author: THOMAS, Judge.

text:
    SINGER ASSET FINANCE COMPANY, L.L.C. v. ESTATE OF Richard H. RUTHERFORD.
    2050500.
    Court of Civil Appeals of Alabama.
    June 1, 2007.

      Dayna R. Burnett and Charles N. Parnell III of Parnell & Crum, P.A., Montgomery, for appellant.
    J. Sanford Mullins and Peter M. Wright of Sirote & Permutt, PC, Birmingham, for appellee.
   THOMAS, Judge.

Singer Asset Finance Company, L.L.C. (“Singer”), filed a claim against the estate of Richard H. Rutherford, stating that pursuant to a perfected security agreement between Rutherford and Mutual BanCorp (“Mutual”), which was later assigned to Singer, the estate owed Singer $35,000. The representative of the estate countered that Singer’s claim was barred by the nonclaims statute, § 43-2-350, Ala. Code 1975, and was, therefore, unenforceable. The Jefferson Probate Court agreed with the representative of the estate and denied Singer’s claim.

Singer appealed to the Jefferson Circuit Court; the circuit court entered a summary judgment for the estate. Singer appeals, arguing that it was a reasonably ascertainable creditor who was not given actual notice of the issuance of letters of administration for the estate, and, therefore, it says, the nonclaims statute did not bar its claim.

We are releasing today an opinion in another appeal by Singer; in that appeal, Singer sought review of judgment dismissing its claims against Connecticut General Life Insurance Company (“CGLIC”). See Singer Asset Fin. Co. v. Connecticut General Life Ins. Co., 975 So.2d 375 (Ala.Civ.App.2007). The facts underlying both appeals are essentially the same and are undisputed.

Richard Rutherford was injured in an Atlantic City, New Jersey, casino, and, in settlement of his claim against the casino, he agreed to a structured settlement with North River Life Insurance Company (“North River”), the insurer of the casino. The agreement, among other things, provided that Rutherford would receive five periodic payments. The payments were to be made according to the following schedule:

$15,000.00 payable on April 1,1990;
$15,000.00 payable on April 1,1995;
$20,000.00 payable on April 1, 2000;
$35,000.00 payable on April 1, 2005; and
$50,000.00 payable on April 1, 2010.

In accordance with its rights under the settlement agreement, North River subsequently purchased a guaranteed investment annuity contract from CGLIC to fund its obligation to make the periodic payments to Rutherford.

On April 30, 1998, Rutherford entered into a security agreement with Mutual, assigning to Mutual two of the periodic payments in return for an immediate cash payment. The assigned payments were the April 1, 2000, payment for $20,000, and the April 1, 2005, payment for $35,000. On the same day, Mutual provided written notice of the assignment to CGLIC and North River. Mutual then assigned its rights to the two periodic payments to Singer on or about May 11,1998. On May 19, 1998, Mutual filed a UCC-1 financing statement with the office of the Alabama Secretary of State. CGLIC made the April 1, 2000, payment to Singer.

On May 24, 2002, Rutherford died. Almost a year later, on April 1, 2003, the UCC-1 financing statement previously filed by Mutual was amended to reflect that Singer was the assignee of Mutual’s interest in the security agreement. On April 2, 2003, the day after the UCC-1 financing statement was amended to add Singer as the assignee, and almost a year after Rutherford’s death, letters of administration were issued to Roy F. King, Jr., serving as the general county administrator for Jefferson County. Rutherford’s wife had predeceased him in May 1996, leaving Rutherford’s son, Christopher, as Rutherford’s sole heir.

King had been contacted by Margaret Lathum, an attorney, who claimed that she had represented Rutherford and his wife before they died, as well as their only son, Christopher, who was then in prison. Lat-hum told King that Christopher was trying to get his father’s estate probated and asked King if he would serve as the administrator. King agreed and asked Lathum for any information she had about the assets, liabilities, and debts of the estate. King claimed that Lathum gave him the following information: that Rutherford had been a plaintiff in pending asbestos litigation and that there was a check from an insurance company for the “Death Benefit of Richard Rutherford” in the amount of $46,704.65. That check had actually been issued by CGLIC and represented the commuted amount of the remaining settlement proceeds.

Publication notice to creditors was made on April 5, April 12, and April 19, 2003. Lathum subsequently delivered to King the check from CGLIC, which was dated January 7, 2003, and King deposited the check into the bank account for the estate. King claimed that other than the check made payable to the estate and the information Lathum had provided him regarding the pending asbestos claim that Rutherford had previously filed, he received no information, from either Christopher Rutherford or Lathum, regarding the assets or liabilities of the estate.

On November 12, 2003, after deducting all the estate debts, court costs, and administrative fees, and after receiving the check from CGLIC and a settlement sum from the law firm handling the asbestos claim, King paid over substantially all of the remaining estate assets to the sole heir, Christopher Rutherford.

Singer claims that it first received notice that the estate had been administered and that the check representing the commuted proceeds from the settlement agreement had been paid to the estate on November 9, 2004, almost a year after King had distributed the assets of the estate to Christopher Rutherford. On November 12, 2004, Singer, as the assignee of the right to receive $35,000 from CGLIC on April 1, 2005, filed a proof of claim with the Jefferson Probate Court. King filed a contest of claim on December 21, 2004, asserting that Singer’s claim was barred by the nonclaims statute. Following a hearing, the probate court denied the claim asserted by Singer and entered a judgment in favor of the estate. Singer appealed the probate court’s decision to the circuit court for a de novo hearing. After a hearing on a summary-judgment motion filed by King, the circuit court entered a summary judgment in favor of the estate.

Singer timely appeals, raising three issues: (1) whether Singer was a “reasonably ascertainable” creditor under § 43-2-61, Ala.Code 1975; (2) whether King exercised due diligence in searching for reasonably ascertainable creditors of the estate; and (3) whether Singer’s claim was a claim of title allowing Singer to assert its claim as an exception to the nonclaims statute.

Although Singer raises three issues for this court to consider, the first two issues are interconnected and will be treated, for the purposes of this opinion, as one issue, namely, whether Singer was a reasonably ascertainable creditor under § 43-2-61. Because of our disposition of that issue, we pretermit any discussion of whether Singer’s claim was a claim of title, which is an exception to the nonclaims statute.

Standard of Review

This court recently stated our well-settled standard of review of a summary judgment in Hunt v. Atrex, Inc., 963 So.2d 122, 123 (Ala.Civ.App.2007):

“‘We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most favorable to the nonmov-ing party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992).’ ”

(Quoting Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002).)

Issues

Alabama’s nonclaims statute provides, in pertinent part:

“All claims against the estate of a decedent, other than the claims referred to in subsection (a) of this section [i.e., claims ‘held by the personal representative of the decedent or by an assignee or transferee of the personal representative, or in which the personal representative has an interest’], whether due or to become due, must be presented within six months after the grant of letters, or within five months from the date of the first publication of notice, whichever is the later to occur, provided however, that any creditor entitled to actual notice as prescribed in section 43-2-61 must be allowed thirty days after notice within which to present the claim, and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited.”

§ 43-2-350(b), Ala.Code 1975. Section 43-2-61, Ala. Code 1975, states which creditors are entitled to actual notice and the required manner of giving notice:

“Notice ... must be given:
“(1) By first-class mail addressed to their last known address, or by other mechanism reasonably calculated to provide actual notice, to all persons, firms, and corporations having claims against the decedent, who are known or who are reasonably ascertainable by the personal representative within six months from the grant of letters; and
“(2) By publishing a notice once a week for three successive weeks in a newspaper of general circulation published in the county in which the letters were granted or, if none is published in the county, in the one published nearest to the courthouse thereof or in an adjoining county.”

(Emphasis added.)

Singer does not allege that it filed its claim within the prescribed six-month claim period set out in § 43-2-350. Rath-ex’, Singer argues that it was entitled to actual notice of the probate pi’oeeedings because, it says, it was a reasonably ascertainable creditor. Accordingly, Singer asserts that because it was not given actual notice, its claim should not be barred by the nonclaims statute.

Singer bases its argument that it was a reasonably ascertainable creditor on two grounds. First, citing American Home Assurance Co. v. Gaylor, 894 So.2d 656 (Ala.2004), and Carter v. Beck, 598 So.2d 1390 (Ala.1992), Singer asserts that Eng had a duty to inquire into the basis for CGLIC’s issuance of the “death benefit” check to the estate. Singer claims that if Eng had contacted CGLIC to inquire about the basis for the check, that inquiry would have led to information revealing Singer’s existence and disclosing Singer’s claim as an assignee of Richard Rutherford’s interest. Second, citing Oklahoma and Florida decisions, Singer contends that Eng had a duty to search public records, including UCC filings, to ascertain the existence of Rutherford’s creditors. Singer maintains that Eng’s admission that he was “not getting any information from [Rutherford’s] family” suggests that Eng had a heightened duty to ascertain the existence of Rutherford’s potential creditors.

Because we rely on Singer’s first ground to hold that there is a genuine issue of material fact with respect to whether Singer is a reasonably ascertainable creditor, we need not address Singer’s second ground regarding the duty of a personal representative to search public records. In addition, we express no opinion concerning whether the lack of information from a decedent’s family places any heightened duty on a decedent’s personal representative to ascertain the existence of the decedent’s creditors.

Discussion

The United States Supreme Court, in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), held that the Due Process Clause of the Fourteenth Amendment requires that notification of state action affecting property must generally be provided to interested parties. Id. at 314, 70 S.Ct. 652. Subsequently, in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Supreme Court held that due process requires “actual notice” as a “minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party ... if its name and address are reasonably ascertainable.” Id. at 800, 103 S.Ct. 2706.

