author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    HOKES BLUFF WELDING AND FABRICATION v. Christopher Neil COX.
    2070253.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2008.
    Certiorari Denied Sept. 18, 2009 Alabama Supreme Court 1080185.

      Steven T. McMeekin of Wainwright, Pope & McMeekin, P.C., Birmingham, for appellant.
    James W. McGlaughn and Michael D. McGlaughn of McGlaughn & McGlaughn, L.L.C., Gadsden, for appellee.
   MOORE, Judge.

Hokes Bluff Welding and Fabrication (“the employer”) appeals from a judgment entered by the Etowah Circuit Court awarding Christopher Neil Cox (“the employee”) permanent-total-disability benefits under the Alabama Workers’ Compensation Act (“the Act”), Ala.Code 1975, § 25-5-1 et seq., as a result of a lower-back injury that the trial court determined was caused by a November 9, 2004, occupational accident.

Procedural History

On January 20, 2005, the employee filed a complaint against the employer seeking workers’ compensation benefits. In that complaint, the employee alleged that he had injured his lower back in a work-related accident on November 9, 2004. On February 22, 2005, the employer filed an answer generally denying that the employee had injured his back as alleged and asserting various affirmative defenses, including the applicable statute of limitations.

The employee filed an amended complaint on July 8, 2005. In the amended complaint, the employee asserted that he had also injured his lower back in a work-related accident on December 19, 2000, and that the employer was estopped from asserting the statute of limitations as a defense to his claim for disability benefits for that accident. The employer filed an answer admitting that the employee had injured his back in 2000 as alleged but affirmatively pleading the applicability of the statute of limitations.

On June 20, 2006, the trial court bifurcated the issues for trial purposes. The trial court then conducted a trial on August 31, 2006, relating solely to the issues of the employer’s liability for the two alleged injuries and the employer’s statute-of-limitations defense. On December 8, 2006, the trial court entered an order finding that the employee had sustained a work-related lower-back injury on December 19, 2000. The trial court concluded that the statute of limitations had expired on the employee’s claim for disability benefits for that injury but that the statute of limitations did not affect his claim for medical benefits for that injury. The trial court also found that the employee had sustained a new injury to his lower back on November 9, 2004, and that that injury arose out of and in the course of his employment with the employer. The employer filed a “motion to reconsider and/or to alter, amend or vacate the judgment” on January 8, 2007; that motion was denied on January 24, 2007.

On February 14, 2007, the employee filed a motion to compel the employer to pay temporary-total-disability benefits based on the December 8, 2006, order. The employer argued that the December 8, 2006, order was not a final judgment that would support an appeal and that it was withholding payment pending an appellate determination as to the merit of its defense to liability. On October 23, 2007, the trial court conducted a final hearing to determine the benefits payable by the employer to the employee for the November 9, 2004, injury. The trial court entered a judgment on November 12, 2007, awarding the employee permanent-total-disability benefits as a result of the November 9, 2004, injury. On December 21, 2007, the employer filed a notice of appeal from that judgment as well as from the December 8, 2006, order.

Issues

The Act provides that an employee must file a claim within two years of the date of the accident causing the personal injury for which the employee seeks compensation. See § 25-5-80, Ala.Code 1975. An “accident,” for purposes of the statute of limitations, is “an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body .... ” § 25-5-1(7), Ala.Code 1975 (emphasis added). Hence, when a worker has sustained two work-related accidents, one within the statutory limitations period and the other outside the statutory limitations period, the applicability of the statute of limitations depends on which of the two accidents caused the worker’s personal injury. See Ex parte Rhea, 807 So.2d 541 (Ala.2001), on remand, Diamant Boart American Wheel Trueing Tool Co. v. Rhea, 807 So.2d 546 (Ala.Civ.App.2001); Poole v. Ellard Contracting Co., 527 So.2d 1327 (Ala.Civ.App.1988); Baggett v. Builders Transp., Inc., 457 So.2d 413 (Ala.Civ.App.1984); and Morgan v. Rheem Mfg. Co., 395 So.2d 1030 (Ala.Civ.App.1981). In Fort James Operating Co. v. Crump, 947 So.2d 1053 (Ala.Civ.App.2005), this court recognized that in cases of multiple accidents, the effective date commencing the limitations period turns on whether the personal injury may be characterized as a recurrence, an aggravation, or a new injury. 947 So.2d at 1065. If, following the second accident, the worker experiences a recurrence of the prior injury, any claim for benefits based on that recurrence relates back to the date of the original accident; on the other hand, if the second accident aggravates the personal injury caused by the first accident, or the second accident results in a new injury, then the limitations period commences on the date of the second accident. Id.

“A court finds a recurrence when ‘the second [accident] does not contribute even slightly to the causation of the [injury].’ 4 A. Larson, The Law of Workmen’s Compensation, § 95.23 at 17-142 (1989). ‘[T]his group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.’ 4 A. Larson, § 95.23 at 17-152. A court finds an ‘aggravation of an injury’ when the ‘second [injury] contributed independently to the final disability.’ 4 A. Larson, § 95.22 at 17-141.”

United States Fidelity & Guar. Co. v. Stepp, 642 So.2d 712, 715 (Ala.Civ.App.1994). “The second injury is characterized as a ‘new injury’ if it is the sole cause of the final disability.” Ex parte Pike County Comm’n, 740 So.2d 1080, 1083 n. 2 (Ala.1999).

The parties are at issue over the trial court’s finding in its final judgment that the 2004 accident resulted in a “new injury” and “[not] a reoccurrence or continuation of the December, 2000 incident.” The employer maintains that substantial evidence does not support that finding because the totality of the evidence indicates that the employee did not sustain a new injury due to the 2004 accident, and the employer asserts that the trial court im-permissibly drew adverse inferences from the evidence without the benefit of expert medical testimony. The employee acknowledges that he did not present any expert medical testimony to support his claim, but he argues that the totality of the evidence supports the trial court’s finding.

Standard of Review

In Ex parte Price, 555 So.2d 1060 (Ala.1989), our supreme court stated: “As the finder of facts, ... the trial court is authorized to draw any reasonable inference from the evidence, including conclusions of medical facts that are not within the peculiar knowledge of medical experts.” Price, 555 So.2d at 1062. Accordingly,

“lay testimony may combine with medical testimony to supply th[e] requisite proof; and ... the medical testimony, when viewed in light of lay evidence, may amply support the medical causation element without the expert witness’s employing any particular requisite language. It is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test finds its application.”

555 So.2d at 1063.

Based on Price, a trial court may make a finding of medical causation without the benefit of any direct expert medical testimony, so long as the other evidence is sufficient to sustain its finding. The question whether a worker has satisfactorily proven the causal relationship between a work-related accident and a particular injury “in the absence of medical testimony, or by lay testimony coupled with medical evidence, must be determined on a case-by-case basis.” Price, 555 So.2d at 1062. That question is one of fact to be decided in the first instance by the trial court. See Stewart v. ATEC Assocs., Inc., 652 So.2d 270, 274 (Ala.Civ.App.1994); and Statewide Painting Co. v. Sharron, 693 So.2d 518 (Ala.Civ.App.1997). On appellate review, “ ‘[w]e will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ ” Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1121 (Ala.2003) (quoting Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996), quoting in turn West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

In this case, because the employee claimed a new injury from a specific strain occurring at an identifiable place and time, i.e., an “accidental injury,” see Ex parte Trinity Indus., 680 So.2d at 266 n. 3, he bore the burden at trial of proving medical causation by a preponderance of the evidence. See § 25-5-81(c), Ala.Code 1975. Therefore, on appellate review, we must determine whether the record contains evidence of such weight and quality that the trial court reasonably could have determined that a preponderance of that evidence proved that the 2004 accident caused the employee a new injury. See Ex parte McInish, [Ms. 1060600, Sept. 5, 2008] — So.3d -, - (Ala.2008). In making that determination, we may not reweigh the evidence, id., but we must view the overall substance of the evidence, including not only the expert testimony, but also the lay and circumstantial evidence, in a light most favorable to the findings of the trial court. Ex parte Southern Energy Homes, 873 So.2d at 1122.

The Evidence

The pertinent evidence contained in the record establishes the following: While the employee was working as a welder and fitter for the employer on or about December 19, 2000, he injured his lower back lifting heavy objects at work. The employee notified his employer of the accident, but because the employee did not request medical attention, the employer did not fill out a first report of injury or notify the employer’s workers’ compensation insurance carrier of the injury.

The employee continued working and about 15 months later obtained his own unauthorized medical treatment for his 2000 back injury from Dr. Paul Muratta, a pain-management specialist. Between March 2002 and June 2004, the employee visited Dr. Muratta 22 times. On those visits, the employee complained of tenderness in his lumbar spine and lumbar facet joints and severe, sometimes-sharp, sometimes-dull, throbbing lower-back pain, with numbness and tingling extending from his lower back down his buttocks into his hips, legs, and both feet. The employee told Dr. Muratta numerous times that his pain interfered with his ability to work normally and limited his other physical activities. Dr. Muratta attempted to relieve the employee’s symptoms with different oral and injected narcotic pain medications and pain-reduction procedures, without any lasting effect.

The employee underwent a magnetic resonance imaging (“MRI”) scan on March 8, 2002, that revealed degenerative disk disease at the L1-L4 levels of the employee’s lumbar spine and a lumbar CT scan on August 2, 2003, that showed spondylo-sis and disk bulges at the L4-5 and L5-S1 areas of the employee’s back, most prominently at L4-5. On May 7, 2004, the employee submitted to another MRI scan. The radiologist who performed that scan reported that he found “mild central spinal canal and bilateral recess stenosis at L4 secondary to disc bulging and early os-teoprolific disease.” Based on these studies and his clinical examinations, Dr. Mu-ratta diagnosed the employee at various times with low-back pain and radiculopa-thy secondary to lumbar degenerative disk disease, disk bulging or disk herniation, lumbar facet arthropathy, osteoarthritis, myofascial pain syndrome, and sacroiliitis.

