author: THOMAS, Judge.

text:
    P.D.S. v. MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080507.
    Court of Civil Appeals of Alabama.
    Sept. 25, 2009.
    Glenn N. Baxter, Alabama Disabilities Advocacy Program, Tuscaloosa, for appellant.
    Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellee.
   THOMAS, Judge.

P.D.S. was married to T.S. (“the mother”) in 2001. In May 2004, the parties separated. In July 2004, the mother gave birth to D.A.S.S. (“the child”). In March 2005, P.D.S. and B.H. were named as defendants in a paternity action in the Marshall Juvenile Court in Albertville (“the Albertville juvenile court”) regarding the child (“the paternity action”). In the paternity action, both P.D.S. and B.H. submitted themselves for paternity testing, and that testing revealed that P.D.S. could not be the father of the child and that B.H. was the biological father of the child. Based on the paternity testing, the Albert-ville juvenile court dismissed the P.D.S. as a party in the paternity action and adjudicated B.H. the father of the child.

In December 2005, the child was removed from the custody of the mother and B.H. (hereinafter referred to as “the adjudicated father”) by the Marshall County Department of Human Resources (“DHR”). Although services were provided to the mother, ultimately DHR concluded that reuniting the mother and the child was not possible. In July 2007, DHR filed a petition to terminate the parental rights of the mother and the adjudicated father in the Marshall Juvenile Court in Gunters-ville (“the Guntersville juvenile court”).

In September 2007, P.D.S. and the mother were divorced by the Marshall Circuit Court. The divorce pleadings were on preprinted forms containing blanks that had been completed by someone other than P.D.S., because P.D.S. is illiterate. Neither the divorce pleadings nor the divorce judgment mention the child, address his custody, or award child support to either party.

According to a notation on the case-action-summary sheet pertaining to the termination action filed in the Gunters-ville juvenile court, P.D.S. appeared “pro se” at the trial on DHR’s termination petition. After the trial, the Guntersville juvenile court entered an order, which reads, in pertinent part:

“1. The parental rights of [P.D.S.] are not terminated.
“2. The child is placed in the custody of [P.D.S.].
“8. The mother is allowed ... supervised visitation....”

Based upon the award of visitation to the mother, we conclude that the Guntersville juvenile court denied DHR’s petition to terminate her parental rights. See State Dep’t of Human Res. v. A.J.T., 939 So.2d 46, 47 (Ala.Civ.App.2006) (“[A] judgment terminating parental rights but reserving certain parental rights to the parent is contradictory.”). The Guntersville juvenile court’s order does not refer at any point to the parental rights of the adjudicated father.

DHR appealed the Guntersville juvenile court’s judgment to the Marshall Circuit Court. P.D.S. filed what he termed as “a motion to add a party,” by which he sought to have himself made a party to the appeal as an appellee, and a petition seeking custody of the child. The circuit court treated P.D.S.’s “motion to add a party” as a motion to intervene, which the circuit court granted. After a trial, at which the circuit court considered P.D.S.’s request for custody during the dispositional phase of the proceeding that occurred after completion of the termination-of-parental-rights phase of the proceeding, the circuit court entered an order on October 16, 2008, terminating the parental rights of the mother and the adjudicated father; the order further awarded full custody of the child to DHR and granted DHR permission to place the child for adoption. The order did not specifically address the custody petition filed by P.D.S.; however, the order did state that DHR was “not ... limit[ed] or for-bidfden] ... from considering [P.D.S.] when making decisions on visitation, placement, or adoption matters.”

On November 14, 2008, DHR filed what it styled as a “motion to alter or amend” the circuit court’s order, in which DHR requested that the circuit court add to the order a specific finding regarding P.D.S.’s claim that he was the presumed father of the child under Ala.Code 1975, § 26-17-5(a)(1). On November 24, 2008, P.D.S. filed a response to DHR’s motion, in which P.D.S. agreed with DHR that the circuit court should address whether he was the presumed father of the child and whether he should be awarded custody of the child. The circuit court denied the postjudgment motions on January 30, 2009. P.D.S. filed a notice of appeal on March 6, 2009.

DHR filed a motion to dismiss this appeal, arguing that the postjudgment motions filed by DHR and P.D.S. in the circuit court were untimely and failed to toll the time for filing an appeal because they were filed more than 14 days after the entry of the circuit court’s October 16, 2008, order, see Rule 1(B), Ala. R. Juv. P. (stating that “[procedure shall be uniform in all juvenile courts, whether at the circuit or district court level or in the circuit court by trial de novo” and that all postjudgment motions in juvenile cases must be filed within 14 days of the entry of the judgment), and, therefore, that P.D.S.’s March 6, 2009, appeal, filed well after the expiration of the 14-day appeal period applicable to appeals from judgments in juvenile cases, see Rule 28(c), Ala. R. Juv. P., was untimely filed. See, generally, F.G. v. State Dep’t of Human Res., 988 So.2d 555, 557 (Ala.Civ.App.2007). P.D.S. responds that his claim for custody was, in fact, a compulsory counterclaim in the juvenile court and also that it was a claim seeking to modify the divorce judgment; therefore, he asserts that his claim was, in actuality, a civil and not a juvenile matter and that, thus, his postjudgment motion could properly have been filed within 30 days of the entry of the circuit court’s order.

We need not decide whether DHR or P.D.S. is correct because that determination is not necessary to the resolution of this appeal. As we are permitted to do, see, e.g., M.M. v. L.L., 989 So.2d 528, 528 (Ala.Civ.App.2007), we have noticed, ex mero moto, a jurisdictional defect that requires us to dismiss this appeal: the appeal of the Guntersville juvenile court’s order to the circuit court was improper because the Guntersville juvenile court’s order was not a final judgment. See Rule 28(B), Ala. R. Juv. P. (permitting appeals to circuit court from “final orders, judgments, or decrees”); State ex rel. Thomas v. Mixon, 674 So.2d 611, 612 (Ala.Civ.App. 1995) (noting that a party may appeal a juvenile court’s judgment to the appropriate appellate court if the juvenile court’s judgment is a final judgment capable of supporting an appeal). As noted above, the juvenile court’s order failed to completely address DHR’s petition seeking the termination of the parental rights of the mother and the adjudicated father. The only parental rights the juvenile court specifically addressed in its order were P.D.S.’s parental rights. Even assuming that the order effectively denied DHR’s petition to terminate the mother’s parental rights by awarding her visitation, which indicates that her rights were not terminated, see A.J.T., 939 So.2d at 47, the Guntersville juvenile court’s order left DHR’s claim seeking termination of the adjudicated father’s parental rights unresolved. See G.B. v. State Dep’t of Human Res., 959 So.2d 1116, 1120 (Ala.Civ.App. 2006); P.B. v. P.C., 946 So.2d 896, 898 (Ala.Civ.App.2006) (“This appeal is from a nonfinal judgment. The underlying issues involved in this case have not been adjudicated by the juvenile court.”). Thus, the Guntersville juvenile court’s order was not a final judgment capable of supporting an appeal. Mixon, 674 So.2d at 612; see also G.B., 959 So.2d at 1120; P.B. v. P.C., 946 So.2d at 897. We therefore dismiss the appeal with instructions to the circuit court to dismiss the appeal from the Guntersville juvenile court’s order and to remand the case to the juvenile court for further proceedings on DHR’s petition to terminate the parental rights of the adjudicated father.

DHR’s motion to dismiss the appeal is therefore denied.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Section 26-17-5 was repealed by Act No. 2008-376, Ala. Acts 2008. Section 26-17-5(a) read, in pertinent part:
      "(a) A man is presumed to be the natural father of a child if ...:
      (Footnote cont’d.)

        “(1) He and the child's natural mother are or have been married to each other and the child is born during the marriage.
      P.D.S. maintains that he is the child’s presumed father. However, § 26-17-5(b) clearly stated, in part, that "[t]he presumption of paternity is rebutted by a court decree establishing paternity of the child by another man." As previously noted in the text of this opinion, P.D.S. and B.H. were parties to the paternity action regarding the child in which the Albertville juvenile court entered a judgment adjudicating B.H. the father of the child. From our review of the record of the action in the circuit court, however, it appears that P.D.S. might attempt to raise the issue of failure of service in the paternity action. Thus, it is unclear at this time whether P.D.S. may be the presumed father of the child.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    RHEEM MANUFACTURING COMPANY v. ALABAMA DEPARTMENT OF REVENUE.
    2070792.
    Court of Civil Appeals of Alabama.
    Feb. 27, 2009.
    Certiorari Denied Sept. 11, 2009 Alabama Supreme Court 1080668.
    Roy J. Crawford and Brian G. Wilson of Cabaniss, Johnston, Gardner, Dumas <& O’Neal, LLP, Birmingham, for appellant.
    Susan E. Kennedy and Sabrina L. Comer of Slate Kennedy, LLC, Montgomery, for appellee.
   BRYAN, Judge.

Rheem Manufacturing Company (“the Taxpayer”) appeals the Montgomery Circuit Court’s judgment holding that the Administrative Law Division (“the Division”) of the Alabama Department of Revenue (“the Department”) did not have jurisdiction to grant the Taxpayer a refund of franchise taxes based on a ground that the Taxpayer had not asserted when its claims for refunds of franchise taxes were before the Department. We affirm.