The Adams case involved the sale of real property for delinquent taxes in which a mortgagee of the property was not given actual notice of the sale or of the running of the statutory period of redemption. The Court held that because the tax sale had diminished the value of the mortgagee’s interest and because the mortgagee could have been identified through “reasonably diligent efforts,” due process required that actual notice should have been given to the mortgagee. 462 U.S. at 798 and n. 4, 103 S.Ct. 2706.

The principles of Mullane and Adams were applied to probate proceedings in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). There, the Court held that a decedent’s personal representative must use “ ‘reasonably diligent efforts[ ]’ ... to uncover the identities of creditors,” 485 U.S. at 490, 108 S.Ct. 1340, and that if the creditor’s “identity was known or ‘reasonably ascertainable,’ then termination of [the] claim without actual notice violated due process.” Id. at 491, 108 S.Ct. 1340. The Court concluded that the “reasonably ascertainable standard,” as applied to probate proceedings, was not “so burdensome or impracticable as to warrant reliance on publication notice alone.” Id. at 490, 108 S.Ct. 1340.

In Pope, a hospital sought to collect unpaid medical bills from the estate of the decedent, but the hospital did not file its claim within the statutorily prescribed time-frame under Oklahoma’s nonclaims statute. The Court held that although the decedent’s widow, who was the executrix of the estate, was aware that her husband had stayed a long time at the hospital, it was not clear whether that awareness “translate[d] into a knowledge of the [hospital’s] claim,” id. at 491, 108 S.Ct. 1340, because the Oklahoma courts had not considered the question. Therefore, the Court remanded the case for further proceedings to determine whether “reasonably diligent efforts” would have “identified [the hospital] and uncovered its claim.” Id.

The Alabama Supreme Court applied the principles discussed in Pope to its decision in Carter v. Beck, supra. In Carter, William Carter suffered an injury resulting from what, he alleged, was a defect in a modification to his tractor done by Thomas Vaughn. By the time Carter filed his claim, Vaughn was deceased. The trial court entered a summary judgment for Beck, the administratrix of Vaughn’s estate, because Carter had not filed his claim within six months of the issuance of letters of administration as required by Alabama’s nonclaims statute.

The Alabama Supreme Court reversed the summary judgment, concluding that Beck had not met her burden as the mov-ant to “make a prima facie showing that no genuine issue of material fact existed and that she was entitled to a judgment as a matter of law.” 598 So.2d at 1391. The court stated that “it [was] possible that Beck could have learned of Carter’s claim from a source other than Carter or his attorney or could have obtained from such a source information from which she could have reasonably identified Carter as a potential claimant against Vaughn’s estate.” Id. The court determined that because Beck had “presented no evidence to eliminate this possibility,” the court could not hold, under the standard for reviewing a summary judgment, “that Beck neither knew nor had any reasonable means of ascertaining the existence of Carter’s claim within six months after she was issued letters of administration and, thus, that she was entitled to a judgment as a matter of law.” Id.

More recently, in American Home Assurance Company v. Gaylor, supra, the Alabama Supreme Court reversed another summary judgment in favor of an adminis-tratrix because the administratrix had “failed to demonstrate that she did not have a reasonable means of ascertaining whether [a creditor who had filed a claim after the time allowed by the nonclaims statute had passed] had a claim against the estate.” 894 So.2d at 661.

In Gaylor, the driver of a sport-utility vehicle was killed when his vehicle crashed into the rear of a tractor-trailer truck. The administratrix of the driver’s estate did not provide actual notice of the probate proceedings to the truck driver. Claiming that she had no actual knowledge of the claim or potential claim by the truck driver, the administratrix argued that the truck driver was not a “reasonably ascertainable creditor” because the accident report indicated that the truck driver had not been injured.

Applying the same analysis that it had used in Carter, the court held that the mere disavowal of knowledge by the ad-ministratrix as to the existence of the truck driver’s actual or potential claim was insufficient to meet her burden as the movant for a summary judgment. The court determined that the administratrix had failed to establish either that she had “no information that would have made ‘the status of [the subrogee of the truck driver] as a potential creditor reasonably ascertainable,’ ” or that she “took any steps to eliminate the possibility that [the truck driver] had been injured.” Id. at 660 (quoting the affidavit of the administra-trix). The court further decided that the severity of the accident — which caused the deaths of three people and $14,000 in damage to the truck driver’s tractor-trailer— “created a duty requiring [the administra-trix] to inquire into the possibility of a claim against [the] estate by [the truck driver].” Id. Finally, the court reasoned that the truck driver’s name, address, and telephone number were listed on the accident report and, thus, that the administra-trix had a “ ‘reasonable means of ascertaining the existence of a claim.’ ” Id. (quoting Carter, 598 So.2d at 1391).

We derive the following principles from the decisions in Pope, Carter, and Gaylor: (1) whether a creditor is “reasonably ascertainable” and whether a personal representative has exercised “reasonably diligent efforts” to uncover a potential creditor are questions of fact dependent upon the circumstances of each individual case; (2) when a personal representative is the movant for a summary judgment in a case such as the one now before us, the personal representative’s mere disavowal of knowledge of a claim, or a potential claim, will not meet the personal representative’s burden to make a prima facie showing that there is no genuine issue of material fact as to whether the claimant is a reasonably ascertainable creditor; and (3) instead, the personal representative must present evidence to eliminate the possibility that with reasonably diligent efforts, and with the information the personal representative has about the decedent, the decedent’s assets, and the decedent’s liabilities, the personal representative would have uncovered the potential claim.

Applying those principles to the present case, we hold that King presented no evidence to eliminate the possibility that he could have learned of Singer’s claim by contacting CGLIC about the death-benefit check. See Carter, 598 So.2d at 1391 (holding that “it [was] possible that Beck could have learned of Carter’s claim from a source other than Carter or his attorney or could have obtained from such a source information from which she could have reasonably identified Carter as a potential claimant against Vaughn’s estate”). King had a source available to him that could have led to information uncovering the existence of Singer’s potential claim against the estate, and King presented no evidence to eliminate the possibility that contacting CGLIC would have revealed information that would have enabled King to “reasonably ascertain” the existence of Singer and its claim. See Gaylor, 894 So.2d at 660 (stating that the administratrix failed to establish that she had “no information that would have made ‘the status of [the subro-gee of the truck driver] as a potential creditor reasonably ascertainable’ ”).

Therefore, in accordance with the principles of Pope, Carter, and Gaylor, we hold that the circuit court erred by entering a summary judgment in favor of the estate. Whether King should have contacted CGLIC and whether contacting CGLIC would have led to information making Singer “reasonably ascertainable” are genuine issues of material fact to be decided by the fact-fínder. The judgment of the Jefferson Circuit Court is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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

      . According to the annuity contract between North River and CGLIC, if Rutherford died before all the proceeds of the settlement were dispersed, a commuted amount of any remaining proceeds was to be paid to Rutherford's named beneficiary or to Rutherford’s estate. Because Rutherford's wife, Rutherford's beneficiary, predeceased him, the commuted proceeds became an asset of the estate.


source: Caselaw Access Project

author: MOORE, Judge. BRYAN, Judge,

license: Public Domain

text:
    Patricia PHILLIPS v. ASPLUNDH TREE EXPERT COMPANY.
    2060307.
    Court of Civil Appeals of Alabama.
    July 20, 2007.

      Jonna M. Denson of Heninger Garrison Davis, LLC, Birmingham, for appellant.
    David S. Hassinger and Karen R. Ber-how of Porter, Porter & Hassinger, P.C., Birmingham, for appellee.
   MOORE, Judge.

In this workers’ compensation case, Patricia Phillips (“the dependent”) appeals from a summary judgment entered by the Blount Circuit Court in favor of Asplundh Tree Expert Company (“the employer”). In its judgment, the trial court determined that the dependent had failed to adduce clear and convincing evidence that the death of John Dan Phillips (“the employee”) arose out of and in the course of his employment. We affirm.

The Facts

The material facts pertinent to this appeal show that the employee ordinarily worked for the employer in north Alabama as a foreman. In August 2004, the employer assigned the employee and a co-employee, Lonny Bridges, to work in Florida cleaning up debris from a hurricane. At the time, the employee, who was 49 years old, was taking medication for high blood pressure, was taking a blood thinner, and wore support hose on his left leg due to thrombophlebitis.

The two men initially worked in Naples, Florida. They worked 14-hour days, 7 days per week, clearing brush in hot, muggy conditions. One man would gather the brush, which was not heavy, while the other man operated two levers in the air-conditioned cab of a loader truck to control a grapple that would pick up the brush and deposit it into the truck bed. The levers were no heavier than a soft drink. The loader-truck operator would get into position by climbing a 12-foot ladder to the cab. The two men swapped duties so that they would each climb into the cab about 60 times per day. They would take 10- or 15-minute breaks every couple of hours and a 30-minute lunch break during the day. They would sleep about eight hours per night in a hotel room provided by the employer.

After working for two weeks in Naples, the employee and Bridges traveled to Orlando, Florida. They reduced their work schedule to 12 hours per day, but they continued working every day with similar breaks and sleeping at night in a hotel room provided by the employer. While in Orlando, the employee complained that his leg was swelling, although it did not interfere with his work. Bridges called a supervisor and asked if he and the employee could both see a doctor. Bridges was concerned about his own high blood pressure. The supervisor offered to give the employee time off to see his doctor in Alabama or to find the employee a doctor in Florida. The employee did not see a medical doctor at the time, however. Instead, he soaked his leg in hot water each night.

