author: SHAW, Justice.

text:
    EUFAULA HOSPITAL CORPORATION et al. v. Arleana LAWRENCE and Lisa Nichols, on behalf of themselves and all others similarly situated.
    1070415.
    Supreme Court of Alabama.
    Sept. 11, 2009.

      Jeffrey M. Grantham and Edward M. Holt of Maynard, Cooper & Gale, P.C., Birmingham, for appellants.
    Brian M. Clark of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham; and Jay Aughtman of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellees.
   SHAW, Justice.

Eufaula Hospital Corporation, formerly doing business as Lakeview Community Hospital (“Lakeview”); Foley Hospital Corporation, formerly doing business as South Baldwin Regional Medical Center (“South Baldwin”); and CHS Professional Services Corporation (“CHSPSC”), the defendants below, appeal from the trial court’s order certifying as a class action the breach-of-contract claims asserted by Arleana Lawrence and Lisa Nichols. We vacate the trial court’s class-action-certification order and remand the case.

Facts and Procedural History

In March 2003, Lawrence twice visited Lakeview seeking medical treatment for migraine headaches. Lawrence did not have medical insurance and was not participating in Medicare or Medicaid. On both •visits, Lawrence executed a contract for treatment (an “admission contract”). Regarding the charge for the medical treatment she was to receive, the admission contract stated, in pertinent part:

“The undersigned individually obligates himself/herself to pay the account of the Facility in accordance with the regular rates and terms of the Facility.”

Lawrence was ultimately billed $3,361.50 for the medical treatment she received.

Nichols sought medical treatment at South Baldwin three times in 2005 for surgery on her arm and for treatment of injuries sustained in an automobile accident. She also executed an admission contract on each visit; regarding payment, these admission contracts contained language identical to the language in Lawrence’s admission contracts. Nichols was ultimately billed $20,659.90 for the medical treatment she received.

Lawrence subsequently filed a class-action complaint against Lakeview and its parent corporation, Community Health Systems, Inc. (“CHS”), seeking (1) damages for breach of contract or, alternatively, unjust enrichment; (2) a judgment declaring that a contractual relationship with an open-price term existed and declaring a reasonable price for the medical services rendered; and (3) injunctive relief. The complaint was amended numerous times, and in the last amended complaint, titled “Fourth Amended Class Action Complaint” (“the complaint”), Nichols was joined as a plaintiff and South Baldwin, which was also owned by CHS, was joined as a defendant. Additionally, CHSPSC — a subsidiary of CHS that provided administrative services to Lakeview and South Baldwin — was added as a defendant. Hereinafter, Lakeview, South Baldwin, and CHSPSC will be referred to collectively as “the defendants.”

The plaintiffs contended in the complaint that the rates the defendants charged the plaintiffs for treatment was not stated in the admission contracts the plaintiffs executed. Thus, the plaintiffs contend, a price is implied by law and must reflect the reasonable value of the medical services. See Shellnutt v. Randolph County Hosp., 469 So.2d 632, 633 (Ala.Civ.App.1985) (“Where ... there is no evidence of an express contract, an agreement is implied that a hospital will render services and in return receive a reasonable fee for these services.”), and Cardon v. Hampton, 21 Ala.App. 438, 439, 109 So. 176, 177 (1926) (“[I]n the absence of an express agreement as to the details of the time and place of payment, and in the absence of a demand by the physician for payment in advance, the implied agreement was that [the] defendant would pay the physician the reasonable value of the service rendered.”). The plaintiffs argue that the defendants charged insured patients and patients who received governmental benefits much lower rates than the rates they charged uninsured or self-pay patients like the plaintiffs. They thus maintain that the rates charged uninsured patients and self-pay patients were inflated and unreasonable and, therefore, that the defendants breached the provision implied in the admission contract that patients would pay a “reasonable” charge. The plaintiffs further sought injunctive relief directing the defendants to cease charging and collecting “unreasonable rates to uninsured hospital patients” as well as a declaration “of the amount of a reasonable price” for the services rendered.

The plaintiffs filed a motion to certify a class action under Rule 23(b)(2) and Rule 23(b)(3), Ala. R. Civ. P., and the defendants moved for a summary judgment. The trial court held a hearing on these motions. On October 29, 2007, the trial court issued an order granting a class-action certification under Rule 23(b)(2) and Rule 23(b)(3), for two subclasses:

“Subclass 1: Subclass 1 is represented by Arleana Lawrence, and is defined as follows:
“All persons between September 30, 1998, and the present who initially presented at the Emergency Room at Lake-view Community Hospital, and who were treated at the hospital, classified as self-pay or uninsured patients, and were charged the hospital’s chargemaster[] rates for services received. This class does not include any person who has filed for bankruptcy, and included the subject hospital bills within the bankruptcy, or against whom a valid judgment for the subject hospital bills has been taken.
“Subclass 2: Subclass 2 is represented by Lisa Nichols, and is defined as follows:
“All persons between November 17, 1999 and the present who initially presented at the Emergency Room at South Baldwin Regional Medical Center, and who were treated at the hospital, classified as self-pay or uninsured patients, and were charged the hospital’s charge-master rates for services provided. This class does not include any person who has filed for bankruptcy, or against whom a valid judgment for the subject hospital bills has been taken.”

The trial court also issued an order denying the defendants’ summary-judgment motion. Pursuant to Ala.Code 1975, § 6-5-642, the defendants appeal from the trial court’s order certifying the class action. See Ala.Code 1975, § 6-5-642 (“A court’s order certifying a class or refusing to certify a class action shall be appealable in the same manner as a final order to the appellate court which would otherwise have jurisdiction over the appeal from a final order in the action.”).

The Defendants’ Merits Argument

First, the defendants argue on appeal that the entire premise of the plaintiffs’ action — that the admission contract contains an undefined term as to price — is incorrect. Specifically, the defendants contend that the language in the admission contract stating that the plaintiffs will be charged “in accordance with the regular rates and terms of the Facility” specifically defines that the price that will be charged is in accordance with the particular hospital’s “chargemaster,” a list that specifies charges for all procedures and treatments the hospital might administer. The defendants contend that it is impossible to know at the time an admission contract is executed what medical services might ultimately be required, but that, nevertheless, the actual charge for all medical treatments is defined in the chargemaster. See Murray v. Alfab, Inc., 601 So.2d 878, 886 (Ala.1992) (“ ‘It is not, therefore, necessary that the price should be fixed by the contract itself ... provided that the parties have settled upon some method by which the price may be determined with certainty.’” (quoting 1 F. Mechem, The Law of Sale of Personal Property § 210 (1901))). In support of their argument, the defendants cite several cases from other jurisdictions interpreting hospital admission contracts as containing defined price terms. See DiCarlo v. St. Mary Hosp., 530 F.3d 255, 264 (3d Cir.2008) (holding that the phrase in an admission contract requiring the patient to pay “all charges” was a price term that “was not in fact open” because “ ‘all charges’ unambiguously can only refer to [the hospital’s] uniform charges set forth in its Chargemaster”); Cox v. Athens Reg’l Med. Ctr., Inc., 279 Ga.App. 586, 589, 631 S.E.2d 792, 796 (2006) (rejecting the argument that an admission contract that provided that patients pay a hospital for medical services “in accordance with the rates and terms of the hospital” created “an open price term for which a ‘reasonable’ price must be substituted by the court”); Shelton v. Duke Univ. Health Sys., Inc., 179 N.C.App. 120, 125, 633 S.E.2d 113, 116 (2006) (holding that an admission contract calling for a patient to pay “the regular rates and terms of the Hospital at the time of patient’s discharge” referred to the rates of service contained in the hospital’s chargemaster and thus was definite and certain or capable of being made so); and Woodruff v. Fort Sanders Sevier Med. Ctr., (No. E2007-00727-COA-R3-CV, Jan. 16, 2008) (Tenn.Ct.App.2008) (not reported in S.W.3d) (holding that an admission contract specifying that a patient will pay a hospital’s “rates and terms” was not an indefinite term). But see Doe v. HCA Health Servs. of Tennessee, Inc., 46 S.W.3d 191 (Tenn.2001) (holding that an admission contract specifying that the patient agrees to pay a hospital for all “charges” was not sufficiently definite). Because, the defendants maintain, the charges for medical services are in fact readily identifiable, the trial court erred in resorting to a determination of an implied reasonable charge without first addressing whether the admission contract contained an open term.

In opposition to this argument, the plaintiffs cite several Alabama decisions holding that a determination on the ultimate merits of an action during class certification is improper. See Mayflower Nat’l Life Ins. Co. v. Thomas, 894 So.2d 637, 641 (Ala.2004) (“On a motion for class certification, the sole issue before the trial court is whether the requirements of Rule 23 have been met .... ”); Mitchell v. H & R Block, Inc., 783 So.2d 812, 816 (Ala.2000) (holding that a trial court “should not make” a determination of the “merits of a plaintiffs case in a class-certification hearing”); and Ex parte Government Employees Ins. Co., 729 So.2d 299, 303 (Ala.1999).

The defendants do not argue that the cases cited by the plaintiffs should be overruled and do not offer a procedure for this Court to use in reviewing a challenge to the merits in an appeal from a class-action certification. Further, the defendants did not seek to certify these issues for an interlocutory appeal under Rule 5, Ala. R.App. P; Therefore, we decline to review the merits of the plaintiffs’ claims.