The Taxpayer paid to the Department franchise taxes for the tax years 1994 through 1999. Subsequently, the Taxpayer timely filed with the Department claims for refunds in accordance with the Alabama Taxpayers’ Bill of Rights (“the TBOR”), § 40-2A-1 et seq., Ala.Code 1975. The claims for refunds the Taxpayer filed with the Department asserted two grounds for the refunds. First, the Taxpayer asserted that it was entitled to refunds of all the franchise taxes it had paid for those years because, the Taxpayer said, the franchise tax was unconstitutional (“the constitutional ground”). Second, the Taxpayer asserted that it was entitled to partial refunds of the franchise taxes it had paid for those years because, the Taxpayer said, it should have been allowed to use an alternative-apportionment method in determining its capital employed in Alabama (“the alternative-apportionment ground”).

The Department denied some of the claims for refunds by expressly denying them and denied the rest by failing to take any action with respect to the claims within six months (a “deemed denial”). Within two years of the express or deemed denial of each of its refund claims, the Taxpayer timely appealed to the Division.

At a prehearing conference on March 8, 2004, the Division determined that the “overriding issue” before it was a ground that the Taxpayer had not raised before the Department and had not mentioned in the notices of appeal it had filed to appeal the Department’s denial of the claims for refunds. That ground was whether goodwill resulting from a merger involving the Taxpayer’s “corporate great-grandparent” should have been “pushed down” to the Taxpayer’s financial statements for purposes of determining the Taxpayer’s franchise-tax liability (“the push-down-accounting ground”). Having determined that the push-down-accounting ground was the overriding issue before it, the Division, on March 8, ordered the parties to address it. The next day, the Taxpayer filed with the Division a document purporting to amend its notices of appeal to assert the push-down-accounting ground as a ground of its appeals. However, the Department objected to the Division’s considering the push-down-accounting ground, arguing that, because the Taxpayer had not raised that ground when the Taxpayer’s refund claims were before the Department, the Division did not have jurisdiction to consider it. The Division held (1) that it could consider the push-down-accounting ground despite the Taxpayer’s failure to raise that ground before the Department; (2) that the goodwill should not have been pushed down; and (3) that the Taxpayer was entitled to refunds for the years 1994 through 1999.

The Department appealed to the Montgomery Circuit Court (“the circuit court”). The circuit court appointed a special master to make a recommendation regarding the issue whether the Division had jurisdiction to consider the push-down-accounting ground. In pertinent part, the special master’s recommendation stated:

“The Department avers that the Division erred in allowing the Taxpayer to amend its Petitions for Refund to include refund claims on the novel push-down accounting ground because, pursuant to the TBOR, taxpayers must first raise refund claims with the Department, not on appeal with the Division from the Department’s decision on those claims. The Taxpayer argues that, once it finds itself properly before the Division on appeal, no matter what the nature of the refund claim raised with the Department in the original Petition for Refund, a taxpayer should be able to raise any and all novel grounds for a refund, regardless of the fact that the Department was not first offered the opportunity to address that novel refund claim.
“I am persuaded by the Department’s position for the following reasons: any ruling otherwise obviates certain portions of the TBOR that delineate between the initial filing of a petition for refund with the Department and the appeal of the denial of that petition with the Division; and any ruling otherwise allows taxpayers to circumvent the jurisdictional requirements of the TBOR, thereby rendering the periods of limitations in the TBOR superfluous and rendering the Department unable to place limits on any refund claims against it. Not only does Alabama’s statutory scheme require such a finding, but also federal case law on the subject, and the policy considerations therein, prove persuasive.
“When construing the language of a statute, this court must presume ‘ “that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.” ’ Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997)). In this case, the TBOR was clear and did not require interpretation. The Division’s unnecessary interpretation served to abrogate portions of the TBOR, and for that reason the Division’s decision must not stand.
“Generally, the TBOR’s statutory construction establishes a two-tiered refund request review process by which the Department first reviews a taxpayer’s refund request and the basis for that request, and, if the Department denies that request, then that taxpayer can appeal either to the Administrative Law Division or to the Circuit Court. The authority of the Division extends only to those requests for refund that first have been denied by the Department. The TBOR is clear on this subject. Section 40-2A-9(a), Ala.Code 1975, provides, in pertinent part: ‘The purpose of this section is to establish uniform procedures concerning appeals to the Administrative Law Division and to establish the authority and responsibilities of the administrative law judge concerning those appeals.’ Section 40-2A-9(b), Ala.Code 1975, provides, in pertinent part: ‘The administrative law judge shall be responsible for administration of the Division and may schedule and conduct hearings and decide all appeals properly filed with the Division.’ (Emphasis added.) This statute does not establish any authority or responsibility by the Division for originally filed petitions for refund. Section 40-2A-7(e)(5)a., Ala.Code 1975, provides, in pertinent part: ‘A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a notice of appeal with the administrative law division.... ’ (Emphasis added.) Nothing in the TBOR provides an avenue through which a taxpayer in a case such as this can request a refund of tax directly from the Division; rather, it is the Department that first determines the propriety of any such refund, and the Division reviews the Department’s decision. Thus, the Division does not have authority over a taxpayer’s request for a refund unless and until the refund has been denied in whole or in part by the Department, at which time an appeal may be properly filed with the Division.
“As for the authority and responsibility of the Department, Section 40-2A-7(c)(1), Ala.Code 1975, provides that ‘[a]ny taxpayer may file a petition for refund with the department for any overpayment of tax or other amount erroneously paid to the department or concerning any refund which the department is required to administer.’ (Emphasis added.) See also Section 40-2A-7(c)(2)a., Ala.Code 1975 (‘A petition for refund shall be filed with the department....’), and Section 40-2A-7(c)(3), Ala.Code 1975 (‘The department shall either grant or deny a petition for refund....’) [ (emphasis added) ]. Without a decision by the Department denying a petition for refund, there is nothing for the Division to review. This procedural requirement is also exemplified by Section 40-2A-7(c)(3), which, in requiring that a petition for refund be deemed denied within six months of the filing date, necessarily ends the Department’s review period, thereby opening the door for review of the deemed denial by either the Division or the Circuit Court.
“The federal taxation system provides a two-tiered refund claim review system as well. Because the TBOR and the federal tax statutes are similar, I find federal court case law to be persuasive in my evaluation of the current case. State v. Gulf Oil Corp., 47 Ala.App. 434, 438, 256 So.2d 172, 176 (Ala.Civ.App.1971). The concept that a refund claim must first be filed with and administered by the Department is supported by public policy. ‘One object of such requirements [to first file a refund claim with the Commissioner] is to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue.... ’ United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 272 (1931) (citation omitted). See also United States v. Garbutt Oil Co., 302 U.S. 528, 532-33 (1938) (‘[T]he analogies of pleading must not be pressed to such an extent as to disregard the realities of administrative procedure [in tax refund cases].’). In cases involving the first stage of review by the Commissioner [of the Internal Revenue Service], the United States Supreme Court has vested the authority with the Commissioner, not the appellate entity, to waive any objection to a defectively pleaded refund claim, see United States v. Memphis Cotton Oil Co., 288 U.S. 62 (1933), but even the Commissioner cannot allow the amendment of a refund claim with a new ground if the statute of limitations for such a claim has run, see United States v. Garbutt Oil Co., 302 U.S. 528 (1938). See also Tucker v. Alexander, 275 U.S. 228 (1927). More importantly,
“ ‘In the absence of a proper amendment or of an operative waiver by the Government, the taxpayer in suing [in district court] for recovery [of] back taxes paid is confined to the scope of the grounds for refund asserted in the claim filed with the Commissioner. United States v. Felt &, Tarrant Mfg. Co., 283 U.S. 269, 272, 51 S.Ct. 376, 75 L.Ed. 1025 [(1931)], Real Estate-Land, Title & Trust Co. v. United States, 309 U.S. 13, 6[0] S.Ct. 371, 84 L.Ed. 542 [ (1940) ]; Snead v. Elmore, 5 Cir., 59 F.2d 312 [ (1932) ]; Edwards v. Malley, 1 Cir., 109 F.2d 640, 645 [ (1940) ]; Dascomb v. McCuen, 2 Cir., 73 F.2d 417, 418, 419 [ (1934) ]; Taber v. United States, 8 Cir., 59 F.2d 568 [ (1932) ]; H. Lissner Co. v. United States, Ct. Cl., 52 F.2d 1058 [ (1931) ].’
“Pelham Hall Co. v. Carney, 111 F.2d 944, 948 (1st Cir.1940). See also Brown v. United States, [No. H 73 C-45, March 11, 1976] (E.D.Ark.1976) [not reported in F.Supp.] (‘It is axiomatic that failure to raise factual or legal grounds in a claim for refund of taxes bars presenting these grounds and facts in a later suit for refund [filed in district court]. Angelus Milling Co. v. Commissioner, 325 U.S. 293 (1945). The Eighth Circuit, as well as all of the other circuit courts that have considered this question, has uniformly refused to allow a taxpayer to raise a new ground for recovery at the time of trial, if this ground was not brought to the attention of the Commissioner during the administrative proceedings. See Taber v. United States, 59 F.2d 568, 570-571 (8th Cir.1932), cert. denied, 287 U.S. 636 (1932); Ney v. United States, 171 F.2d 449 (8th Cir.1948), cert. denied, 336 U.S. 967 (1949); Lucky Tiger-Combination Gold Mining Co. v. Crooks, 95 F.2d 885 (8th Cir.1938); and Red Wing Malting Co. v. Willcuts, 15 F.2d 626 (8th Cir.1926), cert. denied, 273 U.S. 763 (1926); Alabama By-Products Corp. v. Patterson, 258 F.2d 892 (5th Cir.1958); Austin v. United States, 461 F.2d 733 (10th Cir.1972); Pelham Hall Co. v. Carney, 111 F.2d 944 (1st Cir.1940).’ (citations edited)).
“In its Petitions for Refund, the Taxpayer either requested a refund of the franchise tax on the basis of unconstitutionality or on the basis of its alternative apportionment theory. The Taxpayer has never requested from the Department a refund of franchise tax based on a removal of any and all push-down accounting procedures: that is, the Department has never had the opportunity to determine the propriety of the Taxpayer’s request for a refund based on its push-down accounting argument.
“The statute is clear. Taxpayers do not file their petitions for refund with the Division. The Department has the initial authority and responsibility for deciding whether or not to allow a refund, not the Division. Rather, the Division has appellate authority over a taxpayer’s refund request only after the Department has decided the matter adversely to the taxpayer. The Department and the Division are not the same entity for the purposes of the administrative scheme; rather, the Department appears before the Division as a party, specifically the appellee. Otherwise, the TBOR’s two-tiered refund process as designed by the Legislature would be a nullity.
“Moreover, if the Taxpayer’s position is adopted, not only is the two-tiered administrative procedure of the TBOR eliminated, but also the statute’s periods of limitations are easily circumvented. This case is a perfect example of that circumvention. On August 12, 1997, the Taxpayer filed Petitions for Refund for return years 1994-96 and stated as grounds for the Petitions 1) that the Taxpayer was entitled to a full refund because the Alabama Franchise Tax was unconstitutional and 2) that the Taxpayer was entitled to a partial refund based on a proposed alternative method of computation of its franchise taxes, specifically, an alternative method of apportioning its Alabama capital based on the Taxpayer’s creation of ‘an average historical sales ration.’ The Petition based on alternative apportionment was denied outright by the Department in a letter to the Taxpayer dated September 12, 1997. The Petition based on constitutionality was deemed denied on February 12, 1998. On or about January 21, 2000, the Taxpayer filed with the Division a Notice of Appeal of the denial of its constitutionality Petition; the Notice of Appeal addressed only the issue of constitutionality — not the issue of apportionment; nonetheless, more than two years had passed from the Department’s outright denial of the alternative apportionment Petition. Therefore, for return years 1994-96, the Taxpayer timely appealed the denial of its Petition for Refund based on the unconstitutionality of the tax, but did not timely appeal the denial of its Petition for Refund based on alternative apportionment.... However, the Division allowed the Taxpayer to ‘revive’ its alternative apportionment argument for return years 1994-96, even though it had not timely appealed the denial of the petition for refund based on alternative apportionment. ‘If an appeal is not filed with the Administrative Law Division or the circuit court within two years of the date the petition is denied, then the appeal shall be dismissed for lack of jurisdiction.’ § 40-2A-7(c)(5)c., Ala.Code 1975 (emphasis added). The Division’s decision to allow the Taxpayer to revive the alternative apportionment claim effectively voided the two-year jurisdictional period of limitation for appealing the denial of a petition for refund. Additionally, it should be noted that the Division’s decision to allow the Taxpayer to raise its push-down accounting claim in 2004 violated the three-year period of limitations prescribed by the TBOR. See § 40-2A-7(c)(2)a.(i), Ala.Code 1975. The procedural requirements of the TBOR are clear and mandatory, not subject to interpretation by the Division.
“IV. Conclusion
“Accordingly, the Division exceeded its statutory authority in ordering the Department to grant the Taxpayer’s refund request based on push-down accounting. That particular refund claim was not initially raised with the Department in a petition for refund as is required by the TBOR, and the allowance of such a claim at the appellate level resulted in the circumvention of the TBOR’s periods of limitation for filing such claims. The Department is the state agency designated by statute as the proper entity to first address a taxpayer’s refund claim. Any other position completely abrogates the two-tiered administrative review process outlined in the TBOR and allows the circumvention of the mandatory periods of limitation prescribed by the TBOR.
“Accordingly, the decision of the Division was not in compliance with applicable law....”

