author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    WAL-MART STORES, INC. v. Marilyn ORR.
    2071186.
    Court of Civil Appeals of Alabama.
    May 8, 2009.
    Certiorari Denied Aug. 21, 2009
    Alabama Supreme Court 1081052.
    Joseph H. Driver and Thomas L. Creel of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.
   THOMPSON, Presiding Judge.

Wal-Mart Stores, Inc. (“Wal-Mart”), appeals from the judgment of the Marshall Circuit Court finding that Marilyn Orr, Wal-Mart’s former employee, was permanently and totally disabled as a result of a work-related accident and awarding her worker’s compensation benefits based on that finding. For the reasons stated herein, we reverse and remand.

At the time of the accident made the basis of her worker’s compensation claim, On- worked part time for Wal-Mart as a sales associate and worked full time at a textile mill. On August 16, 2004, while she was working at Wal-Mart, Orr slipped from a ladder and suffered a displaced proximal tibia fracture of her left leg (“the knee injury”). The following day, she underwent surgery to repair the fracture. Dr. Joseph Kendra performed that surgery.

Following his examination of Orr on September 10, 2004, Dr. Kendra released Orr to return to work at Wal-Mart as of September 20, 2004. He indicated, however, that she was limited to performing only a sedentary desk job. Dr. Kendra did not release Orr to return to work at the textile mill at that time. Orr returned to work at Wal-Mart answering phones while in a wheelchair.

Dr. Kendra’s medical notes reflected that, at her October 5, 2004, appointment with him, Orr was doing well but was experiencing some pain in her left knee. Dr. Kendra’s medical notes from Orr’s October 26, 2004, appointment indicated that, at that point, Orr was “tip toeing as far as weight bearing” but was not having any pain. The notes reflected that Orr was to slowly increase her weight bearing on her left leg to half of her weight over the following two weeks. Dr. Kendra reduced Orr’s restrictions at her Wal-Mart job, indicating that she could perform a sedentary desk job with occasional standing and walking. Dr. Kendra’s medical notes from Orr’s December 14, 2004, appointment with him reflected that her tibial fracture was “essentially healed,” that she was having no pain other than “aehiness with weather changes,” and that she would “advance her weight bearing and gradually return to regular duty at work.”

Orr testified that, for the six months following surgery, she used a walker to ambulate. During that time, she testified, she did not put any weight on her left leg. After six months, she began using a “quad cane,” or a cane with four posts at the bottom, to ambulate, and she began bearing weight on her left leg.

In January or early February 2005, Orr attempted to return to her job at the textile mill without the use of an assistive device to ambulate. Orr testified that, while at that job, she would lean on a buggy to walk from one position within the mill to another. Dr. Kendra’s medical notes reflected that, at Orr’s February 8, 2005, appointment with him, Orr indicated that she was having difficulty returning to her job at the textile mill and that she planned to quit that job. The notes from that appointment also indicated that Orr believed she could perform her regular job at Wal-Mart, and Dr. Kendra returned her to regular duty at Wal-Mart. At that time, Dr. Kendra indicated that Orr had reached maximum medical improvement and had not sustained any permanent impairment.

As she had indicated to Dr. Kendra, Orr quit her job at the textile mill. Afterward, she began working full time at Wal-Mart. She returned to her position as a sales associate on the floor of the store. Orr stated that, as she had done at the textile mill when attempting to work there, she would lean against a shopping cart, for support and for help with ambulation.

Dr. Kendra’s medical notes from Orr’s March 15, 2005, appointment with him indicated that she was experiencing pain and swelling in her left leg at the end of the day. He noted that she walked with a “slight left antalgic gait.” Medical notes from Orr’s appointment with Dr. Kendra on April 22, 2005, indicated that her left leg continued to swell at the end of the day and to ache. Dr. Kendra explained to Orr that she might continue to experience episodic swelling in her left leg for at least a year and that her soreness was not uncommon. He explained that an intra-artieular fracture of the knee, which she had suffered, can give patients persistent problems.

On June 16, 2005, Orr contacted Dr. Kendra and expressed concern that her left knee did not function the way it did before the surgery and that she limped when she walked and could not stoop. Dr. Kendra determined that it would be in Orr’s best interest to have a separate, independent evaluation of her knee for impairment-rating purposes. Thereafter, Orr began treatment with Dr. William Hartzog at Gadsden Orthopedic Associates.

Orr first saw Dr. Hartzog on July 18, 2005. His notes from that appointment reflected that Orr had begun to develop some post-traumatic arthritis in her left knee. He wrote that he did “not see any reason to restrict activity as far as work goes.” Orr returned to Dr. Hartzog on September 9, 2005, and, in addition to continuing to experience pain in her left knee, she indicated that she was experiencing a problem with her left foot. Dr. Hartzog found that she had a plantar fi-bromatosis (a firm nodular mass) on the bottom of her foot. He indicated that the plantar fibromatosis was not related to her knee injury. Dr. Hartzog prescribed a medial sole and heel for her left shoe at that visit.

In late 2005 or early 2006, Orr’s job responsibilities at Wal-Mart expanded to include using heavy carts to retrieve merchandise from the warehouse, which was apparently attached to the Wal-Mart store in which Orr worked, and putting the merchandise on the floor of the store. At that time, Orr could walk without an assistive device, but she would still use one because “as time went on [her] knee would try to buckle, and [she] was afraid [she] would fall again.” She testified that she could walk 20 or 30 yards without an assistive device but that she would use a cane if she walked outside of her house “because [she] was afraid [her] leg would go out.” Orr testified that the pain in her left leg worsened as she began pulling the large carts of merchandise into the store.

According to Orr, in the spring of 2006, she began to experience pain in her left hip for the first time. Although, as she would later testify, she has constantly experienced pain in her left knee and has walked with a limp since the time of her August 17, 2004, surgery, Orr stated that the pain that developed in her left hip increased the severity of her limp. On April 18, 2006, Orr returned to Dr. Hart-zog. His notes from that appointment indicated that Orr was experiencing pain in her left hip and buttock area.

On June 6, 2006, Orr filed an action against Wal-Mart in which she sought worker’s compensation benefits based on the August 16, 2004, injury to her left knee.

On August 10, 2006, Orr returned to Dr. Hartzog, still complaining of pain in her left hip. After taking X-rays of Orr’s left hip, Dr. Hartzog diagnosed her with avas-cular necrosis of the head of her left femur. Avascular necrosis is the death of a bone, or a portion thereof, as a result of reduced circulation to the bone. Dr. Hart-zog opined that Orr’s avascular necrosis was “associated with a degenerative origin and ... circulatory origin” and was not related to her knee injury.

Dr. Hartzog’s medical records from Orr’s September 12, 2006, appointment with him reflected that Orr was continuing to complain of pain in her left hip and left knee. Dr. Hartzog did not recommend surgical intervention, but he did restrict her to sedentary work with use of a cane for ambulation at work.

In November 2006, Orr sought treatment for her left hip from Dr. Wayne Goodson, an orthopedic surgeon. At her November 9, 2006, appointment with him, Dr. Goodson determined that Orr was a good candidate for a total left-hip arthro-plasty (i.e., a left-hip replacement). Dr. Goodson performed this surgery on Orr on December 26, 2006.

On January 23, 2007, Orr amended her complaint to allege that she had undergone surgery on her left hip and that the surgery had been necessitated by the August 16, 2004, injury to her left knee. She alleged that Wal-Mart had “refused to accept responsibility” for the problems she was experiencing with her left hip.

In March 2007, Orr returned to work at Wal-Mart. She continued to experience pain in her left hip. At a May 29, 2007, appointment with Dr. Goodson, Dr. Good-son determined that the December 26, 2006, surgery had failed, and, on June 6, 2007, he performed a second surgery on her left hip, revising certain of the hardware that had been placed in her left hip as part of the December 26, 2006, surgery. Following that second surgery, Orr resigned from her position at Wal-Mart.

The trial court held a bench trial on July 7, 2008. At the trial, the parties stipulated, among other things, that the injury to Orr’s left knee arose out of, and in the course of, her employment with Wal-Mart. The parties stipulated that the issues for determination at the trial were (1) whether Orr sustained a successive injury to her left hip as a result of her left-knee injury, and (2) the percentage of disability Orr experienced as a result of her left-knee injury and, should the trial court answer the first issue in the affirmative, her left-hip injury. During the trial, the trial court received into evidence, among other things, the depositions of Dr. Hartzog and Dr. Goodson, and it received live testimony from Orr, Orr’s daughter, and David Bled-soe, an occupational therapist.

On August 6, 2008, the tidal court entered a final judgment, which, in pertinent part, read:

“7. ... After a full and complete reading of Dr. Goodson’s testimony, as well as the testimony offered by Dr. William Hartzog, the Court is convinced by clear and convincing evidence that there is strong medical and other evidence to establish a causal relationship between [Orr’s] original work-related injury to her left knee and the altered gait and stress associated with attempting to accommodate the problems associated with the knee and the resulting development of symptoms arising from the avascular necrosis in [Orr’s] left hip that ultimately required surgery.
“12. Based on all of the evidence presented, including the testimony of [Orr] and her daughter, the deposition of Dr. Wayne Goodson and Dr. William Hartzog and the testimony of David Bledsoe that the Court finds supports the testimony of [Orr], the Court finds [Orr] to be uniquely credible in that her history of work prior to this on-the-job injury was one of consistent effort at two jobs. She obviously has a very strong work ethic. [Orr’s] efforts at returning to work after her knee surgery and persisting in that regard until such time that the second hip surgery required her to abandon efforts at work and retire prematurely, all convince the Court that [Orr’s] testimony with respect to her current limitations regarding her activities of daily living, her level of pain, and the manner in which she began to develop symptoms in her hip following attempts at full weight bearing while at work at Wal-Mart support the conclusion that [Orr] is totally disabled from all work, is not a viable candidate for vocational retraining and is entitled to an award of permanent total disability benefits.
“13. During the approximately three and one-half hours [Orr] was in the Court’s presence for the trial of this case, it was obvious that she significantly favored her left leg; she had significant symptoms in her left hip and in her left knee that altered the way she walked, the way she stood, the way she ascended the stairs into the witness stand, and the difficulty she had sitting while testifying, all of which fully support [Orr’s] current subjective complaints of pain and discomfort.
“14. [Orr’s] subjective presentation is further supported by the opinion of Dr. Hartzog wherein he confirmed that there is a greater than 50 percent likelihood that [Orr] will require a knee replacement due to her injury ....
“15. Finally, the Court is convinced that [Orr’s] hip condition was a manifestation of the injury to the left leg and knee and the resulting altered or antalgic gait contributed to the development of the symptoms and condition in the left hip that necessitated the two surgeries to the left hip.”