Class Certification

“This Court has stated that ‘class actions may not be approved lightly and ... the determination of whether the prerequisites of Rule 23 have been satisfied requires a “rigorous analysis.” ’ ” Mayflower Nat’l Life Ins. Co. v. Thomas, 894 So.2d at 641 (quoting Ex parte Citicorp Acceptance Co., 715 So.2d 199, 203 (Ala.1997)). “In reviewing a class-certification order, this Court looks to see whether the trial court exceeded its discretion in entering the order; however, we review de novo the question whether the trial court applied the correct legal standard in reaching its decision.” University Fed. Credit Union v. Grayson, 878 So.2d 280, 286 (Ala.2003). Furthermore,

“[w]e note that an abuse of discretion in certifying a class action may be predicated upon a showing by the party seeking to have the class-certification order set aside that ‘the party seeking class action certification failed to carry the burden of producing sufficient evidence to satisfy the requirements of Rule 23.’ Ex parte Green Tree Fin. Corp., 684 So.2d 1302, 1307 (Ala.1996). Thus, we must consider the sufficiency of the evidence submitted by the plaintiff customers.”

Compass Bank v. Snow, 823 So.2d 667, 672 (Ala.2001). See also Smart Prof'l Photocopy Corp. v. Childers-Sims, 850 So.2d 1245, 1249 (Ala.2002) (holding that if plaintiffs fail to meet the evidentiary burden as required by Rule 23, Ala. R. Civ. P., then the trial court exceeds its discretion in certifying a class action). If the plaintiffs here have failed to meet the evidentiary burden as required by Rule 23, then the trial court exceeded its discretion in certifying a class action.

In order to obtain class certification, the plaintiffs must establish all the criteria set forth in Rule 23(a), Ala. R. Civ. P., and at least one of the criteria set forth in Rule 23(b). Grayson, 878 So.2d at 286. Rule 23(a) provides:

“(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative pai’ties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

Rule 23(b) provides, in pertinent part:

“(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”

In the instant case, the trial court certified a class action under both Rule 23(b)(2) and Rule 23(b)(3). On appeal, the defendants offer numerous challenges to the trial court’s class certification.

First, the nature of the plaintiffs’ claims must be made clear: the class members certified by the trial court in both subclasses are persons who were “self-pay or uninsured patients” who were initially treated in the emergency rooms of Lake-view and South Baldwin and who were later “charged the hospital’s chargemaster rates” for the medical care they received. The plaintiffs contend that a contract with an allegedly undefined price was formed between the plaintiffs and the hospitals. Under Alabama law, the plaintiffs assert, the undefined price must be a reasonable price for the services performed. The plaintiffs allege that the ultimate price charged by the defendants — -the charge-master rate — was an unreasonable price. Thus, the plaintiffs allege, the defendants have breached the contract and its implied-price term.

We address only one of the numerous challenges by the defendants: whether determining a reasonable charge for each class member requires individualized determinations making class action inappropriate in this case.

In Cardon v. Hampton, supra, the Court of Appeals held that an implied agreement for the provision of medical services required the payment of “the reasonable value of the service rendered, within a reasonable time after its rendition,” and the determination of the reasonable fee “depend[ed] on circumstances, custom, and the like.” 21 Ala.App. at 439, 109 So. at 177. Further, a reasonable market value has been described “as the price that a willing seller would sell, and a willing buyer would buy, neither being compelled to sell or buy.” Crump v. Geer Bros., Inc., 336 So.2d 1091, 1096-97 (Ala.1976). In Roberts v. University of Alabama Hospital, 27 So.3d 512 (Ala.Civ.App.2008), the court held that the trial court’s reference to a hospital’s chargemaster in determining a reasonable price “was consistent with Alabama precedents indicating that evidence from hospital personnel concerning the reasonableness of treatment rendered and charges billed to patients is competent to demonstrate ‘reasonable charges’....” 27 So.3d at 517. See also generally Johnson v. Health Care Auth. of Huntsville, 660 So.2d 1017, 1018-19 (Ala.Civ.App.1995) (affirming a summary judgment for a hospital operator on a claim that charges included in a hospital lien were reasonable based upon unrebutted affidavits of nurse manager and budget coordinator for hospital concerning reasonableness of charges); and Ex parte Univ. of South Alabama, 737 So.2d 1049, 1053 (Ala.1999) (unrebutted testimony of the acting director of business services for hospital that the hospital’s charges for services rendered to an injured party were reasonable was prima facie evidence that supported hospital’s entitlement to judgment as a matter of law on a quantum meruit claim).

Other jurisdictions have noted that numerous considerations are implicated in determining a reasonable charge for medical services. In Doe v. HCA Health Services of Tennessee, Inc., supra, the Court stated:

“Neither the parties nor our own research have disclosed a Tennessee appellate case considering the issue of ‘reasonable value’ of medical goods and services provided by a hospital to a patient. However, appellate decisions from other states suggest that ‘reasonable value’ in such cases is to be determined by considering the hospital’s internal factors as well as the similar charges of other hospitals in the community. See Galloway v. Methodist Hosp., Inc., 658 N.E.2d 611, 614 (Ind.Ct.App.1995) (noting the testimony of hospital’s controller that ‘Hospital’s charges were comparable to other facilities in northwest Indiana ... [and that] Hospital’s charges were based on Hospital’s budgetary needs[,]’ the court found that ‘[t]he fact that Hospital’s charges are based on the costs associated with providing health care does not make the charges unreasonable’); Heartland Health Sys., Inc. v. Chamberlin, 871 S.W.2d 8, 11 (Mo.Ct.App.1993) (finding that the testimony of the hospital representative that ‘she was familiar with the customary charges in the medical industry for services of the same type as those rendered to [the patient]’ was sufficient to make prima facie case for the reasonable value of the services rendered); Victory Mem’l Hosp. v. Rice, 143 Ill.App.3d 621, 97 Ill.Dec. 635, 493 N.E.2d 117, 120 (1986) (stating that ‘any assessment of the reasonableness of a private hospital’s charges must include consideration and recognition of the particular hospital’s costs, functions and services to make a valid determination of whether such charges were reasonable for that hospital alone or compared to the charges of other area hospitals’); Ellis Hosp. v. Little, 65 A.D.2d 644, 409 N.Y.S.2d 459, 461 (N.Y.App.Div.1978) (stating that proof of the reasonable value of services included testimony that ‘the cost of the hospital’s operation was the basic consideration in establishing the charges for the services rendered’ and that ‘the charges set forth in decedent’s ledger were ... similar to those at [another hospital in the community]’).
“We find that the foregoing standards are appropriate for use in Tennessee in cases in which there is no valid, enforceable contract between a hospital and its patient. We adopt these standards for determining the ‘reasonable value’ of the medical goods and services provided by the hospital to the patient in such cases.”

46 S.W.3d at 198-99 (footnote omitted). See also Howard v. Willis-Knighton Med. Ctr., 924 So.2d 1245, 1263 (La.Ct.App.2006) (holding that a “reasonableness of charges inquiry requires individual considerations that may include ... the patient’s financial status, the actual hospital services rendered, their customary value, and the amount of a recovery from a third party”), and Victory Mem’l Hosp. v. Rice, 143 Ill.App.3d 621, 625, 493 N.E.2d 117, 120, 97 Ill.Dec. 635, 638 (1986) (“any assessment of the reasonableness of a private hospital’s charges must include consideration and recognition of the particular hospital’s costs, functions and services to make a valid determination of whether such charges were reasonable for that hospital alone or compared to the charges of other area hospitals”).

In proffering a class-wide method of determining reasonable charges for the medical services provided to each member of the class, the plaintiffs in the instant case offered as an expert witness Kenneth Thorpe, Ph.D., a health economist. Dr. Thorpe testified that although a charge-master contains established prices for a service a hospital provides, the actual cost of the service, which is an estimate that “the hospital makes of what ... it actually cost[s] the facility to provide those services to a patient,” is quite different from and generally much lower than the chargemas-ter price. Further, Dr. Thorpe testified that Medicare, Medicaid, and Blue Cross, the three largest groups of third-party payers for hospital patients, actually pay different amounts for medical services provided to their enrollees. Ml three — along with self-pay or uninsured patients — are charged the chargemaster rate, but they actually pay lesser amounts. Medicare rates are dictated by the federal government, and that program pays 100% of the costs of treating its enrollees. The State of Mabama sets Medicaid payment rates and pays 96% to 98% of the costs of treatment. Blue Cross actually negotiates its payment rate with the “hospital industry” and pays either 80% of the charges or 111% of “their calculation of the cost of treating the patient, whatever is less.”

In formulating an across-the-board reasonable charge for the medical services provided to all class members, Dr. Thorpe used as a “benchmark” the rates paid by Medicare, Medicaid, and Blue Cross, which he described as what those entities considered as reasonable rates, and, adding “a little bit of a premium,” devised what he opined was a reasonable charge for the services provided to the class members in this case: 115% of the actual costs of the medical service. He testified:

“I only had three benchmarks I can look at for reasonable prices, what the federal government says is a reasonable price, what the State of Alabama says is a reasonable price for Medicaid, and what is negotiated in the private insurance market. And on average, in the private insurance market, hospitals are paid about 111 percent of cost. My sense was that was a reasonable starting point for two reasons. One is that it covered the cost of treating patients. And two, it was a negotiated rate in the private insurance market. And on average, in the private insurance market, hospitals are paid about 111 percent of cost.
“My sense is that it would be fair to add a little bit of premium onto that 111 percent figure. That’s how I came up with the 115 percent. The ease of having a uniform application, it covers the treatment cost of providing services; and in fact, it adds the 15 percent profit margin if the patients paid fully what those bills were.”

Testimony at the class-certification hearing indicated that the defendants’ computerized billing system listed the cost of each medical service provided each patient. These costs were transmitted to Medicare, Medicaid, and Blue Cross and were used as a basis by those entities to determine their respective payments. The plaintiffs contended that Dr. Thorpe’s computation of a reasonable charge, cost plus 15%, or 115% of the cost, could easily be electronically calculated from the defendants’ billing records.