(Footnotes omitted.)

The circuit court adopted the special master’s recommendation and reversed the Division’s determination that the Taxpayer was entitled to refunds based on the push-down-accounting ground. The Taxpayer then timely appealed to this court from the judgment of the circuit court.

The Taxpayer first argues that the Division’s holding in Intergraph Corporation v. Alabama Department of Revenue and § 40-2A-7(c)(4), Ala.Code 1975, mandate that, once a taxpayer perfects an appeal to the Division, the Division is required to decide all issues regarding the taxpayer’s liability regardless of whether those issues were raised when the taxpayer’s refund claim was before the Department. However, this court is bound by the decisions of the Alabama Supreme Court rather than those of the Division. See § 12-3-16, Ala.Code 1975 (“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals .... ”). In Patterson v. Gladwin Corp., 835 So.2d 137, 153 (Ala.2002), our supreme court held that compliance with the TBOR is jurisdictional. Moreover, as the special master noted in his recommendation, our supreme court has held that “[w]hen construing the language of a statute, this court must presume ‘ “that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to' each, and also that no superfluous words or provisions were used.” ’ Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997)).” Based on that principle of statutory construction, we agree with the following reasoning contained in the special master’s recommendation:

“Generally, the TBOR’s statutory construction establishes a two-tiered refund request review process by which the Department first reviews a taxpayer’s refund request and the basis for that request, and, if the Department denies that request, then that taxpayer can appeal either to the Administrative Law Division or to the Circuit Court. The authority of the Division extends only to those requests for refund that first have been denied by the Department.... Section 40-2A-9(a), Ala.Code 1975, provides, in pertinent part: ‘The purpose of this section is to establish uniform procedures concerning appeals to the Administrative Law Division and to establish the authority and responsibilities of the administrative law judge concerning those appeals’ Section 40-2A-9(b), Ala. Code 1975, provides, in pertinent part: ‘The administrative law judge shall be responsible for administration of the Division and may schedule and conduct hearings and decide all appeals properly filed with the Division.’ (Emphasis added.) This statute does not establish any authority or responsibility by the Division for originally filed petitions for refund. Section 40-2A-7(c)(5)a., Ala.Code 1975, provides, in pertinent part: ‘A taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a notice of appeal with the administrative law division.... ’ (Emphasis added.) Nothing in the TBOR provides an avenue through which a taxpayer in a case such as this can request a refund of tax directly from the Division; rather, it is the Department that first determines the propriety of any such refund, and the Division reviews the Department’s decision. Thus, the Division does not have authority over a taxpayer’s request for a refund unless and until the refund has been denied in whole or in part by the Department, at which time an appeal may be properly filed with the Division.
“As for the authority and responsibility of the Department, Section 40-2A-7(c)(1), Ala.Code 1975, provides that ‘[a]ny taxpayer may file a petition for refund with the department for any overpayment of tax or other amount erroneously paid to the department or concerning any refund which the department is required to administer.’ (Emphasis added.) See also Section 40-2A-7(c)(2)a., Ala.Code 1975 (‘A petition for refund shall be filed with the department....’), and Section 40-2A-7(c)(3), Ala.Code 1975 {‘The department shall either grant or deny a petition for refund....’) [ (emphasis added) ]. Without a decision by the Department denying a petition for refund, there is nothing for the Division to review. This procedural requirement is also exemplified by Section 40-2A-7(e)(3), which, in requiring that a petition for refund be deemed denied within six months of the filing date, necessarily ends the Department’s review period, thereby opening the door for review of the deemed denial by either the Division or the Circuit Court.
“In its Petitions for Refund, the Taxpayer either requested a refund of the franchise tax on the basis of unconstitutionality or on the basis of its alternative apportionment theory. The Taxpayer has never requested from the Department a refund of franchise tax based on a removal of any and all push-down accounting procedures: that is, the Department has never had the opportunity to determine the propriety of the Taxpayer’s request for a refund based on its push-down accounting argument.
“... Taxpayers do not file their petitions for refund with the Division. The Department has the initial authority and responsibility for deciding whether or not to allow a refund, not the Division. Rather, the Division has appellate authority over a taxpayer’s refund request only after the Department has decided the matter adversely to the taxpayer. The Department and the Division are not the same entity for the purposes of the administrative scheme; rather, the Department appears before the Division as a party, specifically the appellee. Otherwise, the TBOR’s two-tiered refund process as designed by the Legislature would be a nullity.
“Accordingly, the Division exceeded its statutory authority in ordering the Department to grant the Taxpayer’s refund request based on push-down accounting. That particular refund claim was not initially raised with the Department in a petition for refund as is required by the TBOR, and the allowance of such a claim at the appellate level resulted in the circumvention of the TBOR’s periods of limitation for filing such claims. The Department is the state agency designated by statute as the proper entity to first address a taxpayer’s refund claim. Any other position completely abrogates the two-tiered administrative review process outlined in the TBOR and allows the circumvention of the mandatory periods of limitation prescribed by the TBOR.
“Accordingly, the decision of the Division was not in compliance with applicable law....”

(Footnotes omitted.) Thus, we find no merit in the Taxpayer’s first argument.