Based on those findings, the trial court awarded Orr temporary-total-disability benefits, accrued permanent-total-disability benefits, future permanent-total-disability benefits, and accrued and future medical expenses. Wal-Mart appeals.

The legislature has prescribed the standard by which this court reviews appeals from judgments in workers’ compensation cases. Section 25-5-81(e), Ala.Code 1975, provides:

“From an order or judgment, any aggrieved party may, within 42 days thereafter, appeal to the Court of Civil Appeals and review shall be as in cases reviewed as follows:
“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

“[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

On appeal, Wal-Mart contends that the trial court erred in determining that Orr’s left-knee injury was the medical cause of her avascular necrosis. Wal-Mart argues that the only evidence of medical causation came from the deposition testimony of Dr. Hartzog and Dr. Goodson, each of whom had treated Orr, and that, taken as a whole, their testimony does not constitute sufficient evidence of medical causation to support the trial court’s award of benefits for anything more than the scheduled injury to Orr’s knee.

As previously noted, the trial court found that Orr’s hip injury was caused by the injury to her knee; it did not conclude that the injury to the hip was directly caused by the accident that gave rise to Orr’s knee injury. Thus, in effect, the trial court found Orr’s hip injury to be a “successive injury.” Our supreme court adopted the successive-compensable-injury rule in Ex parte Pike County Commission, 740 So.2d 1080 (Ala.1999). In Ex parte Pike County Commission, the supreme court UTote:

“When determining whether a successive injury is compensable, the general rule is that ‘[wjhen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant’s own intentional conduct.’ 1 [Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law] § 13.00 [ (1998) ]. In applying this rule to a factually similar case, the Supreme Court of Appeals of West Virginia held:
“ ‘[I]f a worker’s compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment. If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the claimant’s customary activity in light of his condition, then such aggravation is not compensable.
“ ‘Thus, the fact that the claimant is injured and then returns to work does not mean that he is foreclosed from demonstrating that the original injury became aggravated by some routine event which triggered its recurrence. Such routine event is ordinarily one where the claimant is doing an activity that would be customary in light of his condition.’
“Wilson v. Workers’ Compensation Comm’r, 174 W.Va. 611, 616, 328 S.E.2d 485, 490 (1984); see also Lou Grubb Chevrolet, Inc. v. Industrial Comm’n, 174 Ariz. 23, 26, 846 P.2d 836, 839 (Ariz.App.1992) (‘[An] employee’s reasonable conduct in causing a later nonindustrial injury does not relieve the employer of liability if the later injury is the “direct and natural result” of the compensable work injury.’). Thus, ‘a subsequent injury, whether an aggravation of an original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.’ 1 Larson, supra, § 13.11.”

740 So.2d at 1084. Thus, based on Ex parte Pike County Commission, the question before this court is whether there was substantial evidence indicating that Orr’s hip injury was a “‘natural consequence that flow[ed] from’ ” the undisputedly com-pensable injury to her left knee.

As previously noted, the trial court received into evidence the deposition testimony of Dr. William Hartzog, the first doctor to whom Orr complained of pain in her left hip and who first diagnosed Orr with avascular necrosis. In his deposition, Dr. Hartzog opined that there was no connection between Orr’s left-knee injury and her left-hip injury. Although he did testify that an abnormal gait that places stress on a hip can aggravate an underlying condition in the hip, he testified specifically with regard to Orr that neither her altered gait nor the trauma from the accident causing her left-knee injury had caused, contributed to, aggravated, or hastened the avascular necrosis in her left hip. We conclude that Dr. Hartzog’s deposition testimony does not constitute substantial evidence indicating that Orr’s left-hip injury was the natural result of her left-knee injury.

The only other source of evidence bearing on the question of whether Orr’s hip injury was a natural consequence of her left-knee injury was the deposition testimony of Dr. Wayne Goodson. To say the least, Dr. Goodson’s deposition testimony is difficult to parse. In Dr. Goodson’s deposition, the following exchange occurred during examination by Orr’s attorney:

“Q. ... I want you to assume for the sake of this question that she didn’t have significant left hip pain and she was mostly focused on her left knee, no significant left hip pain whatsoever following the fall.
“Of course, she had the surgery almost immediately within twenty-four hours of the fall. She went through a convalescence period, she was then on a walker, and then ultimately she was taken to a quad cane. And then when she started attempting to put weight on the left side, that is on the left leg, within a couple of days of giving up, I guess the word would be the cane, she started having significant, she started having the symptoms in her hip, the actual notice of the painful symptoms in her hip.
“And she was already back at work at Wal-Mart. So what she was trying to do is she would actually lean on a buggy to try to attempt to walk and it happened within a couple of days of having to try to, you know, return to put significant weight on the left side, into the hip. She was really asymptomatic into the left hip until the weight bearing started.
“Assuming that to be the case, could you offer us an opinion of a reasonable medical probability as to whether or not either the fall contributed to the ultimate necrosis that necessitated surgery or her attempts at overcoming of guarding for the left knee during the recovery period contributed to the development of the symptoms that necessitated surgery in the left hip?
“A. Yes, I think it’s reasonable to make that assumption.”

Although, on its face, this exchange appears to provide substantial evidence indicating that Orr’s left-knee injury resulted in her left-hip injury, the factual development of the hypothetical question posed to Dr. Goodson was a substantively inaccurate representation of the evidence before the trial court at trial, rendering Dr. Good-son’s response irrelevant to the issue. Cf Golden v. Stein, 670 So.2d 904, 907 (Ala.1995) (holding that facts on which hypothetical question to expert witness are based must be in evidence). Specifically, Orr’s attorney asked Dr. Goodson to assume that Orr began experiencing pain in her left hip almost immediately upon bearing weight on her left leg. The evidence at trial, however, clearly demonstrated that Orr was bearing weight on her left leg for more than a year before she began experiencing pain in her left hip.

Dr. Goodson’s later deposition testimony during examination by Wal-Mart’s attorney demonstrates that the discrepancy between the above-quoted hypothetical question and the facts that developed at trial affected Dr. Goodson’s opinion about the cause of Orr’s hip injury:

“Q. ... And I’m just asking, maybe a better way to ask it is just ask you why you believe that it was related to the fall at Wal-Mart.
“A. Well, if she was asymptomatic before and after she started weight bearing she began to have trouble with the avascular necrosis, or the hip pain, which later we found out from the MRI that turned out to be avascular necrosis, I think it’s safe to say either caused or probably aggravated the, whether it’s underlying or preexistent, I think at least it probably aggravated again the underlying problem. You know, as far as the altered gait, usually that comes along with the pain and comes from avascular necrosis.
“Q. So it is your opinion really that the altered gait did not cause or contribute to the avascular necrosis, it is the fact that the symptomology appeared when it did, is that right?
“A. I think it is safe to say that.
“Q. You think the altered gait came from the pain that was present?
“A. Whether it is from a knee or hip, you know, it is hard to say.
“Q. ... Assume for me that Mrs. Orr did not complain of left hip pain in the emergency room, she sought several months of treatment with Dr. Kendra and she actually was weight bearing and she did not complain of left hip pain at all during that time.
“Then assume for me this accident occurred in August of ‘04. She began seeing Dr. Hartzog [on] ... July 18th, 2005. As of July 18th, 2005, she was not[] weight bearing, she was back at work, she was not having any symptoms in her left hip. She saw Dr. Hartzog again on September 9th of 2005. Again, she did not complain of pain in her left hip at all.
“She first complained of pain in her left hip to Dr. Hartzog on April 18th of 2006, at which point she said she is having pain in the left knee, but also in the left hip and left buttock, a year and eight months after the original accident. Would that be significant to you?
“A. No, sir.
“Q. I believe based on the notes from Dr. Hartzog that that August 10th, 2006, visit was the first time that he had actually diagnosed avascular necrosis. And I will refer you to his impression portion of that note. He says her problems with her hip today at this point in time I think are both related to the [avascular necrosis] of the femoral head and of the lumbo sacral level. But as I advised her, I do not think these are directly related to her tibial plateau fracture because of the duration since that. And I would say that these are both associated with a degenerative origin, an [avascular necrosis] circulatory origin, but not specifically related to the plateau fracture. Do you agree with that statement?
“A. It is hard to say. A lot of times when you have trauma to the hip, it does not, avascular necrosis does not occur the next day. It is something that sort of develops. And, you know, it develops, I have seen it develop actually several years after having trauma to the hip. So, you know, I am not sure if I can fully agree with that statement.
“Q. ... But assume for me that she did not complain of left hip pain at all in the emergency room and did not complain of left hip pain at all to her physician until April 18th of 2006, which was a year and eight months after the accident. With those circumstances and if that scenario is correct, would you agree with Dr. Hartzog’s statement in the impression section of the August 10th, 2006 note?
“A. Yes.
“Q. ... And that’s primarily because of the time gap there in between—
“A. Sure.
“Q. —the day of the accident—
“A. Correct.
“Q. —and the day the symptoms appear; is that correct?
“A. Yes.
“Q. So if the history that is contained in medical records from Dr. Hart-zog is correct and the history that I have related to you is correct, you would not be able to relate the avascular necrosis of the left hip to the initial knee injury at Wal-Mart, would you, to a reasonable degree of medical probability?
“A. That’s correct.”