On appeal, the defendants argue that Dr. Thorpe’s formula for calculating a reasonable charge is flawed. Specifically, the defendants’ expert, James Abernathy, testified that the rates paid by Medicare, Medicaid, and Blue Cross are inappropriate bases for determining reasonable charges. First, Abernathy testified that these third-party payors did not in reality pay all the actual costs incurred by hospitals:

“[0]ne, costs really aren’t costs. The hospitals [have] more cost[s] than what Medicare recognizes.
“Two, you are not really getting the margin. And I think he was — I’m not sure if he is using the Medicare Cost Report or he’s using the Blue Cross Cost Report in his formula.
“He is using the Medicare cost-to-charge number in his report, and that’s what he testified to here, but he also said he wanted to use Blue Cross.
“Blue Cross uses comparable Medicare cost reporting. I believe they actually disallowed more cost than Medicare. So when you look at the Blue Cross cost-to-charge ratio, you have similar problems at the same magnitude so the problem is multiple fold.
“Costs aren’t being covered by Medicare, they’re not being covered by Medicaid, and they are probably not being covered by Blue Cross.
“Once you take the Blue Cross cost, add the 11 percent to it, I’m not sure if it’s a break-even or not. I’ve not done that analysis specific to this hospital. But we know Medicare isn’t, and we know that Medicaid isn’t. Blue Cross is marginal at best. And we know that there is a very large percentage of the self-pay that don’t pay anything.
“I believe, Dr. Thorpe’s testimony was 13 percent of costs were paid by the uninsured. So now we have the uninsured only paying IB percent of their cost. We have Medicare paying 90 percent of their allowable cost, which we know is 9 million less than their total cost, and we have Blue Cross paying something less than their 11 percent over true cost.
“So the hospital, you know, is in a losing proposition when you look at the total of Medicare, Medicaid and self-pay. When you add all of that together, that’s about 90 percent — and Blue Cross— about 90 percent of the revenue flow isn’t covering cost. And as a result, and I think I recently found out that the community is now even having to support Lakeview Hospital because they are not paying cost.
“And under Dr. Thorpe’s theory, cost plus 11 percent would be great if everybody paid, but everybody doesn’t pay cost and not everybody pays.”

Dr. Thorpe admitted in his testimony during the class-certification hearing that Medicare, for payment purposes, does not recognize certain “elements of costs” incurred by hospitals. Thus, the “eosts” recognized by Medicare for purposes of calculating its payments do not include all the costs incurred by hospitals. Dr. Thorpe testified that he did not know the exact percentage of costs excluded by Medicare, that the percentage varied year to year and hospital to hospital, and that he did not know how Blue Cross calculated its cost-to-charge ratios. He did testify, however, that the costs excluded by Medicare were “small in number.” However, his testimony in this regard was not unequivocal:

“[Defendants’ counsel:] So if you’re basing your cost element of your theory on the Medicare cost report, that doesn’t include all the cost of the hospital. And you want to have the self-pay patients pay 15 percent above that cost. You really can’t tell the Court if they would be paying 15 percent above the true cost or if they’re just paying 15 percent above the Medicare allowable cost. Is that correct?
“[Dr. Thorpe:] About the true treatment cost? I feel pretty confident about this. I mean, the types of things that are excluded from the underlying costs in Medicare’s cost report are not things like ancillary services, labs, and so on. They’re things like Medicare related bad debt that’s not included.”

Abernathy also testified that, even assuming one could use the Blue Cross or Medicare costs calculations as a foundation to determine a reasonable charge for medical services provided to the class members, the cost-to-charge ratio varies greatly between services:

“[P]atients receive different services. And different services have different markups. For instance, a pacemaker is a very expensive item. The markup on pacemaker would be much smaller than the markup on an aspirin.
“So if you have a patient that comes in — And I think actually one of the named plaintiffs had a migraine. So if they come in and they are treated with drugs for a headache, they are going to have one type of a markup based on whatever the markup is on those drugs and the markup is in whatever venue ... they came through, if it was the [emergency room] or some other area, versus someone that has a pacemaker inserted and so forth.
“So if you use just the overall margin or multiplier cost-to-charge ratio that Dr. Thorpe is proposing, you are going to be overly generous to one patient, and you’re going to penalize the other patient because one’s cost-to-charge ratio is going to be much lower than the other.”

Abernathy further testified that arrangements between hospitals and Medicare and Blue Cross allow Medicare and Blue Cross to equalize, after the fact, any inequities between individual charges:

“Blue Cross and Medicare both, they are a single payor for their whole book of business. So you’ve got — Blue Cross can equalize those inequities because they are the only one paying. So they have an annual settlement after the fact, and say, okay, did we hit the mark, did we get to where we wanted to be, yes or no. We can settle up at the end of the year. The money is just coming from Blue Cross to the hospital.
“When you get to self-pay, you have all of these individualized issues relative to services rendered and inability to pay and so forth, and you can’t have this aggregate settlement at the end of the year where you bring everybody together and say, okay, I overpaid you; I underpaid you.
“You can’t do that. You can’t go back to them and do that. There is no one person paying. It’s all these individual people paying the hospital.”

Dr. Thorpe admitted that his formula for determining a reasonable charge did not contain a procedure by which hospitals and uninsured or self-pay patients could address, after the fact, these differences in charges.

Finally, Abernathy testified that determining reasonableness of charges would be a fact-intensive individual evaluation of each patient’s charges:

“[Defendants’ counsel:] ... But the opinion you have given in your report and in your deposition as to how reasonableness should be determined, what a reasonable expectation of payment would be, can you describe that? How would you go about doing that? I know you told us you haven’t done that. But how would you do that in th[ese] cases for these various plaintiffs for their different services?
“[Abernathy:] First, I would look at the market to try to identify who’s the competition, who’s situat[ed] similarly in the market as these particular hospitals are and do a charge-by-charge comparison of what are their charges, what are the other hospital’s charges to determine whether or not they are within a reasonable range of those folks that are similarly situated in the market.
“[Defendants’ counsel:] And would you have to do that on a patient-by-patient basis?
“[Abernathy:] You would have to do it on a service-by-service basis, which means that the Chargemaster — Some hospitals have 40,000 items on their Chargemaster. So you would have to do item by item to compare.
‘You could sample it, but you’d still have to do a fairly detailed analysis individually on each particular item so when you translate that to a patient, if a patient was charged fairly, then you would have to do it patient by patient looking at the individual items that were charged to that patient.”

Additionally, testimony was introduced at the class-certification hearing indicating that many self-pay or uninsured patients are offered discounts on their bills, including prompt-pay discounts and charity discounts, or the debts are settled for a lesser amount. Also, many patients never pay their bills, and some debts are turned over to collection agencies.

Caselaw cited by the defendants confirms the problems identified by Abernathy. As the defendants note, the Court of Civil Appeals has explicitly rejected the use of Medicaid, Medicare, and Blue Cross payment rates in determining reasonable rates for medical services. In Roberts, supra, James Roberts and Virginia Roberts were injured in a motor-vehicle collision and were treated at University of Alabama Hospital (“the hospital”) and released. The hospital subsequently recorded hospital liens pursuant to § 35-11-870 et seq., Ala.Code 1975, which provide for the recording of liens “for all reasonable charges for hospital care, treatment and maintenance of an injured person .... ”

The Robertses later sued two individuals who allegedly had caused their injuries in the motor-vehicle collision. The hospital was joined as a party, and the Robertses sought a determination of the amount of hospital charges secured by the hospital liens; ultimately, the trial court, after deducting a 15% indigent-care recovery charge sought by the hospital, declared that the hospital was entitled to the liens.

On appeal, the Robertses challenged whether the trial court properly applied the portion of § 35-11-370 that provides for a hospital lien for all “reasonable” charges. In determining the amount of the liens to which the hospital was entitled, the trial court received testimony that the prices charged by the hospital were set on a chargemaster and that the chargemaster prices were applied across the board to all patients and were updated annually. However, the Robertses presented testimony indicating that the hospital accepted payments from Medicare, Medicaid, and Blue Cross that were significantly below the chargemaster price. The trial court noted the following testimony by the director of reimbursement for the hospital:

“‘[B]y law, the hospital must accept these sums in full payment for services rendered to those patients qualified to receive such governmental benefits and the fact of acceptance of such an amount in no way reflects upon the cost or the value of the services rendered to such patients. The alternative to the hospital in such cases, in lieu of accepting payment under a government benefit plan is to receive no payment at all[;] therefore[,] the reduced amount under the government benefit program is accepted in payment by the hospital.
“ ‘Likewise, with regard to the amount accepted from a Blue Cross/Blue Shield patient, such amount is paid under a contract between the health insurer and the hospital. By contract, Blue Cross/ Blue Shield conducts an independent audit of the hospital in order to arrive at a per diem cost reimbursement per patient amount. Blue Cross/Blue Shield pays the hospital for treatment of its contract holders based upon this said contract cost reimbursement rate, which[, the director] testified, has many factors taken into consideration other than the cost of providing services to any single Blue Cross patient. In some cases, the per diem reimbursement rate is greater than the cost of providing services and in other eases, the said per diem rate is less than the cost of providing services. However, in order to be an institution which is qualified to receive Blue Cross reimbursement for treatment of Blue Cross patients, which is a vast majority of individuals in Alabama, the contract rate must be accepted. Again, [the director] testified that [the hospital’s] willingness to accept Blue Cross reimbursement as payment for hospital services rendered to a Blue Cross patient [is based upon] many other factors and considerations other than the cost or the value of the services rendered to the said Blue Cross patient.’ ”

27 So.3d at 516. In addressing the Rob-ertses’ arguments that the amount the hospital charged was unreasonable because it accepted lesser amounts from Medicare, Medicaid, and Blue Cross, the Court of Civil Appeals held:

