text:
    EX PARTE TRAVEL CENTERS OF AMERICA, INC.
    (In re: Patricia Oddo v. Travel Centers of America, Inc.)
    2170130
    Court of Civil Appeals of Alabama.
    February 2, 2018
    Michael I. Fish and Charley M. Drummond of Fish Nelson & Holden, LLC, Birmingham, for petitioner.
    Thomas W.H. Buck of Longshore, Buck & Longshore, P.C., Birmingham, for respondent.
   MOORE, Judge.

Travel Centers of America, Inc. ("the employer"), petitions this court for a writ of mandamus ordering the Tuscaloosa Circuit Court ("the trial court") to vacate a September 21, 2017, order requiring the employer to provide a panel of four physicians from which Patricia Oddo ("the employee") may select a physician to treat her for an alleged work-related lower back injury. We dismiss the petition.

The materials submitted in support of and in opposition to the petition for a writ of mandamus show as follows. On January 29, 2017, the employee filed a complaint seeking workers' compensation benefits under the Alabama Workers' Compensation Act ("the Act"), Ala. Code 1975, § 25-5-1 et seq., for an alleged February 2015 work-related injury to "her back and body." The employer filed an answer admitting that it had received notice from the employee of the alleged work-related back injury, but denying all material allegations in the complaint; the employer asserted as an affirmative defense that the employee's injury had not arisen out of and in the course of her employment with the employer but, instead, was the result of purely idiopathic or preexisting conditions unrelated to her employment.

On June 27, 2017, the employer filed a "motion for declaratory relief." In that motion, the employer asserted that it had provided medical treatment for the employee and that, on April 11, 2017, the employee had requested a panel of four physicians from which to select a new authorized treating physician. The employer denied the request on the grounds that the employee did not need further treatment and that the employee's complaints related solely to a preexisting condition and not to her alleged February 2015 work-related injury, which, the employer contended, had only temporarily aggravated the employee's underlying back problem. The employer attached the records from the employee's authorized medical treatment in support of its motion.

The employee filed a response requesting the trial court to deny the motion and to award the employee reasonable attorney's fees based on the refusal of the employer to provide her with a panel of four physicians as requested. In support of her response, the employee submitted her affidavit in which she attested that she had suffered a work-related injury to her lower back, hip, and sacroiliac joint in February 2015 while performing manual labor in the course of her employment with the employer, that the employer had authorized medical treatment for the injury, that she had not recovered from that injury, that she disagreed with the opinion of her authorized treating physician indicating that she had recovered from the injury, that she continued to suffer pain from the injury, and that she required medical treatment that the employer had refused to authorize.

The employer filed a "motion to strike" the employee's response. In that motion, the employer argued that, in her response, the employee was essentially requesting that the trial court enter an order compelling the employer to provide her with a panel of four physicians and to authorize payment for the physician selected by the employee without the employee first proving that she was suffering from an ongoing work-related injury for which medical treatment was necessary. The employer pointed out that it had filed an answer disputing the compensability of the employee's back injury and that the employee had not proven the compensability of her back injury by competent evidence through the procedures established in the Act and as explained by this court in Ex parte Publix Supermarkets, Inc., 963 So.2d 654 (Ala. Civ. App. 2007). The employer contended that, because it had denied the compensability of the employee's injury, due process required that the employee prove the compensability of her injury at an evidentiary hearing before the trial court could order the employer to provide a panel of four physicians and to authorize further medical treatment based on the employee's selection of a physician from that panel. The employer maintained that it had filed its "motion for declaratory relief" in order to have the trial court determine its right to deny the request for a panel of four physicians "because the [employee] has not proven that her alleged injury is compensable."

On August 9, 2017, the trial court entered the following order:

"This matter is pending before the Court on the [employer's] motion requesting an order from this Court that the [employee] is not entitled to select from a panel of four physicians.
"The Court has considered the written submissions of the parties, the arguments of counsel at the hearing on this motion, and the various medical records presented at the hearing. After considering all of the foregoing, the Court finds that the [employer's] motion is due to be and [is] hereby DENIED ."

(Bold typeface in original.) It is undisputed that the employer did not provide the employee with a panel of four physicians following the entry of the trial court's August 9, 2017, order.