The Taxpayer next argues that its amendment of its notices of appeal to assert the push-down-accounting ground on March 9, 2004, was a proper amendment of a claim that had been timely presented to the Department and timely appealed to the Division and, therefore, that amendment was not tantamount to the assertion of a new claim as the Department argues. Consequently, the Taxpayer argues, the Division’s holding that it had jurisdiction to consider the push-down-accounting ground did not circumvent either the three-year statute of limitations for filing refund claims with the Department or the two-year statute of limitations for appealing the denial of such claims to the Division. The flaw in this argument is that the Taxpayer did not present the push-down-accounting ground to the Department before the expiration of the three-year statute of limitations for filing refund claims with the Department. For that reason, we find no merit in the Taxpayer’s second argument.

Finally, the Taxpayer argues that the federal cases cited by the special master in his report and recommendation to the circuit court are not apt because, the Taxpayer says, the federal statutes at issue in those cases are not substantially similar to the Alabama tax-refund statutes. Moreover, the Taxpayer argues that, even if the federal statutes at issue in those cases were sufficiently similar to the Alabama tax-refund statutes to render those federal cases apt by analogy, the holdings in those cases do not support a holding that the Division did not have jurisdiction to consider the push-down-accounting ground raised by the Taxpayer because the Taxpayer amended its notices of appeal at the administrative level and the Department was on notice of the push-down-accounting ground before the expiration of the statute of limitations for appealing the denial of the refund claims. However, we hold that the TBOR alone is sufficient authority to sustain the circuit court’s judgment. Therefore, we do not reach the issue whether the federal authorities cited by the special master lend additional support to the circuit court’s judgment.

Accordingly, for the reasons discussed above, we affirm the judgment of the circuit court. The Department’s motion to strike certain appendices in the Taxpayer’s brief is denied on the ground that it is moot.

AFFIRMED.

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

      . In pertinent part, § 40-2A-7(c)(3), Ala.Code 1975, provides:
      “The department shall either grant or deny a petition for refund within six months from the date the petition is filed .... If the department fails to grant a refund within the time provided herein, the petition for refund shall be deemed to be denied.”

      . In pertinent part, § 40-2A-7(c)(5)a., Ala. Code 1975, provides that “[a] taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a notice of appeal with the Administrative Law Division within two years from the date the petition is denied ....”


author: THOMPSON, Presiding Judge.

text:
    Farrell BEDSOLE v. Sheriff Anthony CLARK and Jerry Edgar Farrell Bedsole v. Dr. Millard H. McWhorter.
    2080483 and 2080603.
    Court of Civil Appeals of Alabama.
    Sept. 18, 2009.

      Farrell Bedsole, pro se.
    Gary L. Willford, Jr., of Webb & Eley, P.C., Montgomery, for appellees Sheriff Anthony Clark and Jerry Edgar.
    Robert N. Bailey II and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellee Millard H. McWhorter, M.D.
   THOMPSON, Presiding Judge.

Farrell Bedsole appeals from the trial court’s summary judgments in favor of Anthony Clark, the sheriff of Covington County; Jerry Edgar, the jail administrator for the Covington County Jail; and Dr. Millard McWhorter, the medical director of the Covington County Jail. Bedsole, an inmate at the Covington County Jail (“the jail”) at the time the events made the basis of this matter occurred, sued numerous people connected with the jail alleging various claims arising out of treatment he received for a sore on his abdomen, which Bedsole alleged was the result of a spider bite. The trial court entered a series of summary judgments that eventually disposed of all of Bedsole’s claims against all defendants. Bedsole, acting pro se, appeals only as to the judgments entered in favor of Clark, Edgar, and Dr. McWhorter. He filed his appeals with the Alabama Supreme Court, which transferred the appeals to this court pursuant to § 12-2-7(6), Ala.Code 1975. This court consolidated the appeals.

Evidence submitted in support of, and in opposition to, the defendants’ motions for a summary judgment tended to show the following. In June 2005, Bedsole was being held in the jail awaiting sentencing after having been convicted of four sex offenses. On June 18, 2005, he completed a sick-call slip, complaining of back pain. The next day, when a nurse with the medical staff at the jail saw Bedsole, the nurse noticed that Bedsole had a sore on his abdomen and that the sore had drainage. In accordance with a standing order from Dr. McWhorter concerning sores like Bed-sole’s, the nurse medicated Bedsole with Bactrim, an antibiotic, and bandaged the sore. The nurse also recommended that Bedsole be removed from the general inmate population until Dr. McWhorter could treat him. She made the recommendation because she believed that Bedsole had a staph infection. Jail officials followed the nurse’s recommendation and moved Bedsole from the general population.

Later the same day, Bedsole completed another sick-call slip, this time complaining of a spider bite on his abdomen. Dr. McWhorter saw Bedsole the next day, June 15, 2005. Dr. McWhorter ordered that Bedsole was to continue receiving Bactrim plus a “Bacitracia” drop on the wound until it healed. Three days later, on June 18, 2005, a nurse treating Bed-sole’s sore noted that it was about the size of a quarter and that it appeared to require lancing. The next day, June 19, Bedsole was taken to the emergency room at Andalusia Regional Hospital for treatment of the sore. He was discharged from the emergency room of the hospital to the jail with instructions that he should be treated with Granulex spray to the sore, that he should have “wet to dry dressings” daily, and that, if his condition worsened, he should have a follow-up visit with Dr. McWhorter or a surgeon. The discharge instructions did not include a diagnosis of spider bite, and they did not require Bed-sole to return to the hospital, unless his condition worsened.

In compliance with the hospital’s discharge instructions, on June 20, 2005, Dr. McWhorter ordered that Bedsole’s sore be sprayed twice each day with “TBC,” which, according to Dr. McWhorter, is “essentially the same” as Granulex spray, and treated with a wet-to-dry dressing. The Bac-trim was discontinued and replaced with doxycycline twice each day for ten days. A notation on Bedsole’s medical record states that on July 2, 2005, the sore was the size of a dime, and no drainage was noted. A notation made two days later stated that the “area [was] healing good.” Bedsole made no further complaints regarding the sore. On July 20, 2005, Bed-sole was transported from the jail to the custody of the Alabama Department of Corrections.

In January 2007, Bedsole filed a civil action alleging that, while he was an inmate at the jail, jail officials and Dr. McWhorter acted with deliberate indifference to his serious medical needs and that Clark and Edgar failed to adequately train and supervise Dr. McWhorter in violation of Bedsole’s constitutional rights. He also appeared to assert a claim of medical malpractice against Dr. McWhorter. As mentioned above, the trial court entered summary judgments in favor of all defendants on all claims.

On appeal, it appears that Bedsole contends that the trial court erred in entering summary judgments in favor of Dr. McWhorter, Clark, and Edgar only as to his claims that they acted with deliberate indifference to his medical needs and that Clark and Edgar failed to adequately train and supervise Dr. McWhorter.

“In reviewing a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). Furthermore, ‘[i]f the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court and, when appropriate, may be decided by summary judgment.’ McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991).”

Taylor v. Striplin, 974 So.2d 298, 301 (Ala.2007).

Although the trial court did not provide a reason as to why it entered the summary judgment in favor of Clark and Edgar, this court may affirm a summary judgment on any valid ground, with certain exceptions not applicable in this case. Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). Clark and Edgar first argue to this court that they were entitled to a summary judgment based upon absolute immunity pursuant to Article I, § 14, Ala. Const.1901. A claim alleging deliberate indifference to an inmate’s serious medical needs in violation of the inmate’s constitutional rights is a federal action, brought pursuant to 42 U.S.C. § 1983. Section 14 immunity has no applicability to federal-law claims. King v. Correctional Med. Serv., Inc., 919 So.2d 1186, 1191 (Ala.Civ.App.2005).

Alternatively, Clark and Edgar assert, they were entitled to a summary judgment based upon qualified immunity.

‘“Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” ’ Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982))),” cert. denied, 541 U.S. 935, 124 S.Ct. 1655, 158 L.Ed.2d 355 (2004); see also Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002) (ruling that qualified immunity ‘protect[s] from suit “all but the plainly incompetent or one who is knowingly violating the federal law” ’ (quoting Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir.2001))). When a government official seeks summary judgment based on qualified immunity, courts apply a two-step test to determine whether qualified immunity is appropriate. First, ‘[a] court required to rule upon the qualified immunity issue must consider ... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?’ Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a court answers this question affirmatively, the court moves to the second step, which is to consider whether the constitutional right was ‘clearly established’ on the date of the violation. Id.”

Andujar v. Rodriguez, 486 F.3d 1199, 1202-03 (11th Cir.2007).

In determining whether Bedsole’s allegation that Clark and Edgar violated his constitutional rights by acting with deliberate indifference to his serious medical needs, Bedsole must first prove that he in fact had a serious medical need. Andujar, 486 F.3d at 1203. The United States Court of Appeals for the Eleventh Circuit has defined a “serious medical need” as “ ‘one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir.2003) (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.1994)).

If Bedsole were to establish that he had a serious medical need, he must then satisfy a subjective inquiry, i.e., that Clark and Edgar acted with deliberate indifference to that serious medical need. Andujar, 486 F.3d at 1208. “[T]he case law ha[s] made it clear that an official acts with deliberate indifference when he knows that an inmate is in serious need of medical care, but he fails or refuses to obtain medical treatment for the inmate.” Lancaster v. Monroe County, Alabama, 116 F.3d 1419, 1425 (11th Cir.1997). To establish that Clark and Edgar acted with deliberate indifference, Bedsole must prove three things: (1) that Clark and Edgar knew of a risk of serious harm, (2) that Clark and Edgar disregarded that risk, and (3) that the conduct of Clark and Edgar amounted to more than gross negligence. Andujar, 486 F.3d at 1203-04 (citing Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir.2005)).