On the Friday before Labor Day, Bridges, the employee, and several coworkers traveled back to Arab, Alabama, from Orlando. Bridges drove the entire 12-hour trip from Orlando while the passengers, including the employee, slept. They arrived in Arab between 1:00 a.m. and 4:00 a.m. on that Saturday morning.

The employee appeared exhausted and slept when he got home. The next day he stayed in his recliner most of the day after going to the grocery store with the dependent. The dependent noticed that the employee’s leg was swollen. The employee did not complain of any other problems, however. He did not visit a doctor while he was home that weekend, but he planned to go to the hospital on Labor Day to check his blood, which he did every four to six weeks.

On Sunday morning, the employee received a telephone call notifying him to return to Florida with Bridges the next day. The two men left their homes around 6:00 a.m. on Labor Day and arrived at them hotel in Orlando between 7:30 p.m. and 8:00 p.m. Bridges drove and the employee slept during some of the trip. The employee did not go to the hospital as he had planned.

The next two days, the men awoke around 5:00 a.m. and had breakfast in the hotel lobby. They then drove 30 minutes to their work site. They started working around 6:00 a.m. and worked until 7:00 p.m. They had a 30-minute lunch break. Bridges testified that because the employee’s leg was swollen, he tried to let the employee rest as much as possible. During that two-day period, the employee operated the loader truck while Bridges gathered the brush. The employee did not go up and down the ladder 60 times per day during this period. The employee had no complaints during this time period.

On Wednesday, September 8, 2004, after completing their workday around 7:00 p.m., the two men drove to a grocery store to get hot dogs to make for supper. The windows were down in the truck so that they had an opportunity to cool down. They arrived at their hotel around 8:00 p.m. The employee awaited a telephone call from the dependent, who called every night around 9:00 p.m. The employee talked to the dependent on the telephone for about 10 minutes, telling her he was tired. The employee then went into the bathroom to take a shower. Bridges started cooking the hot dogs while the employee took his shower. When the hot dogs were ready, Bridges called for the employee. When he got no response, he went into the bathroom and found the employee laying in the bathtub with no pulse. Bridges telephoned emergency 911 and paramedics arrived and commenced CPR at 9:16 p.m. Bridges traveled to the hospital where the employee was pronounced dead.

Dr. Marie Hansen, an associate medical examiner for Orange County, Florida, performed an autopsy the next day. Dr. Hansen concluded that the employee had died of a ruptured berry aneurysm due to hypertensive and atherosclerotic cardiovascular disease. Dr. Hansen opined in an affidavit that the employee had died a natural death. After reviewing the employee’s past medical records, the employee’s job description, and the events surrounding his death, Dr. Hansen stated that “I have no evidence to document that [the employ-eej’s job duties were a contributing cause of his aneurysm and resulting death.”

Dr. Bruce Romeo, a specialist in internal and occupational medicine, submitted an affidavit in which he opined that the employee had died from natural causes totally unrelated to his job duties. Specifically, Dr. Romeo stated that the employee died when a preexisting berry aneurysm aggravated by hypertensive and atherosclerotic cardiovascular disease ruptured. The doctor explained in his affidavit that the only contributing factor to the rupture was the hardening of the employee’s arteries from plaque formed by cholesterol and calcium that had built up over time and had eventually cut off the flow of blood. Dr. Romeo attributed the employee’s condition to a congenital defect placing him at a higher risk for a ruptured aneurysm than the normal population. Dr. Romeo opined that the employee’s job duties did not contribute to his aneurysm and resulting death.

Dr. Braxton Smith, a general practitioner, filed an affidavit for the dependent. Dr. Smith testified that he had treated the employee since 1997 for hypertension, left-leg thrombophlebitis, and deep-vein thrombosis. Dr. Smith was the physician who had prescribed the employee’s blood-thinner and high-blood-pressure medication. Dr. Smith opined that, as described to him, the working conditions during the three weeks preceding the employee’s death contributed to accelerate the rupture of the employee’s cerebral aneurysm that caused his death, due to elevated blood pressure on the aneurysm.

The parties subsequently deposed Dr. Smith. In his deposition, Dr. Smith described a berry aneurysm as a weakening of the vessel of the area of the brain, like a bubble. Medical science has not definitively determined the cause of a berry aneurysm, but the most probable cause is a gradual weakening of the vessel due to arteriosclerosis. Dr. Smith admitted that the employee’s job did not cause his berry aneurysm. As for the rupture of a berry aneurysm, Dr. Smith testified that many factors can lead to a rupture, including unknown stimuli, elevated blood pressure from ordinary physical stress such as walking down the street, smoking, and ar-teriosclerotic disease. Dr. Smith testified that he could not state with any reasonable degree of medical certainty what had caused the rupture of the employee’s aneurysm.

Dr. Smith admitted that at the time he signed the affidavit he misunderstood the details of the employee’s work duties in the weeks preceding his death. He did not know that the employee had taken the weekend off before his death. He also did not know that the employee had worked solely in the air-conditioned cab during the two days before his death and had not climbed the ladder leading to the cab 60 times on those days. He also did not know how much time had passed between the end of the workday and the employee’s death or that the employee had cooled down before arriving at the hotel that night.

Upon questioning by the dependent’s attorney, Dr. Smith testified that any activity the employee undertook or any exposure to hot temperatures “could have” contributed to his rupture by accelerating it and “possibly” increased his risk of rupture. However, on redirect examination, the doctor reiterated that he could not state with any reasonable degree of medical certainty that the employee’s job duties had anything to do with the ruptured aneurysm. He testified only that physical activity could, but not did, have an effect on the aneurysm. Dr. Smith agreed with an excerpt from a medical treatise indicating that even moderate physical activity can have an effect on an aneurysm. However, he conceded that he had no evidence to indicate that the employee’s blood pressure was elevated two hours after he quit working on the date of his death.

The Law Applicable to the Case

The dependent contends that the routine physical activities of the employee’s job over a three-week period elevated his blood pressure and contributed to the rupture of the employee’s preexisting berry aneurysm. In other words, the dependent claims that the employee suffered a nonac-cidental injury and death due to cumulative physical stress. See Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996), and Ala.Code 1975, § 25-5-81(c). Accordingly, at trial, the dependent bore the burden of proving by clear and convincing evidence that the employee’s ordinary employment duties legally and medically caused the employee’s injury and resulting death. See Tee Jays Mfg. Co. v. Stults, 723 So.2d 684 (Ala.Civ.App.1998); Valtex, Inc. v. Brown, 897 So.2d 332 (Ala.Civ.App.2004).

To establish legal causation, the dependent was required to show that “the performance of [the employee’s] duties as an employee exposed [the employee] to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., 680 So.2d at 267. To show medical causation, the dependent was required to prove that a risk to which the employee was exposed was, in fact, a contributing cause. Ex parte Trinity Indus., 680 So.2d at 269. “Clear and convincing evidence” is defined as

“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.”

Ala.Code 1975, § 25-5-81(c).

The Applicability of the Clear-and-Convincing-Evidence Standard to Summary-Judgment Proceedings

The dependent contends on appeal, however, that on a motion for a summary judgment she need only adduce substantial evidence of legal and medical causation in order to create a genuine issue of material fact that would warrant a trial. “Substantial evidence” is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 268 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). The dependent maintains that she presented substantial evidence of legal and medical causation through the testimony of Bridges and Dr. Smith. The dependent argues that the trial court erred in using the clear-and-convincing-evidence standard at the summary-judgment stage.

Following the entry of the summary judgment, the dependent filed a motion to alter, amend, or vacate the judgment. In that motion, the dependent conceded at several points that she bore the burden of proving legal and medical causation by clear and convincing evidence. She did not argue in that motion that the trial court had erred in applying the clear-and-convincing-evidence standard during the summary-judgment proceedings. This court cannot consider an issue raised for the first time on appeal. Buford v. Buford, 874 So.2d 562 (Ala.Civ.App.2003). “ ‘This court will not hold a trial court to be in error unless that court has been apprised of its alleged error and has been given the opportunity to act thereon.’ ” Tillis Trucking Co. v. Moses, 748 So.2d 874, 882 (Ala.1999) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)). Because the dependent did not object in her post-judgment motion to the trial court’s use of the clear-and-convincing-evidence standard, the trial court was never given an opportunity to rule on the issue and we cannot now hold the trial court in error on this ground.

Even if we could consider this argument, we would find that the trial court did not err to the extent that it required the dependent to present clear and convincing evidence of legal and medical causation at the summary-judgment stage. While ordinarily to defeat a motion for a summary judgment the nonmovant must present substantial evidence that creates a genuine issue of material fact, see Ala. Code 1975, § 12-21-12(a), when the law imposes the higher burden of proof of elear and convincing evidence as to a particular claim or factual issue, the nonmov-ant must present evidence at the summary-judgment stage that would qualify as clear and convincing evidence if accepted and believed by the fact-finder. See Ala. Code 1975, § 12-21-12(e) (“With respect to any issue of fact for which a higher standard of proof is required, whether by statute, or by rule or decision of the courts of the state, substantial evidence shall not be sufficient to carry the burden of proof, and such higher standard of proof shall be required with respect to such issue of fact.”); Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90 (Ala.1989); Gary v. Crouch, 923 So.2d 1130, 1141-42 (Ala.Civ.App.2005) (Murdock, J., concurring in the result); and KGS Steel, Inc. v. McInish, [Ms. 2040526, June 30, 2006] - So.3d -, - (Ala.Civ.App.2006) (Murdock, J., concurring in the result). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the trial court properly analyzed the case using the clear-and-convincing-evidence standard.