“In an attempt to rebut the hospital’s evidentiary showing, counsel for the Robertses sought to direct the trial court’s attention to the hospital’s practice of accepting less than the full amount of its billed rates from patients having contractual or legal relationships with third-party payors, such as Blue Cross and Blue Shield. Medicare, and Medicaid. For that evidence to be material and relevant, it would have had to bear upon the question of the ‘reasonable value’ of the hospital’s services. However, as the trial court’s summation of the testimony of the hospital’s director of reimbursement given on cross-examination would indicate, that court deemed such evidence to be of no probative value concerning the ultimate question of the ‘reasonable charges’ assessed against the Robertses.
“The trial court’s decision not to deem persuasive evidence of sums paid to the hospital under different financing schemes does not amount to reversible error. As the director explained in his testimony, the hospital’s acceptance of lower payments from Blue Cross and Blue Shield, Medicare, and Medicaid patients stemmed from legal and contractual requirements that applied solely to those classes of patients. ...
“Our conclusion that the trial court could properly disregard evidence of the hospital’s practice of accepting less than full reimbursement from third-party payors in other contexts is consistent with decisions in other states. For example, in Parnell v. Madonna Rehabilitation Hospital, Inc., 258 Neb. 125, 602 N.W.2d 461 (1999), the Nebraska Supreme Court rejected as inconsistent with that state’s hospital-lien statutes an argument similar to that made by the Robertses, i.e., that the ‘usual and customary charges’ of the hospital treating a patient injured by a tortfeasor should be less than the billed charges ....
“... [S]ee also Parnell v. Good Samaritan Health Sys., Inc., 260 Neb. 877, 880, 620 N.W.2d 354, 357 (2000) (declining to reconsider that principle of law). To like effect is Hillsborough County Hospital Authority v. Fernandez, 664 So.2d 1071 (Fla.Dist.Ct.App.1995), in which a Florida appellate court held that evidence of discounts extended by a hospital to patients enrolled in health-maintenance organizations and preferred-provider organizations and to patients eligible for Medicare, Medicaid, and workers’ compensation benefits did not sufficiently support a judgment reducing a hospital lien extending to ‘all reasonable charges’ by 38 percent.”

27 So.3d at 517-18. Thus, under Roberts, the use of the rates paid by Medicaid, Medicare, and Blue Cross as a benchmark for the reasonableness of a hospital’s charges is not persuasive.

Other courts have noted, like Abernathy, that a determination of reasonable charges for medical services requires an analysis of the medical services provided to each individual patient. Thus, a determination of a reasonable fee requires an individual analysis of each medical service provided each class member. In Colomar v. Mercy Hospital, Inc., 242 F.R.D. 671 (S.D.Fla.2007), the plaintiff, Colomar, received respiratory treatment at Mercy Hospital, Inc. (“Mercy”), after she was exposed to a pesticide. Colomar was uninsured and did not qualify for Medicaid or other assistance programs. Before receiving any treatment, Colomar executed an admission contract in which she agreed to pay for the treatment Mercy was to provide. It was undisputed that the price she would be charged was “undefined”; Florida law thus required the price in such case to be “reasonable.”

Colomar alleged that uninsured patients were charged unfairly and unreasonably high prices for the medical services they received from Mercy, that insured patients and patients receiving government benefits were charged significantly less for the same services, and that the prices charged bore no relationship to Mercy’s costs of providing the services. Colomar thus sought to certify a class action representing all individuals who had received medical treatment at Mercy who were uninsured at the time and sought monetary recovery for the purported overpayments. She also sought injunctive relief barring Mercy from continuing to “overcharge” the class and moved the trial court to certify a class action.

The trial court denied the motion to certify a class action; it stated that the

“chief weakness is that [Colomar’s] claims — which are based on the reasonableness of the charges in her particular case — are so fact intensive that individual issues predominate over the common ones defeating certification of the Damages Class under Rule 23(b)(3)[, Fed. R.Civ.P.]. Likewise, the reasonableness of [Colomar’s] particular bill does not support declaratory or injunctive relief on behalf of a class as a whole. Therefore, certification of the Injunctive Class under Rule 23(b)(2) is improper.”

242 F.R.D. at 673.

In determining whether Mercy’s charges were reasonable, the court in Colomar stated:

“[T]he legality — or ultimate reasonableness — of Mercy’s charges can only be determined by looking at the specific bills in question and analyzing them against factors like the market rate for the same services at other hospitals, Mercy’s internal costs for those particular services, and the prices Mercy charged for those services to patients with health insurance or other benefits. None of the evidence underlying these factors will be the same for any two class members, unless they received the same services during a similar time frame. ...
“... In order to establish her prima facie case, [Colomar] will need to prove that Mercy’s charges for its respiratory services are unreasonable in light of (1) Mercy’s costs for those respiratory services, (2) what Mercy charges other patients — including those with benefits or insurance — for those same respiratory services, and (3) what other hospitals charge for like respiratory services. Other uninsured patients in the class will be required to undertake a similar analysis, but that analysis will entail entirely different services and, hence, entirely different facts. Proving her case that Mercy’s respiratory services are unreasonable will not prove anything about the reasonableness of Mercy’s cardiac services, to take one example. Indeed, even with regard to respiratory services exactly like those [Colomar] received, the analysis will differ across different time periods. Whether her charges were unreasonable in 2003— when she was a patient at Mercy — will prove little about whether Mercy’s prices for respiratory services in 1999 were reasonable. This is not the case where [Colomar] can simply show that her charges were unreasonable and therefore establish Mercy’s liability to each class member.”

242 F.R.D. at 676-77.

Further, the court rejected reference to the rate paid by third-party payors for medical services as a basis for determining whether Mercy’s charges were reasonable:

“While it may be true, for example, that Mercy charged patients with insurance or governmental benefits at rates that average roughly 60-70% below Charge-master rates, that fact does not establish that Mercy’s Chargemaster rates for respiratory services are inflated by 60-70%. It certainly does not justify a conclusion that each of Mercy’s many services is inflated by 60-70%. Similarly, the fact that Mercy’s average Chargemaster rates are four-and-a-half times the rates charged to Medicare does little to show how excessive any particular set of services might be. The average does not even establish the reasonableness of [Colomar’s] respiratory services, let alone the thousands of other items on Mercy’s Chargemaster. The use of averages is simply too blunt an instrument to accurately or fairly adjudicate these important issues.”

242 F.R.D. at 681.

In Maldonado v. Ochsner Clinic Foundation, 493 F.3d 521 (5th Cir.2007), three uninsured patients who received medical treatment from Ochsner Clinic Foundation (“Ochsner”) were billed standardized chargemaster rates for their medical care. The patients sued Ochsner, seeking damages for breach of contract, arguing that Ochsner offered discounts from the chargemaster rates to patients with private insurance plans or those covered by Medicare or Medicaid; the patients claimed that the undiscounted charges were unreasonable and sought to certify a class action. The trial court denied class certification, holding that a determination of a reasonable price for each class member would require individualized determinations inappropriate for class certification. Maldonado v. Ochsner, 237 F.R.D. 145, 154 (E.D.La.2006). The patients appealed.

The United States Court of Appeals for the Fifth Circuit affirmed the district court’s judgment, holding that the patients had failed to demonstrate that class certification was appropriate under either Rule 23(b)(2) or Rule 23(b)(3), Fed.R.Civ.P. As to a Rule 23(b)(2) class action, the court held:

“[I]ndividualized issues here overwhelm class cohesiveness. The amount patients were charged and the amount that is ‘reasonable’ for the services they received is necessarily an individual inquiry that will depend on the specific circumstances of each class member, the time frame in which care was provided, and both Ochsner’s and other hospitals’ costs at that time. ... Other variables exist. The discount from the charge-master rate paid by Ochsner’s insured patients varies widely depending on the insurance provider and the particular procedure involved. Similarly, the amount paid by the class members themselves varies significantly, as Ochs-ner offered numerous discounts to uninsured patients. In fact, the vast majority of uninsured patients paid nothing, making it unclear what they would gain from an injunction.”

493 F.3d at 524-25 (footnotes omitted).

For similar reasons, the court held that certification of a class action was also inappropriate under Rule 23(b)(3):

“This case cannot pass muster under the Rule 23(b)(3) criteria, as [the patients] present no sensible way to resolve the dispute on a class-wide basis. The district court fully explained these problems. We begin by acknowledging that class-wide breaches of state law are alleged and raise some ‘common’ issues of law and fact. Suffice it to emphasize here, however, that given the state court’s dictate that the reasonableness of medical fees depends on multiple factors, including the services rendered, patient’s financial status, and customary fee for similar services, ... it is unlikely [the patients] could ever demonstrate that the chargemaster rates are unreasonable. Moreover, the court cannot simply require Ochsner to refund to uninsureds the difference between what they paid, if anything, and what insured patients paid because, as [the patients] admit, insured patients paid a wide variety of discounts from the chargemaster rates depending on the individual contracts and the specific procedures involved in their care. At this level, there is not one charge for insured patients and one charge for uninsured patients, but an array of charges tailored to each patient’s treatment. In addition, the percentage of the chargemaster rate paid by an individual insurance company may vary from procedure to procedure. The fact-specific rather than class-oriented nature of the claims thus predominates not only at the plaintiffs’ level, since two patients’ care and financial circumstances are hardly ever comparable, but also in determining a ‘reasonable’ charge for each service from among the melange of third-party payer discounts.”