After initially testifying that there was not a relationship between Orr’s left-knee injury and her left-hip injury, Dr. Goodson testified as to the possible effects of an altered gait on a hip in response to further examination by Orr’s attorney:

“Q. ... And, Doctor, I guess, when I was asking a little while ago, and, I mean, I did not make myself clear, about walking with a limp, altered gait and or otherwise attempting to accommodate the injured site with a limp, the site I am talking about is the knee, could an altered gait in an attempt to protect the knee alter or impact the motion of the hip area so as to give rise or give rise to a series of events that could contribute to the worsening or hastening of avascu-lar necrosis?
“A. Yes.
“Q. Can repetitive stress and or traumas associated with an attempt to alter a gait as described in circumduction contribute to the development of symptoms in the avascular necrotic area in your judgment?
“A. Yes.”

However, upon further examination by Wal-Mart’s attorney, Dr. Goodson provided testimony that seemingly indicated that Orr’s altered gait did not, in fact, contribute to her hip injury:

“Q. So as far as the — there are two different, obviously, you could tell the causation questions here. But as far as the trauma itself and the fall itself, if the history that she did not complain of left hip pain until her third visit with Dr. Hartzog, as she said in her deposition on page ninety-six on April 18th, 2006, assuming that that is correct, you cannot state to a reasonable degree of medical probability that the avascular necrosis was caused by the trauma, correct?
“A. That is correct.
“Q. Have you seen any research, can you cite any research for me or any medical articles, treatises, seminar materials that would show that a modified gait would cause or contribute to the formation of avascular necrosis?
“A. No.
“Q. ... If someone like Ms. Orr fractured their left knee and began limping as a result, wouldn’t you assume that the pressure on the left hip, if it was the left knee that was fractured, would actually decrease and the pressure on the right hip would be increased, because of your limping motion?
“A. That is correct.
“Q. So if this avascular necrosis was the result of an altered gait, wouldn’t you suspect or wouldn’t you expect it to have formed in the right hip rather than her left hip?
“A. If you are assuming it is from the altered gait, yes.
“Q. So assuming the fact scenarios that I have given you are correct, you cannot state to a reasonable degree of medical probability that either the trauma or the altered gait caused or contributed to the avascular necrosis or the worsening of her symptoms, correct?
“A. There is no absolute certainty, yes, I agree.
“Q. ... And in fairness to you, the standard really is not absolute certainty[;] it is a reasonable degree of medical probability, that under the circumstances you cannot say that her altered gait or the trauma to a reasonable degree of a medical probability caused or contributed to avascular necrosis or the symptoms worsening, correct?
“A. Yes.”

Reviewing Dr. Goodson’s deposition testimony as a whole, see McGough v. G & A, Inc., 999 So.2d 898, 905-06 (Ala.Civ.App.2007), we cannot conclude that it amounts to substantial evidence indicating that Orr’s left-hip injury, which was based on avascular necrosis, was a natural consequence of her left-knee injury. In other words, Dr. Goodson’s deposition testimony, when considered as a whole, does not provide evidence “of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer” that Orr’s left-hip injury was the natural result of her left-knee injury. See West, 547 So. 2nd at 871.

This court’s decision in Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188 (Ala.Civ.App.2001), which the trial court cited and upon which Orr relies on appeal, is distinguishable from the present case in a manner indicative of the lack of substantial evidence in the present case. In Kennedy, an employee was injured on the job when she slipped in a cleaning solution that had been spilled. When she was examined shortly after the accident, it was revealed that, before the accident, she had suffered from asymptomatic avascular necrosis in both of her hips. The accident, however, caused her to break her left hip, which, in turn, required her to have to undergo surgery. Ultimately, because of continued pain in her left hip, she underwent a second surgery, this time to replace her left hip. While suffering these problems with her left hip, she developed a limp and placed much of her weight on her right hip. While recovering from her second surgery, she began to experience increasing pain and dysfunction in her right hip, ultimately leading to surgery to replace her right hip.

The trial court held that the employee’s right-hip injury was compensable as a successive injury that was a natural consequence of her left-hip injury. On appeal, this court concluded that substantial evidence supported the trial court’s judgment. Key to this determination was the fact that the employee had asymptomatic avascular necrosis in her right hip before the accident but, after the accident, and after putting significant pressure on her right hip because of her left-hip surgeries, her right hip became symptomatic.

In the present case, there is no evidence indicating that Orr suffered from asymptomatic avascular necrosis that preexisted the injury to her left knee and became symptomatic because of her left-knee injury. In other words, there is simply no evidence, as there was in Kennedy, that Orr’s altered gait aggravated a preexisting condition, nor is there substantial evidence indicating that Orr’s altered gait caused or contributed in any material way to the symptoms or underlying condition Orr experienced in her left hip.

Our supreme court has stated that “ ‘[i]t is a well established principle that evidence presented by a [workers’] compensation claimant must be more than evidence of mere possibilities that would only serve to “guess” the employer into liability.’ ” Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1122 (Ala.2003) (quoting Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989)). Our review of the evidence in the present case demonstrates, at best, a mere possibility that Orr’s left-hip injury was the natural consequence of her left-knee injury. By holding that substantial evidence supported this mere possibility, the effect of the trial court’s judgment was to “guess” Wal-Mart into liability for Orr’s left-hip injury. In so doing, the trial court erred to reversal.

Based on the foregoing, we conclude that the trial court erred when it found that Orr’s left-hip injury was the natural consequence of the August 16, 2004, injury to Orr’s left knee. As a result, we reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MOORE, J., concurs specially.

MOORE, Judge,

concurring specially.

I fully concur in the reasoning and the result of the main opinion. I write specially to add that the standard of review applicable to this case further bolsters the result reached in the main opinion.

As the main opinion correctly states, this court may reverse a pure finding of fact only if that finding of fact is not supported by substantial evidence. 29 So.3d at 214 (citing Ala.Code 1975, § 25-5-81(e)(2)). In Ex parte McInish, [Ms. 1060600, Sept. 5, 2008] — So.3d - (Ala.2008), the supreme court explained the meaning of “substantial evidence” in relation to an appellate court’s review of findings of fact that were established by clear and convincing evidence at the trial-court level:

“In sum, the statutorily prescribed substantial-evidence standard of appellate review in workers’ compensation cases makes no distinction between the. preponderance-of-the-evidence level of proof and the clear-and-convincing-evidence level of proof and is applicable to findings of fact made pursuant to each, albeit in necessarily different degrees because of the heightened level of evidence necessary to satisfy the latter. Put another way, the quantum of proof necessary to sustain on appeal, as supported by substantial evidence in the record, a finding of fact based on a clear-and-convincing-evidence standard is greater than the quantum of proof necessary to sustain on appeal, as supported by substantial evidence in the record, a finding of fact based on the lesser standard of a preponderance of the evidence.
“Stated specifically in the context of a substantial-evidence standard of review required in a proceeding like the one before us, a cumulative-physical-stress/gradual-deterioration worker’s compensation case, the burden that an employee must bear was accurately stated by then Judge Murdock in his special concurrence:
“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly [as clear and convincing is defined by § 25-5-81 (c) ] establish the fact sought to be proved.’
“KGS Steel, [Inc. v. McInish, [Ms. 2040526, June 30, 2006] — So.3d -, - (Ala.Civ.App.2006) ].
“To analogize the test set out above by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C.Cir.1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to suppori a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind, [of the trial court] a fiim conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’§ 25 — 5—81(c).”

— So.3d at - (emphasis added).

In this case, in determining whether the avascular necrosis in the left hip of Marilyn Orr (“the employee”) qualified as a successive compensable injury, the trial court applied the clear-and-convincing-evidence standard set out in § 25-5-81(c):

“ ‘[C]lear and convincing’ shall mean evidence that, when weighted against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

Pursuant to Ex parte McInish, we must review the evidence through the prism of the clear-and-convincing-evidence standard to determine whether there is substantial evidence upon which the trial court reasonably could reach a firm conviction, with a high probability of correctness, that the avascular necrosis in the employee’s left hip is a direct and natural consequence of the employee’s compensable left-knee injury.

Based on the uncontradicted evidence that avascular necrosis results from loss of blood circulation to the bone, the unequivocal testimony of Dr. Hartzog that the altered gait of the employee did not cause or contribute to that condition, and Dr. Good-son’s responses to the hypothetical questions that accurately restated the chronology of the employee’s symptoms, as well as the absence of any competent contradictory medical testimony, I agree with the main opinion that the record does not contain substantial evidence indicating that the employee’s altered gait, which resulted from her left-knee injury, caused or contributed to the development of the employee’s avascular necrosis or its painful symptoms. Based on the state of the medical evidence, the trial court could not reasonably have reached a firm conviction, with a high probability of correctness, that the employee’s avascular necrosis was a direct and natural consequence of her left-knee injury. Therefore, I concur with the main opinion that the judgment should be reversed.

      . Bledsoe offered testimony with regard to, among other things, the effect of an altered gait on hip function. We do not, however, elaborate on Bledsoe's testimony because, as noted below, the only issue raised on appeal relates to the cause of Orr’s left-hip injury. Orr's attorney clearly indicated, in response to an objection from Wal-Mart, that he was not offering Bledsoe's testimony on the question of the cause of Orr's hip injury, and he indicated his agreement with Wal-Mart's attorney that Bledsoe would not be competent to offer testimony on that issue. Moreover, the trial court stated, in response to Wal-Mart's objection, that it would not consider Bledsoe's testimony in determining the cause of Orr's hip injury. Likewise, the trial court wrote in its final judgment that, “[i]n rendering this Judgment, the Court has not and does not consider Mr. Bledsoe's observations or opinion about the source or cause of [Orr’s] complaints.”