On September 15, 2017, the employee filed a motion to hold the employer in contempt for refusing to provide the panel of four physicians. The employer responded that the August 9, 2017, order had not specifically ordered the employer to provide the panel of four physicians but, instead, had only denied the employer's motion requesting a judgment declaring that it did not have to provide a panel of four physicians. The employer argued that it had not disobeyed any specific order of the trial court and that the employee had not yet proven the compensability of her injury in order to obtain a right to the panel of four physicians.

The trial court entered an order on September 21, 2017, indicating that it would consider the contempt motion as a "motion to compel, given the declaratory nature of the [employer's] recent motion." The trial court ordered the employer to provide the panel of four physicians within 21 days. On September 28, 2017, the employer moved the trial court to vacate its order, arguing that the trial court could not require the employer to provide a panel of four physicians without first holding an evidentiary hearing to resolve the dispute as to the compensability of the employee's injury and finding that the employee had proven that she needed continuing medical treatment due to a work-related injury. On October 2, 2017, the trial court took the motion to vacate the order under advisement. The employer filed its petition for a writ of mandamus with this court on October 30, 2017.

In its petition for a writ of mandamus, the employer argues that the trial court erred in ordering it to provide the employee with a panel of four physicians without first resolving the pleaded controversy between the parties regarding the compensability of the employee's back injury. We, however, cannot reach that issue because the employer did not timely file its petition for a writ of mandamus so as to preserve that issue for appellate review.

A petition for a writ of mandamus must be filed within a reasonable time. "The presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal." Rule 21(a)(3), Ala. R. App. P. Appeals from judgments entered in workers' compensation actions must be filed within 42 days of the date of the entry of the judgment from which the appeal lies. See Ala. Code 1975, § 25-5-81(e).

In this case, the order of the trial court of which the employer complains was entered on August 9, 2017. On that date, the trial court entered an order denying the employer's request for a judgment declaring that it had the right to refuse to provide the employee with a panel of four physicians. The August 9 judgment effectively determined that the employer had no right to refuse to provide the employee with a panel of four physicians. The employer later argued to the trial court that the August 9 order did not technically contain affirmative directive language requiring it to provide the panel of four physicians. However, the trial court obviously interpreted its order differently when it construed the employee's contempt motion as a "motion to compel" compliance with the August 9 order. In its September 21, 2017, order, the trial court indicated that it was enforcing its August 9 order by setting a deadline for the employer to provide the panel of four physicians.

The employer does not specifically argue any error that the trial court may have committed in its September 21, 2017, order interpreting and enforcing its August 9, 2017, order. Instead, the employer argues only that the trial court could not have entered an order requiring it to provide a panel of four physicians without complying with the procedures established in Ex parte Publix Supermarkets, Inc., supra. However, we agree, as the trial court found, that the requirement to provide the panel of four physicians arose from the trial court's August 9 order, from which the employer did not timely file a petition for a writ of mandamus. Thus, we cannot reach the issue as framed by the employer, and we state no position on the correctness of the trial court's August 9 order.

For the foregoing reasons, the petition for a writ of mandamus is dismissed.

PETITION DISMISSED.

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

      In some of the materials provided to this court, the employee is referred to as "Patricia Otto." We use the spelling contained in an affidavit executed by the employee.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Antonio L. WARREN, Sr. v. Felicia WARREN
    2161054
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Julia D. Collins of The Isaak Law Firm, Montgomery, for appellant.
    Mary Lee Abele, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Antonio L. Warren, Sr. ("the husband"), appeals from a judgment of the Jefferson Circuit Court divorcing him from Felicia Warren ("the wife"), dividing the marital property and debts, and awarding the wife alimony and $3,000 toward her attorney fee.

On appeal, the husband contends that the trial court's division of marital assets was inequitable and that there was no reason for what he says is an inequitable distribution. He also contends that the trial court failed to consider the husband's ability "to meet the alimony obligation based upon information presented at trial." The third issue the husband raises on appeal is whether the trial court considered certain factors when directing the husband to pay $3,000 toward the wife's attorney fee, including the earning capacity of the parties, the results of the litigation, the conduct of the parties, and the financial circumstances of the parties.