Legal Causation

The dependent next argues that she presented sufficient evidence of legal causation. The legal-causation standard was developed

“to prevent employers from being unfairly saddled with the cost of being made the absolute insurer of an employee’s health. Without a ‘legal causation’ standard, a person who becomes ill or dies because of a natural cause, such as an aneurysm or slipping into a diabetic coma, unrelated to any job-related risk, would be able to recover under our workers’ compensation statute merely because he or she was lucky enough to have the disabling event resulting from that natural cause occur at the place of employment or just after the employee has left the place of employment. Such a result was not intended by the legislature when it enacted our workers’ compensation law.”

Ex parte Trinity Indus., 680 So.2d at 267 (emphasis added). Pursuant to the legal-causation test, a mere showing of a close spatial and temporal relationship between the injury and the performance of the duties of the job is not sufficient. 680 So.2d at 269. Rather, the test for legal causation is satisfied when the worker is exposed to a danger or risk of injury materially in excess of the baseline risk to which persons are exposed in their everyday lives. Id.

In this case, the employer presented evidence, consisting of the deposition testimony of Dr. Smith, indicating that on the date of his death, and the preceding two days, the employee was not exposed to a level of exertion in excess of that to which persons are exposed in their everyday lives. The employer further presented evidence indicating that the performance of the employee’s job duties did not increase the risk of a ruptured aneurysm from nonexertional causes such as smoking and arteriosclerosis. This evidence established a prima facie case that the performance of the employee’s job duties could not have legally caused the ruptured berry aneurysm. The burden then shifted to the dependent to present evidence that, when weighted against the employer’s evidence, could produce in the mind of the trier of fact a firm conviction that the employee’s job duties did, in fact, increase the risk of a ruptured berry aneurysm.

The dependent initially argues that she carried her burden of proof by showing that the employee exerted himself in high temperatures until the Friday before his Wednesday death. However, the dependent has failed to present clear and convincing evidence indicating that the employee’s job activities during that time period, even if they could be described as strenuous, increased the risk that the employee would rupture his aneurysm almost a week later. Dr. Smith opined that elevated blood pressure from physical stress increases the risk of a rupture, but, in his deposition, he stated that he could only be sure that physical stress on the date of the rupture could have had an effect.

The dependent next argues that the job of operating the loader on the date of his death exposed the employee to an increased risk of rupture. However, after reviewing the testimony of Bridges as to the duties the employee performed on the date of his death, Dr. Smith agreed that the employee had not been exposed to any physical stress beyond that which persons face in their ordinary lives. Dr. Smith further clarified that any activity, such as walking, could contribute to a ruptured aneurysm. Although it may be true that the employee performed some physical activity while working on the date of his death, the dependent has failed to present clear and convincing evidence indicating that this activity materially increased his risk of rupturing his aneurysm beyond the risk persons face in their everyday lives.

The dependent finally argues that the employee suffered from thrombophlebitis and that prolonged sitting on the drive to Orlando and in the loader truck placed additional stress on his leg that could have elevated his blood pressure and increased the risk of a ruptured aneurysm. However, although Dr. Smith testified that any pain or bad feeling could have affected the employee’s blood pressure, he did not indicate that the act of prolonged sitting increases the risk of a ruptured aneurysm, even for a person with thrombophlebitis, beyond the risk such a person would face in everyday life.

Based on our review of the entire record, we find that the dependent did not present clear and convincing evidence of legal causation. See Safeco Ins. Cos. v. Blackmon, 851 So.2d 532 (Ala.Civ.App.2002).

Medical Causation

The dependent asserts that the performance of the employee’s job duties did not cause his aneurysm but that the physical stress and heat exposure aggravated his thrombophlebitis, which in turn elevated his blood pressure to such a dangerous level that it caused his dormant aneurysm to burst. Under Alabama’s medical-causation standard, it is not necessary that the employment-related injury be the sole cause, or the dominant cause, of the death, so long as it was a contributing cause. See Ex parte Valdez, 636 So.2d 401 (Ala.1994). Job-related exertion can be a contributing cause if it is one of multiple factors acting in concert to bring about the occupational injury. Id. If occupational exertion aggravates a preexisting latent condition to cause death, the death will be compensable even though the physical stress would not have caused death to a normal person. See, e.g., TTC Servs. v. Pendergrass, 628 So.2d 693 (Ala.Civ.App.1993). If the employee suffers from a latent preexisting condition that inevitably will produce injury or death, but the employment acts on the preexisting condition to hasten the appearance of symptoms or to accelerate its injurious consequences, the employment will be considered the medical cause of the resulting injury. See, e.g., Taylor v. Mobile Pulley & Machine Works, Inc., 714 So.2d 300 (Ala.Civ.App.1997).

The employer submitted affidavits of two medical experts who unequivocally stated that the performance of the employee’s job duties did not, in fact, contribute to the rupture of the employee’s berry aneurysm. Rather, the rupture occurred due to the natural progression of hypertensive and atherosclerotic disease without any contribution from his employment. The burden, therefore, fell on the dependent to present clear and convincing evidence that the employee’s job duties did, in fact, accelerate the rupture of the aneurysm.

The dependent initially offered the affidavit of Dr. Smith in which he opined that the working conditions the employee had endured for the three-week period preceding his death, as Dr. Smith understood them, had contributed to accelerate the rupture of the employee’s berry aneurysm due to his elevated blood pressure. However, the parties subsequently deposed Dr. Smith. In his deposition, Dr. Smith testified that he could not state with any reasonable degree of medical certainty that the employee’s working conditions, when properly described to him, contributed to the employee’s ruptured aneurysm. Dr. Smith even conceded that he had no evidence to indicate that the employee was experiencing elevated blood pressure at the time of his death. For this reason, he would say only that any activity the employee engaged in on the date of his accident could have contributed to his aneurysm. Dr. Smith offered no testimony indicating that the employee’s job activities more probably than not accelerated the rupture of the aneurysm, much less testimony indicating that the employee’s job activities did, in fact, contribute to the rupture.

Viewing the totality of Dr. Smith’s testimony, see Ex parte Southern Energy Homes, Inc., 873 So.2d 1116 (Ala.2003), we find that the dependent offered nothing more than evidence of mere possibilities that would only serve to “guess” the employer into liability. See Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989). The dependent has not presented evidence showing a definite causal connection between the accident and the injury. See Goodyear Tire & Rubber Co. v. Correll, 736 So.2d 624 (Ala.Civ.App.1999).

In KGS Steel, Inc. v. McInish, [Ms. 2040526, June 30, 2006] - So.3d - (Ala.Civ.App.2006), this court reversed a permanent-total-disability award based on a trial court’s finding that the worker had sustained neck and shoulder injuries from repetitive bouncing and jerking while driving a truck for his employer. The court noted that the clear-and-convincing-evidence standard applied and held that the testimony of two experts “amount[ed] to nothing more than a showing of ‘possible’ causation that is insufficient to support the trial court’s judgment .... ” — So.3d at -. One expert testified that the worker’s condition could have been caused by cumulative trauma, but he admitted that he had no evidence to dispute the testimony of two other doctors who had opined that the worker’s condition was not work-related. That expert refused to testify that the work definitely contributed to the condition to a reasonable degree of medical certainty. Another physician stated that the injury “certainly could be work-related,” but he later deferred to the primary treating physicians because he had not treated the worker for some time after the alleged injury. See also United Defense, L.P. v. Willingham, 829 So.2d 771 (Ala.Civ.App.2002); and Oden v. Gulf States Steel, Inc., 797 So.2d 1093 (Ala.Civ.App.2001).

As in McInish, we find that the testimony of Dr. Smith does not constitute evidence from which a reasonable fact-finder could be clearly convinced that the employee’s job activities did, in fact, contribute to his death. Accordingly, we affirm the summary judgment.

AFFIRMED.

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

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

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

BRYAN, Judge,

concurring in the result.

I agree with the main opinion that a review of Dr. Smith’s testimony does not establish the necessary evidence to demonstrate that the employee’s job activities contributed to his death. Rather, as the main opinion states, “the dependent offered nothing more than evidence of mere possibilities that would only serve to ‘guess’ the employer into liability.” 34 So.3d at 1269.

      . In its judgment, the trial court cited Ex parte Trinity Indus., supra, for the proposition that nonaccidental injuries must be proven by clear and convincing evidence. The dependent correctly points out that Trinity did not employ the clear-and-convincing-evidence standard. However, the supreme court later clarified that the Trinity court reviewed the case under the substantial-evidence standard solely because neither party raised the issue of the applicability of the clear-and-convincing-evidence standard. The supreme court has since held that the clear-and-convincing-evidence standard applies to nonaccidental injuries allegedly caused by gradual deterioration or cumulative physical stress. See Ex parte Russell Corp., 725 So.2d 264 (Ala.1998).

      . In its summary-judgment order, the trial court actually referenced both the clear-and-convincing-evidence standard and the substantial-evidence standard.

        . In her brief, the dependent argues that Dr. Smith did indicate on pages 52-53 of his deposition that it was more probable than not thal the employee's job duties contributed to the rupture. However, we have thoroughly reviewed the cited excerpt. The doctor merely testified that any kind of activities, whether work-related or not, could have been a factor in a ruptured aneurysm in a person with the preexisting medical problems like the employee had and that the employee would have been more affected by physical activity due to his preexisting medical condition. Dr. Smith did not testify that it was more probable than not that the employee's working conditions contributed to his ruptured aneurysm.


author: BOLIN, Justice.

text:
    Ex parte Patricia PHILLIPS. (In re Patricia Phillips v. Asplundh Tree Expert Company).
    1061595.
    Supreme Court of Alabama.
    Sept. 5, 2008.
    Jonna M. Denson of Heninger Garrison Davis, LLC, Birmingham, for petitioner.
    David S. Hassinger and Karen R. Ber-how of Porter, Porter & Hassinger, P.C., Birmingham, for respondent.
   BOLIN, Justice.