      . Of course, Orr and her daughter testified at trial. We conclude that their testimony, however, does not provide substantial evidence bearing on the question of the cause of Orr’s hip injury. Indeed, the cause of Orr's hip injury is the type of question that is peculiarly within the province of a medical expert, given that the mechanisms and symptomology of avascular necrosis, the undisputed basis of Orr's hip injury, as well as the manner in which its symptoms can be affected by pressure and movement, are beyond the knowledge of a layperson. See Hokes Bluff Welding & Fabrication v. Cox, [Ms. 2070253, Oct. 31, 2008] — So.3d -, - (Ala.Civ.App.2008) (holding that the finder of fact is not authorized to determine "matters lying exclusively 'within the peculiar knowledge of medical experts’ " (quoting Ex parte Price, 555 So.2d 1060, 1062 (Ala.1989)).

      . Because counsel for Wal-Mart had just indicated that Dr. Goodson should assume, for purposes of the hypothetical question being posed, that Orr was bearing weight on her left leg, we assume that the first inclusion of the word "not” in this sentence was either a mistake in transcription of the deposition or a mistake by the attorney.

      . The same discrepancy that renders Dr. Goodson’s response to Orr's attorney's hypothetical question irrelevant renders irrelevant his affirmative responses to the following two questions posed by Orr’s attorney:
      "Q. ... Finally, assume for me that there is a complete absence of symptoms in this lady with respect to her knee for that matter, or her left hip, prior to the traumatic fall. And then I do want you to assume while the medical records may not be as clear a picture of clarity as everyone would like, that following her attempts at weight bearing in the left lower extremity she began to develop at that time symptoms in the hip that were ultimately diagnosed as avascular necrosis, in your reasonable medical judgment, would that weight bearing and or otherwise the attempt at accommodating the knee be a contributing factor to the symptoms that resulted in surgery in your judgment?”
      "Q. ... In light of Dr. Hartzog's August 10, 2006 note, Doctor, you have got a lady that, from appearing on the MRI, has a healthy right hip, no evidence by radio-graphs of avascular necrosis in the right side. She obviously was developing and had developed avascular necrosis in the left side. She has a history, assume this, of absolutely no symptoms of problems with respect to either hip prior to the fall. And then she has a developing histoty, even if it is several months developing hisloiy following a return to attempts at weight bearing.

      "In your reasonable medical judgment, could the series of events that I have described, either the fall, associated with the fall, but probably more particularly, at least for my question, an altered gait and an altered form of motion with respect to the left hip following the fall, in your reasonable medical judgment, would it be reasonable or more probable that that series of events contributed to the worsening of the avascular necrosis that ultimately required surgery?"
      (Emphasis added.)
      Both of those questions assume a close temporal proximity between when Orr began bearing weight on her left leg and when she began to feel pain in her left hip. This assumption is not borne out by the record evidence, and, as previously noted, when the actual length of time between those two events (as confirmed by Orr's testimony at trial) was put to Dr. Goodson, he testified that there was not a relationship between the left-knee injury and the left-hip injury.

      . Neither party argues on appeal that the trial court erred in applying the clear-and-convincing-evidence standard, thus the application of that standard has now become part of the law of the case. See, generally, Ex parte Discount Foods, Inc., 789 So.2d 842, 846 n. 4 (Ala.2001) ("Generally, the law-of-the-case doctrine provides that when a court decides upon a rule of law, that rule should continue to govern the same issues in subsequent stages in the same case.”); see also Stockton v. CKPD Dev. Co., 982 So.2d 1061, 1066 (Ala.2007) (holding that unchallenged ruling by lower court becomes law of the case on review by higher court). I further note that, in Sistrunk v. Sikorsky Support Services, Inc., 961 So.2d 166 (Ala.Civ.App.2007), this court ruled that, if an employee claims a successive com-pensable injury based on gradual deterioration or cumulative physical stress, the employee bears the burden of proving that injury by clear and convincing evidence. 961 So.2d at 171 (citing Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188, 196-97 (Ala.Civ.App.2001) (stating that a successive compensable injury that is also a cumulative-physical-stress injury must be established by clear and convincing evidence)).


source: Caselaw Access Project

author: PER CURIAM. THOMPSON, Presiding Judge,

license: Public Domain

text:
    Dawn W. TURNER v. Halron W. TURNER.
    2070671.
    Court of Civil Appeals of Alabama.
    June 26, 2009.
    Certiorari Denied Aug. 14, 2009
    Alabama Supreme Court 1081332.
    Bryan S. Brinyark and Christopher L. Frederick of Brinyark, Lee, Hickman & Hocutt, P.C., Tuscaloosa, for appellant.
    Thomas II. Nolan, Jr., of Wright, Green, P.C., Mobile; and E. Tatum Turner of Turner, Onderdonk, Kimbrough & Howell, Chatom, for appellee.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Rule 52(a), Ala. R. Civ. P.; Ala.Code 1975, § 10-10-7 and § 30-5-7; Ex parte Fann, 810 So.2d 631, 636 (Ala.2001); Whitten v. Whitten, 592 So.2d 183, 186 (Ala.1991); T.L.H. v. R.A.R., 977 So.2d 482, 489 (Ala.Civ.App.2007); Floyd v. Abercrombie, 816 So.2d 1051, 1057 (Ala.Civ.App.2001); Jordan v. Jordan, 688 So.2d 839, 842 (Ala.Civ.App.1997); Derie v. Derie, 689 So.2d 142, 144 (Ala.Civ.App. 1996); Thompson v. Thompson, 650 So.2d 928, 931 (Ala.Civ.App.1994); and Blackwell v. Blackwell, 340 So.2d 448, 449 (Ala.Civ.App.1976).

The appellant’s request for an award of attorney fees on appeal is denied.

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

THOMPSON, P.J., dissents, with writing.

MOORE, J., recuses himself.

THOMPSON, Presiding Judge,

dissenting.

This is an appeal from a divorce judgment. Because I would reverse the trial court’s judgment as to the related issues of alimony and the division of the parties’ marital property, I respectfully dissent. I believe the trial court incorrectly determined that the husband’s interest in Esca-tawpa River Woodlands, Inc., and his interest in his law firm were his separate property and could not be considered in fashioning an equitable property division.

In addition, in her brief to this court, the wife asserts that the trial court erred by failing to make a finding that the husband had committed domestic abuse and by failing to grant the divorce on the ground that the husband had physically abused the wife. In support of her argument, the wife cites the Custody and Domestic or Family Abuse Act (“the Act”), §§ 30-3-130 through -136, Ala.Code 1975. Moreover, in its no-opinion order of affirmance, this court relies on Ex parle Fann, 810 So.2d 631 (Ala.2001), a supreme court opinion applying the Act. The Act applies when custody is an issue. See § 30-3-131. Because custody is not an issue in this case, the Act does not apply, and I believe the court unnecessarily relies on Ex parte Fann in its no-opinion order of affirmance.


author: MOORE, Judge.

text:
    Geneva RODGERS, as mother and legal guardian of Brittany Rodgers v. Rhonda TURBERVILLE.
    2080449.
    Court of Civil Appeals of Alabama.
    July 2, 2009.
    Certiorari Denied Aug. 14, 2009
    Alabama Supreme Court 1081366.
    R. Matt Glover of Prince Glover Law, Tuscaloosa; and R. Aaron Gartlan, Ariton, for appellant.
    Alex L. Holtsford, Jr., and Jeffrey G. Hunter of Nix, Holtsford, Gilliland, Higgins & Hitson, P.C., Montgomery, for ap-pellee.
   MOORE, Judge.

Geneva Rodgers, acting in her capacity as the mother and legal guardian of Brittany Rodgers, appeals from a summary judgment entered in favor of Rhonda Tur-berville in an automobile-accident case. We reverse.

On June 25, 2004, 11-year-old Brittany Rodgers (“Brittany”) attempted to cross East Troy Street in front of her home in Brundidge to access her family’s mailbox. At that same time, Rhonda Turberville was operating an automobile traveling westbound on East Troy Street. The right front fender of Turberville’s automobile struck Brittany, causing Brittany personal injuries. Geneva Rodgers (“Rodgers”) filed the underlying civil action against Turberville on June 20, 2006, alleging that the accident had resulted from Turberville’s negligence and/or wantonness. On September 14, 2007, Turberville moved for a summary judgment. The trial court granted the summary-judgment motion on July 7, 2008. Rodgers timely filed a motion to alter, amend, or vacate the summary judgment, but that motion was denied by operation of law on November 5, 2008. Rodgers then appealed to the Alabama Supreme Court on November 21, 2008. That court, pursuant to § 12-2-7, Ala.Code 1975, transferred the appeal to this court on February 19, 2009.

On appeal, Rodgers argues that the trial court erred in entering a summary judgment as to the negligence claim asserted against Turberville. Our standard of review in cases of this nature is well settled:

“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. ‘[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.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’
“Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007).

With the foregoing standard of review in mind, we note that, in addition to the facts previously stated, which are undisputed, the parties presented the following evidence to the trial court: Turberville submitted an affidavit in which she attested that she was traveling westbound on East Troy Street within the posted speed limit. According to Turberville, as she was proceeding down a hill, Brittany suddenly ran into the road without looking. Turberville stated that she applied her brakes and began to swerve away from Brittany but that she could not avoid the impact. Tur-berville also testified in a deposition to those same facts.

Brittany testified that she had looked both ways before crossing the street but that she did not hear or see Turberville’s automobile as it approached.

