warrant may only be issued upon a showing of probable cause that evidence or instrumentalities of a crime or contraband will be found in the place to be searched.’ United States v. Gettel, 474 F.3d 1081, 1086 (8th Cir.2007). Moreover, ‘ “[sjufficient evidence must be stated in the affidavit to support a finding of probable cause for issuing the search warrant,” and “[t]he affidavit must state specific facts or circumstances which support a finding of probable cause[;] othexwise the affidavit is faulty and the warrant may not issue.” ’ Ex parte Parker, 858 So.2d 941, 945 (Ala.2003) (quoting Alford v. State, 381 So.2d 203, 205 (Ala.Crim.App.1979)).
“‘A probable cause determination is made after considering the totality of the circumstances.’ Gettel, 474 F.3d at 1086. To pass constitutional muster, ‘the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued.’ United States v. Greany, 929 F.2d 523, 524-25 (9th Cir. 1991) (emphasis added). Thus, ‘[t]he police will ... encounter problems of “staleness” of their information if they delay too long in seeking a search warrant.’ United States v. Watson, 423 U.S. 411, 450 n. 14 (1976).”

Ex parte Green, 15 So.3d 489, 492 (Ala.2008).

“Whether the circumstances recited in an affidavit offered in support of an application for a search warrant are such that the probable cause that might once have been demonstrated by them has grown ‘stale’ is a matter that ‘must be determined by the circumstances of each case.’ Sgro v. United States, 287 U.S. 206 (1932).”

Vinson v. State, 843 So.2d 229, 233 (Ala.2001).

The June 7, 2007, affidavit prepared by district attorney’s investigator Ron Lans-dell and offered in support of the search warrant alleged that C.R.F.’s ex-wife had made statements — in 1988 — indicating that in 1986 a man who was subsequently murdered had “a box” in his apartment; the ex-wife believed that the box contained pornographic films, some of which involved her daughter, L.A.F.J. (C. 49.) The affidavit also alleged that in 1988 the ex-wife stated that C.R.F. always kept a box by the bed; she thought that the box might have had items that belonged to the murder victim, and she said that C.R.F. told her that the box contained movies of the murder victim. The affidavit alleged that ex-wife had made a statement in March 2005 that, after the murder victim was killed, C.R.F. had gone to the victim’s apartment to retrieve the box. (C. 50.) The ex-wife also stated in 2005 that C.R.F. was living with his mother during the week, and that the ex-wife “believed at that time that [C.R.F.] had the ‘box’ at his mother’s house.” (C. 50.)

Lansdell further alleged in the affidavit that on June 6, 2007, he had spoken to C.R.F.’s daughter, L.A.F.J. L.A.F.J. was born in 1976. The affidavit alleged that L.A.F.J. remembered her father watching “ ‘homemade’ and store bought pornographic films,” and that she remembered seeing a film labeled “Raiders of the Lost Arc” that contained a pornographic film of her parents. The affidavit alleged that L.A.F.J. said that her father had molested her when she was between the ages of 14 and 16 years old. The affidavit also alleged that L.A.F.J. stated that her parents had divorced in 1988 and that her father had moved in with his mother and that he continued to reside there. The affidavit alleged that, three weeks before she gave the statement to Lansdell, L.A.F.J. had been in her grandmother’s residence, had seen “the ‘box’ beside his bed,” along with what she believed to have been shelves of pornographic movies “because they were labeled the same as they were when she was a child.” (C. 51.)

Defense counsel argued at the hearing on the motion to suppress:

“[T]here is just no evidence that anybody saw anything at the house that was illegal between the times that [L.A.F.J.] was fourteen — since she was fourteen to sixteen years old and I think the evidence is that she would be thirty-one years old now. Born in 1976. Six twenty of 1976 so that would have been fifteen, sixteen years ago if not longer and there’s no evidence that anybody had seen anything illegal in that house in fourteen to sixteen years. There’s just no — no evidence to support probable cause to believe there was anything there now and particularly at the time that the judge issued the search warrant.”

(R. 37-38.)

Defense counsel further argued:

“You know, Lansdell never testified he had any personal knowledge of any of the things that are in this affidavit but in the affidavit it references a box. Not even a particular box that could even be described. It’s just a box that she may have seen sixteen years earlier or seventeen years earlier and it never says that she saw anything illegal in the box. He keeps saying porn but porn is just not necessarily illegal. She said — and there’s nothing in the affidavit that she ever saw any child pornography in the affidavit and there’s no evidence that there was ever any pornography, any child pornography or anything illegal since even the time that would have been sixteen or seventeen years ago.”

(R. 39.)

Defense counsel accurately summarized the evidence — or rather the lack of any credible evidence — supporting probable cause for the search warrant.

Certainly the trial court’s decision as to probable cause is entitled to great deference. However, I cannot agree that there is any credible testimony supporting a finding of probable cause or for the issuance of the search warrant in this ease. First, the allegations of the ex-wife on which the State primarily relied were, beyond question, stale. More than a decade had passed since the ex-wife had provided information about what she said was C.R.F.’s possible possession of child pornography. Moreover, some of the ex-wife’s allegations were from a 1988 statement that the trial judge acknowledged contained “wild and fantastic stories about a lot of things,” none of which the judge— then the chief prosecutor for the county— could verify in any way at the time they were made. Second, the State’s attempt to “freshen” those stale allegations with additional allegations from L.A.F.J. failed utterly, because L.A.F.J. provided information only that C.R.F. had “a box” and some videotapes in his possession. Nothing identified that particular box as the same box in which C.R.F. might have kept pornographic materials years earlier when L.A.F.J. was a child. The majority overstates the evidence when it concludes otherwise. L.A.F.J. had told investigators that C.R.F. had taken Polaroid photographs of her while she was naked. She never mentioned that there were any videotapes containing child pornography and never stated that she knew that the photographs still existed, or where they might have been kept. The fact that L.A.F.J. saw labels on videotapes that looked similar to labels she remembered seeing on pornographic movies many years eaidier, without stating to the investigators that handwritten labels were used on videotapes of child pornography or that thex-e were any videotapes containing child por-nogx-aphy, was also insufficient to indicate that C.R.F. was in possession of child poi’-nography in 2007, and it was insufficient to establish probable cause.

The trial court should have granted C.R.F.’s motion to suppress. Thei'efore, I respectfully dissent.

      . C.R.F. filed a motion asking the trial judge to recuse himself on the ground that tire judge had been employed as the chief assistant district attorney for Lauderdale County and had participated in taking one of the 1988 statements from the ex-wife. The State acknowledged that “[pjortions of [that] statement are one bit of information the State is relying on that was used to get a search warrant on [C.R.F.'s] home[. She] makes statements in that statement about pornography and about a box.” (R. 10.) Yet, when the trial judge denied the motion to recuse, the judge stated:
      "My memory of the statement is that she told wild and fantastic stories about a lot of things and I kept probing and probing trying to find anything that she could say that I could verify in any way. She never said anything that I could independently verify to be the truth. So my memory is that I had no reason to believe anything this lady said and this was as far as I was concerned just delusional rantings of somebody trying to get a good deal in Sumter County by telling stories she knew nothing about, so I filed it away and didn’t think anymore about it for nineteen years
      (R. 9.)

      . The affidavit further alleges that the ex-wife was considered a suspect in the victim's murder; that she had implicated C.R.F. in the murder; and that at one point she claimed that she had shot the victim because she wanted the box.