When viewing the evidence in the light most favorable to Bedsole, as we are required to do, see Taylor v. Striplin, 974 So.2d at 301, we find that Bedsole cannot establish that Clark and Edgar acted with deliberate indifference with regard to Bed-sole’s sore. The evidence is undisputed that the sore was first noticed by a jail nurse while she was treating Bedsole for his complaint of back pain. Bedsole had not requested treatment for the sore, and there is no evidence indicating that, before the nurse recommended treatment for the sore, Bedsole recognized the necessity for medical treatment for the sore. Thus, whether Bedsole even had a serious medical need is questionable. However, out of an abundance of caution, we will consider whether Clark and Edgar acted with deliberate indifference to treatment of the sore.

The evidence is undisputed that, upon the nurse’s recommendation that Bedsole be moved from the general population while he was waiting to be seen by Dr. McWhorter, the medical director for the jail, jail officials immediately undertook to remove Bedsole from the general population. The evidence is also undisputed that Bedsole was not denied timely treatment of the sore and that, when medical personnel sought to have Bedsole transported to the hospital to have the sore lanced, jail personnel complied with the request, taking Bedsole to the emergency room the following morning.

Bedsole has presented no evidence indicating that Clark or Edgar denied him medical care or delayed in providing him with medical care. In fact, the undisputed evidence is that Bedsole’s medical needs were met in a timely manner. In his brief on appeal, Bedsole states that, when he went to the hospital, the “spider bite” was not ready for lancing and an appointment was made for him to return to the hospital to have the spider bite lanced. However, there is no evidence in the record to support Bedsole’s assertion. The discharge instructions from the hospital do not mention an appointment to return to the hospital. They provide only that Bedsole have a follow-up visit with either Dr. McWhorter or a surgeon if his “condition” worsened. The instructions do not even diagnose a spider bite, contrary to Bedsole’s assertion.

There is no evidence from which a finder of fact could determine that Clark or Edgar’s conduct rose to the level of deliberate indifference; therefore, Bedsole has failed to show that Clark or Edgar’s conduct was constitutionally impermissible. See Andujar, 486 F.3d at 1203-04.

Because the conduct of Clark and Edgar did not violate Bedsole’s constitutional rights, they are entitled to qualified immunity. Id. Accordingly, we conclude that the trial court properly entered the summary judgment in favor of Clark and Edgar on Bedsole’s claim of deliberate indifference to his serious medical needs.

In his complaint, Bedsole also alleged that Dr. McWhorter acted with deliberate indifference to Bedsole’s serious medical needs. As this court has noted,

“ ‘[deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” ’ and is a violation of the Eighth Amendment right to be free from cruel and unusual punishment. Estelle v. Gamble, 429 TJ.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference can be manifested by prison personnel intentionally denying or delaying access to medical care, by prison personnel interfering with prescribed treatment, or by prison doctors responding indifferently to a prisoner’s medical needs. Estelle, 429 U.S. at 104-05, 97 S.Ct. 285. However,
“ ‘an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.’
“Id. at 105-06, 97 S.Ct. 285.”

King v. Correctional Med. Serv., Inc., 919 So.2d at 1192.

In this case, the evidence is undisputed that Bedsole received treatment for the sore on his abdomen. Bedsole was even taken out of the jail and transported to the local hospital for treatment. After Bedsole was seen by the physicians at the hospital, Dr. McWhorter provided treatment to him pursuant to the instructions provided by the hospital physicians. The evidence is also undisputed that Bedsole’s sore healed under the care and treatment provided by Dr. McWhorter and his staff at the jail. Bedsole has provided no evidence indicating that Dr. McWhorter acted with deliberate indifference to his wound. As this court pointed out in King, “[e]ven assuming that the medical care provided to [the inmate] had been negligently rendered, no constitutional claim arises from what is essentially a claim of medical malpractice....” King, 919 So.2d at 1192. There is simply no evidence indicating that Dr. McWhorter acted improperly in any way, and certainly no evidence indicating that he acted with deliberate indifference to Bedsole’s sore. Therefore, the summary judgment in favor of Dr. McWhorter on the deliberate-indifference claim is due to be affirmed.

Because we find that Dr. McWhorter’s conduct in treating Bedsole was not improper, Bedsole’s claim that Clark and Edgar failed to adequately train and supervise Dr. McWhorter must also fail. A claim of negligent failure to train or supervise requires the following showing:

“ ‘ “In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge.” ’ ”

Big B, Inc. v. Cottingham, 634 So.2d 999, 1003 (Ala.1993) (quoting Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100 (Ala.1983), quoting Thompson v. Havard, 285 Ala. 718, 723, 235 So.2d 853, 858 (1970)). Here, Bedsole has failed to show that Dr. McWhorter acted incompetently. Therefore, Clark and Edgar cannot be held liable for the claim of negligent failure to train or supervise, which requires a showing of incompetence on the part of Dr. McWhorter. Therefore, the trial court properly entered a summary judgment in favor of Clark and Edgar on Bedsole’s claim of negligent failure to train or supervise.

In his brief on appeal, Bedsole does not mention his claim of medical malpractice against Dr. McWhorter. Therefore, we deem as abandoned any challenge to the summary judgment entered in favor of Dr. McWhorter on that claim. Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 68 (Ala.2007); Chunn v. Whisenant, 877 So.2d 695, 601 (Ala.2003) (an argument not made on appeal is considered abandoned or waived).

For the reasons set forth above, the judgments of the trial court are affirmed.

2080483 — AFFIRMED.

2080603 — AFFIRMED.

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

      . 42 U.S.C. § 1983 provides:
      "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."


author: PITTMAN, Judge.

text:
    Marlanna B. POWELL v. James POWELL.
    2080518.
    Court of Civil Appeals of Alabama.
    Sept. 18, 2009.
    Charles H. Sims III, Selma, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

This appeal concerns the child-support component of a judgment entered by the Dallas Circuit Court divorcing Marianna B. Powell (“the mother”) and James Powell (“the father”). The mother filed a complaint in July 2008, seeking, among other things, a divorce based upon incompatibility of temperament, custody of the parties’ now two-year-old child, and an award of child support in accordance with Rule 32, Ala. R. Jud. Admin., as then in effect. The father was served, but he did not retain counsel; the parties then settled all issues between them except for the appropriate amount of child support. At an ore tenus hearing, the mother’s attorney submitted a Form CS-42 (a “Child-Support-Guidelines” form) indicating that the father earned a gross amount of $3,524 per month, a figure derived from an earning statement indicating that the father had earned a total of $42,292.65 at his job during 2008. The father, however, disputed the proposition that the Form CS-42 submitted by the mother’s attorney properly stated his current monthly income, as the following transcribed exchange indicates (emphasis added):

“THE COURT: ... [W]hat is it that you want me to know?
“[The father]: Sir, he is saying I make $3,400 a month. I don’t make that. Here’s the chart I had. It’s based on the court system. These are the check stubs running concurrent to today from 9-6 until now.
“THE COURT: What?
“[The father]: Here are the check stubs showing that I don’t make the substantial amount that he is saying I do. I don’t make but [$]2,000.
“THE COURT: I mean this is your earning statement, isn’t it?
“[The father]: Right. And it will be like that at the end of the year. I might go to work and be laid off by the economy being the way it is ....
“THE COURT: Are y’all just going to let me look at this?
“[The mother’s attorney]: Yes, sir.
“[The father]: Right.
“THE COURT: And I will give you a ruling on it.”

Although the mother had requested a monthly child-support award of $654, the trial court awarded only $500 per month. The mother filed a postjudgment motion challenging that award as an impermissible deviation from the child-support guidelines, but that motion was denied. The mother now appeals, reiterating her contention made in the trial court as to the child-support award.

“Under the well-established ore tenus rule, the trial court’s judgment is presumed correct; this court will not reverse the judgment absent a showing that the trial court’s findings are plainly and palpably wrong or that the trial court abused its discretion. Moreover, matters relating to child support ‘rest soundly within the trial court’s discretion, and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and thus is plainly and palpably wrong.’ ”

Scott v. Scott, 915 So.2d 577, 579 (Ala.Civ.App.2005) (citations omitted). Moreover, “Alabama law is well settled that an ‘ “appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal,” ’ ” and “when a trial court’s judgment ‘ “is based on evidence that is not before the appellate court, we conclusively presume that the court’s judgment is supported by the evidence.” ’ ” Id. at 580 (citations omitted).

As we have noted, the mother’s counsel submitted a Form CS-42 that was premised upon the inference that because the father had earned $42,292 during 2008, his monthly gross income should be calculated as being $3,524 per month. Based upon that inference, the mother posited in the form that the parties’ joint monthly-adjusted gross income should be determined to be $5,119 and that the father’s share of the recommended basic child-support obligation of $665 plus permissible additional costs (such as day-care costs and health-insurance premiums) should be 64.5% of $1,014, or $654. However, the trial court was presented with countervailing testimonial evidence (and documentary evidence not appearing in the appellate record) tending to indicate that the father’s actual monthly gross income as of the time of trial was only approximately $2,000; if the trial court believed that testimony, as it properly could have under Scott, the father’s monthly adjusted gross income would be reduced to $1,780 (accounting for his preexisting child-support obligation of $220), and the parties’ total monthly adjusted gross income would fall to $3,595, of which the father’s share would be 49.5%.