The employee testified that on August 9, 2004, the employer filed a first report of injury for his 2000 back injury at his request. The employee then gave a statement to the insurance adjuster assigned to handle his claim and was informed that due to the delay between the date of the accident and the date of the filing of the first report of injury, the adjuster would have to investigate the claim before deciding whether to accept it.

While awaiting the resolution of his claim, the employee saw Dr. Muratta on August 10, 2004, and October 15, 2004. On that last visit, Dr. Muratta recorded that the employee was tender throughout the lumbar spine and musculature; that the employee was complaining of stabbing mid- and low-back pain, which the employee rated as an 8 on a 10-point scale; that the pain extended downward into both legs; and that the employee was also experiencing numbness in both legs. Dr. Mu-ratta diagnosed low-back pain with radicu-lopathy and myofascial pain syndrome. The employee stated that nothing relieved his pain, including his pain medication; that his pain increased with standing and walking; and that his pain interfered with his mood, physical activity, and concentration.

The employee was never given any written work restrictions by Dr. Muratta, and he performed his normal job as a welder and a fitter, although with apparent difficulty, at all times before November 9, 2004. The employee testified that before October 2004 he had occasionally missed work to see Dr. Muratta but that he had tried to schedule his visits during off-work hours. The employee missed work completely on October 1, 25, and 29, 2004, for medical reasons. The employee also left work early on October 6, 8, 11, and 15, 2004, for medical reasons.

The employee testified that, on November 9, 2004, he picked up a heavy object at work and that, while in the act of placing the object on a table, he heard a “pop” inside his back and felt a sharp pain “like an icepick just jabbed” in his lower back and that the pain shot upwards. The employee testified that he immediately realized his back pain had worsened; he stated that, at that time, he thought, “I got to see about this” because he was “dying in pain.” No one witnessed the accident. The employer immediately filed a first report of injury based on the employee’s version of the accident.

That same day, the employee visited Dr. Nathalla Elmore, an authorized physician, complaining of “the worst possible” sharp, stabbing pain in his lower back radiating down both legs causing numbness and tingling to his feet. On examination, Dr. Elmore found tenderness throughout the lumbar spine and pain reproduced with motion. In addition, Dr. Elmore noted that the employee was leaning over the examination table and exhibited difficulty walking. Dr. Elmore diagnosed a lumbar strain, prescribed medication, took the employee off work for the rest of the day, and ordered a lumbar MRI scan. The radiologist who performed the MRI scan the next day reported the following findings:

“At least mild central spinal canal and bilateral lateral recess stenosis is rede-monstrated at the L4-L5 level, secondary to mild disc bulging and facet joint arthropathy. Slightly milder findings are also noted at the L2-L3 level.”

Upon comparing the November 10, 2004, MRI films to the May 7, 2004, MRI films, the radiologist stated: “The overall appearance of the lumbar spine is unchanged since the previous examination of May 2004.” After receiving the MRI report, and finding the employee’s back pain unimproved despite physical therapy, Dr. El-more continued to excuse the employee from work and referred the employee to Dr. Terry Andrade, a neurosurgeon.

Dr. Andrade first examined the employee on November 16, 2004. The employee told Dr. Andrade that he had been having ongoing back pain for three years that had recently increased from an 8 to a 10 on a 10-point scale after November 9, 2004. Dr. Andrade testified that, as part of his examination of the employee, he had looked for signs that the employee had sustained an acute injury to his back and had found none. Dr. Andrade also testified that he had found no evidence of an acute injury on the November 10, 2004, MRI film.

As part of his treatment of the employee, Dr. Andrade compared the November 10, 2004, MRI films with the May 7, 2004, MRI films. Dr. Andrade testified that the two films were the same, with no changes to or difference in the physical structure of the employee’s back, specifically that “[tjhere was no increase in the size of his disk bulges, no instability of the spine, there’s no facet joint synovial cyst that had popped out or anything.” Dr. Andrade then ordered a lumbar myelogram, which the employee underwent on November 17, 2004. Regarding the results of that diagnostic test, Dr. Andrade testified:

“Q: [Counsel for the employer:] ... Was there anything new in the myelo-gram that wasn’t showing up or wasn’t present in the MRI test?
“A: No.
“Q: Did there seem to be any change in the physical structure of [the employee’s] back according to the myelogram as compared to the May 2004 MRI?
“A: No.
“Q: Based on your actual review of those tests, those films, did you make some determination as to whether or not there had been any change in those?
“A: The sensitivity of the MRI and the degree of what you can see on mye-logram, postmyelogram CT, it looked like that the myelogram was slightly worse but not bad. Then the MRIs, the MRIs looked the same. The postmyelo-gram CT, the way I worded it probably isn’t the best way to word it, but in comparison of the earlier studies and the myelogram, the degree of the abnormality looked to be slightly increased, but that doesn’t mean that there was a change. It just means that from those prior studies to the new study, in the technique of the study, that it does look a little tiny — but it wasn’t significant. But there were some slight increase in the amount of observable facet and disk bulging problems.”

Dr. Andrade explained that the myelogram test is significantly more sensitive than an MRI scan and that the myelogram shows a “crisper” image than the MRI tests that had been performed in north Alabama. Dr. Andrade testified that the myelogram results looked slightly worse “primarily” because of that difference.

Dr. Andrade testified that, in his opinion, the employee had degenerative disk disease and disk bulges. As to the issue in this case, Dr. Andrade testified:

“Q: [Counsel for the employer:] And what was your determination?
“A. Continuation of an old injury.
“Q: What was the basis for making that determination?
“A: His subjective complaints have increased minimally. First of all, his subjective complaints of pain far exceed his exam, his studies. Eight out of ten, ten out of ten pain, you’re going to be in the hospital. You’re not walking around going ‘I’ve got ten out of ten pain.’ Unless you’re Superman. Ten out of ten pain is you want to die right there on the spot. So his subjective complaints of pain have not significantly increased from his complaints that have been going on for at least three years from what he told me the first time I saw him. His physical exam really hadn’t changed remarkably. His subjective complaints seem to be pretty consistent with what he had before, and his diagnostic studies really haven’t changed that much. So there’s nothing really significantly new going on from what was going on before as far as I can tell from the records.
“Q: And is your opinion in that regard based on the physical examination, his complaints and diagnostic studies, and, of course, your training, education, and experience as a neurosurgeon?
“A: Yes. I don’t think there’s much going on with him period.
“Q: And your opinion that his problems were a continuation of his old injury, is that an opinion based on a reasonable degree of medical certainty?
“A: Yes.
“Q: In those visits when you saw [the employee] ... was there any evidence to suggest a new acute injury had occurred to him on November 9th, 2004?
“A: There really isn’t a whole lot of evidence he has an injury, period.
“Q: So was there any evidence of a new injury?
“A: New, old or otherwise, there wasn’t anything significant.”

On cross-examination, Dr. Andrade reviewed the first report of injury and testified that it accurately summarized the employee’s version of the November 9, 2004, accident as the employee had related it him. When asked whether that accident could have aggravated the employee’s pri- or back problem, Dr. Andrade testified that the employee had all the same symptoms as before and that “[t]here wasn’t anything that was accelerated or exacerbated. We’ve established that.” Dr. An-drade further testified that, although anything was possible, “[w]e haven’t found anything that did happen [in the way of an acceleration or aggravation.]”

While receiving treatment from Dr. An-drade, the employee visited Dr. Martin Jones, a neurosurgeon, without authorization from the employer. On November 22, 2004, the employee informed Dr. Jones that he had been experiencing chronic back pain with occasional numbness and tingling in his legs, with no relief from pain management, but that his pain had worsened after November 9, 2004. On exam, Dr. Jones found mild tenderness in the lumbar spine, a mild deficit in the employee’s lumbar range of motion, and a normal neurological exam. Dr. Jones noted that he reviewed the employee’s “MRI and CT myelogram,” which he found “unremarkable with just some minimal degenerative changes and very mild early steno-sis.” Dr. Jones also noted: “I do not see anything to operate on based on these plain films, his MRI or the myelogram.” Dr. Jones recommended a diskogram, but the employee, who had already been through that procedure in July 2003 with Dr. Muratta, declined. Dr. Jones therefore recommended continued pain management.

After another visit and normal examination on December 7, 2004, Dr. Andrade returned the employee to work without restrictions. At the trial, the employee testified that he could no longer work due to his increased pain. The employee requested surgery, but, like Dr. Jones, Dr. Andrade found no medical evidence to support a need for surgery. Dr. Andrade ordered nerve-conduction studies and elec-tromyelogram studies, which were performed on December 14, 2004, and which produced normal results. Dr. Andrade last saw the employee on December 16, 2004. At that time, Dr. Andrade recommended a conditioning program and an evaluation for a back brace. Although Dr. Andrade scheduled a follow-up visit, the employee testified that he did not attend the visit because he had no faith in Dr. Andrade.

On February 8, 2005, the employee underwent a diskogram. The report from that diskogram is not in evidence. On March 17, 2005, the employee visited Dr. Muratta’s partner, asserting continued complaints of low-back pain with occasional numbness extending down the right leg. The employee reported that the diskogram had indicated an annular tear at the L4-5 level. Following that visit, the employee visited Dr. Muratta’s practice twice more while waiting for the employer to provide him with a panel of four physicians from which he could select a new treating physician. See § 25-5-77(a). On April 15, 2005, he reported that his physical activities had greatly diminished due to his continued back problems, and, on June 14, 2005, he reported that he had tried methadone without success.