Sharon King, one of Rodgers’s neighbors, submitted an affidavit, dated January 18, 2007, stating that she had observed the accident. King attested that she

“did not know exactly how fast the [automobile operated by Turberville] was traveling when it hit Brittany, but my estimate from observation and knowledge of that road is that it was traveling just a few miles per hour faster than the speed limit in that area, which is 55 [miles per hour]. I did not see or hear any indication that the woman in the [automobile operated by Turberville] braked, swerved, skidded, or made any visible attempt to avoid Brittany in the road.”

Turberville’s attorney later deposed King. In her deposition, King testified that she did not see the automobile until the moment of impact, which was near the center dividing line of East Troy Street. King stated that, at that moment, it appeared that the automobile was traveling “a little faster than 55” but that she could not state exactly how fast. King admitted that she had no special training on estimating the speed of passing vehicles and that she could not tell the difference between a vehicle traveling 55 miles per hour and one traveling 60 miles per hour. King also testified that she could not tell if an automobile was traveling a few miles above or below the speed limit by looking at the automobile. King agreed that her testimony that the automobile appeared to be exceeding the speed limit had been “a guess” on her part.

King also testified that she did not know whether Turberville had applied her brakes to avoid the accident. King stated that she did not hear any sound to indicate that the automobile went into a skid and that she did not see any skid marks. Tur-berville’s attorney questioned King regarding the effect of an anti-lock braking system (“ABS”), but King testified that she did not know anything about such a system. Turberville did not present any evidence indicating that the automobile she was operating was equipped with an ABS. King was not asked about her affidavit testimony stating that she had not observed Turberville take any other evasive action.

Kilroy Adams also submitted an affidavit dated January 18, 2007. In that affidavit, Adams attested, in pertinent part:

“I was standing about four feet from E. Troy St., facing east while speaking with someone when I saw [the automobile operated by Turberville] come over the hill and strike [Brittany], who was walking across the road.... I did not see or hear any sounds of braking or skidding as the vehicle hit Brittany. I saw the driver of the [automobile] as she passed me and turned the vehicle around near where I was standing. The driver was ... talking on her cell phone as she passed me.”

Turberville’s attorney later deposed Adams. In his deposition, Adams testified as to the speed of the automobile:

“[Adams]: I did not say she was running 55. I said she might have been when she come around there. But it could have been 40. I didn’t specifically say how fast she was driving.
“[Turberville’s Attorney]: Okay. So you’re not offering and are not going to offer any testimony in this lawsuit that my client was exceeding the speed limit when this accident happened?
[Objection by Rodgers’s counsel.]
“[Adams]: It was going a little faster than the speed limit.”

Adams later testified that the automobile was traveling “about” 55 miles per hour.

Adams also stated that he did not observe the automobile attempt to avoid Brittany. Again, Turberville’s attorney questioned Adams about the effect of an ABS on the tendency of an automobile to skid. Adams acknowledged his familiarity with an ABS, but he maintained that he had not observed or heard any sounds consistent with Turberville’s attempting to avoid the accident. Adams testified that Brittany was only three or four feet into the road and was attempting to turn back when Turberville’s automobile struck her.

As to Turberville’s use of a cellular telephone, Adams testified that he did not intend to say that he had observed Turber-ville using the telephone at the moment of the collision. He stated that he saw Tur-berville on the telephone as she passed him. He testified that the collision had occurred an unstated distance up the road from his vantage point and that Turber-ville had continued past him before stopping at a driveway and turning around. He saw Turberville using the cellular telephone when she passed him. Adams agreed that it would not be unusual for a driver to pick up a cellular telephone to call emergency 911 following an automobile accident. Turberville did not offer any evidence indicating that she had commenced her use of the cellular telephone only after the accident.

Drivers owe a general duty of care to operate their automobiles in a lawful manner using ordinary and reasonable caution for the safety of minor pedestrians present on the roadway. See Howell v. Roueche, 263 Ala. 83, 87, 81 So.2d 297, 301 (1955). In moving for a summary judgment, Turberville argued exclusively that Rodgers could not present substantial evidence indicating that Turberville had operated her automobile unlawfully or with a lack of due care. We disagree.

Substantial evidence in the record creates a genuine issue of material fact regarding Turberville’s attentiveness. Adams testified that, immediately after the accident, while Turberville was still proceeding down the road following the collision, he had observed her using a cellular telephone. Although Adams stated that he did not see Turberville talking on that telephone at the exact moment of the collision, a reasonable person could infer from the circumstances that Turberville had been using the telephone at that time. Turberville’s attorney suggested that Tur-berville could have picked up the telephone after the collision, but the record contains no direct evidence to support that theory. On review of a summary judgment, we are required to make all reasonable inferences in favor of the nonmovant. See Duckett v. Wilson Hotel Mgmt. Co., 669 So.2d 977, 978 (Ala.Civ.App.1995).

Moreover, both Adams and King testified that it had appeared to them that Turberville took no evasive action before striking Brittany, indicating that Turber-ville may have been preoccupied before the accident. Turberville argues that the physical evidence contradicts Adams’s and King’s testimony because it shows that the collision occurred on the right front fender. Turberville maintains that the accident occurred near the center line of the roadway and that, therefore, Turberville must have swerved or the damage to the automobile would have been more to the left side of the automobile. However, the testimony regarding Brittany’s exact location in relation to the center line of the roadway at the time of the collision was in dispute. Hence, the fact that the right front fender struck Brittany does not conclusively establish that Turberville turned her automobile to avoid the accident as she claims.

The evidence in the record also creates a genuine issue of material fact as to whether Turberville was exceeding the speed limit at the time of the accident. Although we agree that Adams’s deposition testimony is too internally inconsistent to constitute substantial evidence indicating that Turberville was speeding, see McGough v. G & A, Inc., 999 So.2d 898, 906 (Ala.Civ.App.2007) (“A nonmovant cannot rely on deposition testimony that is internally inconsistent and contradictory to create a genuine issue of material fact.”), we find King’s testimony sufficient to submit the question to a jury. Alabama law has long held that a lay witness is competent to testify as to the speed of a passing automobile so long as the lay witness has had an ample opportunity to observe the automobile in motion. See Williams v. Roche Undertaking Co., 255 Ala. 56, 65-66, 49 So.2d 902, 909 (1951) (“An estimate of the speed at which an automobile, locomotive or other object was moving at a given time is generally viewed as a matter of common observation rather than expert opinion, and accordingly any person of ordinary ability and intelligence, having observed the speed, is qualified to testify as to its rate.”). When, as in this case, the witness had a brief opportunity to observe the speed of the vehicle, his or her opinion as to its speed remains admissible with “[t]he momentary observation going to the weight of the testimony.” Williams, 255 Ala. at 65, 49 So.2d at 909 (citing Jack Cole, Inc. v. Walker, 240 Ala. 683, 200 So. 768 (1941)). The fact that King testified that she was “guessing” as to the actual speed of the automobile does not render her estimate, which was based on her actual observance of the automobile, speculative. See Rule 701, Ala. R. Evid. (“If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.”).

We acknowledge that prior Alabama cases hold that a driver indisputably using due care while operating an automobile on a public roadway bears no liability for injuries to a minor child who suddenly darts into the driver’s right-of-way. See Tinsley v. Henderson, 613 So.2d 1268 (Ala.1993); Hayles v. Johnson, 366 So.2d 260 (Ala.1978); and Roueche, supra. In order to apply the rule of law arising from those cases, we would have to accept all Turber-ville’s testimony as true and ignore any controverting evidence. That we cannot do. Therefore, we reverse the summary judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The complaint also staled a negligenl/wan-ton-entruslment claim against Wayne Turber-ville as the owner of the automobile. The trial court entered a summary judgment in favor of Wayne, and Rodgers has not appealed from that judgment.

      . At the trial-court level, Rodgers did not oppose the summary judgment as to the wantonness claim, and she does not argue on appeal any error in regard to the entry of the summary judgment as to that claim.


author: THOMAS, Judge.

text:
    Christopher Scott MILLER, Mary J. Miller, Gary Anderson, and Patricia Anderson v. MILLER’S LANDING, L.L.C., Christopher Miller, James A. Robeson, and J. Ryan Conner.
    2080033.
    Court of Civil Appeals of Alabama.
    July 2, 2009.

      Robert H. Brogden, Ozark, for appellants.
    Dow T. Huskey, Dothan, for appellees.
   THOMAS, Judge.

This appeal concerns the validity of an amendment to a restrictive covenant governing the minimum square footage of single-family homes in a residential subdivision. The essential facts are undisputed.

Miller’s Landing, L.L.C. (“the company”), is an Alabama limited liability company with four members — three physicians and a trust. Each member owns 25% of the company. The physicians are Dr. Christopher Miller, Dr. James A. Robeson, and Dr. J. Ryan Conner, who practice together in a medical partnership located in Dothan. The trust is the Miller Real Estate Trust (“the trust”), which was established by Christopher Scott Miller (hereinafter referred to as “Scott Miller” in order to differentiate him from Dr. Chris Miller), with Scott Miller’s father-in-law, Gary Anderson, designated as the trustee.

The trust and the physicians each invested $55,000 in the company, and the company then purchased 41 acres of real property in Dale County for the purpose of developing a subdivision called “Bethlehem Fields.” Scott Miller and the investors planned to build their own homes on lots in the subdivision, and they planned to offer the remaining lots for sale to the public through the company. Scott Miller and each individual investor chose a building lot. On September 8, 2004, the company recorded its subdivision plat in the Dale Probate Court. The plat shows 18 lots ranging in size from slightly larger than 1 acre to slightly larger than 2½ acres. A notation on the plat states that the “[m]ini-mum house size for each lot is 3,500 square feet.”

On September 30, 2004, Scott Miller recorded a deed conveying Lot 9 of the subdivision, comprising 2.45 acres, to him and his wife, Mary J. Miller. Shortly thereafter, Scott and Mary Miller began constructing a 7,500-square-foot home on the lot. According to Scott Miller, Dr. Chris Miller was supposed to have been the next to build in the subdivision, but, he said, Dr. Miller decided not to build his home until some of the available lots had been sold to the public so that he could use the sales proceeds to defray the construction costs on his own home.