Had the trial court properly derived the basic child-support obligation for one child based upon a combined parental income of $3,595 from the chart appended to Rule 32, Ala. R. Jud. Admin., that was in effect for proceedings initiated before January 1, 2009 (see note 1, supra), it would have determined that amount to be $500 (an amount that precisely matches the trial court’s support award — see Rule 32(c)(1)). However, in that event, the parties’ total child-support costs (ie., the basic child-support obligation plus work-related childcare costs and health-insurance costs) should then have been calculated under the guidelines as having decreased from $1,014, as suggested by the mother in her Form CS-42, to $849, of which lower amount the father would have been responsible for only 49.5%, or $420.26. That necessary calculation was clearly not made, and the $500 award by the trial court in this case can be explained only as being either (a) an incomplete application of the Rule 32 child-support guidelines by the trial court using the father’s contended income figure or (b) an impermissible deviation from the child-support guidelines without compliance with Rule 32(A)(ii), which requires written findings to be stated in the event a deviation is ordered.

We thus conclude that the mother’s contention that the child-support award is not in compliance with Rule 32, Ala. R. Jud. Admin., is well taken. We reverse the trial court’s judgment and remand the cause for that court to comply with Rule 32 by either (a) properly calculating the amount of child support due from the father under the Rule 32 child-support guidelines based upon the evidence and permissible inferences that could be made therefrom, or (b) making an express determination under Rule 32(A)(ii) that application of the child-support guidelines would be manifestly unjust or inequitable.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The Alabama Supreme Court has recently amended portions of Rule 32, Ala. R. Jud. Admin.; those amendments are, however, effective January 1, 2009, and March 1, 2009, and are not applicable in this case.


text:
    Danny LAMBERT v. MAZER DISCOUNT HOME CENTERS, INC.
    2080491.
    Court of Civil Appeals of Alabama.
    Sept. 25, 2009.

      Heather Newsom Leonard, Birmingham, for appellant.
    Jim Entrekin and Brett Adair of Carlson & Adair, L.L.C., Birmingham, for ap-pellee.
   THOMAS, Judge.

This is an appeal from a summary judgment in an action brought pursuant to the Alabama Age Discrimination in Employment Act (“AADEA”), codified at Ala.Code 1975, § 25-1-20 et seq.

Facts and Procedural History

Danny Lambert was employed for Mazer Discount Home Centers, Inc. (“Mazer”), for almost 29 years. During the lengthy term of his employment, Lambert worked his way up in the company and was eventually promoted to the position of vice president of marketing. As vice president of marketing, Lambert’s duties included purchasing duties for the building-supply and kitchen-and-bath departments of Mazer; “deal buying,” which describes the task of seeking out and negotiating the purchase of closeout merchandise; and media planning and buying or, in other words, planning and purchasing times for and types of advertising for Mazer products and stores.

Mazer is a family-owned business, and its president was originally J.B. Mazer. In 2005, however, J.B. retired from the office of president and his son, Mike Mazer, took over. According to Lambert, Mike’s management style differed from that of J.B. Lambert said that Mike tended to “micromanage” more than J.B.

Under the presidency of both J.B. and Mike, vice presidents like Lambert were treated differently than other employees. For example, vice presidents were not required to turn in time sheets or otherwise account for their time like other employees. Mike explained that the vice presidents were in positions of trust and that they were officers of the company, so they were not required to account for their time because they were expected to always have the interests of the company at heart. In addition, although J.B. and Mike always performed at least yearly performance reviews of the vice-president-level employees, the reviews were informal and oral; no written records reflecting the substance of those reviews or any other conversations regarding performance were written or made a part of a vice president’s personnel file.

Lambert admitted that Mike had spoken with him on more than one occasion after Mike took over as president in 2005 regarding the time Lambert spent away from the office. Lambert had a vacation home in Destín, Florida, which he rented when he was not using it, and another piece of rental property in Santa Rosa, Florida. Both properties required maintenance periodically, and Lambert traveled to the area where the properties are located approximately twice per month. Lambert also purchased a home in the Birmingham area in 2005; that home apparently required extensive renovation. Lambert’s rental-property maintenance and his home renovations appeared to Mike to shift Lambert’s focus away from Mazer business even when he was at work. However, Lambert testified that “he wouldn’t know” whether Mike was irritated or concerned over Lambert’s performance as a result of the focus Mike felt Lambert placed on his rental property and home renovations.

During early 2006, issues arose in the kitchen-and-bath department regarding kitchen cabinets, which Lambert was responsible for ordering. The department had difficulty meeting customer orders on several occasions because certain popular cabinets were not in stock. However, the department also suffered from a problem with overstocked items that would not sell. According to Mike, Lambert’s failure to properly order the right cabinets at the right times had caused the problems that manifested themselves in the kitchen-and-bath department in early 2006.

Lambert admitted that Mike had expressed displeasure over the problems in the kitchen-and-bath department. He said that Mike had specifically criticized him for ordering the wrong types of building materials or cabinets. Lambert testified that he knew that Mike was unhappy with him over the issues with the out-of-stock kitchen cabinets.

In addition, Mike testified that he became increasingly dissatisfied with Lambert’s handling of his advertising duties. Mike said that he wanted to move away from radio, to move toward more “high-dollar” spots on television, to increase the production values of the television commercials, and to take a fresh approach to the way print ads were used by the company. Mike specifically stated that he felt that Lambert had not been proactive in looking for new ways to be effective in his advertising duties. Lambert admitted that Mike had communicated his desire for “high-dollar” spots on television and a desire to move away from radio advertising; the only other issue related to advertising that Lambert admitted that Mike had complained to him about was the amount of time he spent at lunches with his advertising contacts.

By May 2006, Mike had become so dissatisfied with Lambert that he decided to discharge him from his employment with Mazer. He telephoned Lambert and arranged for a meeting with him on May 3, 2006. When Lambert met with Mike, the company controller, Dan Ward, was also in attendance. Mike informed Lambert that he was being discharged, and Mike offered Lambert a severance package and a termination agreement. Lambert said that Mike did not tell him why he was being discharged; however, Ward testified that Mike began to explain his reasons but Lambert told Mike that he did not want to hear them. Lambert did not accept the severance package, and he did not sign the termination agreement. At the time he was discharged from his employment, Lambert was 47 years old.

After he discharged Lambert, Mike divided and reassigned Lambert’s duties to existing personnel. Mike testified that he did not hire anyone or promote anyone to take over Lambert’s position as vice president of marketing. David Smythia, who served as executive vice president, was assigned Lambert’s advertising duties. David Cobbin was promoted from location manager to purchasing manager, and he took over purchasing duties for the kitchen-and-bath department. Mike took over Lambert’s deal-buying duties.

After receiving a right-to-sue letter from the Equal Employment Opportunity Commission(“EEOC”) Lambert sued Mazer, alleging that he had been discharged from his employment in violation of the AAD-EA. Mazer answered Lambert’s complaint and denied liability. Mazer then moved for a summary judgment on Lambert’s age-discrimination claim, which the trial court granted. In its judgment, the trial court determined that Lambert had failed to present evidence sufficient to establish a prima facie case of age discrimination under the AADEA and that, even if he had, he had failed to present sufficient evidence demonstrating that Mazer’s proffered legitimate, nondiseriminatory reason for Lambert’s discharge was pretextual. Lambert appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Standard of Review

We review a summary judgment de novo; we apply 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 [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). 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, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

Age Discrimination under the AADEA

This case presents only the second time that an Alabama appellate court has considered the merits of a claim brought under the AADEA. See Robinson v. Ala> bama Cent. Credit Union, 964 So.2d 1225 (Ala.2007) (affirming a summary judgment in favor of an employer on an employee’s age-discrimination claim brought pursuant to the AADEA). The AADEA prohibits employers, employment agencies, and labor organizations from “discriminat[ing] in employment against a worker 40 years of age and over in hiring, job retention, compensation, or other terms or conditions of employment.” § 25-1-21. In Robinson, our supreme court, after considering the holdings of federal courts in Alabama, adopted the same burden-shifting analysis applied to federal age-discrimination claims brought under the federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Robinson, 964 So.2d at 1228-29.

“[Fjederal courts considering the issue [of the burden of proof applicable to an AADEA claim] have noted that the purpose and prohibitions of the AADEA are similar to those of the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (‘ADEA’), and concluded that ADEA principles should therefore govern in AADEA cases as well. See, e.g., Bonham v. Regions Mortgage, Inc., 129 F.Supp.2d 1815, 1321 (M.D.Ala.2001); see also § 25-1-29, Ala.Code 1975 (expressly adopting as part of the AADEA the remedies, defenses, and statutes of limitations applicable to the ADEA). Accordingly, the federal courts have applied to AADEA claims the same evidentiary framework applied to federal age-discrimination claims. We agree that this framework, which was articulated by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), is the proper means by which to review an AADEA claim. The evidentiary framework was summarized as follows in Dooley v. AutoNation USA Corp., 218 F.Supp.2d 1270, 1278 (N.D.Ala.2002):
“ ‘ “First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”
‘Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089 (citations omitted). At all times, plaintiff bears the burden of persuasion on the ultimate question of whether the defendant acted with an unlawful motive. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer’s articulated reasons is pretextual, the employer is entitled to judgment as a matter of law on the plaintiffs claim. See Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir.1997).’ ”

Robinson, 964 So.2d at 1228-29.