Writ quashed on the authority of Ex parte McInish, [Ms. 1060600, Sept. 5, 2008] — So.3d -(Ala.2008).

WRIT QUASHED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.


author: MOORE, Judge.

text:
    Viola CHANCELLOR v. Charles E. WHITE, Jr., and Charles White Jr. Construction, L.L.C.
    2070354.
    Court of Civil Appeals of Alabama.
    Oct. 17, 2008.

      Viola Chancellor, pro se.
    Richard J.R. Raleigh, Jr., and Marcus A. Huff of Wilmer & Lee, P.A., Huntsville, for appellees.
   MOORE, Judge.

Viola Chancellor appeals from a summary judgment in favor of Charles E. White, Jr. (“White”), and Charles White Jr. Construction, L.L.C. (“the LLC”). We affirm in part, reverse in part, and remand.

On March 9, 2007, Chancellor filed a complaint against White and the LLC, alleging claims of breach of contract, breach of warranty, failure to “work in a workmanlike manner,” negligence, and intentional tort. Chancellor’s claims arose from White’s performance under a contract to construct a house for Chancellor (“the contract”). In her complaint, Chancellor identified several specific actions upon which she based her claims, including the grading of the yard, the installation of a gas heater, the alleged failure to properly fill a hole in the yard, the pricing of counter-tops, and the alleged failure to fix a crack in the concrete patio. White and the LLC answered the complaint on April 19, 2007.

White and the LLC filed a joint motion for a summary judgment on October 12, 2007, arguing that Chancellor had engaged in the spoliation of evidence. The LLC filed an additional motion for a summary judgment, arguing that it was not a party to the contract between White and Chancellor. Chancellor responded to those motions on November 1, 2007. On December 12, 2007, the trial court granted both summary-judgment motions.

Chancellor filed a postjudgment motion on December 21, 2007, and filed her notice of appeal to this court on January 15, 2008. The appeal was held in abeyance until Chancellor’s postjudgment motion was denied by operation of law on March 20, 2008. See Rule 59.1, Ala. R. Civ. P., and Rule 4(a)(5), Ala. R.App. P.

Facts

In White and the LLC’s joint summary-judgment motion, they asserted that Chancellor had engaged in the spoliation of evidence. In support of this argument, they cited Chancellor’s deposition, in which she testified that, after she had filed her complaint, and without notifying White or the LLC, she had hired a landscaping company to fill holes in her yard and to grade the yard to prevent the flow of water into the crawl space under her house. Chancellor testified at one point in her deposition that the landscaping company had changed the slope and grade of the yard; however, she later testified that she “would think” that the slope and grade had been changed. She testified that she had someone “level” the yard, slope the yard, and plant seed. Chancellor stated that she had taken pictures of what the house and yard had looked like before the work had been done. Chancellor testified that she had not observed any water seeping into her crawl space since the changes, but she also stated that it had not rained since then.

In her response to the joint summary-judgment motion, Chancellor admitted that she had had the back of her lot cleaned and seeded and that she had had the areas that were sunken and holding water filled with dirt. She attached a “deposition errata” sheet wherein she sought to alter her testimony that the grade of the yard had been changed because, she stated, she “is not an expert.” Chancellor also asserted that she did not know that she had to contact anyone to have “major maintenance work done on her yard.” In a “declaration” attached to her response, Chancellor stated that she had not intentionally and purposefully denied White and the LLC an opportunity to have an expert conduct an inspection of her house but, instead, only sought to maintain the safety of her house.

Discussion

I.

On appeal, Chancellor first argues that the statement of undisputed facts in WRite and the LLC’s joint summary-judgment motion and in the LLC’s separate summary-judgment motion were not set forth plainly and concisely. Specifically, she argues that the statements of fact did not comply with Rule 26(f), Fed.R.Civ.P., and Rule 26.1 of the local rules for the federal northern district of Alabama. We note that these rules are inapplicable in Alabama state courts. She also cites Rule 56(c)(1), Ala. R. Civ. P., which requires:

“The [summary-judgment] motion shall be supported by a narrative summary of what the movant contends to be the undisputed material facts; that narrative summary may be set forth in the motion or may be attached as an exhibit. The narrative summary shall be supported by specific references to pleadings, portions of discovery materials, or affidavits and may include citations to legal authority. Any supporting documents that are not on file shall be attached as exhibits.”

Based on our review of the summary-judgment motions, we conclude that both motions were in compliance with Rule 56, Ala. R. Civ. P.

II.

As noted above, the trial court granted both the joint summary-judgment motion and the LLC’s separate summary-judgment motion. In Chancellor’s initial brief to this court, she made no arguments — other than the argument that we rejected in Part I — that the trial court had erred in granting the LLC’s separate motion for a summary judgment. Chancellor does, however, raise additional arguments regarding the LLC’s separate motion for a summary judgment in her reply brief. “Ordinarily, we do not consider issues raised for the first time in a reply brief.” McGough v. G & A, Inc., 999 So.2d 898, 905 n. 3 (Ala.Civ.App.2007). Thus, we decline to consider those arguments raised by Chancellor for the first time in her reply brief. Because we rejected Chancellor’s only argument directed at the LLC’s separate summary-judgment motion in Part I above, the trial court’s judgment granting that motion is due to be affirmed. Because we are affirming the summary judgment entered in favor of the LLC on its separate motion, we will address Chancellor’s arguments relating to the joint summary-judgment motion only in reference to White.

III.

Chancellor next argues that the trial court erred in entering a summary judgment based on spoliation of evidence. “The standard of review applicable to a summary judgment is the same as the standard for granting the motion.” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmov-ing party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘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.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

“This Court has applied five factors in analyzing a spoliation-of-the-evidence issue: (1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4) alternative sources of the information obtainable from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than dismissal.”

Story v. RAJ Props., Inc., 909 So.2d 797, 802-03 (Ala.2005). In his summary-judgment motion, White asserted that the present case is nearly “on all fours” with Story. Because we review a summary judgment “de novo,” we will now examine the evidence in light of the factors set forth in Story.

1. The Importance of the Evidence Destroyed

“The importance of the evidence destroyed must be evaluated in the context of the importance of the evidence preserved or otherwise available.” Story, 909 So.2d at 803. In Story, the plaintiff filed a claim against a home builder alleging defects in the material used in the construction of a house. 909 So.2d at 799. After the complaint was filed, but before the home builder’s expert inspected the house, the plaintiff had the material removed, the damage repaired, and the house reclad with a brick exterior. 909 So.2d at 799-800. The home builder’s expert testified that he had inspected the house but that, due to the repairs, it was impossible for him to determine the extent and cause of any damage. Although the plaintiff had taken photographs of the house before the repairs had been made, the home builder presented testimony from his experts indicating that they were unable to determine the extent or cause of the damage to the house based on the photographs. 909 So.2d at 802.

In White’s summary-judgment motion in the present case, White noted that Chancellor had repaired her yard after she took photographs and had a home inspector inspect it, but before White’s expert could examine it. White argues that, because of Chancellor’s actions, he is unable to determine the extent and cause of any damage and, therefore, has been subjected to great prejudice. We note, however, that White presented no evidence indicating that he had had an expert inspect the yard. There is no testimony from White or any expert indicating that it would be impossible to determine from an inspection of the yard, the report of the home inspector retained by Chancellor, or the photographs that Chancellor had taken the extent and cause of any damage.

2. Culpability of the Offending Party

“In a case of classic spoliation, ‘the offending party “purposefully” and “wrongfully” destroyed evidence “he knew was supportive of the interest of his opponent.” ’ Vesta Fire [Ins. Corp. v. Milam & Co. Constr.], 901 So.2d [84] at 96 [ (Ala.2004) ] (quoting May v. Moore, 424 So.2d 596, 603 (Ala.1982), and citing Alabama Power Co. v. Murray, 751 So.2d 494, 497 (Ala.1999)). We have approved of the sanction of the entry of a summary judgment against a plaintiff for spoliation of the evidence where all relevant evidence was destroyed and the plaintiff fully appreciated the significance of the evidence to the anticipated litigation. See Verchot [v. General Motors Corp.], 812 So.2d 296 [ (Ala.2001) ], and [Capitol Chevrolet, Inc. v.] Smedley, 614 So.2d 439 [ (Ala. 1993) ]. We have reversed a summary judgment based on spoliation of the evidence where the plaintiff did not act willfully in destroying the evidence. See Joyner v. [B & P] Pest Control, Inc., 853 So.2d 991 (Ala.Civ.App.2002).”

Story, 909 So.2d at 804. Chancellor, citing Joyner v. B & P Pest Control, Inc., 853 So.2d 991 (Ala.Civ.App.2002), argues that White failed to show that her conduct was willful. We, however, find that the facts of Joyner are clearly distinguishable. In Joyner, the relevant evidence had been “mistakenly disposed of.” 853 So.2d at 996. That is not the case here. Further, Chancellor clearly appreciated the importance of the evidence because she had the yard inspected and took pictures of the yard before having the repairs done.

3.Fundamental Fairness

As to fundamental fairness, we note that Chancellor had the opportunity to have the yard inspected before the repair work was done. However, without any testimony from White or an expert as to the extent of the prejudice Chancellor’s actions have caused, we cannot say that it would be fundamentally unfair for White to have to defend against Chancellor’s allegations under these circumstances.