493 F.3d at 525-26 (footnotes omitted).

Similarly, in Howard v. Willis-Knighton Medical Center, supra, a plaintiff sought a class action challenging whether charge-master rates were reasonable charges for purposes of a hospital-lien statute. The court noted, however, that determining the reasonableness of charges presents numerous individualized issues:

“The testimony given in this case establishes that it is common practice to bill all patients the full chargemaster rate, but collection of that amount is contingent on a myriad of individual circumstances. ... [The testimony further indicated that] the hospital, in many cases, discounts the bill according to the patient’s circumstances, including the amount of money available and the financial status of the patient. Thus, the reasonableness of charges inquiry requires individual considerations that may include, for example, the patient’s financial status, the actual hospital services rendered, their customary value, and the amount of a recovery from a third party or his insurer, if any.
“The fact that [the hospital] entered into agreements with health insurers that provide for discounted rates to insured patients does not prove that the hospital’s chargemaster is unreasonable with respect to uninsured patients.”

924 So.2d at 1262-63.

Under Alabama law, a determination of a reasonable charge for medical services in this case will require an examination of the circumstances of the charges for the services, the customs in the medical-service community, the price a willing provider would take for its services, and the price a recipient of those services would pay. Cardon, supra, and Crump, supra. The testimony by the defendants as to normal rates charged by them will be relevant, Ex parte University of South Alabama, supra, as well as testimony concerning “the [defendants’] internal factors [and] the similar charges of other hospitals in the community.” Doe, 46 S.W.3d at 198. We agree that such determinations are “necessarily an individual inquiry that will depend on the specific circumstances of each class member, the time frame in which care was provided, and both [the defendant’s] and other hospitals’ costs at that time.” Maldonado, 493 F.3d at 524. Finally, the defendants’ acceptance of lower payments from Blue Cross, Medicare, and Medicaid stem “from legal and contractual requirements that applied solely to those classes of patients,” Roberts, 27 So.3d at 517, and is not necessarily based on market factors or, as both Abernathy and Dr. Thorpe acknowledged, on the actual costs of the services provided. Thus, reliance on the rates paid by those entities may not be the baseline on which to calculate a reasonable charge for the medical services rendered. Roberts, supra; Colomar, supra.

The plaintiffs contend that Dr. Thorpe’s formula takes into account the market rate for the same services at other hospitals, inferred costs, and prices paid for those services by other patients by using the cost benchmarks set by Medicaid, Medicare, and Blue Cross. However, as noted above, Dr. Thorpe admitted that Medicare does not take into account all actual costs in its baseline “cost” determination and admitted that he did not know how Blue Cross calculated its cost-to-charge ratios. Additionally, Roberts notes that the rates paid by Medicare and Medicaid are dictated by law and “ ‘in no way reflectf ] upon the cost or the value of the services rendered to such patients.’ ” Roberts, 27 So.3d at 516 (quoting trial court’s order). Further, the cost-reimbursement rate paid by Blue Cross “ ‘has many factors taken into consideration other than the cost of providing services to any single Blue Cross patient.’ ” Roberts, 27 So.3d at 516 (quoting trial court’s order).

The weight of the authorities and the testimony at the class-certification hearing indicate that the plaintiffs’ method of calculating a reasonable charge for the medical services provided by the defendants involves heavily individualized determinations for each class member. We agree with the court in Maldonado that the individualized issues presented in determining a reasonable charge “overwhelm class cohesiveness” and render certification of a class action under both Rule 23(b)(2) and Rule 23(b)(3), Ala. R. Civ. P., inappropriate. Thus, the plaintiffs have failed to “carry the burden of producing sufficient evidence to satisfy the requirements of Rule 23,” Compass Bank, 823 So.2d at 672, and the trial court exceeded its discretion in certifying a class action. Smart Prof'l Photocopy Corp., 850 So.2d at 1249. Therefore, the trial court’s certification order is vacated, and the case is remanded for further proceedings consistent with this opinion.

ORDER VACATED AND CASE REMANDED.

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

      . A summary judgment was later entered in favor of CHS, and CHS is not a party to this appeal.

      . A hospital’s "chargemaster” is a list specifying charges for all procedures and treatments administered by the hospital.

      . In support of the contention that this Court may address the merits of the plaintiffs’ claims, the defendants quote Mutual Savings Life Insurance Co. v. James River Corp. of Virginia, 716 So.2d 1172, 1180 (Ala.1998), which states that "[tjhere would be no reason to certify a class on a claim that is not viable.” However, in that case, the claims on which the plaintiffs sought class certification had been previously dismissed by the trial court for failure to state a claim under Rule 12(b)(6), Ala. R. Civ. P. Additionally, the defendants cite Bill Heard Chevrolet Co. v. Thomas, 819 So.2d 34, 41 (Ala.2001), for the proposition that the trial court must "go behind the pleadings” in making a certification determination. However, that decision quotes Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996), for that proposition, which in turn cites Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), stating that "it [is] improper to make a preliminary inquiry into the merits of a case [and] determine that the plaintiff was likely to succeed .... ” Castano, 84 F.3d at 744. These authorities do not demonstrate that this Court may address the underlying merits of the plaintiffs' claims.

      . Lakeview moved the trial court to certify an interlocutory appeal under Rule 5, Ala. R.App. P., on questions related to whether the plaintiffs could recover from the defendants even though they had not yet attempted to pay their bills; this motion was denied by the trial court.

      . Dr. Thorpe’s name is at times referred to in the record — notably in the reporter's transcript — as “Kim Thorpe.”

      . Dr. Thorpe testified that, on average, uninsured and self-pay patients pay only 13% of the cost of their medical services. The record indicates that Lawrence and Nichols did not pay any portion of their bills.

      . The plaintiffs contend that this Court, in Liberty National Life Insurance Co. v. Allen, 699 So.2d 138 (Ala.1997), endorsed the application of Medicare rates as the reasonable and customary charge for medical services. However, in that case, which sought damages for bad-faith failure to pay insurance benefits, this Court held that an insurance provider's reliance on Medicare law provided an “arguable basis’’ for it to pay its insured, a Medicare participant, benefits for medical care at the rate provided by Medicare. Specifically, the policy in that case provided that benefits would not be paid in excess of " 'the reasonable and customary charges.’ ” 699 So.2d at 143. The insurance provider argued, and this Court agreed, that there was an arguable basis on which to conclude that, in the context of a Medicare participant, "reasonable charges” would be the charge a provider could charge a person under the Medicare law. Contrary to the plaintiffs' argument, that case did not endorse the application of Medicare rates as the reasonable charge for medical services outside the Medicare context. 699 So.2d at 143.

      . As noted above, the defendants in the instant case contend that the price term was in fact defined in the admission contract.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    ALABAMA STATE EMPLOYEES ASSOCIATION v. Richard B. SANKS.
    2080562.
    Court of Civil Appeals of Alabama.
    Sept. 11, 2009.
    Joseph W. Warren, Montgomery, for appellant.
    Richard B. Sanks, pro se.
   THOMAS, Judge.

The Alabama State Employees Association (“ASEA”) appeals from a judgment of the Montgomery Circuit Court denying its request for declaratory and equitable relief with respect to real property occupied by Richard B. Sanks. We affirm the circuit court’s judgment.

In September 2001, Richard B. Sanks (“the former husband”) and Taylor S. Sanks (“the former wife”) were divorced by the Montgomery Circuit Court. The divorce judgment incorporated a settlement agreement by which the former wife agreed to transfer to the former husband all of her right, title, and interest in the marital residence, which the couple had purchased in 1999. The former wife executed a quitclaim deed to the former husband on September 5, 2001. The quitclaim deed was not recorded until March 6, 2006.

In the interim between the execution of the deed conveying the former wife’s interest in the property to the former husband and the recording of that deed, ASEA obtained a judgment in the amount of $60,534.96 against the former wife. ASEA recorded the judgment on December 9, 2005. In August 2006, the sheriff levied on the property, the property was sold at public auction to ASEA, and ASEA recorded a sheriffs deed.

ASEA’s complaint requested that the circuit court declare its ownership interest in the property, determine that the property could not be equitably divided, and order that the property be sold for a division. The former husband answered, asserting that he was the sole owner of the property. He attached to his answer a certified copy of the 2001 judgment divorcing him from the former wife.

On July 14, 2008, the circuit court held a hearing at which the former husband, pro se, and counsel for ASEA were present. The court admitted the pertinent instruments, and the parties presented legal arguments. The court inquired of the former husband, “Have you been in possession of the property since th[e] time [you and your former wife purchased the property in 1999]?” The former husband, who had not been placed under oath, responded, “I have been in possession solely since 2001.” The court reviewed the judgment divorcing the former wife and the former husband, after which it inquired, “Is there any testimony anybody wants to put in, or do you want to submit this as strictly a legal question?” The parties indicated that they had no evidence to offer other than the documentary evidence the court had already received.

On July 15, 2008, the court entered a judgment stating that ASEA’s “claim having been submitted on documents and arguments, judgment for the defendant, Richard B. Sanks. Case dismissed.” ASEA filed a motion to alter, amend, or vacate the judgment on August 11, 2008. The court granted the motion on August 21, 2008, and set the matter for a hearing on January 20, 2009. At that hearing, the court again heard legal arguments from the parties, received documentary evidence, and did not hear any sworn testimony. Counsel for ASEA conceded that, at the time ASEA obtained the judgment against the former wife in 2005, it was aware that the former wife had been divorced from the former husband in 2001. On January 23, 2009, the court entered the following judgment:

“This cause having come before the Court on bench trial, the same having been considered, it is hereby ordered, adjudged and decreed judgment for the Defendant Richard Sanks. Case dismissed.”