The employee selected Dr. Matthew Berchuck from the panel of four provided by the employer and visited him on September 19, 2005. On that visit, the employee told Dr. Berchuck that after his 2000 back injury he had experienced pain at a level of 6 on a 10-point scale but that his back and leg symptoms had increased dramatically after November 9, 2004, to a 9.5 level, after which he had not returned to work. The employee told Dr. Berchuck of his diskogram. Dr. Berchuck asked the employee to obtain a copy of the study. At that point, Dr. Berchuck recommended either continued pain management or, depending on his review of the employee’s previous diagnostic studies, a fusion of the L4-5 vertebrae with hopes of returning the employee to the pain level the employee had reported he had been experiencing “before his injury of November 9, 2004.”

On October 4, 2005, after having reviewed the diskogram, the films from a February 2005 MRI scan, and the employee’s previous studies, Dr. Berchuck concluded that surgery was not the best course of treatment. Dr. Berchuck concluded that the diskogram study found “some abnormality in the L4-5 disk morphology,” which a CT scan characterized as an “internal disc rupture;” however, the diskogram did not show an annular tear, as the employee had earlier reported, or an epidural leak. Dr. Berchuck subsequently referred the employee to Dr. Ronald Moon for pain management.

On December 27, 2005, the employee returned to Dr. Berchuck with reports of no relief from Dr. Moon’s treatment. Dr. Berchuck agreed to proceed with the fusion surgery, which was performed on January 6, 2006. The surgical report indicates that Dr. Berchuck completely resect-ed the facet joint, which “was noted to be quite hypertrophic and the L4 and L5 nerve roots were defined and decompressed out their foramen.” Dr. Berchuck then incised the L4-5 disk and performed a complete diskectomy. The employee followed up with Dr. Moon, who at one point released him to return to work with restrictions. The employee tried to work for two days, but he could not perform the nonphysical aspects of the job.

On October 18, 2007, Dr. Berchuck wrote the following letter:

“I have treated [the employee] for problems related to a job related accident that occurred in November of 2004. He is currently followed by Dr. Doleys, who is treating him with a pain pump and other pain management techniques. [The employee] was referred for an FCE on 06/14/07 with Rehab Partners in Gadsden. I have reviewed the findings in the FCE and defer to the findings in that report. [The employee] reached Maximum Medical Improvement on 10/10/07. I assign him an impairment rating of 18% to the body as a whole. I have nothing further to offer [the employee] at this time. ...”

The employee and his wife testified at trial that, although the employee could work before the 2004 accident, he had become basically totally physically disabled since that time.

Analysis

The Circumstantial Evidence

In this case, the medical records and the employee’s own testimony show that, from the time of his 2000 accident up to the date of the 2004 accident, the employee experienced severe and unrelenting back pain with occasional numbness and tingling extending down one or both lower extremities into his feet that required intensive and continuous medical intervention. The employee told Dr. Muratta repeatedly that his symptoms interfered with his ability to work normally, and it is undisputed that the employee left work early or missed work entirely on eight occasions during the month before his 2004 accident due to his ongoing back problems.

Following the 2004 accident, the employee did not suddenly develop new and different symptoms. The medical records preceding and following the 2004 accident show that immediately after the accident and ever since the employee has complained of pain in the same parts of his body as before the accident. The employee testified that his pain increased after the 2004 accident, but he described the same pain-distribution pattern as before the accident.

The foregoing circumstantial evidence tends to prove that the employee sustained neither a new injury nor an aggravation of the old injury, but a recurrent lower-back injury as described in Stepp — “ ‘a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.’” 642 So.2d at 715 (quoting 4 A. Larson, The Law of Workmen’s Compensation, § 95.23 at 17-152 (1989)).

The Medical Evidence

Dr. Andrade, the only doctor who testified, opined that, to the extent the employee injured his back in 2000, his 2004 back problem was merely a “continuation” of that injury, attributing the employee’s back problem entirely to his preexisting condition and discounting any possibility that the 2004 accident had aggravated the employee’s prior low-back problem. Like Dr. Andrade, the radiologist who compared the November 2004 MRI film to the May 2004 MRI film, found no change to the physical structure of the employee’s back. That medical evidence contradicts the employee’s claim that either he sustained a new injury to his lower back or his prior back condition had worsened due to his 2004 accident.

In its final judgment, the trial court concluded that “[t]he record is well documented that [the employee] has had a significant and detailed course of treatment on his back where Dr. Andrade failed to find any problems.” Based solely on that finding, the trial court did not “find Dr. Andrade’s [deposition] testimony ... either credible or compelling.” The trial court’s finding that Dr. Andrade “failed to find any problems” is not supported by substantial evidence but, rather, contradicts the undisputed evidence. Dr. An-drade testified on direct examination that after reviewing the MRI and myelogram films, he diagnosed the employee with disk bulges and degenerative disk disease. The record reveals that Dr. Jones and, at times, Dr. Muratta made the same or similar diagnoses. Dr. Andrade opined that he did not consider the employee to have a significant injury, but he did not testify that he found no lower-back problem at all. Moreover, even if the trial court had properly disregarded Dr. Andrade’s testimony, the record still contains the radiologist’s report finding no changes in the employee’s lumbar spine following the November 2004 accident.

In Rich v. Warren Manufacturing, Inc., 634 So.2d 1015 (Ala.Civ.App.1994), this court considered the effect of radiological evidence on the issue of medical causation. Steve Rich, the claimant, tripped and fell while working for Warren Manufacturing, Inc., in 1991. After that fall, Rich complained of pain in his lower back that extended down his right leg. 634 So.2d at 1016. A neurosurgeon referred Rich for a myelogram and a CT scan, which prompted a surgery in which the surgeon found a small fragment of a herniated disk at L5-Sl. The employer filed a motion for a summary judgment in which it presented evidence indicating that Rich had undergone two previous back surgeries in 1982 or 1983 and in 1988, respectively. 634 So.2d at 1017. After those surgeries, Rich continued to receive treatment for ongoing lower-back problems and had actually submitted to a lumbar myelogram and CT scan in June 1991, before the August 1991 accident, after which he had discussed further surgery with his treating physician. Id. The surgeon who performed the 1991 surgery testified in deposition that the results of the August 1991 and June 1991 diagnostic tests were “almost identical” and “very similar.” Id. The surgeon also found Rich’s clinical findings in August 1991 to be “essentially the same” as the findings had been in June 1991. Id. Accordingly, the surgeon testified that the surgery he performed in August 1991 was for a condition that probably existed in June 1991. Id. However, Rich testified in his deposition that, although he had ongoing symptoms before the 1991 work-related accident, he was able to fully perform his job duties and that, after the 1991 accident, the pain had increased so that he needed the third surgery. Id. The neurosurgeon who performed the third surgery testified in his deposition that the 1991 fall could have caused disk material or cartilage to move against a nerve and cause increased pain. Id. In addition, the orthopedic surgeon testified in his deposition

“that although the test results of June 1991 and August 1991 were very similar, it does not necessarily mean that the symptoms experienced by [Rich] were the same. He further testified that while these tests conducted in June 1991 and August 1991 are fairly sensitive, the tests are not always sensitive enough to detect a small disc fragment such as was removed from [Rich’s] lower back during the August 1991 surgery. He also testified that while the tests might not have shown the small disc fragment, a small disc fragment, such as the one removed, might cause exacerbated pain.”

Id. Based on the combination of Rich’s testimony and the doctors’ testimony, this court concluded that there was a genuine issue of material fact as to whether Rich had, in fact, sustained a new injury despite the identical radiologic findings both before and after the accident. 634 So.2d at 1018.

In this case, unlike in Rich, the employee has presented no evidence undermining the accuracy of the radiological evidence. The employee also presented no evidence indicating that the diagnostic testing simply was not technologically proficient enough to detect the alleged new injury or aggravation the employee sustained in 2004. The employee introduced the surgical report detailing the condition of the employee’s lumbar spine as observed by Dr. Berchuck in January 2006, but the employee did not present any evidence explaining whether the surgical findings conflicted with the diagnostic studies or whether the surgical findings proved that, in fact, he had sustained a new injury or aggravation in the 2004 accident. In Ex parte Price, the supreme court held that “the trial court is authorized to draw any reasonable inference from the evidence, including conclusions of medical facts that are not within the peculiar knowledge of medical experts.” 555 So.2d at 1062. However, to find the diagnostic studies unreliable, and to find that Dr. Berchuck discovered during surgery a new injury or aggravation of the old injury related to the 2004 accident, the trial court would not be drawing reasonable inferences from the circumstantial evidence but would be deciding matters lying exclusively “within the peculiar knowledge of medical experts.” Id.

Although the employee concedes that he did not present any medical testimony to support his claim, he argues that he did present medical evidence that the 2004 accident caused a new injury, namely the medical records of Dr. Berchuck. On September 19, 2005, when taking a history from the employee during his initial examination, Dr. Berchuck recorded the employee’s statement that “[h]e was doing his regular job until a second work-related injury on November 9, 2004.” Dr. Ber-chuck also stated in his records that if the employee underwent surgery, the goal would be to return the employee to his pain level “before his injury in 2004.” Additionally, Dr. Berchuck stated in his last note that he had been treating the employee for problems “related to a job related accident that occurred in November of 2004.”