4. Alternative Sources of Information

As explained above, White failed to present evidence indicating that Chancellor’s photographs or the home inspector’s report would not be a viable alternative source of information in preparing his defense. Further, there was no evidence indicating that White or his expert had attempted an inspection and found such an attempt to be futile.

5. Restriction of Claims; Alternative Sanctions

“[I]n fashioning a remedy for a plaintiffs spoliation of the evidence, the trial court may restrict the plaintiffs claims to those based on the remaining evidence. It may also disallow or restrict any claim predicated indispensably on evidence no longer available.” Story, 909 So.2d at 805-06. In the present case, even if the other factors weighed in favor of a summary judgment based on spoliation of the evidence, the trial court had the option to simply restrict Chancellor’s claims to those based on evidence that has not been destroyed. In Chancellor’s complaint, she alleged several defects, many of which are unrelated to the grading of the yard. Because there has been no evidence presented to show that any claim in this case is “predicated indispensably on evidence no longer available,” consideration of this factor is not helpful at the present procedural juncture of this case.

Based on the foregoing, we conclude that White failed to present substantial evidence weighing in his favor on the relevant factors set out in Story. “[T]his Court has a ‘long-established and compelling policy objective of affording litigants a trial on the merits whenever possible.’ ” Story, 909 So.2d at 806 (quoting Iverson v. Xpert Tune, Inc., 553 So.2d 82, 89 (Ala.1989)). Accordingly, we conclude that White failed to meet his initial burden in his summary-judgment motion; thus, the trial court erred in entering a summary judgment in White’s favor.

IV.

Chancellor also advances several arguments regarding the merits of her complaint. We note, however, that White’s summary-judgment motion was not based on the merits of Chancellor’s claims. Instead, the motion was based solely on the argument that Chancellor had engaged in the spoliation of evidence. Accordingly, we do not address the merits of Chancellor’s claims.

Conclusion

Based on the foregoing, we affirm the summary judgment entered by the trial court as to the LLC; we reverse the summary judgment entered in favor of White and remand this cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . This court transferred the appeal to the Alabama Supreme Court on February 28, 2008, for lack of subject-matter jurisdiction; that court then transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

      . We note that this factor may be helpful to the trial court further into the proceedings.


author: THOMPSON, Presiding Judge.

text:
    H.J.T. v. STATE of Alabama ex reí. M.S.M.
    2080595.
    Court of Civil Appeals of Alabama.
    Oct. 9, 2009.

      Jay E. Stover of Stover, Stewart & Phillips, LLC, Gadsden, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, staff atty., Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

In October 2007, H.J.T. (“the father”) filed in the Calhoun Circuit Court, Family Division (“the trial court”), a complaint seeking a modification of his child-support obligation for J.D.T. (“the child”). The State of Alabama, on behalf of the child’s mother, M.S.M. (“the mother”), answered and disputed the necessity of a modification of child support. The father’s child-support-modification action was designated by the trial court as case number CS-05-423.02 (“the child-support action”).

In June 2008, the State of Alabama, on behalf of the mother (hereinafter “the State”), filed a separate action seeking to have the father held in contempt for his failure to pay child support. The trial court designated the State’s contempt action as case number CS-05-423.03 (“the contempt action”). The father did not answer the State’s contempt complaint, but in September 2008 the father filed a motion seeking to consolidate the child-support action and the contempt action. The trial court granted the motion to consolidate.

The trial court conducted a hearing for both actions. On February 24, 2009, the trial court entered a judgment in the contempt action finding the father in contempt for his failure to pay child support, awarding the State a judgment in the amount of $31,583.50 for past-due child support and interest and ordering that the father be incarcerated. In addition, in its February 24, 2009, judgment, the trial court ordered that the father’s income-tax refund be applied as a partial payment on the accumulated child-support arrearage. On March 2, 2009, the State filed a motion in the contempt action asking the trial court to amend the provision of the February 24, 2009, judgment pertaining to the disposition of the father’s income-tax refund. The trial court purported to grant the State’s motion on March 17, 2009.

On March 19, 2009, the trial court entered a judgment in the child-support action in which it denied the father’s request for a modification of his child-support obligation.

On March 31, 2009, the father filed a notice of appeal. In his notice of appeal, the father designated the appeal as having been taken from the judgment in case number CS-05-423.03, i.e., the contempt action. However, on the docketing statement, the father designated case number “CS-05-423” as the matter from which he appealed, and he listed as the only issue on appeal the propriety of the trial court’s denial of his claim seeking a modification of his child-support obligation. In his brief submitted to this court, the father argues only that the trial court erred in refusing to modify his child-support obligation. Accordingly, construing the filings in favor of the father and applying the policy in favor of resolving the matter on the merits, we conclude that the father’s appeal pertains to the child-support-modification judgment entered in case number CS-05^423.02. See Brindley Constr. Co. v. Flanagan Lumber Co., 441 So.2d 907, 909 (Ala.Civ.App.1983) (“This court’s policy is to determine every case upon its merits if we can reasonably and rationally do so without undue stress to the statutes, rules or precedents which govern our review of cases.”).

As an initial matter, we note that this court asked the parties to brief the issue of the timeliness of the father’s appeal. The father maintains that the appeal is timely when measured from the date the most recent order by the trial court was entered. Because the father’s appeal is taken from the March 19, 2009, child-support judgment, we agree.

“[Wjhen two or more actions are consolidated under Rule 42, Ala. R. Civ. P., the actions do not lose their separate identities. League v. McDonald, 355 So.2d 695, 697 (Ala.1978). Moreover, ‘[a]n order of consolidation does not merge the actions into a single [action], change the rights or the parties, or make those who are parties to one [action] parties to another.’ Jerome A. Hoffman, Alabama Civil Procedure § 5.71 (2d ed.2001) (citing Evers v. Link Enters., Inc., 386 So.2d 1177 (Ala.Civ.App.1980)). Finally, ‘ “in consolidated actions ... the parties and pleadings in one action do not become parties and pleadings in the other.” ’ Ex parte Flexible Prods. Co., 915 So.2d 34, 50 (Ala.2005) (quoting Teague v. Motes, 57 Ala.App. 609, 613, 330 So.2d 434, 438 (Civ.1976)).”

Solomon v. Liberty Nat’l Life Ins. Co., 953 So.2d 1211, 1222 (Ala.2006). When actions are ordered consolidated, “each action retains its separate identity and thus requires the entry of a separate judgment.” League v. McDonald, 355 So.2d 695, 697 (Ala.1978). Accordingly, the February 24, 2009, judgment disposed of the contempt action, and the March 19, 2009, judgment resolved the child-support action.

Actions concerning child support are generally governed by the Alabama Rules of Juvenile Procedure. See M.C. v. L.J.H., 868 So.2d 465 (Ala.Civ.App.2003) (an action designated “CS” indicated a juvenile-court child-support matter); H.E.T. v. State ex rel. C.D.L., 883 So.2d 706, 709 (Ala.Civ.App.2003) (a “CS” designation generally refers to a child-support action in a juvenile court), abrograted on other grounds by F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007). The judgment establishing the father’s paternity of the child and his child-support obligation was entered by the trial court in August 2006; such actions are governed by the Alabama Rules of Juvenile Procedure. C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002).

A notice of appeal in a juvenile action must be filed within 14 days of the date of entry of the judgment or the denial of a postjudgment motion. Rule 4(a)(1), Ala. R.App. P. In this case, the father filed his notice of appeal on March 31, 2009, within the 14 days allowed to appeal the March 19, 2009, judgment in the child-support action. Accordingly, we conclude that the father’s appeal of the child-support judgment was timely filed.

The record indicates that in the August 2006 judgment establishing the father’s paternity and his child-support obligation, the trial court determined the father’s gross monthly income to be $6,737. The August 2006 judgment did not contain a finding regarding the mother’s income. The father’s child-support obligation as established by the August 2006 judgment was $875 per month.

The record reveals that at the time the initial child-support obligation was established, the father owned and operated his own trucking business. After the entry of the initial, August 2006, judgment, the mother filed a contempt action seeking a determination of a child-support arrearage. As a result of that action, the father was ordered to pay $218.75 a month toward the child-support arrearage in addition to his monthly child-support obligation.

The father testified at the final hearing in this matter that recent increases in the price of fuel had caused his trucking business to fail. The father testified that in 2007 he had filed for both business and personal bankruptcy. The father stated that the personal-bankruptcy case had been dismissed because he could not make the required payments to the bankruptcy court. The father presented no evidence regarding the bankruptcy proceeding pertaining to his trucking business, but the record indicates that that trucking business is no longer operational.

The father testified that after the failure of his trucking business, he was unemployed for several months during 2007 and that he then found employment with a trucking company. The father testified that he earned $500 per week at his employment, which involves “short haul” trucking. The father submitted an income affidavit indicating that his gross monthly income is $2,115. The father stated that although he could earn more for long-haul trucking, as he had when he owned his trucking business, he would no longer take long-haul-trucking jobs because he had children and a family.

The father admitted that since August 2006 he had made only seven payments toward his child-support obligation. In addition, the mother received some amounts for child support collected as a result of the father’s bankruptcy action.

The father testified that he had attempted to make other child-support payments for the child. The father has two children (“the older children”) from a previous relationship for whom he has also been ordered to pay support; the father also owes an arrearage for failure to support those children. The evidence indicates that all, or a great portion, of the child-support payments the father has made have typically been attributed to his child-support obligation for the older children. The father testified that he has no control over how the child-support agency to which he sends checks allocates or distributes his child-support payments. The father has made no child-support payments directly to the child’s mother.