On November 19, 2004, the company filed subdivision restrictions setting forth, among other things, a minimum building size of 3,500 square feet for each house in the subdivision. There was no provision for amending the subdivision restrictions. On August 10, 2005, the company filed a second set of subdivision restrictions, reducing the minimum building size and linking it to the size of the lots in the subdivision. A house built on a lot smaller than 1.4 acres was to have no less than 3,000 square feet; a house built on a lot larger than 1.4 acres but smaller than 2 acres was to have no less than 3,200 square feet; and a house built on a lot of 2 or more acres was to have no less than 3,400 square feet. Scott Miller consented to the second set of restrictions. Those restrictions also contained no provision for further amendment.

On June 13, 2006, the four members of the company executed a third set of subdivision restrictions, leaving intact the previous square-footage requirements but providing, for the first time, a procedure for amending the restrictions: § E~8 provided that the “covenants and restrictions may be amended by an instrument executed by 75% of the property owners recorded in the public records of Dale County ....” At that time, the company and Scott and Mary Miller were the owners of all the lots in the subdivision. Dr, Chris Miller had not built a house in the subdivision, and one of the other physician members of the company had purchased a house in another neighborhood. The evidence indicated that the company’s real-estate agent had been suggesting for some time that the company consider reducing the square-footage requirement of the building restrictions because, the agent said, although she had received a number of inquiries concerning the lots, potential buyers lost interest in buying when they were made aware of the building restrictions.

The third set of restrictions was filed in the Dale Probate Court on June 21, 2006. On June 29, 2006, Gary Anderson recorded a warranty deed conveying Lot 10 in the subdivision to him and his wife, Patricia Anderson. The Andersons’ lot is adjacent to the lot owned by Scott and Mary Miller.

On March 20, 2007, the property owners held a meeting to discuss an amendment to the subdivision restrictions. At that time, 16 of 18 lots were owned by the company, 1 lot was owned by Scott and Mary Miller, and 1 lot was owned the Andersons. The owners voted to amend the building requirement to reflect that a house built on a lot of 2 or more acres was to have no less than 2,500 square feet and that a house built on a lot smaller than 2 acres was to have no less than 2,300 square feet. The company cast 16 votes, or 88.8% of the eligible votes, in favor of the amendment; the Andersons cast 1 vote against the amendment; and Scott and Mary Miller neither attended the meeting nor voted on the amendment. The evidence was undisputed that Scott and Mary Miller had been given proper notice of the time, place, and purpose of the property owners’ meeting. The amended restrictions were filed in the Dale Probate Court on April 27, 2007.

On June 19, 2007, Scott and Mary Miller and the Andersons sued the company, the physicians, and SunSouth Bank, alleging fraud and breach-of-contract claims and seeking a judgment declaring that the last amended subdivision restrictions were null, void, and unenforceable. The company and the physicians answered and counterclaimed, alleging fraud and breach-of-contract claims, and also filed a third-party breach-of-contract action against the trust. Before trial, the parties stipulated that SunSouth Bank had been joined as a party only because it was the holder of the mortgage on the lots in the subdivision, that it had consented to the amended subdivision restrictions, and that it would not participate in the trial. The witnesses at trial included Scott Miller, Gary Anderson, Craig Griffin, a local real-estate developer, Dr. Miller, Dr. Miller’s wife, and Dr. Robeson.

Scott Miller testified that he and the physicians had originally envisioned Bethlehem Fields as an exclusive, gated community where they would build their own homes and from which they would make a profit by selling lots to the public. He stated that, in his opinion, the square-footage reduction in the building requirements would result in diminishing the value of his house and altering the general scheme or plan of development of the subdivision. He concluded that, once the physicians had decided not to build their own homes in the subdivision, their motivation had become solely profit-driven, and, thus, he said, they were determined to reduce the square-footage requirement in order to make the subdivision more marketable to the general public without considering the impact upon the character of the neighborhood. Scott Miller acknowledged that he had signed the resolution agreeing to the amendment procedure outlined in § E-8, but, he said, he was under the impression that amendments were to be used only for purposes of effecting “cosmetic” changes, such as “flowers and stuff’ to the subdivision restrictions.

Craig Griffin, the developer of the Griffin Gate subdivision, which is located across the street from the Bethlehem Fields subdivision, testified that the average lot size in his subdivision is one acre, but some of the lots are larger than two acres. Griffin stated that he had sold half the lots in his subdivision, which has a minimum building requirement of 3,000 square feet for all houses. Griffin opined that reducing the square-footage requirement for houses built in the Bethlehem Fields subdivision would adversely affect the value of the homes owned by Scott and Mary Miller and the Andersons and would “change the general scheme of development of the subdivision.”

Dr. Chris Miller conceded that reducing the square-footage requirement was an attempt to boost the sales of lots in the subdivision. He also conceded that reducing the size of the houses that could be built on the lots in the subdivision could, at some point, change the general scheme or plan of development of the subdivision, but, he said, he did not think that point had been reached by allowing 2,300- and 2.500-square-foot houses. Further, he opined that the character of a subdivision is determined by factors other than the size of the houses in the subdivision. Dr. Miller testified that, although the initial subdivision restrictions had specified a 3.500-square-foot minimum building requirement, no one had ever represented to Scott Miller that that requirement would endure “forever.” He explained that the development plan was a “moving target,” in that the company was trying to find what worked for the buying public as well as what would result in a successful business plan for the members of the company. He said that no one, including Scott Miller, would profit if 16 of 18 subdivision lots remained unsold.

The parties filed posttrial briefs, after which the circuit court entered a judgment on July 1, 2008, in favor of all defendants on the plaintiffs’ claims. The circuit court also adjudicated the counterclaims and the third-party claim; none of the issues underlying those claims are raised on appeal. Scott and Mary Miller and the Andersons timely appealed to the Alabama Supreme Court. The supreme court transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Scott and Mary Miller and the Andersons raise one issue: whether “the reductions in the minimum square footage requirements by the developer of Bethlehem Fields subdivision [were] reasonable and consistent with the general scheme or plan of development of the subdivision.” On that issue, the circuit court’s judgment determined the following:

“Plaintiffs rely upon the case of Wright v. Cypress Shores Dev. Co., 413 So.2d 1115 (Ala.1982), for the proposition that restrictive covenants may not be amended unless the amendment is reasonable and is not inconsistent with or does not destroy the general scheme or plan of development. The court finds this to be the law in Alabama at this time.
“Is the amendment reasonable? Is it based upon good, logical reason or does it appear to be arbitrary and capricious? The court finds that there was good, logical reason for the amendment. The lots were not selling. Potential profit or the possibility of breaking even was in increasing jeopardy due to increasing interest payments. Potential buyers had requested permission to build homes with smaller square footages and a listing real estate agent seemed to be of the opinion that a reduction in the minimum square footage would potentially increase sales. It is no mystery that the market of potential buyers would be increased by a reduction in the cost of construction. It is also reasonable to infer that, if lots do not sell and houses are not built, then the value of Plaintiffs’ investments would decline. Perhaps as much or more so than from the construction of smaller homes in the subdivision. The court finds that the action taken in amending the restrictive covenants and reducing the minimum square footage was not arbitrary or capricious or done on a whim, but was based on sound reason. The court further finds that the amendment to restrictive covenants contained in § E-8 of the Covenants and Restrictions for Bethlehem Fields Subdivision, recorded June 21, 2006, was a valid amendment.
“Under that amendment more than 75% of the property owners of the subdivision found there to be good reason to approve the amendment in question. Is the amendment in question inconsistent with the general scheme or plan of development? ....
“.... Neither the phrase ‘general plan or scheme of development’ nor the word ‘general’ is defined in the restrictive covenants in question. Furthermore, the court has been unable to find any legal definition assigned to the same. Therefore, the court finds that Defendants’ suggestion of considering the ordinary meaning of this phrase or word to be well taken. Defendants note the Webster’s Collegiate Dictionary, Tenth Edition, definition of the word ‘general’ to be ‘concerned or dealing with universal rather than particular aspects.’ The court also finds in that same publication the definition of ‘relating to, determined by, or concerned with main elements rather than limited details.’ The court further accepts Defendants’ definitions of the words ‘plan’ and ‘scheme.’
“Is the general plan and scheme of the development to create a residential subdivision or does the general plan and scheme include all of the specific restrictions contained in the restrictive covenants? If the general plan and scheme is something other than ‘residential development,’ the court must subjectively interpret from the evidence all that the general plan and scheme includes. The court recognizes from the Wright decision that the amendment allowing modification of the restrictive covenants by a 75% vote is not unlimited. However, in citing Schmidt [v. Ladner Construction Co., 370 So.2d 970 (Ala.1979) ], the Wright court stated, ‘[m]ore importantly, however, the proposed modifications under scrutiny in [Schmidt ] neither annulled, nor were inconsistent with, the general scheme or plan of development for the subdivision or its residential use purpose.’ (Emphasis added.) In Schmidt the proposed amendment was to reduce the ground floor area for a one-story dwelling from 1400 to 1200 square feet.
“By interpreting the phrase ‘general plan and scheme’ as it applies to the restrictive covenants in question using the ordinary meaning of the words ‘general,’ ‘plan’ and ‘scheme’ by definition as previously cited, the court finds that the general plan and scheme is residential development and that the myriad restrictions contained in the document are specifics with regard to that general plan and scheme. The reduction of the minimum square footages of the residences provided in the amendment in issue here is not inconsistent with the general plan and scheme of a residential development.”

Standard of Review

Because the essential facts are undisputed and only a question of law is presented with respect to whether the amended restrictive covenant is valid, our review is de novo. See Poffenbarger v. Merit Energy Co., 972 So.2d 792, 795 (Ala.2007) (citing Christian v. Murray, 915 So.2d 23, 25 (Ala.2005)).