In the summary-judgment order appealed from in Robinson, the trial court had assumed that the plaintiff had established a prima facie case of age discrimination and had concluded that a summary judgment was appropriate because the plaintiff had failed to present sufficient evidence that the reason for the discharge proffered by the employer was pretextual. Id. at 1229. The supreme court, likewise, assumed that the plaintiff in Robinson had established a prima facie case and analyzed only whether the plaintiff had presented sufficient evidence to create a genuine issue of material fact regarding whether the reason for the plaintiffs discharge proffered by the employer was pre-textual. Id. at 1230-32. Thus, the Robinson court did not set out the elements required to make out a prima facie case of age discrimination under the AADEA. Because the trial court in the present case determined both that Lambert had failed to present evidence sufficient to establish a prima facie case and that Lambert had failed to create a fact question regarding whether the proffered legitimate, nondiscriminatory reason for his discharge was pretextual, we will address both the establishment of a prima facie case under the AADEA and the demonstration of pretext under the AADEA.

The Prima Facie Case

In an AADEA case, our supreme court has held, a plaintiff must first establish a prima facie case of discrimination. Robinson, 964 So.2d at 1228. Because our supreme court agreed that cases applying the ADEA should govern the application of the AADEA, we turn to federal cases applying the ADEA to determine exactly what a plaintiff must prove to establish a prima facie case of age discrimination. Generally, a plaintiff seeking to establish a prima facie case of age discrimination must “prove that (1) plaintiff was a member of a protected group, (2) plaintiff was discharged, (3) plaintiff was replaced with a person outside the protected group, and (4) plaintiff was qualified to do the job.” Stanfield v. Answering Serv., Inc., 867 F.2d 1290, 1293 (11th Cir.1989).

The trial court in the present case determined that Lambert had not established the elements of a prima facie case of age discrimination because he had failed to produce evidence that Mazer replaced him with a younger person. In its summary-judgment order, the trial court specifically noted that, in some federal circuits, an employee is not considered to have been replaced when his or her duties are distributed among existing employees who have been performing the same, similar, or related work. See Barnes v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir.1990). Although the trial court did not so indicate, the fact that Mazer reassigned Lambert’s duties to at least two other employees who were older than him — Smythia and Mike — also weighs against the establishment of a prima facie case. Settle v. K Mart Corp., 857 F.Supp. 955, 958 (M.D.Fla.1994) (stating that because there was proof that the age-discrimination plaintiff was replaced by someone substantially older, the plaintiff had failed to present the court with evidence raising an inference of age discrimination).

Lambert takes issue with the trial court’s adherence to the requirement that he prove that he was replaced by a younger employee. Lambert points out that federal age-discrimination cases have not limited themselves solely to one formulation of the elements of a prima facie case. See Stanfield, 867 F.2d at 1294 (stating, in the context of an age-discrimination case under the ADEA, that proving that one was replaced by a younger person “is not essential” and that “ ‘the particularly amorphous nature of age discrimination counsels against rigid application of [the] test’ ” (quoting Pace v. Southern Ry. Sys., 701 F.2d 1383, 1387 (11th Cir.1983))). Based upon our review of several age-discrimination cases, we conclude that Lambert is correct in asserting that his failure to prove that he was replaced by a younger person does not, in and of itself, prevent the establishment of a prima facie case of age discrimination.

In fact, in cases involving reductions in the workforce or the elimination of a position by the employer, a plaintiff lacking direct evidence of age discrimination would be almost unable to prove his or her case if the requirement of showing his or her replacement by a younger individual were considered imperative to the establishment of a prima facie case. See, e.g., Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir.1987). In recognition of this fact, the federal courts have developed an alternative test for the establishment of a prima facie case of age discrimination in those types of cases:

“[T]his Circuit has held that a plaintiff in a job-reduction case can establish a pri-ma facie case by demonstrating: (1) that he was in a protected group and was adversely affected by an employment decision; (2) that he was qualified to assume another position at the time of discharge or demotion; and (3) evidence by which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Williams v. General Motors Carp., 656 F.2d 120,129 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). Although this test is not ‘the alpha and omega of possible tests in the age discrimination context,’ Pace [v. Southern Railway System], 701 F.2d [1383,] 1387 [ (11th Cir.1983) ], it does establish the proposition that the plaintiffs burden is to introduce evidence that supports a reasonable inference of intentional age discrimination.”

Barnes, 814 F.2d at 609-10 (footnote omitted); see also Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir.1997); Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 567-68 (11th Cir.1992).

Mike testified that he did not replace Lambert by hiring anyone for or promoting anyone to the position of vice president of marketing and that he instead divided Lambert’s duties among three existing employees. Mike did not testify, and the evidence does not establish, that Mike’s reason for discharging Lambert was the need to eliminate Lambert’s position. The Eleventh Circuit Court of Appeals has indicated that the alternative test for establishing a prima facie case is limited to true reduction-in-force or position-elimination cases. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir.2000) (recognizing a distinction between workforce-reduction cases and termination cases). However, federal courts have not always required strict adherence to the elements of a prima facie case, indicating that, although the typical method of demonstrating a prima facie case involves a showing that the employer replaced an older worker with a younger one, the courts must be “open to alternative methods of proof of a prima facie case” and that the determination hinges on “whether the plaintiff has presented sufficient evidence to provide a basis for an inference that age was a factor in the employment decision.” Pace v. Southern Ry. Sys., 701 F.2d at 1387; see also Stanfield, 867 F.2d at 1294. Thus, although we agree with Lambert that the trial court erred in strictly applying the original elements of a prima facie case to Lambert’s age-discrimination claim and by concluding that Lambert’s failure to prove that he was replaced by a younger person prevented him from establishing a prima facie case, we must now consider whether Lambert’s evidence “provide[s] a basis for an inference that age was a factor in the employment decision,” Pace, 701 F.2d at 1387, and, thus, whether Lambert did, in fact, establish a prima facie case of age discrimination. Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (noting that we may affirm a trial court’s judgment on any valid legal ground in most circumstances).

Because the alternative test allows an age-discrimination plaintiff the opportunity to establish a prima facie case by presenting “evidence by which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue,” Barnes, 814 F.2d at 609, we will consider Lambert’s evidence under that test. Both parties agree that Lambert has established the first and second elements of the alternative test, because Lambert was qualified for his position and he was a member of the protected group that suffered an adverse employment decision. See id. We turn our focus, then, to the third element of the alternative test: whether Lambert presented evidence from which a reasonable fact-finder could conclude that Mazer intended to discriminate against him on the basis of his age when Mike discharged him from his employment. See id. To do that, we must consider whether Lambert presented “evidence that supports a reasonable inference of age discrimination.” Id. at 610.

In order to make the determination whether an age-discrimination plaintiff has presented enough evidence to satisfy his or her burden of presenting a prima facie case, courts have considered circumstantial evidence of discrimination, including comments made by employers or decision makers that indicate an age-related bias. See Corbin v. Southland Int’l Trucks, 25 F.3d 1545, 1549 (11th Cir.1994); see also Hunter v. Mobis, Alabama, LLC, 559 F.Supp.2d 1247, 1257 (M.D.Ala.2008) (considering comments indicating a pregnancy-related bias in a pregnancy-discrimination case to evaluate whether the plaintiff established a prima facie case). “[A] comment [by an employer or decision maker], which was narrowly tailored to a particular event, might constitute some evidence of discrimination for a case based on a separate event; the statement, however, must then be seen not as direct evidence of discrimination, but as circumstantial evidence of discrimination”; circumstantial evidence, unlike direct evidence, “suggests — but does not prove — & discriminatory motive.” Burrell v. Board of Trs. of Georgia Military Coll., 125 F.3d 1390, 1393 n. 7 and 1393 (11th Cir.1997). However, the courts have also held that “stray remarks” or “isolated comments” unrelated to the employee or discharge at issue are not sufficient to create a jury question in an age-discrimination case. Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir.1994); see also Brook v. City of Montgomery, 916 F.Supp. 1193, 1204-05 (M.D.Ala.1996). The age-discrimination plaintiff must “demonstrate [that] a nexus exits between th[e] allegedly discriminatory statements and the [employer’s] decision to terminate [him or] her.” Cone, 14 F.3d at 531; Brook, 916 F.Supp. at 1204-05.

Lambert testified that Mike had made statements indicating an age bias. Mike admitted that he had made some, but not all, of the statements Lambert attributed to him. For purposes of review of the summary judgment, we must consider the facts in the light most favorable to Lambert, see DPF Architects, 792 So.2d at 372, and we therefore consider all the alleged statements as if Mike had indeed made them. Cone, 14 F.Bd at 531.

Lambert testified that Mike had said of Art Levine, who was about 65 years of age, that he desired someone younger and more energetic in his position. According to Lambert, Mike also commented that Art “wasn’t very active.” Regarding another employee, Sam Lorino, whose age does not appear in the record but who was, by agreement of the parties, over the age of 40, Lambert testified that Mike had stated that Lorino was “past his prime” and also mentioned that he, too, was not “active.”

Those statements, although capable of being perceived as derogatory and inappropriate, were not made regarding or directed toward Lambert. They were comments made about other employees in other positions than Lambert’s and did not directly bear on the decision to discharge Lambert. Thus, they appear to be “stray remarks,” which are inadequate to present sufficient evidence of a discriminatory intent. Cone, 14 F.3d at 531; Brook, 916 F.Supp. at 1204-05.