It is undisputed that a trial was held on May 4, 2017. In its judgment, the trial court states that its decision was reached considering, among other things, the ore tenus testimony of the parties. The record shows that trial subpoenas were issued, and the witness lists the parties exchanged indicated that several witnesses were expected to be called to testify. However, the record on appeal does not contain a transcript of the trial. The notice of appeal indicates that a transcript was not ordered. The form shows a check in the box next to the sentence saying "Transcript will not be ordered," so the failure to obtain a transcript is not an oversight.

Additionally, no statement of the evidence made pursuant to Rule 10(d), Ala. R. App. P., is included in the record on appeal.

" 'An appellant bears the burden of ensuring that the record contains sufficient evidence to warrant reversal.' Bobo v. Bobo, 585 So.2d 54, 56 (Ala. Civ. App. 1991). '[W]hen, as in this case, "oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule 10(d), A[la]. R. A[pp]. P., statement, it must be conclusively presumed that the testimony [was] sufficient to support the judgment.'' ' Beverly v. Beverly, 28 So.3d 1, 4 (Ala. Civ. App. 2009) (quoting Rudolph v. Rudolph, 586 So.2d 929, 930 (Ala. Civ. App. 1991) )."

L.D.K. v. V.K., [Ms. 2160205, June 23, 2017] --- So.3d ----, ---- (Ala. Civ. App. 2017).

Without a trial transcript or a Rule 10(d) statement of the evidence, this court has no way to review the issues presented in this appeal, all of which involve a review of the evidence and are not simply questions of law. Because we must conclusively presume that the testimony presented at trial was sufficient to support the judgment, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: THOMAS, Judge.

text:
    EX PARTE ALABAMA GAS CORPORATION
    (In re: Robert Alan Smitherman v. Alabama Gas Corporation)
    2170285
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Jonathan L. Berryhill and Devona J. Segrest of Wilson & Berryhill, P.C., Birmingham, for petitioner.
    Gregory T. Denny of Powell & Denny, P.C., Birmingham, for respondent.
   THOMAS, Judge.

Alabama Gas Corporation ("Alagasco"), the defendant in a pending action brought by Robert Alan Smitherman ("the employee") pursuant to the Alabama Workers' Compensation Act, §§ 25-5-1 et seq., Ala. Code 1975, petitions for a writ of mandamus ordering the Jefferson Circuit Court to vacate a November 6, 2017, discovery order, which, according to Alagasco, "overrides and nullifies" certain discovery provisions of the Act. For the reasons stated herein, we deny the petition.

" ' "Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala. 1991). Accordingly, mandamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions."
" 'Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003).
" 'Moreover, this Court will review by mandamus only those discovery matters involving (a) the disregard of a privilege, (b) the ordered production of "patently irrelevant or duplicative documents," (c) orders effectively eviscerating "a party's entire action or defense," and (d) orders denying a party the opportunity to make a record sufficient for appellate review of the discovery issue. 872 So.2d at 813-14.' "

Ex parte Mobile Gas Serv. Corp., 123 So.3d 499, 504 (Ala. 2013) (quoting Ex parte Meadowbrook Ins. Grp., Inc., 987 So.2d 540, 547)(Ala. 2007) ).

The materials provided for our review reveal that the employee suffered a work-related injury in 2015, that he had received authorized medical treatment and temporary-total-disability benefits, and that a dispute had arisen between the parties regarding, among other issues, whether the employee's injury is a permanent injury. The employee filed a complaint in the circuit court in April 2017; Alagasco filed an answer to the complaint. On November 6, 2017, the circuit court entered an order pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). The order is titled "HIPAA Order in Civil Actions" ("the HIPAA order"), and is the subject of this mandamus petition. Alagasco filed an opposition to the HIPAA order, specifically challenging its propriety because, Alagasco argued, the HIPAA order prohibits certain methods of discovery that are allowed in workers' compensation actions.

On December 14, 2017, the circuit court entered an order setting a December 20, 2017, hearing on the matter. However, on December 18, 2017, Alagasco filed a timely petition for a writ of mandamus regarding the HIPAA order. See Rule 21(a)(3), Ala. R. App. P. Alagasco moved the circuit court for a stay of the December 20, 2017, hearing pending our resolution of the mandamus petition; however, at the hearing, the circuit-court judge orally denied Alagasco's motion to stay, and the hearing occurred. At the December 20, 2017, hearing, the circuit-court judge said: "I think, [the HIPAA order], to some degree, is due to be amended.... [T]here may be some revision that I acknowledge that needs [to] be made." As pointed out by the employee:

"The [circuit] court was clearly not acting in a fashion that would demand that this court intervene in this preliminary discovery issue. The right Alagasco claims was violated is a hypothetical issue created by Alagasco's counsel and not a right at all."