Contrary to the employee’s contention, those statements do not indicate that Dr. Berchuck investigated the issue and stated an expert opinion that the employee had actually sustained a new injury. The first two excerpts merely reflect the chronology of the employee’s back problem as provided by the employee. The last excerpt suggests a causal relationship between the employee’s injury and the 2004 accident; however, the note does not address the crucial issue of whether that accident caused a new injury, an aggravation, or a recurrence of the symptoms of the old injury.

The employee also notes that Dr. Ber-chuck found an “internal disc rupture” in the February 2005 diskogram at L4-5; however, the record shows that the employee had positive findings at L4-5 on diagnostic studies before the 2004 accident, and the employee has not presented any evidence indicating that the description of the L4-5 abnormality as an “internal disc rupture” indicates a different condition suggesting a new injury or an aggravation. Again, in order to reach that conclusion, the trial court would have had to make an expert medical conclusion, which Price does not allow.

In Fort James Operating Co. v. Crump, supra, Earnestine Crump, the claimant, originally injured her lower back on March 25,1998, while straining to lift a heavy roll of plastic. 947 So.2d at 1055. Crump recovered from the injury sustained in that accident sufficiently to return to work. However, on November 5, 1998, Crump again strained her lower back lifting a roll of plastic wrap at work. 947 So.2d at 1057. Following that accident, Crump experienced worsening back pain and submitted to an MRI scan that showed a large herniated disk at L4-5. 947 So.2d at 1058. Four doctors testified in the case. One doctor testified that Crump had merely strained a lumbar muscle in the March 1998 accident and that the herniated disk was a totally new injury resulting solely from the November 1998 accident. 947 So.2d at 1060. The other three basically opined that the March 1998 injury had caused an asymptomatic herniated disk at L4-5 that was herniated more acutely in the November 1998 accident so as to become symptomatic and disabling. 947 So.2d at 1066. Based on the evidence indicating that the November 1998 accident had caused a harmful anatomical change in the physical structure of Crump’s body, this court concluded that the November 1998 accident had resulted in either a new injury or an aggravation of a preexisting condition, either of which constituted a separate cause of action for the purposes of the statute of limitations. 947 So.2d at 1066-67. Totally opposite of Crump, the medical evidence in this case proves that the 2004 accident did not cause any new damage to the physical structure of the employee’s body. In other words, according to the medical evidence, the 2004 accident caused only a recurrence of the employee’s prior injury and did not “ ‘contribute even slightly to the causation’ ” of that injury. Stepp, 642 So.2d at 715 (quoting 4 Larson, § 95.23 at 17-142).

Conclusion

Based on our review of all of the lay, circumstantial, and medical evidence contained in the record, see Ex parte Southern Energy Homes, supra, we conclude that the trial court could not have reasonably determined that a preponderance of that evidence proved that the 2004 accident caused a new injury or an aggravation of an old injury. Because the trial court’s findings of fact are not supported by substantial evidence, we conclude as a matter of law that the employee’s claim for compensation is barred by the statute of limitations. For the foregoing reasons, we reverse the judgment of the trial court and render a judgment in favor of the employer on the employee’s claim for compensation.

REVERSED AND JUDGMENT RENDERED.

THOMAS, J., concurs.

THOMPSON, P.J., concurs specially, which BRYAN, J., joins.

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

THOMPSON, Presiding Judge,

concurring specially.

Based on our supreme court’s opinion in Ex pa,He Southern Energy Homes, Inc., 873 So.2d 1116 (Ala.2003), I am constrained to agree with the main opinion that the employee’s testimony and the medical evidence before the trial court did not supply the substantial evidence of medical causation necessary to support the trial court’s judgment. For this reason, I concur.

BRYAN, J., concurs.

      . We have jurisdiction over the appeal from the December 8, 2006, order because it was an interlocutory order when entered, see USA Motor Express, Inc. v. Renner, 853 So.2d 1019 (Ala.Civ.App.2003), and became a final and appealable judgment when the final December 21, 2007, judgment was entered. Lanier v. Surrett, 772 So.2d 1187, 1189 (Ala.Civ.App.2000) (citing Zimzores v. Veterans Admin., 778 F.2d 264, 266 (5th Cir.1985)).

      . Neither party has appealed that portion of the judgment concluding that the employee is not entitled to any compensation based on the December 19, 2000, accident due to the expiration of the applicable statute of limitations but is entitled to medical benefits for that accident. That part of the judgment is therefore conclusively established as the law of the case. See J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001 (Ala.Civ.App.2007).

      . In his brief to this court, the employee argues that the employer bore the burden of proving that the 2004 accident did not cause the employee a new injury and that the 2004 accident caused a mere "continuation” of the employee’s prior injury. However, the employee did not cite any legal authority for that proposition; hence, we do not consider that argument. See Rule 28(a)(10), Ala. R.App. P.

      . Our judgment does not affect the employee's right to receive medical treatment on account of his December 19, 2000, injury. See n. 2, supra.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Marilyn B. LEE v. ALABAMA BOARD OF NURSING.
    2070957.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2008.
    Rehearing Denied Jan. 30, 2009.
    Certiorari Denied Oct. 9, 2009 Alabama Supreme Court 1080567.
    Robert M. Hill, Jr., Florence, for appellant.
    Alice M. Maples, gen. counsel, Alabama Board of Nursing, for appellee.
   MOORE, Judge.

Marilyn B. Lee, a registered nurse, appeals from a judgment entered by the Montgomery Circuit Court dismissing her petition to set aside an Alabama Board of Nursing consent order reprimanding her for practicing in Alabama without a state nursing license. We affirm.

Facts

On April 10, 2008, Lee filed a “Petition for Writ of Certiorari, Mandamus, Prohibition or Other Appropriate Remedy” in the Montgomery Circuit Court (“the trial court”). Lee attached to her petition numerous exhibits. Referencing those exhibits, Lee averred that, on September 8, 2006, she accepted employment at the University of North Alabama (“UNA”) as an Associate Professor of Nursing. On January 24, 2007, the Alabama Board of Nursing (“the Board”) served Lee with notice that a complaint had been filed against her, but the notice did not specify the nature of that complaint. On March 15, 2007, the Board informed Lee that it had scheduled a meeting with her for April 3, 2007, to discuss the complaint, again without specifying the nature of the complaint. Lee attended the meeting, at which counsel for the Board gave Lee the option of (1) signing a prepared consent order agreeing to a public reprimand and a $600 fine for failing to acquire a state nursing license before undertaking her professorship or (2) contesting the complaint at a hearing scheduled for May 10, 2007. Because she planned to be out of the country on May 10, 2007, Lee signed the consent order “with the understanding that she would subsequently be allowed to present to [the Board] a letter defending her actions.” Nevertheless, by signing the consent order, Lee agreed to waive her right to appeal. On April 10, 2007, Lee submitted a letter explaining why she had not acquired a state nursing license before commencing her job duties at UNA. On May 11, 2007, the Board approved the consent order, which, pursuant to Paragraph 6 of the document, rendered the order final. On June 26, 2007, Lee paid the $600 fine “under protest.” In her petition, Lee alleged that the consent order had been entered in violation of her due-process rights as set out in § 41-22-12(b), Ala.Code 1975. Lee requested, among other things, that the trial court take jurisdiction of the matter and issue a writ of certiorari setting aside the public reprimand and fine.

On May 19, 2008, the Board filed a motion to dismiss. In that motion, the Board argued that the trial court could not grant the relief Lee requested for various reasons, including that Lee was attempting to use her petition as a substitute for an untimely appeal. After considering Lee’s opposition to the motion and conducting a hearing on the matter, the trial court dismissed the petition without specifying the grounds for its decision. Lee timely appealed to this court from the judgment dismissing her petition.

On appeal, as she did in the trial court, Lee argues that the trial court had the power, through the common-law writ of certiorari, to vacate the consent order. However, a common-law writ of certiorari is not available when the petitioner has a right to appeal. State Pers. Bd. v. State Dep’t of Mental Health & Mental Retardation, 694 So.2d 1367, 1371 (Ala.Civ.App.1996). A nurse subjected to discipline by the Board ordinarily may appeal a final disciplinary order to the Montgomery Circuit Court within 30 days of the entry of the order. See § 41-22-20, Ala.Code 1975.

In this case, by its own terms, the consent order became final once approved by the Board on May 11, 2007. However, Lee could not appeal that order because she had expressly waived her right to appeal as part of the conditions of the consent order. See Sayre v. Dickerson, 278 Ala. 477, 179 So.2d 57 (1965) (cataloguing cases in which the court had previously held that no appeal lies from a consent decree because a party cannot complain of an action that was done with the party’s consent). By agreeing to the consent order, Lee also waived any objection she had to any preceding irregularities, Sayre, 278 Ala. at 483, 179 So.2d at 62 (citing Gunter v. Hinson, 161 Ala. 536, 50 So. 86 (1909)), including any objection that the consent order was reached in contravention of her due-process rights to notice and an opportunity to be heard. See § 41-22-20(k)(l) & (4) (granting reviewing court authority to set aside final agency determination “[i]n violation of constitutional or statutory provisions” and “[mjade upon unlawful procedure”). Lee cannot circumvent her waiver of the right to appeal and her waiver of the right to object to the procedure leading up to the entry of the consent order by filing a petition for a writ of certiorari because a petition for the common-law writ of certiorari may not be used as a substitute for appeal. See Ex parte Capps, 396 So.2d 70, 71 (Ala.1981).