In addition to the older children and the child, the father has two children with his current wife. The father presented evidence regarding his expenses, which included the preexisting child-support obligations. The father argued to the trial court that he could not afford his current child-support obligation for the child.

On appeal, the father argues only that the tidal court erred in refusing to modify his child-support obligation. The State argues that the father failed to demonstrate a change in circumstances warranting the modification. It is well settled that a party seeking to modify a child-support obligation must demonstrate a material change in circumstances warranting the modification. State ex rel. Roberts v. Roberts, 725 So.2d 980, 981-82 (Ala.Civ.App.1998); Beavers v. Beavers, 717 So.2d 373, 376 (Ala.Civ.App.1997); and Cherry v. Clark, 595 So.2d 909, 910 (Ala.Civ.App.1992). The father argues that the evidence demonstrates that a material change in the father’s income has occurred.

Since the entry of the previous child-support judgment, the father’s business went bankrupt and the father accepted employment with another trucking company. The record shows that the father earns less in his employment than he did when he owned his own business. The evidence indicates that the father’s gross monthly income has decreased from $6,737 at the time of the entry of the previous child-support judgment to approximately $2,100 per month. We note that the trial court did not make a finding regarding the amount of the father’s monthly gross income, and this court does not make a determination as to that matter. Given the facts, we conclude that the father has demonstrated the existence of a material change in circumstances.

However, the fact that a change in circumstances has occurred does not necessarily end the inquiry and require that the father’s child-support obligation be modified. Rule 32(A), Ala. R. Jud. Admin., establishes a rebuttable presumption that applying the child-support guidelines in a modification proceeding will result in a correct calculation of a parent’s child-support obligation. Williams v. Braddy, 689 So.2d 154, 157 (Ala.Civ.App.1996). However,

“[t]he presumption may be rebutted upon a determination by the trial court that application of the guidelines would be ‘ “manifestly unjust or inequitable,” ’ and upon entry of a written finding to that effect. Stewart v. Kelley, 587 So.2d 384, 385 (Ala.Civ.App.1991), quoting Rule 32(A)(ii), Ala. R. Jud. Admin. Moreover, ‘[i]f the trial court fails to apply the guidelines or to present findings of fact based upon evidence before the court indicating why the guidelines were not followed, this court will reverse.’ Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App.1998); quoting Simmovis v. Ellis, 628 So.2d 804 (Ala. Civ.App.1993).”

State ex rel. Roberts v. Roberts, 725 So.2d at 981-82.

The State has responded to the father’s argument by contending that the father has the ability to maintain his previous income level, and, therefore, it contends that the trial court did not err in refusing to modify the father’s child-support obligation. The State’s argument that the father has the ability to earn the same income that he earned in 2006 is an argument asserting that the father is voluntarily underemployed. If a trial court determines that a parent is voluntarily underemployed, it may, pursuant to the child-support guidelines, impute income to that parent in determining child support. Rule 32(B)(5), Ala. R. Jud. Admin. (“If the coui't finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income.”).

The record does not indicate whether the trial court intended to impute income to the father pursuant to Rule 32(B)(5) when it denied the father’s claim seeking a child-support modification. The trial court made no reference to the child-support guidelines, and it does not appear that it applied the guidelines in reaching its ruling. The trial court may deviate from the Rule 32, Ala. R. Jud. Admin., child-support guidelines when it makes factual findings justifying that deviation. State ex rel. Golden v. Golden, 710 So.2d 924 (Ala.Civ.App.1998). However, there is no indication in the record that the trial court made a finding that, given the facts of this case, the application of the child-support guidelines would be “ ‘ “manifestly unjust or inequitable.” ’ ” State ex rel. Roberts v. Roberts, 725 So.2d at 981 (quoting Stewart v. Kelley, 587 So.2d 384, 385 (Ala.Civ.App.1991), quoting in turn Rule 32(A)(ii), Ala. R. Jud. Admin.).

“If the trial court fails to apply the guidelines or to present findings of fact based upon evidence before the court indicating why the guidelines were not followed, this court will reverse.” State ex rel. Roye v. Hogg, 689 So.2d 131, 133 (Ala.Civ.App.1996); State ex rel. Roberts v. Roberts, 725 So.2d at 981-82 (same). Accordingly, we reverse the child-support judgment and remand the cause to the trial court to enter a judgment in compliance with the Rule 32 child-support guidelines or containing factual findings justifying a deviation from the application of those guidelines.

REVERSED AND REMANDED.

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

      . Although the pleadings and orders in the record do not so reflect, the response to an inquiry by this court to the trial court clerk indicates that this matter was handled by the Family Court Division of the Calhoun Circuit Court.

      . The record indicates that the father was released from incarceration after three days, but the trial court’s February 24, 2009, judgment in the contempt action specified that the father would again be incarcerated if he failed to make the required child-support payments.

      . We note that the record on appeal indicates that the trial court recognized the applicability of the Alabama Rules of Juvenile Procedure to this matter. On September 27, 2006, the trial court entered an order finding a post-judgment motion filed by the father in reference to the initial, August 2006 paternity and child-support judgment to be moot because that postjudgment motion had not been filed within the 14 days allowed by the Alabama Rules of Juvenile Procedure. See Rule 1(B), Ala. R. Juv. P. (providing that a postjudgment motion in a juvenile action be filed within 14 days of the date of the entry of the judgment).

      . We note that another basis for construing the father’s notice of appeal as having been taken from the child-support judgment is that the March 31, 2009, notice of appeal would not have been timely with reference to the contempt action. The father’s March 2, 2009, postjudgment motion in the contempt action was denied by operation of law 14 days later, on March 16, 2009. See Rule 1(B), Ala. R. Juv. P. (’’A postjudgment motion [in a juvenile matter] is deemed denied if not ruled on within 14 days of filing.”). The father had 14 days, or until March 30, 2009, to timely appeal the judgment in the contempt action. Rule 4(a)(1), Ala. R.App. P.


text:
    A.C. v. C.C.
    2080625.
    Court of Civil Appeals of Alabama.
    Oct. 9, 2009.

      Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for appellant.
    Joel M. Nomberg of Nomberg & Maddox, P.C., Dothan, for appellee.
   THOMAS, Judge.

A.C. (“the mother”) appeals from an order of the Houston Juvenile Court determining that her six-year-old daughter, L.C. (“the child”), is dependent and awarding custody to C.C., the child’s maternal grandmother (“the grandmother”). We dismiss the appeal because it is taken from a nonfinal judgment.

At the time of the child’s birth in 2003, the mother was 18 years old. The mother, the grandmother, and D.C., the child’s maternal grandfather (from whom the grandmother was later divorced) were all residents of Louisiana. When the child was 11 months old, the mother voluntarily relinquished custody of the child to the grandmother. On August 3, 2004, the District Court of Livingston Parish, Louisiana, awarded custody of the child to the grandmother for a three-year period ending August 1, 2007. Soon after the Louisiana court entered that judgment, the mother left Louisiana. In May 2006, the grandmother and the child moved to Dothan, Alabama.

On April 26, 2007, the grandmother filed in the Houston Juvenile Court a petition alleging that she had had legal custody of the child since August 3, 2004, pursuant to a Louisiana judgment, a copy of which she attached to her petition. The grandmother further alleged that the mother was aware that, under the terms of that judgment, the grandmother’s custody rights were due to expire on August 1, 2007, and that the mother might “have plans to attempt to take the child at that time”; that the mother was unstable and unfit to have custody of the child because she had a history of drug abuse; that the mother had not seen the child since January 5, 2006, had not telephoned the child since April 21, 2007, and had not provided support for the child; that the mother was currently a resident of Alaska; that the whereabouts of the man believed to be the child’s biological father were unknown; and that it was in the child’s best interest to remain in the custody of the grandmother. On the day the petition was filed, the juvenile court entered an order awarding the grandmother pendente lite custody of the child.

On June 28, 2007, the mother answered the grandmother’s petition, filed a counter-petition for custody of the child, and requested that the court order a home study of her residence in Alaska. The mother acknowledged that she had voluntarily relinquished custody of the child in 2004; she asserted that she and the grandmother had agreed that the child would be in the grandmother’s temporary custody for three years so that the mother “could become drug free and stable in her life.” The mother further alleged that she had “cleaned up her life, [was] gainfully employed working four jobs, [had] a stable home, and [was] ready, willing, and able to abide by the agreement she made three years ago”; that her alleged failure to have kept in touch with the child was due to the grandmother’s denial of contact and the great distance between Alabama and Alaska; and that the grandmother’s assertions as to the mother’s unfitness were based upon “events that led up to the August 3, 2004 agreement and are not otherwise supported by any factual basis.” On July 24, 2007, the juvenile court entered an order continuing pendente lite custody with the grandmother, directing the Houston County Department of Human Resources (“DHR”), via its counterpart in Alaska, to conduct a home study of the mother’s residence, and allowing the mother biweekly telephone contact and supervised visitation with the child.

In December 2007, the mother and her younger daughter, M.J., who had been born in October 2006, moved to Dothan so that the mother could attempt to establish a relationship with the child. The mother secured a job as an apprentice electrician at the Farley Nuclear Power Plant and began work in January 2008. She obtained an apartment in Dothan and made day-care arrangements for her younger daughter, M.J. The mother and the grandmother had disagreements over the amount and type of visitation that the mother should have with the child, and, on January 24, 2008, the juvenile court ordered specific times for the mother’s visitation with the child, stating that the parties were entering “a transitional phase toward reunification” of the mother with the child. The court directed that the visits be supervised by Dr. Lynn Suggs, a licensed professional counselor.