ASEA timely appealed to the Alabama Supreme Court on February 26, 2009. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

The circuit court’s July 15, 2008, judgment, which followed a hearing at which it received documentary evidence and heard legal arguments but took no sworn testimony, was, in essence, a hearing on a motion for a summary judgment. Notwithstanding the circuit court’s designation of the January 20, 2009, hearing as a “bench trial,” that hearing was, in essence, also a summary-judgment hearing. Our supreme court recently stated the appropriate standard of review as follows:

“ ‘[A]s to issues of law, or “where there are no disputed facts and where the judgment is based entirely upon documentary evidence, no ... presumption of correctness applies; our review is de novo.”’ Padgett v. Conecuh County Comm’n, 901 So.2d 678, 685 (Ala.2004) (quoting Alfa Mut. Ins. Co. v. Small, 829 So.2d 743, 745 (Ala.2002)).”

Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 268-69 (Ala.2006).

Discussion

Citing Nelson v. Barnett Recovery Corp., 652 So.2d 279, 281 (Ala.Civ.App.1994), for the proposition that the “first-in-time, fírst-in-right” rule of § 35-4-90(a), Ala.Code 1975, governs this appeal, ASEA contends that the circuit court erred by giving the former husband’s later recorded quitclaim deed priority over its earlier recorded judgment hen. Section 35-4-90(a) provides:

“All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.”

If a judgment creditor had actual knowledge or constructive notice of the existence of an unrecorded deed at or before the time its rights under the judgment accrued, then it can claim no priority by virtue of its having recorded the judgment before the deed, and the “first-in-time, first-in-right” rule does not apply. See Baldwin County Fed. Sav. Bank v. Central Bank of the South, 585 So.2d 1279 (Ala.1991).

In Baldwin County Federal Savings Bank, 585 So.2d at 1281, our supreme court explained the “notice” exception to § 35-4-90:

“Section 35-4-90(a) gives judgment creditors ... priority over an earlier executed deed that has not been recorded only when the judgment creditor ... records its instrument without actual knowledge or constructive notice of the earlier conveyance. Therefore, simply winning the race to the courthouse and recording first is not enough to give a lienholder priority. It is also necessary that the judgment creditor, whose rights, if any, attach upon the act of recording, record its judgment without notice of the earlier deed.”

Alabama cases have long held that when the holder of an unrecorded deed is in “possession” of property, a lienholder is charged with constructive notice of the nature of the possessor’s title. See, e.g., Gulf Oil Corp. v. Beck, 293 Ala. 158, 300 So.2d 822 (1974); Burt v. Cassety, 12 Ala. 734 (1848).

In Gulf Oil, supra, the Becks bought land from the Thompsons and received a deed in 1966. The Becks began residing on the property immediately but did not record their deed until 1973. In 1967, Gulf Oil obtained and recorded a judgment against the Thompsons. The Becks filed an action to remove Gulf Oil’s judgment lien as a cloud on their title. The trial court entered a summary judgment for the Becks, and Gulf Oil appealed to the Alabama Supreme Court, which stated the question presented as follows: “Is actual possession of land under a purchase such ‘notice’ to a creditor as will prevent the creditor’s judgment lien from attaching upon it, though the deed is not recorded?” 293 Ala. at 159, 300 So.2d at 823. Relying on Burt v. Cassety, supra, the court concluded that the Becks’ possession did prevent Gulf Oil’s judgment lien from attaching to the property. Id.

In Burt, a mother purchased land from her son and was put in possession in 1839. The son delivered a deed to the mother, but the mother never recorded it. In 1843, creditors of the son obtained and recorded a judgment against the son. The mother sought to have the judgment creditors enjoined from selling the land in satisfaction of their judgment. Our supreme court stated:

“The deed was never recorded, and was therefore inoperative, as against subsequent purchasers, and creditors without notice. Actual notice of the execution of the deed, is not brought home to the creditor, who subsequently obtained a judgment against the [son]; but the possession by the [mother], of the land, and the exercise of ownership over it by her, is an implied notice, quite as effectual as the implied notice from a registry of the deed, and as potent in its effects as an actual notice of the existence of the deed, before the judgment was obtained.
“Our registry acts place creditors, and subsequent purchasers, upon the same footing, as to unregistered deeds; but the term creditor in the statute, does not mean creditors at large of the grantor, but such creditors as by obtaining a judgment against him, have acquired a lien, without notice of the existence of the deed, either express or implied. That possession by the vendee, is constructive notice of the conveyance, so as to defeat a subsequent purchaser, and prevent the judgment creditor from obtaining a lien.
“It results from this view, that as the judgment creditor had, by the possession of the [mother], constructive notice of her title, he acquired no lien upon the land, in virtue of his judgment.”

12 Ala. at 739 (citations omitted).

In Baldwin County Federal Savings Bank, buyers of real property received a deed from their seller on March 30, 1986, but did not record the deed until July 16, 1986. In the interim, a judgment creditor recorded a judgment against the seller on June 4, 1986. The buyers filed an action seeking a declaration that their interest in the property was superior to that of the judgment creditor. The trial court held that it was, and the judgment creditor appealed. The subject property was undeveloped beachfront real estate on which the buyers had not continuously resided during the slightly more than two-month period that they had owned it before the judgment was recorded. During that time, the buyers had “repeatedly visited” the property, “walked its boundaries,” and “had it surveyed and had the corners marked with stakes.” 585 So.2d at 1282. The supreme court stated that “[a]n owner is not required to physically reside on property in order to establish possession. Instead, he need only make use of the property in a manner that is consistent with its nature.” Id. Noting that “[t]he character or quality of possession that is sufficient to provide notice has been described as ‘whatever is sufficient to put a party on inquiry’ concerning possible competing claims to the property,” 585 So.2d at 1281 (quoting Gamble v. Black Warrior Coal Co., 172 Ala. 669, 672, 55 So. 190, 190 (1911)), the supreme court determined that the trial court’s implicit finding — that the buyers’ possession was sufficient to give the judgment creditor constructive notice of the buyers’ unrecorded deed — was supported by the evidence and due to be affirmed. See also Alexander v. Fountain, 195 Ala. 3, 5, 70 So. 669, 670 (1916) (stating that “[w]hatever is sufficient to put one on his guard and call for inquiry is notice of everything to which the inquiry would lead”).

In Nelson, the case on which ASEA relies, a seller had sold real property and delivered a deed to the buyers on November 4. Previously, on June 15, a judgment creditor had recovered a judgment against the seller. The judgment creditor recorded its judgment on November 6, and the buyers recorded their deed on November 10. This court held that the “first-in time, first-in-right” rule governed the case because the judgment creditor had recorded its judgment four days before the buyers had recorded their deed. The court did not mention the question of notice except to state the general rule that “a judgment creditor without notice who perfects a lien against the property has priority over subsequently recorded instruments, regardless of the date of execution or delivery of those instruments.” 652 So.2d at 281. The court apparently assumed without deciding that the judgment creditor was “without notice” of the buyers’ unrecorded deed.

Such an assumption may have stemmed from the fact that the buyers had received a deed to the property only two days before the judgment was recorded. The opinion in Nelson is silent with respect to whether, during that two-day period, the buyers had actually occupied the property or otherwise made use of the property in such a way as to have put the judgment creditor “ ‘on inquiry’ concerning possible competing claims to the property,” Baldwin County Fed. Sav. Bank, 585 So.2d at 1281. Moreover, even if the buyers had begun to reside on the property the moment the sale was consummated, a two-day occupancy of the premises would have presented a close factual question as to whether the buyers had “‘possessed’ the property in a manner sufficient to put [the judgment creditor] on notice of their deed,” Baldwin County Fed. Sav. Bank, 585 So.2d at 1282. See Jefferson County v. Mosley, 284 Ala. 598, 599, 226 So.2d 652, 656 (1969) (recognizing “that it is difficult, if not impossible, to lay down any general rule as to what facts will in every case be sufficient to charge a party with notice or put him on inquiry”).

Nevertheless, because the Nelson court decided the case strictly on the “first-in-time, first-in-right” rule without addressing the potential notice issue, Nelson has only limited, if any, precedential value on the issue presented by this appeal. Moreover, Nelson is distinguishable from the present case because it involved, at most, only a two-day possession by the holder of the unrecorded deed before the recording of the judgment lien. In this case, the former husband’s possession continued for four years before the recording of the judgment lien — clearly a sufficient time to have put ASEA on notice to inquire as to the source of the former husband’s claim to the property.

The weight of Alabama authority dictates that the circuit court’s implicit finding in the present case — -that the former husband’s continuous and sole occupancy of the property for four years after he was divorced from the former wife constituted constructive notice to ASEA of the former husband’s unrecorded deed and thereby prevented ASEA’s judgment lien from attaching to the property — be affirmed.

AFFIRMED.

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

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

      . We do not consider that the former husband’s unsworn answer to a question by the circuit court — that he had in been in sole possession of the property since 2001 — disqualifies the judgment from being a summary judgment. The husband's occupancy of the property was not disputed. ASEA did not contest at the hearing, and it does not challenge on appeal, the fact that the former husband has been in continuous sole possession of the property since 2001.


author: THOMPSON, Presiding Judge.

text:
    Barbara CANTRELL v. Tyson HOLLAND.
    2080494.
    Court of Civil Appeals of Alabama.
    Sept. 11, 2009.
    Scott Hunt of Hammitte & Hunt LLC, Hamilton, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Barbara Cantrell appeals from an order of the Marion Circuit Court in which that court purported to amend a previous order it had entered. Because the record does not provide a basis on which this court can provide the relief that Cantrell seeks by way of this appeal, we affirm the circuit court’s judgment.