Alagasco argues in its mandamus petition to this court that,

"under the terms of the ... HIPAA Order, the provisions of Alabama's Workers' Compensation Act will be frustrated, and the standard, ordinary workers' compensation claim handling process, as well as the defense of this lawsuit, will be fatally obstructed.
"....
"As it now stands, the HIPAA Order ... prohibits any meaningful opportunity on the part of [Alagasco] ... to make timely determinations of reasonableness, necessity, relatedness and authorization of medical treatment. Furthermore, the ... HIPAA order removes any timely opportunity to insure that [the employee] is compliant with reasonable requests to submit to authorized medical treatment, rendering § 25-5-77(b), Ala. Code 1975, meaningless and prejudicing Alagasco's rights under the Workers' Compensation Act of Alabama."

Alagasco has not demonstrated to this court that the circuit court clearly exceeded its discretion or that Alagasco does not have an adequate remedy by appeal. The circuit-court judge's comments at the December 20, 2017, hearing on the matter suggest that the circuit court was quite unwilling to impede discovery, despite its entry of the HIPAA order. Moreover, Alagasco has not demonstrated that its mandamus petition regarding a discovery order presents an exceptional case. Unlike the party in Ex parte Mobile Gas Service Corp., in this action Alagasco has failed to demonstrate that the HIPAA order is reviewable under the categories our supreme court has recognized as warranting mandamus review of discovery orders. In other words, Alagasco does not claim that there has been a disregard of a privilege, that it has been ordered to produce irrelevant or duplicative documents, or that the HIPAA order denies Alagasco the opportunity to make a record sufficient for appellate review of the discovery issue. Construed liberally, Alagasco at least alludes to category (c)-that the HIPAA order effectively eviscerated its entire action or defense. However, Alagasco does not claim that it has requested or been denied any item of discovery; thus, it cannot demonstrate evisceration of its defense.

PETITION DENIED.

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

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

MOORE, Judge, concurring in the result.

I concur that the petition for a writ of mandamus is due to be denied, but I do not necessarily agree with all of the reasons set forth in the main opinion. In a hearing on the motion of Alabama Gas Corporation ("the employer") to vacate the HIPAA order previously entered by the trial court, the trial court indicated that it would amend the order to address the concerns of the employer. Accordingly, I conclude that the trial court has not refused to act on the motion of the employer. Unless and until the trial court refuses to act, the petition for a writ of mandamus is, in my opinion, premature.

      In its mandamus petition, Alagasco requested that this court stay the proceedings in the circuit court. Because the December 20, 2017, hearing has already occurred, we deny as moot Alagasco's request for a stay.


author: MOORE, Judge.

text:
    EX PARTE Melanie B. PAULK
    (In re: Melanie B. Paulk v. Robert A. Paulk)
    2170352
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Lynn F. McConnell, Fairhope, for petitioner.
    Submitted on mandamus petition only.
   MOORE, Judge.

Melanie B. Paulk ("the mother") petitions this court for a writ of mandamus directing the Mobile Circuit Court ("the trial court") to comply with this court's remand instructions issued in her action against Robert A. Paulk ("the father"). See Paulk v. Paulk, 217 So.3d 899 (Ala. Civ. App. 2016) (" Paulk I"). In Paulk I, this court reversed the trial court's July 21, 2015, judgment to the extent that that judgment "found the mother in contempt of court and insofar as it offset the amount the mother owed for the [parties'] children's activity fees, books, and uniforms associated with their attendance at UMS-Wright Preparatory School against the amount the father owed for child support." 217 So.3d at 903. This court remanded the cause with instructions that the trial court "calculate the amounts the parties owe." Id.