On February 8, 2008, the mother filed a contempt motion, alleging that the grandmother had refused to allow the mother to visit the child with Dr. Suggs present. The juvenile court entered an order on February 14, 2008, continuing a hearing on the contempt motion to March 27, 2008.

On February 21, 2008, the grandmother moved to strike the mother’s contempt motion and moved the court to order that the mother have an independent psychological evaluation. On March 4, 2008, the mother filed an objection to the grandmother’s motion that she have a psychological evaluation, asserting that the parties had agreed to carry out a reunification plan and that the grandmother was reneging on the agreement, because, the mother alleged, all the grounds listed in the grandmother’s motion predated the parties’ agreement to work towards reunification. On March 27, 2008, the juvenile court ordered both the mother and the grandmother to undergo psychological evaluations. The court did not rule on the mother’s February 8, 2008, contempt motion.

On April 17, 2008, the juvenile court granted the mother weekend daytime visitation rights. On April 23, 2008, the grandmother moved the court to issue a temporary restraining order to prevent the mother from taking the child out of state. On May 6, 2008, the mother moved for overnight visitation, attaching to her motion a copy of her psychological evaluation conducted by a clinical psychologist, Dr. Melanie Cotter. On May 8, 2008, the juvenile court referee ordered the mother not to remove the child from the jurisdiction of the court pending further orders, and the referee set a hearing on all other pending motions for June 26, 2008. On May 16, 2008, the grandmother objected to the mother’s having overnight visitation with the child, alleging that the child’s safety was at risk because the mother had previously accused her father, D.C., of sexual abuse, and yet had allowed D.C. to visit her and to stay overnight in her home since she had moved to Dothan. On June 3, 2008, the grandmother moved the court to hold the mother in contempt for taking the child out of state to Dr. Suggs’s home in Georgia. On June 4, 2008, the mother moved the court to hold the grandmother in contempt for denying her visitation with the child. Following a hearing on June 26, 2008, the juvenile court granted the mother overnight visitation with the child on alternating weekends and ordered that the child have no contact with D.C. The record does not indicate that the court ruled on any of the three pending contempt motions.

On July 8, 2008, D.C., who was still a resident of Louisiana, moved to intervene, seeking grandparent visitation with the child. The same day, the grandmother moved the court to order the mother to pay child support pursuant to Rule 32, Ala. R. Jud. Admin. On September 12, 2008, the mother filed a second petition for custody of the child and moved the court to consolidate a hearing on her petition with the hearing on the grandmother’s request for child support.

On September 29, 2008, the mother moved for an emergency hearing on her custody petition, asserting that the grandmother’s “bizarre and delusional” behavior had put the child at risk of serious injury. The mother alleged, among other things, that the grandmother had participated with K.C., the child’s maternal aunt, in distributing an “Amber Alert” e-mail message, falsely reporting that the mother’s younger daughter, M.J., had been abused and neglected and was missing. The mother also alleged that the grandmother had falsely reported to DHR that the child had been sexually abused by the mother and D.C. Following a hearing on September 30, 2008, the juvenile court ordered DHR to report to the court its finding with respect to the sexual-abuse complaint. It also ruled that the mother’s overnight weekend visitation would continue pending further orders of the court. On October 1, 2008, the grandmother petitioned for custody of M.J., asserting that M.J. was dependent. On October 3, 2008, the mother left Dothan, rented a mobile home near D.C.’s home in Louisiana, and filed a custody petition in a Louisiana court, seeking legal custody of M.J.

The trial of all issues raised by the pleadings, including the grandmother’s dependency and custody petition with respect to M.J., occurred on January 20, 2009. The juvenile court granted D.C.’s motion to intervene, and it noted that there were “various contempt motions” before the court. The record does not indicate that the juvenile court ever ruled on the mother’s February 2, 2008, or June 4, 2008, contempt motions, or on the grandmother’s June 3, 2008, contempt motion. In addition, the case-action-summary sheet indicates that on January 16, 2009, there was a “second motion for contempt.” The record before us contains no filing by either party on January 16, 2009.

On March 24, 2009, the juvenile court entered the following findings of fact and conclusions of law:

“[The mother] voluntarily relinquished custody of [the child] to [the grandmother] on August 3, 2004, in the State of Louisiana. [The child] was approximately eleven months old at this time. This transfer of custody was approved by the Louisiana court, which ordered that [the grandmother] would retain custody of [the child] for a period of three years. [The child] has since resided with [the grandmother] for over five years. [The grandmother and the child moved to Houston County, Alabama, in May 2006].
“The evidence at trial established that the primary reason for the transfer of [the child’s] custody from [the mother] to [the grandmother] was [the mother’s] drug use and lack of stability. Subsequent to relinquishing custody of [the child], [the mother left Louisiana and] traveled to various states and for approximately one year — most of 2006— [the mother’s] whereabouts were unknown. During the three years following the Louisiana order, [the mother] had little contact with [the child] and provided no support on her behalf.
“At trial, [the mother] attempted to prove that she had attained a stable lifestyle and that she is no longer using drugs, as evidenced by negative drug screens for the past two and one-half years. She testified that she moved to Dothan and worked for some time here as an electrician’s apprentice, earning $11.33 per hour at the nuclear plant. However, by the time of the hearing, she had moved to Louisiana to get better work and to be near her father. [The mother] presented testimony from a DHR social worker who testified that she had no concerns with [the child’s] custody being returned to [the mother]. [The mother] also called as a witness Dr. Lynn Suggs, a licensed professional counselor, who testified as to [the mother’s] efforts to establish a relationship with [the child].
“[The grandmother] disputed and discounted [the mother’s] attempts to rehabilitate herself and testified that [the mother] had not successfully established a mother-daughter relationship with [the child]. [The grandmother] also presented the testimony of Dr. David Ghostley, a psychologist who had evaluated [the mother and the child]. Dr. Ghostley testified that the results of [the mother’s] MMPI [Minnesota Multiphasic Personality Inventory] were not valid due to an elevation on the ‘lie scale,’ a built-in mechanism within the MMPI used to determine whether persons taking that inventory are providing truthful responses. Dr. Ghostley also testified that it would not be in [the child’s] best interests to be removed from the custody of [the grandmother] at this time. [The grandmother] also questioned the credibility of the testimony presented by Dr. Suggs and attempted to show by cross-examination of Dr. Suggs that [the mother] and Dr. Suggs had developed a personal relationship, as demonstrated in part by the fact that Dr. Suggs and her husband had traveled to Alaska, at [the mother’s] expense, when Dr. Suggs first met [the mother] to assist her in this case.
“During the course of the trial, [the child’s] father also testified. Due to his extremely limited contact with [the child] and his failure to show interest in maintaining a relationship with [the child], the court finds that he is not a suitable person to have custody of [the child] and that there is no reason to believe that he is able or willing to support or nurture [the child] or provide for her welfare at this time.
“... [The child’s] case presents serious and difficult issues. On one hand, [the mother] has made efforts at rehabilitation and has demonstrated an interest in parenting [the child]. On the other hand, the court cannot turn a blind eye to the tragic facts and circumstances— for which [the mother] is responsible— which have created the difficulties involving [the child’s] custody. Ultimately, the issue this court must address is whether the relatively recent emergence of [the mother] as an interested parent is sufficient to prevent a finding of dependency. Upon consideration of the evidence and testimony in this case, the court decides this issue adversely to [the mother] and does find by clear and convincing evidence that [the child] is a dependent child.
“Based on the finding of dependency as to [the child], the court orders that custody of [the child] shall remain at this time with [the grandmother], the Petitioner, subject to the following rights of visitation by [the mother]:
“1) Every other weekend from 5:00 p.m. on Friday until 5:00 p.m. the following Sunday;
“2) For one-half of all school breaks, with the exception of the summer break, as determined by the school calendar of the school district where the child resides;
“3) For ten consecutive days during the summer break.
“All visitation shall be exercised no more than 100 miles from the city of Dothan, Alabama. During any such visitation, the child shall be allowed to have contact with her maternal grandfather, [D.C.]. However, the request of [D.C.] for rights of specific visitation is denied. At all such times as [the mother] shall exercise visitation, she shall provide to [the grandmother] notice of where the visitation will take place.”

Although neither party has raised the issue of this court’s jurisdiction to entertain this appeal, this court must first determine whether it has jurisdiction over this appeal. “Jurisdictional matters are of such importance that a court may take notice of them ex mero moto.” McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004). “An appeal ordinarily will lie only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). “[T]he question whether a judgment is final is a jurisdictional question.” Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala.Civ.App.2002), overruled on other grounds, Eustace v. Browning, 30 So.3d 445 (Ala.Civ.App.2009). The pendency of an unadjudicated contempt motion alleging a party’s failure to obey orders entered during the progress of the litigation renders a judgment nonfinal. See Decker v. Decker, 984 So.2d 1216 (Ala.Civ.App.2007); Heaston v. Nabors, 889 So.2d 588 (Ala.Civ.App.2004).

The pendency of three, and possibly four, unadjudicated contempt motions made during the contentious 21-month period before this case was tried renders the juvenile court’s March 24, 2009, order non-final. We find nothing in the juvenile court’s March 24, 2009, order that constitutes an implicit ruling on any of the contempt motions. Accordingly, we must dismiss the appeal.

APPEAL DISMISSED.

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

      . On December 5, 2008, in a different case, a child-support order was entered directing the mother to pay the grandmother $318 per month for the support of the child.

      . The grandmother’s dependency petition with respect to MJ. was assigned a separate case number; however, the court consolidated it for trial with the dependency petition regarding the child. No issue with respect to the alleged dependency or custody of M.J. is presented on this appeal.