A trial court must dismiss a petition that seeks relief the court cannot grant. See, e.g., Klein v. State Bd. of Educ., 547 So.2d 549, 553 (Ala.Civ.App.1988), writ quashed, Ex parte Klein, 547 So.2d 554 (Ala.1989) (affirming dismissal of declaratory-judgment action because such an action was not the appropriate vehicle for reviewing an agency decision or for seeking to rescind an agency action). Based on our determination that Lee had the right to contest her reprimand and fine, that she waived that right, including the right to appeal, and that she attempted to use the improper vehicle of a petition for the common-law writ of certiorari as a substitute for an appeal, we conclude that the trial court properly dismissed her petition.

AFFIRMED.

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

      . Section 41-22-12(b) requires that, in a contested case, an administrative agency must provide notice of the time, place, and nature of the hearing, a statement of the legal authority and jurisdiction under which the hearing is to be held, a reference to the particular sections of the statutes and rules involved, and a short and plain statement of the matters asserted.

      . Although Lee styled her petition as one- alternatively seeking relief via a writ of mandamus, a writ of prohibition, or other appropriate means, she has argued throughout these proceedings only for certiorari relief. Therefore, we consider Lee to have waived any reliance on any other theory. See Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 164 (Ala.2005).


author: THOMAS, Judge.

text:
    Christopher MYERS v. Jeffery Keith HARRIS and Progressive Specialty Insurance Company.
    2080497.
    Court of Civil Appeals of Alabama.
    Sept. 25, 2009.

      W. Lewis Garrison, Jr., and Christopher B. Hood of Heninger Garrison Davis, LLC, Birmingham, for appellant.
    Carl A. Cole III of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellees.
   THOMAS, Judge.

Chi'istopher Myers appeals from a judgment dismissing his complaint against Jeffery Keith Harris and Progressive Specialty Insurance Company for lack of prosecution following his failure to respond to discovery requests, his failure to obey a discovery order, and his failure to appear at a hearing. We affirm that part of the judgment dismissing the complaint against Progressive, but we reverse that part of the judgment dismissing the complaint against Harris.

On June 16, 2008, Myers sued Harris and Progressive, alleging that Harris had negligently caused a motor-vehicle collision that resulted in personal injuries to Myers and that Progressive, Myers’s underin-sured-motorist insurance carrier, was potentially liable to him for benefits under Myers’s insurance policy. Along with the complaint, Myers served Harris and Progressive with interrogatories. On July 17, 2008, Progressive answered the complaint and served Myers with interrogatories and requests for production. On July 31, 2008, Harris did the same. On August 7, 2008, Progressive answered Myers’s interrogatories. On August 22, 2008, Progressive’s counsel, having received from Myers no response to its discovery requests, wrote a letter to Myers’s counsel requesting a response within 14 days. Myers did not respond to the letter, and, on September 5, 2008, Progressive filed a Rule 37, Ala. R. Civ. P., motion to compel Myers to respond to its discovery requests.

Myers filed nothing in opposition to that motion. The trial court granted the motion on September 10, 2008, ordering Myers to respond to Progressive’s interrogatories and requests for production within 10 days. Myers failed to obey the trial court’s September 10, 2008, order, and, on September 25, 2008, Progressive moved to dismiss Myers’s complaint. Myers filed no response to the motion. On September 29, 2008, the trial court entered an order stating that it would consider Progressive’s motion as one for sanctions, and it set the matter for a hearing on December 18, 2008. Neither Myers nor his counsel appeared at the hearing.

On December 22, 2008, the trial court dismissed Myers’s complaint for his failure to appear and prosecute his action. The same day, Myers filed a Rule 59(e), Ala. R. Civ. P., motion, asserting that he had not appeared at the December 18, 2008, hearing because “for some reason the date did not get scheduled on his calendar”; that he had not engaged in willful, intentional, or contumacious conduct but that “[i]t simply took ... a long time to gather all the information” sought by Progressive’s discovery requests; that he would be greatly prejudiced by the dismissal of his claims against Harris because the statutory limitations period for filing his complaint had expired; and that the trial court should not have dismissed his claim against Harris because only Progressive had moved to compel discovery and to dismiss his complaint.

On December 24, 2008, Myers served responses to the discovery requests by both Progressive and Harris, and the trial court set Myers’s postjudgment motion for a hearing on February 3, 2009. Following that hearing, the trial court denied Myers’s postjudgment motion on February 11, 2009. Myers timely appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

Rule 41(b), Ala. R. Civ. P., governs the dismissal of actions. That rule provides, in pertinent part:

“For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.”

In Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987), the Alabama Supreme Court stated:

“Rule 41(b) has been construed to mean that a trial court has the inherent power to dismiss a cause for want of prosecution or for failure to comply with court rules or orders.... Such a dismissal is generally considered to be within the sound discretion of the trial court and will be reversed on appeal only for an abuse of that discretion.”

In Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala.1989), the supreme court discussed the standard of review applicable to a dismissal under Rule 37, Ala. R. Civ. P., for failure to comply with discovery rules:

“The trial court is vested with broad and considerable discretion in controlling the discovery process and in making rulings on all matters pertaining to discovery, including the authority to make such rulings as are necessary to protect the integrity of the discovery process. Furthermore, deeply rooted in the common law is the court’s power to manage its affairs in order to achieve the orderly and expeditious disposition of cases, including the authority to impose reasonable and appropriate sanctions for failure to comply with discovery.
“The choice of discovery sanctions is within the trial court’s discretion and will not be disturbed on appeal absent gross abuse of discretion, and then only upon a showing that such abuse of discretion resulted in substantial harm to appellant.
“We recognize that the sanction of dismissal is the most severe sanction that a court may apply. Judicial discretion must be carefully exercised to assure that the situation warrants the imposition of such a sanction. Dismissal orders must be carefully scrutinized, and the plaintiffs conduct must mandate dismissal. We have held that ‘willfulness’ on the part of the noncomplying party is a key factor supporting a dismissal. If one party has acted with willful and deliberate disregard of reasonable and necessary requests for the efficient administration of justice, the application of even so stringent a sanction as dismissal is fully justified and should not be disturbed.”

(Citations omitted.)

On appeal, Myers contends that the trial court exceeded the limits of its discretion by dismissing his complaint because, he says, his conduct was merely negligent and not willful. He also contends that, assuming the dismissal was warranted at all, it was authorized only as to the claim against Progressive and not as to the claims against Harris, because Harris had neither moved to compel him to respond to discovery requests nor sought sanctions against him.

Dismissal of the Claim Against Progressive

Rule 37(d), Ala. R. Civ. P., provides the method for dealing with a party’s failure to comply with discovery. That rule states, in pertinent part:

“If a party ... fails ... (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for production or inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule.”

Rule 37(b)(2) provides, in pertinent part, that, if a party fails to obey a discovery order, the court “may make such orders in regard to the failure as are just,” including “(C) [a]n order ... dismissing the action or proceeding or any part thereof.”

We reject Myers’s argument that his failure to respond to Progressive’s discovery requests, his failure to obey a court order directing him to provide discovery responses within 10 days, and his failure to appear at a hearing concerning sanctions for his disobedience to the court order constituted mere negligence, as opposed to willfulness. In two cases similar to the present one, Tri-Shelters, Inc. v. A.G. Gaston Construction Co., 622 So.2d 329 (Ala.1993), and Napier v. McDougal, 601 So.2d 446 (Ala.1992), our supreme court had no trouble finding that the plaintiffs’ conduct was willful and justified the imposition of a default judgment or a dismissal. In TriShelters, the court observed “that it does not require considerable sophistication to understand that the trial court’s order to respond was not merely aspirational.” 622 So.2d at 330. We hold that the trial court was well within its discretion in dismissing Myers’s complaint as to Progressive.

Dismissal of the Claims Against Harris

Alabama appellate courts have not considered the issue presented by Myers’s second argument — that a trial court may not dismiss a plaintiffs claims against a codefendant who has not moved to compel written discovery responses or sought sanctions against the plaintiff for violating a discovery order. A 30-year-old decision by the Supreme Court of Rhode Island noted that

“those state courts which have considered the question have held that a dismissal of a plaintiffs claim against defendants with respect to whom plaintiff is not in breach of obligation or as to defendants who have not sought such relief is improper and unauthorized.”

Harrigan v. Mason & Winograd, Inc., 121 R.I. 209, 214, 397 A.2d 514, 517 (1979). The cases cited by the Rhode Island court for the proposition stated are of questionable validity because, among other things, many of the decisions precede the adoption of rules patterned on the Federal Rules of Civil Procedure.

“In view of the fact that the Alabama Rules of Civil Procedure are patterned after, and are strikingly similar to, the Federal Rules of Civil Procedure, ‘a presumption arises that cases construing the Federal Rules are authority for construction of the Alabama Rules.’ ”

Ex parte Morris, 530 So.2d 785, 787 (Ala.1988) (quoting Assured Investors Life Ins. Co. v. National Union Assocs., Inc., 362 So.2d 228, 231 (Ala.1978), overruled on other grounds, Ex parte Norfolk S. Ry. Co., 897 So.2d 290 (Ala.2004)).

Among the more recent decisions of our sister states whose discovery rules are patterned on the federal rules, we have found very few cases that have considered the precise issue presented by this appeal. We will focus on two representative state-court decisions — Singleton v. Eastern Carriers, Inc., 192 Ga.App. 227, 384 S.E.2d 202 (1989), and Hossainkhail v. Gebrehiwot, 143 Md.App. 716, 795 A.2d 816 (2002).