The Parties’ Arguments

Scott and Mary Miller and the Andersons argue that the April 27, 2007, amendment reducing the minimum area of a house that can be built on the larger lots in the subdivision from 3,400 square feet to 2,500 square feet and reducing the minimum area of a house that can be built on the smaller lots in the subdivision from 3,000 square feet to 2,300 square feet was invalid. Relying solely on Wright v. Cypress Shores Development Co., 413 So.2d 1115 (Ala.1982), they argue that the amendment was unreasonable and inconsistent with the general scheme or plan of development of the subdivision.

In Wright, the developer of a subdivision with a “residential-only” restrictive covenant had reserved the right to amend, through its Architectural Control Committee, the restrictive covenants applicable to the subdivision. When the Committee approved the building of a convenience store on two of the lots in the subdivision, the property owners sought declaratory relief. The trial court denied relief, and the property owners appealed to the Alabama Supreme Court.

Citing its earlier decision in Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962), and the Florida decision of Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665, 666 (Fla.Dist.Ct.App.1974), our supreme court held that the developer of a subdivision may reserve the right to unilaterally “annul, cancel, amend or modify the restrictive covenants” applicable to a subdivision so long as the developer exercises that right “in a reasonable manner consistent with [the] general scheme or plan of development” of the subdivision. Wright, 413 So.2d at 1124. The court decided that canceling the restriction so as to permit the construction of a convenience store in a residential subdivision was “an unreasonable exercise of the Committee’s authority and highly inconsistent with the general scheme or plan of development upon which [the property owners had] relied when purchasing their lots.” Id.

Scott and Mary Miller and the Andersons argue that, although the trial court purported to apply Wright when it held that the amendment did not violate the reasonableness/plan-of-development test, the trial court misconstrued the test. They contend that the trial court’s interpretation of the “reasonableness” prong of the test was erroneous because in determining i*easonableness, they say, the question is not whether one can assign a logical reason for amending a building requirement, but whether the substance of the amendment is reasonable. They also maintain that the trial court misconstrued the phrase “general scheme or plan of development” to encompass only the overall residential-use pw)"pose of the subdivision without considering the specific character of the subdivision.

The company and the physicians first argue that Wright is distinguishable and, therefore, that the reasonableness/plan-of-development test does not even apply to the amendment at issue here. They point out that Wright was decided in the context of a right reserved by the developer to unilaterally amend the restrictions, whereas in this case the amendment was voted upon and agreed to by 75% of the property owners, all of whom had previously approved the amendment procedure. The company and the physicians maintain that there is no indication in Wright that the reasonableness/plan-of-development test applies when the amendment of a restrictive covenant results from a vote of the property owners. In the alternative, they argue that, if the reasonableness/plan-of-development test is applicable, then the trial court correctly applied the test to the facts before it.

Analysis

Section E-8 of the governing documents for the subdivision provides that “covenants and restrictions may be amended by an instrument executed by 75% of the property owners recorded in the public records of Dale County .... ” Because the company, as the developer of the subdivision, owned all the unsold lots, and only 2 of the 18 lots had been sold on March 20, 2007, when the vote on the amendment was taken, it was the developer who determined the outcome of the vote.

Under the circumstances, it is somewhat disingenuous to argue that Wright has no application to this case because it dealt with an amendment made unilaterally by a developer, rather than an amendment approved by a vote of the property owners. In the present case, the company did not engage in a sham or artifice that allowed it to unilaterally amend the building-requirement restriction. Compare Rocky Ridge Ranch Prop. Owners Ass’n v. Areaco Investment Co., 993 S.W.2d 553, 555 (Mo.Ct.App.1999) (invalidating an amendment approved by 2/3 of the subdivision property owners because developer, who owned only one-half the lots .in the subdivision between 1976 and 1994, platted an additional 1150 lots in 1994, when the vote on the amendment was taken, thus allowing it to “unilaterally execute” an amendment to the restriction). Nevertheless, the company was able to control the outcome of the vote on the amendment because its 16 votes accounted for 88.8% of the total votes.

We conclude that the reasonableness/plan-of-development test announced in Wright is applicable here because the decision to amend the restriction in this case was, for all practical purposes, made by the developer. However, even if Wright is not strictly applicable to the facts before us, the test to determine the validity of the amendment — and the result — is the same.

Although Alabama courts have not decided the issue, the majority of courts in other jurisdictions that have considered the question have held that the power to amend a restrictive covenant by a vote of less than 100% of the property owners in a subdivision is subject to a “reasonableness” standard, see, e.g., Mulligan v. Panther Valley Prop. Owners Ass’n, 337 N.J.Super. 293, 302, 766 A.2d 1186, 1191 (2001) (noting that the majority of jurisdictions employ the reasonableness standard); Armstrong v. Ledges Homeowners Ass’n, 360 N.C. 547, 559 n. 2, 633 S.E.2d 78, 87 n. 2 (2006) (collecting cases), and many courts further require that the amendment be consistent with the general plan of the development, see Bay Island Towers, Inc. v. Bay Island-Siesta Ass’n, 316 So.2d 574, 575 (Fla.Dist.Ct.App.1975); Harrison v. Air Park Estates Zoning Comm., 533 S.W.2d 108, 111 (Tex.Civ.App.1976); Shafer v. Board of Trs. of Sandy Hook Yacht Club Estates, Inc., 76 Wash.App. 267, 273-74, 883 P.2d 1387, 1392 (1994) (quoting Lakemoor Cmty. Club, Inc. v. Swanson, 24 Wash.App. 10, 15, 600 P.2d 1022, 1025 (1979), quoting in turn Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d at 666, the Florida decision upon which our supreme court relied in Wright).

In Armstrong v. Ledges Homeowners Ass’n, supra, the Supreme Court of North Carolina rejected the argument that “any amendment that is adopted in accordance with association by-laws and is neither illegal nor against public policy is valid and enforceable, regardless of its breadth or subject matter.” 360 N.C. at 559, 633 S.E.2d at 87. The court held, instead, that “a provision authorizing a homeowners’ association to amend a declaration of covenants does not permit amendments of unlimited scope; rather, every amendment must be reasonable in light of the contracting parties’ intent.” Id.

Our conclusion that the reasonableness/plan-of-development test applies even to an amendment that results from a vote of the property owners is strengthened by reference to the provisions of the Restatement (Third) of Property: Servitudes (2000). Based on the Restatement definitions, the Bethlehem Fields subdivision is a “common-interest community,” see Restatement § 1.8, and its restrictive covenants are “servitudes,” see Restatement § 1.1 and § 1.3(3). Section 6.13 of the Restatement enumerates the duties of a common-interest community to its members, including the duty “to act reasonably in the exercise of its discretionary powers, including rulemaking, enforcement, and design-control powers.” The duty to act reasonably also applies to the power to amend the declaration, or governing documents, of a common-interest community. See Restatement § 6.10 at 200 (Comment f).

Having determined that the reasonableness/plan-of-development test applies to the amendment at issue in the present case, we now review the trial court’s determination that the test was satisfied.

Reasonableness

The following statement by the Washington Court of Appeals represents a concise synthesis of the factors that courts have examined in order to determine whether an amendment to a restrictive covenant is reasonable: “In assessing what constitutes ‘a reasonable manner consistent with the general plan of the development,’ we look to the language of the covenants, their apparent import, and the surrounding facts.” Meresse v. Stelma, 100 Wash.App. 857, 865, 999 P.2d 1267, 1273 (2000). “Surrounding facts” include:

(1) whether the amendment was enacted in compliance with the procedural requirements of the governing documents of the subdivision, see Windom v. Easley, 495 So.2d 46, 47-48 (Ala.1986) (stating that “[i]f the amendments were fraudulently obtained and proof of this fact was made, then the plaintiff was entitled to have the original covenants ... enforced; however, there is nothing in the record which indicates that the signatures in support of the amendment were falsified or obtained by fraud, and we must conclude that the trial judge found that they were not”); Dauphin Island Prop. Owners Ass’n, v. Kuppersmith, 371 So.2d 31 (Ala.1979) (holding that a petition signed by a majority of property owners to amend a restriction did not comply with the formal amendment procedure set out in the governing documents of the association);

(2) whether the amendment was enacted in a reasonable manner, e.g., whether the majority of owners acted with due regard for the rights of minority owners, see Meresse v. Stelma, 100 Wash.App. at 867, 999 P.2d at 1274 (invalidating an amendment voted by the majority of owners that relocated the subdivision access road onto a minority owner’s property; the court concluded that the majority, by characterizing its action as “ ‘maintenance, repairs,’ or ‘additional construction on the road’ ” — an action that did not require unanimous approval under the governing documents of the subdivision — had attempted to evade the unanimity requirement); and

(3) whether the amendment represents a good-faith attempt to adapt to changing circumstances, see Matthews v. Kernewood, Inc., 184 Md. 297, 40 A.2d 522 (Ct.App.1945); Restatement (Third) of Property: Servitudes § 6.10, Comment a at 196 (stating that “[t]he power to amend the governing documents in a common-interest community prevents a small number of holdouts from blocking changes regarded by the majority to be necessary to adapt to changing circumstances and thereby permit the community to retain its vitality over time”).