Lambert also relies on what he terms Mike’s “conflicting testimony” regarding the reason for Lambert’s discharge. Lambert relies on a statement Mike made in a 2008 deposition in a defamation action brought by another discharged employee. In the deposition, Mike was asked why Lambert was discharged, to which he responded “reorganization.” When asked if there were any other reasons for discharging Lambert, Mike replied “no.” Mike had testified in his deposition in the present case, had indicated in his written discovery responses, and had indicated in Mazer’s EEOC position paper that Lambert’s discharge was motivated by dissatisfaction with Lambert’s performance of both his purchasing and advertising duties. Mazer argues that the two reasons given were not truly conflicting.

Our supreme court considered a similar argument in Robinson, in which the employer had originally given corporate restructuring as its reason for the employee’s discharge. Robinson, 964 So.2d at 1229-30. Later, the employer indicated that it had also become dissatisfied with the employee’s work and that his performance had figured into its decision to discharge him. Id. at 1230. In affirming the summary judgment in favor of the employer, our supreme court explained that the two reasons given by the employer were not, in fact, “conflicting” and did not amount to evidence that the employer had disavowed the original reason or otherwise indicated that the original reason was a pretext. Id.

Notably, Mike maintained throughout this action that he had discharged Lambert after becoming increasingly dissatisfied with his performance, which Mike felt was a result of Lambert’s outside interests and his time away from the office pursuing them. After Lambert’s discharge, Mike did restructure some of the upper-level management of the company by reassigning certain of Lambert’s duties to Smythia, the existing executive vice president, and to himself; the bulk of Lambert’s purchasing duties were assigned to a lower-level employee, who performed those duties in addition to his former duties. Mike’s comment in an unrelated case that he discharged Lambert because of restructuring appears nothing more than a shorthand way to explain the changes in the Mazer management team and does not appear to indicate that Mike was disavowing the basis for the decision to discharge Lambert.

Lambert’s final argument that he has produced sufficient circumstantial evidence that his age was a motivating factor for his discharge, in order to establish a prima facie case of age discrimination, is that Mazer redistributed his duties to a younger employee. Although we agree that reassigning the duties of a discharged employee to a younger employee might evidence age discrimination in some cases, Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir.1994) (holding that an age-discrimination plaintiff established a prima facie case when he “claimed that twelve of the thirteen functions he performed were retained at the corporate level, and that all his duties were assigned to persons younger and less qualified than he” (emphasis added)), the facts of the present case do not evidence such discrimination. Although Cobbin, who assumed Lambert’s purchasing duties for the kitchen-and-bath department, is younger than Lambert, Smythia and Mike, who both assumed some of Lambert’s duties, are not. In fact, Smythia, at age 66, is significantly older than Lambert. Many of Mazer’s upper-level employees are older than Lambert. The evidence indicates that Mazer has a number of older upper-level employees: Ward, the company treasurer and controller is 64; Miriam Deal, who performs certain advertising duties under Smythia’s direction, is in her 60s; and Peggy Martin, who serves as a purchasing assistant, is 67. At best, Lambert’s evidence amounts to evidence indicating that Mazer selected one younger person and two older persons to take over the tasks that Mike determined Lambert could no longer adequately perform. The mere fact that one of the persons to whom one-third of Lambert’s duties were reassigned is younger than Lambert does not amount to substantial evidence demonstrating that Mazer’s decision to discharge Lambert from his employment was motivated by his age.

We conclude, therefore, that Lambert has not proven a prima facie case of age discrimination under the AADEA, even based on the alternative test expressed by the Eleventh Circuit Court of Appeals in Barnes. That is, Lambert’s evidence is not sufficient evidence from “which a fact-finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.” Barnes, 814 F.2d at 609. The trial court properly entered a summary judgment, even if it erred by strictly applying the original elements of a prima facie case. Liberty Nat’l Life Ins. Co. v. University of Alabama Health Sens. Found., P.C., 881 So.2d at 1020.

Pretext

However, even if Lambert had established a prima facie case of age discrimination, we would still conclude that the trial court’s summary judgment was properly entered. As noted above, once a plaintiff in an age-discrimination case establishes a prima facie case, the burden of production shifts to the employer, who must then proffer a legitimate, nondiserim-inatory reason for the employee’s discharge. Robinson, 964 So.2d at 1228-29; see also Stanfield, 867 F.2d at 1294. Mazer proffered as its basis for Lambert’s discharge Mike’s dissatisfaction with Lambert’s performance in his purchasing and advertising duties. Lambert was then required to present substantial evidence creating a fact question regarding whether age was, in fact, the basis for Mazer’s decision to discharge him or that the reason proffered by Mazer — dissatisfaction with Lambert’s performance- — was a mere pretext for age discrimination. Robinson, 964 So.2d at 1229; see also Stanfield, 867 F.2d at 1294.

Much of the circumstantial evidence discussed above in the discussion of the prima facie case is also relevant to the consideration whether Lambert met his burden of creating a genuine issue of material fact regarding his assertion that Mazer’s stated reason for his discharge was a mere pretext. Because we have concluded that Lambert’s circumstantial evidence — the alleged comments by Mike indicating age-related bias, the contention that Mike had given conflicting reasons for Lambert’s discharge, and the reassignment of a portion of Lambert’s duties to a younger employee — is not evidence from which a reasonable fact-finder could infer a discriminatory intent, we will not discuss that evidence further. In addition to the circumstantial evidence discussed in the previous section, Lambert argues that the lack of documentary evidence to support Mazer’s assertion of a performance-based discharge creates a question of fact regarding the validity of the proffered reason. As Lambert argues, federal courts have held that the lack of documentation to support performance or disciplinary issues with an employee can support an inference that the performance- or discipline-based reason is a pretext. Lloyd v. Georgia Gulf Corp., 961 F.2d 1190, 1194-95 (5th Cir.1992); see also Everett v. Lake Martin Area United Way, 46 F.Supp.2d 1238, 1237 (M.D.Ala.1999) (applying same legal principle to a case involving discrimination on the basis of one’s filing for bankruptcy protection under 11 U.S.C. § 525(b)).

However, the Eleventh Circuit Court of Appeals has also held that, when there is no “formal review process,” the lack of documentation of complaints, negative reviews, or disciplinary warnings in a personnel file is not sufficient evidence to show pretext. Wascura v. City of South Miami, 257 F.3d 1238, 1245 (11th Cir.2001) (involving a case of discrimination under 42 U.S.C. § 12112(b)(4), a part of the Americans With Disabilities Act). All the evidence in the present case indicates that the review process for vice-president-level employees at Mazer was informal and oral; without fail, each person with knowledge of the process testified that Mike never issued written reviews. In addition, Lambert himself testified that Mike had counseled him on missing work and had expressed displeasure over certain of his purchasing practices. Lambert specifically stated that he knew Mike was unhappy about the situation with the kitchen cabinets. The fact that Mike also indicated satisfaction with Lambert during the period before his discharge is not sufficient to raise a question of fact regarding pretext. See Robinson, 964 So.2d at 1231-32 (indicating that positive comments among the negative ones in performance evaluations did not suffice to establish that the employer’s proffered reason for discharge was pretextual).

We conclude, therefore, that Lambert also failed to present substantial evidence creating a fact question regarding whether Mazer’s stated basis for Lambert’s discharge was a mere pretext for age discrimination. Lambert admitted having been counseled about and having been aware of Mike’s dissatisfaction with the performance of at least some of his duties in the year before his discharge. A review of the evidence submitted by both parties convinces us that the trial court’s decision to enter a summary judgment in favor of Mazer on the pretext issue was correct.

Conclusion

In conclusion, we have determined that Lambert failed to establish a prima facie case of age discrimination under the alternative test set out by the Eleventh Circuit Court of Appeals in Barnes. Lambert’s evidence was not sufficient to lead a reasonable fact-finder to conclude that Mazer intended to discriminate against Lambert on the basis of his age when Mike decided to discharge Lambert. In addition, even if Lambert had established a prima facie case of age discrimination, we conclude that Lambert was unable to create a genuine issue of material fact regarding whether Mazer’s proffered reason for the discharge — dissatisfaction with Lambert’s performance of his purchasing and advertising duties — was a mere pretext for age discrimination. Accordingly, we affirm the summary judgment entered in favor of Mazer.

AFFIRMED.

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

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

      . In several other cases, appellate courts have considered issues relating to an AADEA claim, such as the limitations period applicable to an AADEA claim, see Byrd v. Dillard’s, Inc., 892 So.2d 342 (Ala.2004), and Hedegard v. BE & K, 923 So.2d 315 (Ala.Civ.App.2005); the effect of a settlement or release of another claim on an AADEA claim, see Dunlap v. Regions Fin. Corp., 983 So.2d 374 (Ala.2007) (affirming a summary judgment in favor of an employer on an age-discrimination claim brought under the AADEA on the basis of a release signed by the employee), and Whitson v. City of Hoover, 14 So.3d 98 (Ala.2009) (reversing the dismissal of an AADEA claim because a workers’ compensation settlement did not release the claim); the timing of the consideration of both sovereign and state-agent immunity in a case brought under the AADEA, see Ex parte Auburn Univ., 6 So.3d 478 (Ala.2008); and whether federal-law claims brought in federal court tolled a state-law claim brought under the AADEA in state court, see Rester v. McWane, Inc., 962 So.2d 183 (Ala.2007).