In Singleton, the plaintiff was injured when his vehicle was struck by a tractor-trailer truck owned by Eastern Carriers, Inc., driven by Cantrell, and insured by United States Fire Insurance Company. The plaintiff sued the owner, the driver, and the insurer. The owner served the plaintiff with written discovery requests, and, when the plaintiff failed to respond, the owner filed a motion to compel. When the plaintiff failed to respond to that motion, the owner moved for sanctions. The trial court dismissed the plaintiffs complaint as to all three defendants, even though two of them, the driver and the insurer, had made no discovery requests of the plaintiff. The Georgia Court of Appeals reversed the dismissal as to the driver and the insurer, holding that,

“ ‘[t]here is no authority for a co-defendant to become the beneficiary of a dismissal under [§ 9-11-37, Ga.Code Ann., which is substantially identical to Rule 37(d), Ala. R. Civ. P.,] merely because of a failure by the plaintiff to comply with the other co-defendant’s discovery actions.’ Johnson v. Martin, 137 Ga.App. 312, 314, 223 S.E.2d 465 (1976). Since the requested discovery was sought only by [the owner], we are constrained to hold that the trial court erred in ordering dismissal as to the other two defendants, [the driver and the insurer].”

Singleton, 192 Ga.App. at 228, 384 S.E.2d at 202.

Commenting on the decision in Singleton, the Georgia Supreme Court stated:

“The rule set forth in Singleton is sound insofar as it pertains to written discovery. Where a party fails to respond to written discovery, a non-requesting party should not be permitted to take advantage of the party’s failure to respond. Why? Because the non-requesting party cannot be said to have been prejudiced by the party’s failure to respond. However, that rationale does not hold true for deposition discovery.”

South Georgia Med. Ctr. v. Washington, 269 Ga. 366, 367, 497 S.E.2d 793, 795 (1998). Although we question the rationale of Singleton, we need not decide whether it is correct because Singleton is distinguishable on the basis that Harris, the co-defendant here, was not a “nonre-questing party,” as the driver and the insurer in Singleton were, but was a “requesting party.” Harris propounded interrogatories and requests for production to Myers, just as Progressive did.

In Hossainkhail v. Gebrehiwot, supra, the plaintiff sued three defendants whose negligence, he alleged, had caused him to be injured in a motor-vehicle accident. All three defendants propounded interrogatories and requests for production to the plaintiff. The plaintiff did not respond to any of the discovery requests, but only two of the defendants filed motions to compel and motions to dismiss. The trial court dismissed the complaint as to all three defendants. The plaintiff appealed, making the same argument that Myers makes here — that the trial court should not have dismissed the case with respect to a defendant who had neither moved to compel nor moved to dismiss. The Court of Special Appeals of Maryland rejected that argument based on Maryland Rule 2-433(b), which, the court explained, correlates to Federal Rule 37(b) with the “notable difference ... that, under Federal Rule 37(b), a court may award sanctions for failure to obey an order compelling discovery in the absence of a motion,” 143 Md. App. at 730 n. 7, 795 A.2d at 824 n. 7. The court stated:

“If one party is a discovering and moving party ..., and the other parties are discovering but not moving parties, a court has the authority to impose sanctions against the offending party with respect to its claims against the discovering but not moving parties, based on the conduct of the offending party, the need for effective relief to the discovering and moving party, and in addition, the failure to obey an order of the court.”

143 Md.App. at 732, 795 A.2d at 825. Applying the holding of the Maryland court in Hossainkhail to the facts of this case would result in a determination that the trial court was authorized to dismiss Myers’s claims against both Progressive, which was a discovering and moving party, and Harris, who was a discovering party.

The same result would obtain under Federal Rule 37, but for a different reason. See Payne v. Exxon Corp., 121 F.3d 503, 509 (9th Cir.1997). In Payne, a group of plaintiffs sued Exxon and VECO, Inc., seeking damages for personal injuries sustained while conducting cleanup of the Exxon Valdez oil spill that occurred off the coast of Alaska in 1989. The plaintiffs failed initially to comply with one discovery request served by VECO and failed repeatedly to comply with several discovery requests served by Exxon. After the plaintiffs failed to answer Exxon’s interrogatories, Exxon moved to compel, the district court granted that motion, and the plaintiffs failed to comply. Exxon then moved to dismiss the complaint; VECO joined in that motion, despite the fact that the plaintiffs had no unmet discovery obligation to VECO. The district court dismissed the action as to both defendants. On appeal to the United States Court of Appeals for the Ninth Circuit, the plaintiffs argued that dismissal of the claims against VECO was improper because the discovery requests that formed the basis of the dismissal motion had been served by Exxon, not VECO, and the plaintiffs were not in default with respect to any discovery obligation owed to VECO. The Ninth Circuit Court of Appeals rejected the plaintiffs’ argument, noting that the plaintiffs’ claims had been dismissed for failure to obey a court order. The court explained that, although only a discovering party has standing to file a motion to compel answers to interrogatories and responses to requests for production under Rule 37(a)(2)(B), Fed.R.Civ.P„ “[t]he sanctions provisions of Rule 37(b) (2) [, Fed. R.Civ.P.,] contain no such standing limitation.” 121 F.3d at 510.

The Ninth Circuit Court of Appeals quoted Rule 37(b)(2), Fed.R.Civ.P., which is identical to Rule 37(b)(2), Ala. R. Civ. P., and which states, in pertinent part:

“ ‘If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
“ ‘(C) An order ... dismissing the action or proceeding or any part thereof....’”

Id. The court concluded that, under Rule 37(b)(2),

“[t]he scope of sanctions for failure to comply with a discovery order is committed to the sound discretion of the district court. If Congress had intended to limit the district court’s dismissal authority to claims against the party who propounded discovery, it would not have chosen such sweeping language. Under Rule 37(b)(2), plaintiffs’ willful and repeated violations of discovery orders gave the district court authority to dismiss the entire ‘action or proceeding.’ ”

Id. Applying the holding in Payne to the facts of the present case would result in a determination that the trial court had the authority under Rule 37, Ala. R. Civ. P., to dismiss Myers’s claims against both Progressive and Harris because Myers violated a court order compelling him to provide discovery.

The present case is different from Payne in two respects. First, in contrast to the Payne plaintiffs, who were not in violation of any discovery obligation with respect to VECO at the time the court dismissed the complaint as to both defendants, Myers was in default with respect to Harris when the trial court dismissed the complaint as to both defendants. Myers had not only failed to answer Progressive’s discovery requests, but he had also failed to respond to Harris’s discovery requests. Second, despite Harris’s contention to the contrary on appeal, the record does not indicate that Harris had joined Progressive’s motion for sanctions against Myers, as VECO had joined Exxon’s motion. The two differences from Payne— that Myers was in default of its discovery obligations as to both Progressive and Harris when the trial court dismissed the case and that Harris did not join Progressive’s motion for sanctions against Myers — are, as the court implied in Payne, unimportant, because Rule 37(b)(2)(C) gives a trial court the inherent authority, even in the absence of a motion, to “dismiss [] the action or proceeding or any part thereof’ when a party fails to obey a discovery order.

Payne stands for the proposition that a federal district court acts within the scope of the authority granted by Rule 37(b)(2), Fed.R.Civ.P., when it dismisses a plaintiffs claims against all defendants, based on the plaintiffs failure to obey a court order compelling discovery requested by only one defendant. Because an Alabama court has the same authority under Rule 37(b)(2), Ala. R. Civ. P., we hold that the trial court’s dismissal of Myers’s claims against Harris was authorized by the rule. However, deciding that Rule 37 authorized, a trial court to dismiss a case does not answer the question whether the trial court exceeded the limits of its discretion in dismissing the case. Whether, under the particular facts of the case, the court properly exercised its discretion in dismissing the case as to all defendants is a separate inquiry. See Payne, 121 F.3d at 510. See also Hossainkhail, 143 Md. App. at 732, 795 A.2d at 826.

We begin that inquiry by recognizing that “the sanction of dismissal is the most severe sanction that a court may apply.” Iverson v. Xpert Tune, Inc., 553 So.2d at 87. That the sanction of dismissal may be warranted as to some, but not all, parties is evidenced by the text of Rule 37(b)(2)(C), Ala. R. Civ. P., itself, which allows a trial court to “dismiss[ ] the action or proceeding or any part thereof” upon a party’s failure to obey a court order to provide or permit discovery. (Emphasis added.) In the present case, we conclude that the trial court improperly exercised its discretion in dismissing the case as to Harris. We reach that conclusion based on several factors.

First, as we noted in outlining the procedural history of this case, Myers propounded interrogatories to both Harris and Progressive. Progressive answered Myers’s interrogatories before it moved to compel Myers’s compliance with its own discovery requests. In contrast, the record does not indicate that Harris ever responded to Myers’s interrogatories. Indeed, the record indicates that from June 16 (when Myers filed the complaint and propounded interrogatories to Harris and Progressive) until December 18 (when the trial court held a hearing on sanctions against Myers pursuant to Progressive’s motion), Harris did nothing either to satisfy his own discovery obligations to Myers or to see that Myers satisfied discovery obligations to him. One could reasonably conclude that Harris was apparently as unconcerned as Myers with moving forward the progress of the litigation and that Harris received an undeserved windfall when the trial court dismissed Myers’s complaint as to him when he himself had flouted the rules of discovery. Cf. Johnson v. Citizens Bank, Inc., 778 So.2d 828, 831 (Ala.Civ.App.2000) (reversing the dismissal of a plaintiffs complaint as a sanction for plaintiffs failure to provide discovery and noting, among other things, that “the defendants themselves delayed discovery when they cancelled depositions for a second time, on the day before the rescheduled depositions were to be held”).