The trial court’s judgment reflects that it considered the foregoing factors. The court first inquired whether the amendment was based on “a good, logical reason” or whether it appeared to be “arbitrary and capricious.” Although Scott and Mary Miller and the Andersons take issue with the trial court’s question, contending that it indicates that the court misconstrued the focus of the reasonableness inquiry, we conclude that the trial court’s question was appropriate and that it is Scott and Mary Miller and the Andersons who have misconstrued the focus of the inquiry. See Armstrong v. Ledges Homeowners Ass’n, 360 N.C. at 559 n. 2, 633 S.E.2d at 87 n. 2, citing:

“Hutchens v. Bella Vista Vill. Prop. Owners’ Ass’n, 82 Ark.App. 28, 37, 110 S.W.3d 325, 330 (2003) (concluding ‘the power of ... [a] homeowner’s [sic] association ... to make rules, regulations, or amendments to its declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory ’); Buckingham v. Weston Vill. Homeowners Ass’n, 1997 ND 237, ¶ 10, 571 N.W.2d 842, 844 (A condominium association’s amendment to the declaration or bylaws ‘must be reasonable’ and ‘a rule which is unreasonable, arbitrary, or capricious is invalid.’).”

(Emphasis added.)

The trial court determined that the amendment was not arbitrary and capricious but was based on a sound reason— that the subdivision lots were not selling, that a reduction in the minimum square footage would potentially increase sales, and that, without the amendment, the value of the company’s investments, as well as the houses owned by Scott and Mary Miller and the Andersons, would decline. The trial court properly considered the surrounding facts and circumstances attending the enactment of the amendment, including the real-estate market and the financial outlook for the future of the subdivision if the lots remained unsold. In this regard, we find the decision of the Maryland Supreme Court in Matthews v. Kemewood, Inc., supra, to be particularly instructive.

In Matthews, the subdivision was conceived in 1927 as an exclusive, upscale residential development with large lots and expensive houses. The developer reserved the right to waive or modify any of the restrictions. After 1929, the lots failed to sell. The developer’s successor resubdi-vided the unsold lots into smaller parcels and modified the restriction as to minimum costs. The original lot owners sued the developer, arguing that the original plan had enhanced the value of all the lots in the subdivision, that they had purchased their lots in reliance on the general plan, and that the general plan could not be modified so as to destroy or impair the general plan. Holding that changed economic circumstances had made an alteration of the restrictions necessary to retain the vitality of the subdivision, the court stated:

“It is evident that the original plan was a subdivision of large lots with expensive houses and that the present change in the plan of lots permits less expensive properties. There is evidence offered which is certainly credible that at this time it is difficult to sell large lots which call for the construction of large and expensive houses based on 1927 costs. Such property is not in demand .... It is also forcibly argued that unless such a resubdivision is made, the property may grow up in grass and weeds and may eventually be sold for taxes, which would certainly be more detoimental to the complainant than the plan now proposed.”

184 Md. at 308, 40 A.2d at 527.

Similarly, in the present case the trial court inferred “that, if lots do not sell and houses are not built, then the value of Plaintiffs’ investments would decline. Perhaps as much or more so than from the construction of smaller homes in the subdivision.” That inference was supported by evidence indicating that, because the lots were not selling and the parties were having difficulty meeting their loan obligations to the mortgagee, they were attempting to cut costs by, among other things, reducing the maintenance and upkeep of the grounds. Scott Miller submitted photographic evidence depicting unweeded flower beds, unmown grass, and plants that were dying because the watering schedule in the subdivision had been reduced.

It was undisputed that Scott and Mary Miller were given proper notice of the time, place, and purpose of the property owners’ meeting on March 20, 2007, at which the amendment was discussed and put to a vote. With regard to the manner in which the amendment was enacted, there was no impropriety; the procedure outlined in § E-8 of the governing document of the subdivision was followed.

At trial, Scott Miller acknowledged that the company’s real-estate listing agent had, for some time, been advising the company to lower the square-footage requirement in order to increase sales. The evidence would support an inference that Scott Miller was not blind-sided by the vote on the amendment but was aware that it was imminent and chose not to attend the property owners’ meeting. The trial court’s judgment implicitly recognized what Comment a to the Restatement (Third) of Property: Servitudes § 6.10, states as the rationale for allowing a property owners’ association to amend the governing documents in a common-interest community: to “prevent[ ] a small number of holdouts from blocking changes regarded by the majority to be necessai-y to adapt to changing circumstances and thereby permit the community to retain its vitality over time.” Id. at 196. The trial court’s application of the law concerning the reasonableness test to the facts was without error.

General Scheme or Plan of Development

The trial court’s careful consideration and thorough discussion of the meaning of the phrase “general scheme or plan of development” is in accord with Alabama law. The Alabama Supreme Court has already indicated that an amendment reducing the square footage in a building-requirement restriction does not render the amendment inconsistent with the general scheme or plan of development of a residential subdivision. In Schmidt v. Ladner Construction Co., 370 So.2d 970 (Ala.1979), the supreme court held that the documents governing the Carriage Hills subdivision in Mobile did not give the developer the right to unilaterally reduce the groundfloor area of a 1-story residence from 1,400 to 1,200 square feet. Discussing Schmidt in Wright, the supreme court stated that “the proposed modifications under scrutiny in [Schmidt ] neither annulled, nor were inconsistent with, the general scheme or plan of development for the subdivision or its residential use purpose.” 413 So.2d at 1121 (first emphasis added).

The Alabama cases determining an amendment to be inconsistent with the general scheme or plan of development for a subdivision dealt with amendments that altered per se the exclusively residential nature and purpose of the subdivision. See Wright, supra (amendment allowing a convenience store in a residential subdivision); Moore v. Megginson, 416 So.2d 993 (Ala.1982) (amendment permitting the construction of an industrial warehouse and maintenance facility in a residential subdivision).

The trial court’s application of the law concerning the general-scheme or plan-of-development test to the facts was without error. The judgment of the Dale Circuit Court is affirmed.

AFFIRMED.

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

BRYAN and MOORE, JJ., concur in the result, without writings.


author: THOMPSON, Presiding Judge. BRYAN, Judge,

text:
    David VON OEPEN v. Beth Von Oepen TRAMMELL.
    2080057.
    Court of Civil Appeals of Alabama.
    July 17, 2009.
    Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile; and Claude D. Boone, Mobile, for appellant.
    Lee L. Hale, Mobile, for appellee.
   THOMPSON, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.; Rule 45, Ala. R.App. P.; § 30-3-163 and - 164, Ala.Code 1975; § 30-3-165(a),(b), and (d), Ala.Code 1975; § 30-3-169.4, Ala.Code 1975; Ex parte McGriff, 908 So.2d 1024, 1027 (Ala.2004); Henderson v. Henderson, 978 So.2d 36, 39, 41-42 (Ala.Civ.App.2007); Clements v. Clements, 906 So.2d 952, 957 (Ala.Civ.App.2005); Tatum v. Carrell, 897 So.2d 313, 324 (Ala.Civ.App.2004); and Giiggs v. Griggs, 638 So.2d 916, 918-19 (Ala.Civ.App.1994).

Each party has filed a motion seeking to strike portions of a brief submitted to this court by the opposing party. This court considers only matters properly submitted to and considered by the trial court; accordingly, we deny each party’s motion to strike. Toler v. Toler, 947 So.2d 416, 419 n. 2 (Ala.Civ.App.2006).

PITTMAN and THOMAS, JJ., concur.

BRYAN, J., dissents, with writing, which MOORE, J., joins.

BRYAN, Judge,

dissenting.

This case involves the proposed relocation of the principal residence of a child. The .Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala. Code 1975, sets forth a presumption in § 30-3-169.4, Ala.Code 1975, which states:

“In proceedings under this article ..., there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

Because I disagree that Beth Von Oepen Trammell overcame the presumption found in § 30-3-169.4 so as to shift the burden of proof to David Von Oepen, I respectfully dissent from the no-opinion affirmance, which upholds the trial court’s implicit finding to the contrary. See my special writing in Parker v. Parker, [Ms. 2071226, June 19, 2009] — So.3d -, - (Ala.Civ.App.2009)(Bryan, J., concurring in the judgment of affirmance in part and dissenting in part).

MOORE, J., concurs.


author: WISE, Presiding Judge.

text:
    Brian Scott BURRELL v. STATE of Alabama.
    CR-08-0577.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Charles Michael Herrington, Montgomery, for appellant.
    Troy King, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

On March 3, 2006, the appellant, Brian Scott Burrell, entered a guilty plea to one count of first-degree receiving stolen property and one count of obstructing justice by using a false identity. The trial court sentenced him, as a habitual offender, to serve concurrent terms of twenty years in prison. See § 13A-5-9(c), Ala.Code 1975. It then split the sentences and ordered him to serve three years followed by five years on supervised probation. On October 21, 2008, Burrell’s probation officer filed an “Officer’s Report on Delinquent Probationer.” After conducting a hearing on December 5, 2008, the circuit court revoked Burrell’s probation. This appeal followed.

Burrell argues that the December 5, 2008, hearing did not constitute a revocation hearing. Specifically, he contends that the record in this case does not indicate that he was informed of the alleged probation violations and that he received a written copy of the alleged violations as required by Rule 27.5, Ala. R.Crim. P.; that the State did not give him adequate notice of the evidence it intended to use against him; that the record does not indicate that the circuit court advised him that any statement he made at the December 5, 2008, hearing could be used against him; that the record does not indicate that the circuit court set a date for a final revocation hearing; that he did not waive a final revocation hearing; and that, for these reasons, the summary revocation of his probation violated his right to procedural due process. The record does not include a transcript of the December 5, 2008, hearing. In fact, the court reporter stated that she “did not report anything regarding a probation revocation” in this case. Therefore, we cannot properly review Burrell’s claims.

Accordingly, we reverse the circuit court’s judgment revoking Burrell’s probation and remand this case for the circuit court to conduct a new revocation hearing. See Lee v. State, 936 So.2d 551 (Ala.Crim.App.2005); Whitlock v. State, 923 So.2d 1147 (Ala.Crim.App.2005). In conducting the revocation hearing, we caution the circuit court to comply with the due process requirements set forth in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); McCoo v. State, 921 So.2d 450 (Ala.2005); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); and Rule 27, Ala.R.Crim. P.

REVERSED AND REMANDED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.