On January 11, 2017, Retired Judge Donald Banks entered an order on remand following this court's reversal. After the mother filed a timely postjudgment motion and that motion was denied, the mother filed a notice of appeal to this court. See Paulk v. Paulk, 249 So.3d 521 (Ala. Civ. App. 2017) (" Paulk II"). In Paulk II, the mother raised the same issues regarding the January 11, 2017, order that she raises in the present mandamus petition regarding the order under review; however, this court did not reach the merits of the arguments in Paulk II. Instead, this court, "ex mero motu, raised the jurisdictional issue of the effect of Judge Banks's [intervening] retirement on the validity of the January 11, 2017, order entered by him." After receiving letter briefs on that issue, this court determined that, because the order challenged was issued by a retired judge who had lacked authority to enter an order in the case, that order was void. 249 So. 3d at 522. We therefore dismissed the appeal with instructions to the trial court to set aside the void order. 249 So. 3d at 523.

On September 12, 2017, Mobile County Circuit Judge John R. Lockett entered an order stating: "Donald Banks, retired Circuit Judge, having been appointed this date pursuant to Ala. Code [1975, § ] 12-1-14.1..., is hereby assigned this case to conduct any and all further proceedings." On November 29, 2017, Judge Banks entered an order, similar to the January 11, 2017, order, providing, in pertinent part:

"1. THAT all motions for contempt are hereby denied.
"2. THAT a judgment is awarded in favor of the [mother] and against the [father] in the amount of $21,820.00 representing monies the [father] should have paid pursuant to prior Court orders but did not pay.
"3. THAT a judgment is awarded in favor of the [father] and against the [mother] in the amount of $19,000.00 representing monies the [mother] should have paid pursuant to prior Court orders but did not and which were paid by the [father]."

The mother filed her mandamus petition with this court on January 5, 2018.

In her petition, the mother argues that the trial court's November 29, 2017, order failed to comply with this court's remand instructions in Paulk II.

" ' "The writ of mandamus is a drastic and extraordinary writ, to be 'issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ; see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995)." Ex parte Carter, [807 So.2d 534,] 536 [ (Ala. 2001) ]. '
" Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001). A petition for a writ of mandamus is the proper method by which to bring before an appellate court the question whether the trial court, on remand, has complied with the appellate court's mandate. Ex parte Edwards, 727 So.2d 792, 794 (Ala. 1998).
"... [A]fter a case is remanded, the trial court may enter ' " '[n]o judgment other than that directed or permitted by the reviewing court.... The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence.' " ' Id. at 794 (quoting Ex parte Alabama Power Co., 431 So.2d 151 (Ala. 1983), quoting in turn 5 Am. Jur. 2d Appeal & Error § 991 (1962) )."

Ex parte Queen, 959 So.2d 620, 621 (Ala. 2006).

The mother specifically argues in her mandamus petition that the trial court "impermissibly alter[ed], amend[ed] or vacate[d] provisions of the July 21, 2015 Order where no further authority was given to the trial court to do so." We note that, in the original July 21, 2015, judgment, which we reversed with regard to the issues raised in Paulk I, the trial court "found the father in contempt for failing to pay child support and his portion of the children's medical expenses and found the mother in contempt for failing to pay the children's educational expenses." 217 So.3d at 901. This court did not reverse the judgment as to the finding that the father was in contempt, nor did we state in our opinion that the trial court could revisit that finding. Thus, the finding that the father was in contempt is the law of the case, and the trial court lacked the authority to alter that finding. Queen, 959 So.2d at 621. Therefore, we grant the mother's petition to the extent that she challenges the trial court's denial of the mother's counterclaim seeking to hold the father in contempt for failing to pay child support and his portion of the children's medical expenses. We issue a writ directing the trial court to amend its November 29, 2017, order in accordance with this opinion.

The mother also argues that the trial court failed to follow this court's instruction in Paulk I"to calculate the amounts the parties owe." 217 So.3d at 903. She argues that the trial court's November 29, 2017, order does not contain sufficient detail concerning its calculations. However, in this court's remand instructions in Paulk I, we did not require the trial court to provide any detail concerning its calculations; we simply required the trial court to calculate the amounts each party owes without offsetting the amounts against one other. Moreover, the mother does not cite any law requiring any such detail. Accordingly, we conclude that the mother has failed to show a clear legal right to the relief she seeks on this point, and her petition is therefore denied with regard to this issue. Queen, 959 So.2d at 621.

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

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