Second, as the Maryland court stated in Hossainkhail, supra, one of the justifications for a trial court’s making the discretionary decision to dismiss a plaintiffs complaint as to a codefendant who had neither moved to compel discovery responses nor moved for sanctions against the plaintiff is to satisfy “the need for effective relief to the discovering and moving party.” 143 Md.App. at 732, 795 A.2d at 825. Progressive, the discovering and moving party here, received effective and complete relief when the trial court dismissed Myers’s uninsured-motorist claim against it. Cf. Ex parte Seaman Timber Co., 850 So.2d 246, 257 (Ala.2002) (granting defendant lumber mill’s petition for the writ of mandamus; holding that the trial court’s dismissal of only plaintiffs’ personal-injury claims against mill owners was an inadequate sanction for plaintiffs’ intentional obstruction of deposition by elderly property owner who subsequently died; stating that plaintiffs’ discovery misconduct prevented mill owners from obtaining evidence relevant to “the entirety of the claims,” most of which related to damages to real property; and concluding that “[t]he discovery sanction imposed must be proportional to, and compensatory of, the discovery abuse committed”). See also Harrigan v. Mason & Winograd, Inc., 121 R.I. at 214, 397 A.2d at 517. In Harrigan, the Rhode Island court reversed a judgment dismissing all three defendants when only one defendant had moved to dismiss the plaintiffs complaint for failure to comply with discovery orders. The court stated:

“In the instant case, Mason & Wino-grad was the only defendant which moved to dismiss the action. The order of dismissal, if construed to dismiss the action against all three defendants, ... orders relief which is not necessary to protect the interests of the moving party

(Emphasis added.)

Third, although the dismissal of Myers’s claims against Harris caused Myers to suffer substantial harm, Harris’s own conduct during the course of the litigation did not indicate that he was prejudiced by Myers’s failure to provide discovery. The lawsuit was only six months old when it was dismissed, and, during that time, Progressive was the only party that responded to any other party’s discovery requests. Harris and Myers each served the other with discovery requests, and each failed to respond. We cannot escape the conclusion that the discovery sanction was not “proportional to, and compensatory of, the discovery abuse committed” by Myers with respect to Harris and was, therefore, overly harsh. Ex parte Seaman Timber Co., 850 So.2d at 257. As a sanction for an employer’s discovery violation in Ex parte Sears, Roebuck & Co., 882 So.2d 326, 328 (Ala.2003), the trial court struck “ ‘[Sears’s] pleadings as they relate to the fraud claims of [the Sears employee].’ ” In deciding whether that sanction was appropriate, the supreme court noted that, in an earlier decision, it had stated that “ ‘[t]he trial court in a discovery-abuse case must impose a sanction proportionate to and compensatory of the particular discovery abuse committed.’ ” 882 So.2d at 328 (quoting Ex parte Seaman Timber Co., 850 So.2d at 258). The court decided that to construe the term “pleadings” to encompass not only Sears’s affirmative defenses but also its general denial of the employee’s allegations would be “overly harsh” because that would mean that Sears conceded the truth of the employee’s fraud allegations, “with the only remaining issue related to fraud being the amount of damages.” Id. Instead, the court held: “More likely, the trial court intended its order to strike one or more of Sears’s affirmative defenses, a sanction more appropriate and ‘proportionate to and compensatory of the particular discovery abuse committed.’ ” Id. (quoting Ex parte Seaman Timber Co., 850 So.2d at 258).

Based on the foregoing authorities, we hold that the trial court exceeded the limits of its discretion in dismissing the case as to Harris. The judgment of the Cull-man Circuit Court is affirmed in part and reversed in part, and the cause is remanded with instructions to set aside the dismissal of Myers’s complaint against Harris and to impose against Myers a more appropriate sanction.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

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

      . In his appellate brief, Harris states that, at the December 18, 2008, hearing, he orally joined Progressive’s motion to dismiss. The record, however, is silent with respect to what occurred at the hearing.


text:
    Ronald SUTTON v. Troy KING, Attorney General, et al.
    2080718.
    Court of Civil Appeals of Alabama.
    Sept. 25, 2009.
    Ronald Sutton, pro se.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Ronald Sutton, an inmate in a state correctional facility, sued Troy King, the attorney general; Richard Allen, the commissioner of the Alabama Department of Corrections; Governor Bob Riley; Billy Mitchem, Jimmy Patrick, and Dorothy Goode, wardens of state correctional facilities; and Lloyd Wallace, Patrick Robinson, David Tully, and Carolyn Golson, employees of the Alabama Department of Corrections, asserting what appears to be a 42 U.S.C. § 1983 claim that he was denied access to the courts due to inadequacies in the prison law library and the limitation on the times he could access the law library. The defendants moved for a summary judgment on his claim, and the trial court, after a hearing at which Sutton was present, entered a judgment in favor of the defendants on December 4, 2008.

On February 13, 2009, Sutton filed a motion that he styled as a Rule 60(a) and 60(b), Ala. R. Civ. P., motion in which he argued that “this Honorable Court should grant this motion [filed pursuant to] RULE 60(A) and (B) for the following reason: [Sutton] states he did not receive this court order until January 21st, 2009.” The trial court denied Sutton’s motion on February 18, 2009, and Sutton appealed to the Alabama Court of Criminal Appeals on March 3, 2009. The Court of Criminal Appeals transferred the appeal to this court, we transferred the appeal to our supreme court because it falls within its jurisdiction, and the supreme court transferred the appeal back to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, Sutton argues only the merits of his original claim, asserting essentially (but poorly and without citation to appropriate supporting authority regarding summary judgments) that the trial court erred in entering a summary judgment in favor of the defendants. However, we cannot consider that argument because Sutton did not appeal from the summary judgment. Instead, he appealed from the denial of his purported Rule 60 motion. Had his motion been a Rule 60 motion, we could have entertained only arguments pertaining to the propriety of the order denying that motion and not the propriety of the underlying summary judgment. See, e.g., Ex parte Tampling Tile Co., 551 So.2d 1072, 1075 (Ala.Civ.App.1989). However, based on his request that the trial court grant relief from the summary judgment on the basis of Sutton’s lack of notice of the entry of the judgment, Sutton’s motion was, in fact, a Rule 77(d), Ala. R. Civ. P., motion seeking an extension of the time to take an appeal. See Lindstrom v. Jones, 603 So.2d 960, 961 (Ala.1992) (“Rule 77(d) provides the exclusive remedy in situations where a party claims lack of notice, and Rule 60(b) cannot be substituted as a method to extend the time within which to appeal.”); Lawrence v. Alabama State Pers. Bd., 910 So.2d 126, 128 (Ala.Civ.App.2004); and Ireland v. Piggly Wiggly Alabama Distrib. Co., 719 So.2d 844, 845 (Ala.Civ.App. 1998).

Unlike the motions made in Lindstrom, Lawrence, and Ireland, Sutton’s motion was timely under Rule 77(d), because it was filed on the 71st day of the 72-day period during which the trial court had jurisdiction to consider a Rule 77(d) motion. See Lindstrom, 603 So.2d at 961 (stating that a Rule 77(d) motion is untimely if “filed more than 72 days (42 days for appeal, plus 30 days as allowed by Rule 77(d))” after the entry of judgment). In addition, unlike the trial courts in Lind-strom, Lawrence, and Ireland, which each granted an untimely Rule 77(d) motion, the trial court in the present case denied Sutton’s timely Rule 77(d) motion. Sutton makes no argument pertaining to the denial of his request for an extension of the time to appeal under Rule 77(d) in his brief on appeal, leaving us with nothing to review. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.’ ” (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988))). Therefore, we affirm the judgment of the trial court denying Sutton’s motion.

AFFIRMED.

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

      . In his complaint, Sutton also mentions briefly that "physical injury has already occurred due to the meat patties that are prepared by inmates and the diet that is served.” It appears that Sutton did not intend to pursue that claim based upon his arguments before the trial court. In any event, the defendants filed a motion for a summary judgment on that claim, which Sutton did not oppose, and the trial court entered a summary judgment for the defendants on that claim.

      . Sutton made other arguments, including arguments related to the history of racial discrimination in the City of Montgomery; however, those arguments are not relevant to his request for relief.

      . Rule 77(d) reads, in pertinent part:
      "Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.”


author: SHAW, Judge.

text:
    Dustin Glenn CONNALLY v. STATE of Alabama.
    CR-05-1229.
    Court of Criminal Appeals of Alabama.
    April 27, 2007.

      Dustin Glenn Connally, pro se.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   SHAW, Judge.

Dustin Glenn Connally appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his January 31, 2005, conviction, entered pursuant to a guilty plea, for manslaughter and his resulting sentence of 17 years’ imprisonment. Connally did not appeal his conviction and sentence.

On December 8, 2005, Connally filed his Rule 32 petition. In his petition, Connally alleged:

(1) that his guilty plea was involuntary because, he said, the trial court did not properly inform him of the minimum and maximum sentences he could receive, and did not ascertain that his plea was free from coercion and/or promises; and
(2) that his trial counsel was ineffective because, he said:
(a) his counsel did not explain to him the elements of murder (the crime with which he was charged), manslaughter (the crime to which he pleaded guilty), or criminally negligent homicide and, thus, he was unable to make an informed decision as to whether to plead guilty to manslaughter, and that, had he been properly informed by his counsel of the various lesser-included offenses of the murder charge, he would not have pleaded guilty to manslaughter;
(b) his counsel did not investigate his competency to stand trial or the possibility of asserting an insanity defense based on intoxication and did not request psychiatric assistance; and
(c) his counsel did not investigate possible defenses, interview possible witnesses, or use the private investigator his family hired.