The record on appeal reflects that Cantrell filed an action in the Marion District Court against Danny Weghorst and that, at some point during the proceedings in that court, Tyson Holland intervened in the action. The record does not contain a copy of Cantrell’s complaint, Weghorst’s answer, or Holland’s pleading in intervention. Indeed, the record contains only a single document from the district court: the district court’s order transferring the action to the Marion Circuit Court. In that order, which was entered in November 2007, the district court wrote, in part:

“This matter came before this Court for trial on November 1, 2007, with all parties present with their respective counsel. The Plaintiff has filed an unlawful detainer complaint requesting possession of [certain real property located in Hamilton, Alabama]. The Court having been presented evidence that this case involves a dispute involving a potential lease sales contract and disputes over contingent interests in real estate, finds that the relief sought is not within this court’s jurisdiction.”

The record reflects that on November 10, 2008, the circuit court entered an order requiring Cantrell to convey to Hoi-land certain real property described in the order upon Holland’s payment of $5,800 to the Marion circuit clerk. The described property was conveyed to Holland by a clerk’s deed that was entered into the record on the same day as the order. On January 14, 2009, the circuit court entered an amended order in which it ordered that title to a mobile home that was located on the property and in which Cantrell apparently held an interest be conveyed to Holland. Cantrell appeals from the January 14, 2009, order.

Cantrell contends that the circuit court’s order of November 10, 2008, resolved the issues in the action and that the trial court maintained jurisdiction over the action for only 30 days following the entry of that order. She argues that the circuit court no longer had jurisdiction of the action on January 14, 2009, when it entered its order purporting to amend the November 10, 2008, order. Thus, she argues, the circuit court’s January 14, 2009, order is void for lack of jurisdiction.

Because the record does not contain the pleadings, this court has little knowledge of what issues were before the circuit court. For example, there may have been counts of the complaint, as well as counterclaims, that remained to be resolved by the circuit court following the entry of its November 10, 2008, order. Simply put, the record provides no basis for a determination by this court as to whether the November 10, 2008, order constituted a final judgment or whether the circuit court maintained jurisdiction over the action at the time of the entry of the January 14, 2009, order.

Our supreme court has clearly stated that “[t]he party seeking to place the trial court in error must establish in the record an adequate predicate for our review.” Zaden v. Elkus, 881 So.2d 993, 1008 (Ala.2003). Moreover, “[t]he law is settled that it is the appellant’s duty to ensure that the appellate court has a record from which it can conduct a review.” Id. at 1009.

Cantrell has failed to establish in the record a basis on which this court could conclude that the circuit court lacked jurisdiction when it entered the January 14, 2009, order. As a result, this court is constrained to affirm the circuit court’s judgment.

AFFIRMED.

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

      . In her appellate brief Cantrell provides slightly more factual and procedural background for this action. However, except for what is set forth above, none of Cantrell’s factual statements are supported by the meager record before this court. "It is axiomatic that this court cannot consider anything that is not contained in the record.” Davis v. Davis, 753 So.2d 513, 514 (Ala.Civ.App.1999).


author: WISE, Presiding Judge.

text:
    Ideal RHODES v. STATE of Alabama.
    CR-07-1314.
    Court of Criminal Appeals of Alabama.
    March 20, 2009.

      Archie B. Creech, Birmingham, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

On March 9, 2005, the appellant, Ideal Rhodes, was convicted of unlawful distribution of a controlled substance. The trial court sentenced him to serve a term of twenty years in prison, but suspended the sentence and ordered him to serve five years on supervised probation. On February 6, 2008, Rhodes’s probation officer filed an “Officer’s Report on Delinquent Probationer.” After conducting a hearing on April 21, 2008, the circuit court revoked his probation. This appeal followed.

I.

Rhodes argues that the hearing conducted on April 21, 2008, did not constitute a revocation hearing. (Issue I in Rhodes’s brief.) Specifically, he contends that the record does not indicate that his probation officer was sworn during the revocation proceedings; that his probation officer’s statements were not made under oath; and that, for this reason, the hearing did not constitute an actual revocation hearing.

“‘A hearing ordinarily is defined, in matters not associated with full trials, as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue (in person or by counsel) as to the inferences flowing from the evidence.’ Fiorella v. State, 40 Ala.App. 587, 590, 121 So.2d 875, 878 (1960).”

Ex parte Anderson, 999 So.2d 575, 578 (Ala.2008).

In support of his argument, Rhodes relies on this court’s holding in D.L.B. v. State, 941 So.2d 324 (Ala.Crim.App.2006). In D.L.B., the following occurred:

“A revocation hearing was scheduled for June 28, 2005; the hearing was reset for July 6, 2005. When the arresting officers did not appear for the July 6 hearing, the hearing was reset yet again, this time for July 13, 2005. A brief hearing was held on July 13, 2005. Present before the court were D.L.B. and his counsel, the prosecuting attorney, and one of the arresting officers. After hearing argument from the prosecutor and defense counsel, the circuit court revoked D.L.B.’s probation. No testimony was taken at the hearing, after the State conceded that the officer present for the hearing could not ‘actually place the drugs’ and that the other arresting officer — the one who actually found the drugs — was on vacation. The court noted that it was revoking D.L.B.’s probation based on the State’s representation (R. 6). The court advised defense counsel: ‘Mr. Byrd, if you want to file a reconsideration and ask for a hearing, I will certainly reconsider. But as far as I am concerned, [D.L.B.] stays with the State at this point. He is in custody.’ (R. 6-7.) Defense counsel acknowledged the court’s action, stating: ‘For the record, Judge, I renew my position that you can’t do this [revoke D.L.B.’s probation] without a hearing. The State has had two tries at the hearing and they’re not going forward with the evidence, just representations.’ (R. 7.)
“The court noted in its revocation order that since beginning his probation, D.L.B. had been arrested for unlawful possession of a controlled substance and for distribution of a controlled substance. The court stated that it was ‘reasonably satisfied from said evidence that [D.L.B.] did violate the terms and conditions of his probation by committing the violations set out above.’ (C. 10.) This appeal followed.
“D.L.B. argues that the circuit court erroneously revoked his probation without first conducting a revocation hearing. Specifically, D.L.B. argues that the July 13, 2005, hearing, at which no witnesses testified and no evidence was presented, is insufficient to comply with the requirements of § 15-22-54, Ala. Code 1975. We agree.
“In Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998), this Court held:
“ ‘Section 15-22-54, Ala.Code 1975, requires a hearing as a prerequisite to the revocation of probation. This statutory requirement is mandatory and jurisdictional. Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). Additionally, the appellant was denied his constitutional right to due process by the revocation of his probation without a hearing. The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, a neutral and detached hearing body such as a traditional parole board, and a written statement by the factfinders as to the evidence relied on and the reasons for revoking probation. Rule 27.5 and 27.6, Ala. R.Crim. P. See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Hernandez v. State, 673 So.2d 477 (Ala.Cr.App.1995).’
“Quoted with approval in Young v. State, 889 So.2d 55, 56 (Ala.Crim.App.2004); Zackery v. State, 832 So.2d 672, 673 (Ala.Crim.App.2001); Phillips v. State, 755 So.2d 63, 65 (Ala.Crim.App.1999).
“Although the July 13, 2005, hearing purported to be a probation-revocation hearing, the court announced that it was revoking D.L.B.’s probation without hearing testimony from any State’s witnesses and without allowing D.L.B. an opportunity to be heard. Because the circuit court revoked D.L.B.’s probation based on the representations of the prosecutor, rather than on evidence presented to the court in the form of witness testimony or other legal evidence, D.L.B. was denied the right to a hearing where he could be heard and present witnesses and documentary evidence and where he could confront and cross-examine adverse witnesses. Also, defense counsel’s comments indicate that he was not aware of one of the grounds for revocation cited by the court in its written order, namely D.L.B.’s July 7, 2005, arrest and subsequent indictment for distribution of cocaine. Finally, the record does not indicate that D.L.B. waived his right to a revocation hearing pursuant to Rule 27.5(b), Ala. R.Crim. P. Indeed, counsel made it clear on several occasions that D.L.B. wished to have a formal revocation hearing.”

941 So.2d at 325-26.

During the hearing in this case, the following occurred:

“THE COURT: Okay. Mr. Rhodes, it says here you failed to report. Does he admit or deny that, [defense counsel]?
“[DEFENSE COUNSEL]: Well, Judge, Mr. Rhodes’ position is that he had served a year with Community Corrections. And when he was released, he went to the probation officer and they told him — I know the report from Mr. Devane says he’s supposed to report the next day. Mr. Rhodes claims that he thought he was supposed to report the next month in March. And that is why — if he didn’t report for February, that is reason. It was just a misunderstanding, Judge, on his part that he thought he was supposed to report in March.
“THE COURT: Mr. Devane.
“MR. DEVANE: Judge, you revoked him previously and sent him to Community Corrections. And when he was released there, he reported to the office. The secretary told him I wasn’t in and for him to contact me again. He never contacted me. I went to the address listed and same as the time he was revoked before, no response from that address and no phone number. So we got a warrant for him and he’s back again.
“THE DEFENDANT: Your Honor, may I speak in my behalf?
“THE COURT: Go ahead.
“THE DEFENDANT: On January the 28th when I was released from Community Corrections, I did, in fact, went to the probation officer and reported. The secretary took my release form and made a copy showing that I did do as required and also let me know that Mr. Devane was not in his office. Now, since January 28th was the end of the month or the beginning of February, I wasn’t thinking three days, you know, the next month. I was thinking thirty days, the following month, you know, to report. Now, please forgive me that I wasn’t able to see Mr. Devane on the day which I did report and was given the opportunity to be—
“MR. DEVANE: The secretary told him to contact me to set up an appointment. And he never called me back.
“THE DEFENDANT: Excuse me. Would you look in my pocket?
“MR. DEVANE: Judge, he’s been on probation before. He knows the rules. He knows he is supposed to report and be instructed.
“THE DEFENDANT: I’m quite sure if I had seen you on that date, we probably wouldn’t be here today.
“MR. DEVANE: And if you had called me a day or two later, we wouldn’t be here today.
“THE DEFENDANT: Judge, that is my release form. And she did make a copy that I reported on January the 28th. He violated me, you know, I had an arrest warrant on me on the 25th of the following month. I wasn’t trying to report. But I did report when I was so released from Community Corrections. And I would like to receive the probation that you granted me.
“THE COURT: Okay. Probation is revoked.”

(C.R. 4-6.)

Unlike in D.L.B., the circuit court did not revoke Rhodes’s probation based solely on the representations of the prosecutor and defense counsel. Rather, Rhodes’s probation officer personally addressed the court and responded to the assertions by defense counsel and Rhodes. Further, Rhodes was afforded an opportunity to address the court and explain why his probation should not be revoked. Therefore, the April 21, 2008, hearing constituted a revocation hearing, and his argument is without merit.

II.

Rhodes also argues that the State did not present sufficient evidence to support the revocation of his probation and that the circuit court abused its discretion when it revoked his probation. (Issues III and IV in Rhodes’s brief.) However, he did not present these arguments to the circuit court. Therefore, they are not properly before this court. See Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996) (holding that general rules of preservation apply in probation revocation proceedings).

III.

Finally, Rhodes argues that the circuit court did not enter a written order in which it stated the evidence upon which it relied and its reasons for revoking his probation. (Issue II in Rhodes’s brief.) The State concedes that the circuit court’s order did not comply with the provisions of Rule 27.6(f), Ala. R.Crim. P., and asks this court to remand this case for the circuit court to enter a new written revocation order.

“It follows that the requirement of Wyatt [v. State, 608 So.2d 762 (Ala.1992),] and its associated cases — that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record — is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f)[, Ala. R.Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United States v.J Copeland, 20 F.3d [412,] 414 [ (11th Cir.1994) ].
“We hasten to note that our holding in this case does not diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons. The requirements of Wyatt will still he fully applicable in those situations where the record, for lack of transcription of the revocation hearing or for some other reason, fails to clearly and unambiguously set forth the reasons for the revocation and the evidence that supported those reasons. Thus, the requirements of Wyatt are fully applicable to the trial court’s order of revocation where the record fails to comply with Rule 27.6(f).”

McCoo v. State, 921 So.2d 450, 462-63 (Ala.2005) (emphasis added).

“In order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is ‘the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.’ McCoo, 921 So.2d at 462 (emphasis added).”

Ex parte Garlington, 998 So.2d 458, 458-59 (Ala.2008).

During the revocation hearing and in its written order on the case action summary sheet, the circuit court merely stated, “Probation is revoked.” (C.R. 2, 9; R. 6.) Neither the order nor the case action summary sheet included an affirmative statement that adequately set forth the evidence upon which the circuit court relied and its reasons for revoking Rhodes’s probation. Accordingly, we must remand this case to the circuit court with instructions that it enter a written order in which it specifically states the evidence upon which it relied and its reasons for revoking Rhodes’s probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 35 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On May 22, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On July 24, 2009, that court denied rehearing, without opinion. On September 11, 2009, the Supreme Court denied certiorari review, without opinion (1081486).


author: PER CURIAM.

text:
    Chris HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4399.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2008.
    Elliott C. Metcalfe, Jr., Public Defender, and Paul S. Cherry, Assistant Public Defender, Venice, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Chris Harvey challenges his judgment and sentence for indirect criminal contempt. Because the trial court erred in compelling Harvey to testify against himself and because this error was not harmless, we reverse.

In response to a motion from Harvey’s former wife, Rachel Dailey, the trial court issued an order to show cause why Harvey should not be held in criminal contempt for failure to make court-ordered child support payments. The motion and the order alleged, inter alia, that Harvey was voluntarily unemployed to avoid implementation of an income deduction order, that he refused to pay child support, and that he was therefore in “willful contempt of the Court, for his violation of the Final Judgment of Dissolution of Marriage.”

A contempt hearing was held on August 28, 2008. The court received in evidence a certified copy of Harvey’s child support payment record showing an ar-rearage of $8700. Then, arguing that a criminal contempt proceeding does not involve a criminal prosecution such that the constitutional rights enjoyed by a criminal defendant are not implicated, Dailey’s counsel called Harvey as a witness. Harvey objected on the ground that the hearing was a criminal proceeding in which he enjoyed the right not to be compelled to testify against himself. The court overruled the objection, and Harvey took the stand.

Harvey acknowledged that he was ordered to pay child support pursuant to a November 2007 dissolution order, that he had been employed at a car dealership from October to December 2007 but was then fired, and that he had not paid child support. He testified that he had been out of work due to the state of the economy, that he was nevertheless actively looking for a job, and that he was living with his mother. He stated that he had earlier paid a purge of $2000 thanks to the sale of his vehicle and insisted that he would pay child support if he could. Harvey’s former wife, Ms. Dailey, testified that she and Harvey had two children together, that she was supporting them with help from her family, and that Harvey was not providing financial support.

After hearing argument from counsel, the court ruled as follows:

Okay, the Court at this time finds [Harvey’s counsel’s] comments persuasive, and in addition to those of [Dailey’s counsel], supports that the Court at this time finds beyond a reasonable doubt that this Court previously ordered Mr. Harvey to pay, that he has failed to pay, that his failure to pay is willful. He was employed in October, November and December, did not pay. I don’t know why the Court should believe him now he testifies that he has made consistent efforts without — without success to become employed for the past eight months.
The Court finds him guilty of indirect criminal contempt. The [C]ourt will sentence him to ninety days County Jail.

The court issued a written order reflecting this conclusion and sentence.

The resolution of the primary issue before us is straightforward:

Because criminal contempt is a crime in the ordinary sense, imposition of criminal contempt sanctions requires that a contemnor be afforded the same constitutional due process protections afforded to criminal defendants. These rights include the right of criminal defendants to be represented by counsel, the right to have the State prove the offense beyond a reasonable doubt, and the right not to incriminate oneself.

Parisi v. Broward County, 769 So.2d 359, 364 (Fla.2000) (citations and internal quotation marks omitted; emphasis added); see also Gidden v. State, 613 So.2d 457, 460 (Fla.1993). As such, the trial court erred in the indirect criminal contempt proceeding below when it allowed itself to be persuaded by the argument of the former wife’s attorney that the right not to be compelled to incriminate oneself did not apply in such a proceeding.

The only remaining question is whether the error was harmless. See The Florida Bar v. Welch, 309 So.2d 537, 538 (Fla.1975) (finding harmless the fact that the respondent was compelled to testify against himself when the count in question was ultimately dismissed); see also Arizona v. Fulminante, 499 U.S. 279, 310-11, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (holding that harmless error analysis is appropriate relative to admission of an involuntary confession); Williams v. Stewart, 441 F.3d 1030, 1051 (9th Cir.2006). When Harvey’s testimony is removed from consideration, the remaining evidence is “insufficient to prove beyond a reasonable doubt that he willfully violated a prior court order.” See Hagerman v. Hagerman, 751 So.2d 152, 153 (Fla. 2d DCA 2000) (emphasis added). Essentially, the only competent evidence before the court was Harvey’s child support payment record and Dailey’s testimony. From the payment record the court could conclude that Harvey was in arrears in his child support payments. From Dailey’s testimony the court could conclude that Harvey was not assisting her financially. From neither piece of evidence can it be inferred that Harvey was, as alleged, voluntarily unemployed such that he was in willful noncompliance with an income deduction order or that he was otherwise willfully noncompliant with the original dissolution order. We therefore must conclude that the error in admitting the evidence was not harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Accordingly, we reverse the court’s order and remand for a new hearing. See Pacheco v. State, 698 So.2d 593, 596 (Fla. 2d DCA 1997) (citing Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)). The trial court is directed to enter an order releasing the petitioner to the bail status to which he was admitted as of the show-cause hearing or, if he was not admitted to bail, an order releasing him from confinement.

Reversed and remanded with instructions.

NORTHCUTT, C.J., and CASANUEYA and SILBERMAN, JJ„ Concur.

      . At the hearing, counsel for Dailey prosecuted the case against Harvey, who was represented by an assistant public defender. On review in this court, the same assistant public defender represents Harvey, and the Attorney General has appeared on behalf of the State, see § 16.01(4), Fla. Stat. (2008).

      . In support of his argument, the wife’s attorney recited to the trial court the third paragraph of the subsection headed "(4) Arraignment; Hearing” of the 1968 Committee Notes to Florida Rule of Criminal Procedure 3.840, which sets forth the procedures to be followed in proceedings on indirect criminal contempt. The paragraph includes this statement:
      There is no reason to believe that the statute [section 38.22, Florida Statutes, as amended in 1945] is unconstitutional as being in violation of section 11 of the Declaration of Rights of the Florida Constitution, which provides, in part, that the accused in all criminal prosecutions shall have a right to public trial by an impartial jury. Criminal contempt is not a crime; consequently, no criminal prosecution is involved.
      Counsel also read the three case citations there. It may be noted, however, that the first paragraph of the same subsection of the Committee Notes contains the following statement: "The defendant cannot be compelled to testify against himself. Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla. 1956)."


text:
    Michael HUTCHISON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3177.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 2008.
   PER CURIAM.

Affirmed. See Card v. State, 497 So.2d 1169 (Fla.1986); Desmond v. State, 576 So.2d 748 (Fla. 2d DCA 1991); Saldarreaga v. State, 875 So.2d 1270 (Fla. 4th DCA 2004); Lee v. State, 847 So.2d 1142 (Fla. 3d DCA 2003); Colson v. State, 717 So.2d 554 (Fla. 4th DCA 1998); Brown v. State, 493 So.2d 80 (Fla. 1st DCA 1986).

NORTHCUTT, C.J., and ALTENBERND and CASANUEYA, JJ., Concur.