After receiving a response from the State, the circuit court summarily denied the petition on February 21, 2006, on the ground that Connally’s claims could have been, but were not, raised and addressed on appeal, see Rule 32.2(a)(5), Ala.R.Crim.P., and were bare allegations insufficient to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P.

I.

Initially, we point out that the circuit court erred in finding that Connally’s claims were procedurally barred. It is well settled that “claims of ineffective assistance of counsel and challenges to the voluntariness of a guilty plea may be presented for the first time in a timely filed Rule 32 petition.” Murray v. State, 922 So.2d 961, 965 (Ala.Crim.App.2005). Therefore, Connally’s claims were not barred.

However, with respect to claims (2)(b) and (2)(c), as set out above, we agree with the circuit court that these claims were bare allegations insufficient to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b). Rule 32.3 states that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Rule 32.6(b) states that “[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.” As this Court noted in Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003):

“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitles a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala.R.Crim.P., to present evidence proving those alleged facts.

913 So.2d at 1125.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show that counsel’s assistance was ineffective. A defendant has the burden of showing (1) that his counsel’s performance was deficient and (2) that that deficient performance actually prejudiced the defense. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. “In the context of guilty plea proceedings, a petitioner must show that, but for his counsel’s errors, he would not have pleaded guilty but would have insisted on proceeding to trial.” Burtram v. State, 733 So.2d 921, 922 (Ala. Crim.App.1998). Furthermore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689, 104 S.Ct. 2052.

A.

With respect to Connally’s claim that his trial counsel was ineffective for not investigating his competency to stand trial or the possibility of asserting an insanity defense based on intoxication and for not requesting psychiatric assistance, Connally alleged that he had been “drinking heavily” on the night of the crime (C. 41) and that his aunt had requested that his counsel have Connally evaluated, but that counsel refused “even though counsel knew of the petitioner’s intoxication, history of depression and emotional problems, and learning difficulties throughout his life.” (C. 45.) Connally pleaded no other facts in his petition.

“[NJeither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial.” Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir.1995). “[T]he law is clear that ‘[p]roof of the incompetency of an accused to stand trial involves more than simply showing that the accused has mental problems or psychological difficulties.’ ” Thomas v. State, 766 So.2d 860, 881 (Ala.Crim.App.1998), aff'd, 766 So.2d 975 (Ala.2000), overruled on other grounds by Ex parte Taylor, 10 So.3d 1075 (Ala.2005), quoting Bailey v. State, 421 So.2d 1364, 1366 (Ala.Crim.App.1982). Connally’s bare allegation that he had a history of depression, emotional problems, and learning difficulties was not sufficient to indicate that he was incompetent to stand trial, i.e., that he “lack[ed] sufficient present ability to assist in his ... defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against” him. Rule 11.1, Ala. R.Crim.P.

Likewise, Connally’s bare allegation that he had been “drinking heavily” on the night of the crime was not sufficient to indicate that intoxication would have been a viable defense to the murder charge. As the United States Supreme Court explained in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985):

“We hold, therefore, that the two-part Strickland v. Washington[, 466 U.S. 668 (1984),] test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258 (1973),] and McMann v. Richardson, [397 U.S. 759 (1970) ]. The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
“In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (C.A.7 1984) (‘It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received’). As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the ‘idiosyncrasies of the particular decisionmaker.’ Id., 466 U.S., at 695.”

474 U.S. at 370-71, 106 S.Ct. 681.

“To negate the specific intent required for a murder conviction, the degree of the accused’s intoxication must amount to insanity.” Davis v. State, 740 So.2d 1115, 1121 (Ala.Crim.App.1998). Connally failed to allege how much he had to drink the night of the crime, how long before the crime he had been drinking, or any other facts indicating that his alleged intoxication amounted to insanity. In addition, Connally failed to allege that, but for counsel’s alleged failure to investigate his intoxication, he would not have pleaded guilty, but would have insisted on going to trial. See, e.g., Jackson v. State, 616 So.2d 376, 378 (Ala.Crim.App.1993) (“Jackson did not meet his burden [of pleading] because he failed to plead that there is a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.”); Hatcher v. State, 570 So.2d 1273, 1274 (Ala.Crim. App.1990) (“Hatcher’s other allegations of counsel’s ineffectiveness appear to be insufficiently alleged or without merit. More particularly, Hatcher failed to allege the ‘prejudice’ requirement of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by alleging that, had counsel been effective, he would have pleaded not guilty and insisted on going to trial.”); Harris v. State, 509 So.2d 258, 258 (Ala.Crim.App.1987) (“Appellant failed to satisfy the ‘prejudice’ requirement of Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), for he did not allege in his petition that, had counsel been effective, he would have pleaded not guilty and insisted on going to trial.”); and Smith v. State, 488 So.2d 19, 19 (Ala.Crim.App.1986) (“The trial court did not err in denying Smith’s petition without an evi-dentiary hearing because his allegations were insufficient; Smith failed to satisfy the ‘prejudice’ requirement of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for he did not allege in his petition that, had counsel been effective, he would have pleaded not guilty and insisted on going to trial.”).

Therefore, Connally failed to plead sufficient facts indicating that his counsel was ineffective in this regard.

B.

With respect to Connally’s claim that his trial counsel was ineffective for not investigating possible defenses, interviewing possible witnesses, or using the private investigator his family had hired, Connally failed to allege what possible defenses his counsel did not investigate, what possible witnesses his counsel did not interview or what those witnesses would have said had they been interviewed, or what information his family’s private investigator would have found had his services been used. Clearly then, Connally failed to plead sufficient facts indicating that his counsel was ineffective in this regard.

II.

With respect to claims (1) and (2)(a), however, we conclude that Connally pleaded sufficient facts in his petition regarding these claims to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b).

Connally alleged in his petition that his guilty plea was involuntary because, he said, the trial court did not properly advise him of the minimum and maximum sentences that he could receive for his manslaughter conviction and did not ascertain that his plea was free from coercion and/or promises. Connally argued that although he signed an Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), form before entering his plea, the trial court did not determine that he had read and understood the form before accepting his plea. See, e.g., Boglin v. State, 840 So.2d 926 (Ala.Crim.App.2002) (holding that Boglin’s plea was involuntary when the trial court ascertained that Boglin had signed the Ireland form, but failed to ascertain that Boglin had read and understood the form or to engage in any colloquy with Boglin to show that his plea was voluntary). Con-nally also argued that other than asking if he wanted to enter a plea, the trial court never ascertained that his plea was free from coercion by asking him if he had been promised anything in exchange for his plea or threatened. According to Connally, had the trial court asked him these questions, he would have informed the court that his trial counsel had originally told him that the plea agreement called for a 15-year sentence; that just before the plea proceeding counsel told him that the agreement had been changed to 17 years; and that he told his counsel that he wanted to go to trial instead of pleading guilty in exchange for a 17-year sentence, but counsel “got an attitude” and effectively forced him to plead guilty. (C. 36.)

These facts were sufficient to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b), and they were unrefuted by the State. Therefore, they must be accepted as true. See Bates v. State, 620 So.2d 745, 746 (Ala.Crim.App.1992) (“ ‘When the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true.’ ”), quoting Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991). Moreover, the Rule 32 record does not contain a transcript of the guilty-plea colloquy and because Connally did not appeal his conviction, that transcript is not otherwise available for this Court’s review. Although the Rule 32 record does contain the case action summary sheet, on which there is a typed notation indicating that Connally was advised of his rights and voluntarily entered his plea, a notation on the case action summary sheet is not, by itself, sufficient to refute a sufficiently pleaded claim challenging the voluntariness of a guilty plea.

Connally also alleged in his petition that his trial counsel was ineffective for not explaining to him the elements of murder (the crime with which he was charged), manslaughter (the crime to which he pleaded guilty), or criminally negligent homicide. He argues that absent any information regarding the charged crime and its lesser-included offenses, he was unable to make an informed decision as to whether to plead guilty to manslaughter. He also argues that had he been informed of the elements of these crimes, based on the facts in his case, he would not have pleaded guilty to manslaughter, but would have insisted on going to trial in hopes of obtaining an acquittal or a conviction for criminally negligent homicide.

Connally pleaded in his petition specific facts regarding the crime and his participation in it — he alleged that playful banter between him and his friend, Chad Boy-ette, escalated into a fight; that during the fight the victim, David Bibby, knocked him to the floor; that he reacted to being knocked down by hitting Bibby in the face four times; that he did not intend to hurt or kill Bibby; and that he did not perceive the risk that he would kill Bibby by punching him in the face. These facts indicate that, had he gone to trial, Connally may have been entitled to a jury instruction on criminally negligent homicide, see Koppersmith v. State, 742 So.2d 206 (Ala.Crim.App.1999), and Woods v. State, 485 So.2d 1243 (Ala.Crim.App.1986), and were sufficient to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b). Moreover, these facts were unrefuted by the State and, thus, as noted above, must be accepted as true.

Based on the foregoing, we must remand this case for the circuit court to allow Connally an opportunity to present evidence to support his allegations (1) that his guilty plea was involuntary because, he said, the trial court did not properly advise him of the minimum and maximum sentences that he could receive for his manslaughter conviction and did not ascertain that his plea was free from coercion and/or promises, and (2) that his trial counsel was ineffective for not explaining to him the elements of murder (the crime with which he was charged), manslaughter (the crime to which he pleaded guilty), or criminally negligent homicide. On remand, the court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala.R.Crim.P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Connally’s claims, and may grant whatever relief it deems necessary. Due return shall be filed within 42 days of the date of this opinion, and shall include a transcript of the guilty-plea colloquy, the circuit court’s written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received or relied on by the court in making its findings.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.

       Note from the reporter of decisions: On October 2, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion.